James W. Hardesty

The case concerned a challenge by the Nevada Self-Insurers Association to a workers’ compensation regulation, NAC 616C.476, adopted by the Division of Industrial Relations (DIR). The Association argued that the regulation violated statutes such as NRS 616C.110(2)(c) and NRS 616C.490(5) by permitting physicians to factor in an injured worker’s ability to perform activities of daily living when rating permanent partial disability from spinal injuries, rather than limiting consideration solely to physical impairment. The district court agreed and granted declaratory relief. The Nevada Supreme Court reversed, holding that the regulation is consistent with the Legislature’s adoption of the fifth edition of the AMA Guides, which explicitly incorporates activities of daily living into spinal impairment ratings after an objective injury is identified. The court reasoned that this approach does not improperly introduce subjective pain or non-physical factors prohibited by statute.

labor & employmentbusiness & regulatory

The case involved Avram Nika's post-conviction habeas petition challenging his 1995 first-degree murder conviction and death sentence for killing a motorist who stopped to help him after his car broke down on a Nevada highway. Nika argued that his trial and appellate counsel were ineffective for not challenging a jury instruction on premeditation, known as the Kazalyn instruction, in light of the court's later decision in Byford v. State. The Nevada Supreme Court held that Byford announced a change in the law regarding the mens rea for first-degree murder that applies only prospectively to convictions that were not yet final when Byford was decided, and because Nika's conviction was already final, the instruction was correct at the time of his trial. The court therefore concluded that counsel were not ineffective and affirmed the district court's dismissal of the petition, rejecting Nika's other claims as well.

criminal lawprocedure

This case concerned whether subsequent purchasers of homes in a Nevada community could pursue constructional defect claims under NRS Chapter 40 for defects in residences that had been occupied by prior owners. The petitioners sought a writ of mandamus after the district court denied their motion for partial summary judgment on claims related to approximately 700 homes, arguing those homes were not "new residences" based on a prior definition from Westpark Owners’ Ass’n v. District Court. The Nevada Supreme Court denied the petition, holding that the definition of “new residence” as a product of original construction unoccupied until its original sale does not bar subsequent owners from bringing such claims. The court reasoned that limiting remedies to first purchasers would undermine the statute's purposes of providing expansive remedies to homeowners and protecting developers, while causing unequal treatment among homeowners, provided the action is timely under the statute of repose.

propertytorts & liabilityprocedure

In this case, a judgment creditor who had domesticated a California arbitration award against a defunct Nevada corporation moved to amend the Nevada judgment to add the corporation's president as an alter ego, making him personally liable. The president had never been named or served in the original California or Nevada proceedings. The Nevada Supreme Court held that a nonparty cannot be added to a final judgment via a post-judgment motion under the alter ego doctrine because that procedure denies the nonparty due process. Instead, the creditor must bring an independent action against the alleged alter ego, providing formal notice, service of process, and an opportunity to be heard. The court therefore vacated the district court's amended judgment and clarified that its earlier decision in McCleary Cattle Co. v. Sewell no longer permits the motion-to-amend approach.

procedurecivil rights

In Summers v. State, the appellant was convicted of first-degree murder with a deadly weapon, attempted murder, and assault after a shooting during a drug-related dispute in a Las Vegas motel room. On appeal, the Nevada Supreme Court primarily addressed whether the Sixth Amendment Confrontation Clause and Crawford v. Washington apply to evidence admitted in the penalty phase of a capital trial, such as victim-impact testimony and records of prior criminal history. The court concluded that these rights do not extend to capital penalty hearings, which are distinct from the guilt phase, and that the evidence remained admissible if reliable and relevant. It therefore affirmed the conviction and sentence.

criminal lawprocedure

In Washoe Medical Center v. District Court, a plaintiff filed a medical malpractice complaint against a hospital and physician one day before the statute of limitations expired but without the expert affidavit required by NRS 41A.071. After the defendants moved to dismiss, the plaintiff filed an amended complaint attaching the affidavit, and the district court denied the motion to dismiss on the ground that NRCP 15(a) permitted amendment as of right. The Nevada Supreme Court granted the hospital's petition for a writ of mandamus, concluding that a complaint filed without the required affidavit is void ab initio and therefore cannot be amended. The court reasoned that because the defective complaint has no legal existence, the amendment rule does not apply and does not conflict with the statute's mandatory dismissal provision.

procedurehealthcaretorts & liability

Donte Johnson was convicted of four counts of first-degree murder and related crimes stemming from a 1998 home invasion robbery in Las Vegas in which four victims were bound with duct tape and shot execution-style. After his initial death sentence was vacated on direct appeal because a three-judge panel violated Ring v. Arizona, a new jury penalty hearing was conducted in 2005 and bifurcated into death-eligibility and selection phases, resulting in another death sentence. On appeal, Johnson argued among other things that the Confrontation Clause and Crawford v. Washington should apply to the selection phase. The Nevada Supreme Court held that the Confrontation Clause does not apply to the selection phase under its precedent in Summers v. State, that the other claims raised did not require reversal, and therefore affirmed the death sentence.

criminal lawprocedure

This case involved four consolidated appeals from personal injury trials arising from automobile accidents, in which the defendants' attorney delivered substantially similar closing arguments that the plaintiffs challenged as misconduct. The Nevada Supreme Court held that the arguments improperly urged jurors to disregard the law and evidence by characterizing the suits as frivolous, a waste of taxpayer money, and damaging to the legal profession. The court revised its standards for evaluating new trial motions based on attorney misconduct, distinguishing between objected-to misconduct (requiring a showing that any harm could not be cured by objection and admonition) and unobjected-to misconduct (requiring plain error that likely changed the verdict), and requiring express factual findings by district courts. Applying these rules, the court affirmed new trials in two cases, vacated denials in the other two and remanded for reconsideration, imposed monetary sanctions on the attorney and clients, and referred the attorney to the state bar for discipline.

proceduretorts & liability

The case involved Marlo Thomas's appeal of his death sentences for two counts of first-degree murder with a deadly weapon, along with related convictions for robbery, burglary, kidnapping, and conspiracy, stemming from a 1990s robbery at a steakhouse where two employees were stabbed to death. After an initial conviction and sentence were partially reversed on post-conviction review due to ineffective assistance of counsel regarding a jury instruction, the district court held a new bifurcated penalty hearing where the jury found four aggravating circumstances, seven mitigating circumstances, and that the aggravators outweighed the mitigators before imposing death. The Nevada Supreme Court reviewed the sentence and various evidentiary and constitutional claims, including challenges to the admission of preliminary hearing testimony under the Confrontation Clause, juvenile records, and other prior bad acts evidence. The court affirmed the death sentences, concluding that the proceedings complied with statutory and constitutional requirements and that any errors were harmless.

criminal lawprocedure

This case involved seventeen taxpayers in Washoe County, Nevada, who challenged the county assessor's use of four disputed methodologies—view adjustments, rock classifications, paired sales analysis, and teardown valuations—during a 2002 mass reappraisal of their Lake Tahoe-area properties for the 2003-2004 tax year. The taxpayers argued these methods were unauthorized and led to unequal assessments, while the assessor and state board defended them as standard practices under the sales comparison approach. The Nevada Supreme Court held that NRS 361.260(7) did not authorize the assessor to adopt valuation methods or standards not approved by the Nevada Tax Commission. The court reasoned that such unapproved methods violated the Nevada Constitution's mandate for uniform and equal property taxation, requiring reversal of the assessments.

taxesproperty

The case involved a divorce proceeding in which the assigned district judge disqualified the petitioner's newly retained attorney because the attorney appeared on the judge's recusal list, stemming from an earlier unrelated interaction that the judge viewed as a request for a favor. The Nevada Supreme Court considered whether recusal lists may be used for case assignments and how they interact with a judge's duty to hear cases versus a party's right to select counsel. The court decided that recusal lists are allowed when based on objective grounds under the Nevada Code of Judicial Conduct, but a client's choice of attorney generally prevails over a judge's duty to sit unless the lawyer was retained specifically to disqualify the judge and disrupt the calendar. Applying that standard, the court concluded the attorney's placement on the list was improper and the disqualification was erroneous, and therefore granted the petition for a writ of mandamus.

family lawprocedure

This case involved a dispute over the enforceability of a contingency fee agreement between a law firm and a client in a domestic relations matter arising from proceedings in the State Bar of Nevada's fee dispute arbitration program. The client challenged the agreement under SCR 155(4)(a), a professional conduct rule that prohibits contingency fees if payment or amount depends on the amount of alimony, support, or property settlement in lieu thereof. The Supreme Court of Nevada granted the client's petition for a writ of mandamus and dismissed the firm's petition, holding the agreement unenforceable because the fee was necessarily contingent in part on alimony through modification of a property settlement agreement that included both community property and alimony terms. The court reasoned from the plain language of the rule that not every domestic relations contingency fee violates it, but this one did due to the integrated nature of the settlement. The parties properly sought mandamus as no appeal lies from the district court's de novo review of the arbitration award.

family lawprocedurebusiness & regulatory

This case concerned Nevada Power Company's appeal from a Public Utilities Commission of Nevada (PUCN) order that permitted the utility to recover only about half of roughly $922 million in energy purchase costs incurred between 1999 and 2001, following a period of deregulation, rate freezes, and the western energy crisis. The Nevada Supreme Court held that a rebuttable presumption of prudence applies to such deferred energy accounting applications and that the PUCN had failed to apply it correctly. Nevertheless, the court concluded that the PUCN's allowances and most disallowances were supported by substantial evidence in the record, except for the disallowance tied to Nevada Power's failure to execute a Merrill Lynch-type transaction. The court therefore affirmed the district court's denial of judicial review in all respects except that single disallowance and remanded the matter for implementation of a new rate schedule allowing recovery of those funds.

business & regulatory

This case involved Michael Cripps, charged with felony failure to pay child support, who moved to withdraw his nolo contendere plea on grounds that the district judge coerced it by privately opining on the evidence and urging a guilty plea to secure probation. The Nevada Supreme Court overruled its earlier decision in Standley v. Warden, which had allowed limited judicial involvement in plea negotiations, and instead adopted stricter standards to limit such participation because of its coercive potential. The new standards apply only prospectively to future cases; applying the prior Standley rule to the facts here, the court affirmed the conviction and sentence. The core reasoning focused on protecting the voluntariness of pleas and the appearance of judicial neutrality in the plea process.

criminal lawprocedure

This case involves shareholders of AMERCO filing derivative suits on behalf of the company against its directors and related SAC entities, alleging improper and unfair transactions that harmed AMERCO shareholders, without first making a pre-suit demand on the board for corrective action. The district court dismissed the complaints for insufficiently alleging that a demand would be futile. The Nevada Supreme Court clarified the demand-futility standards, holding that when the challenged action was a board business decision, shareholders must plead particularized facts raising reasonable doubt as to the directors' independence or business judgment rule protection, but when the board did not affirmatively act, futility requires showing that at least half the directors could not act impartially. The court reversed the dismissals and remanded for further proceedings under the clarified test.

business & regulatoryprocedure

The case concerned Clark County's height-restriction ordinances that limited development on Steve Sisolak's property near McCarran International Airport, placing it in zones that capped structures at 41 to 51 feet above ground level after runway expansions. Sisolak sued, arguing the rules effected a taking of his airspace rights, and the district court agreed it was a per se taking; a jury awarded $6.5 million in damages plus fees and interest. On appeal, the Nevada Supreme Court affirmed, holding that the ordinances authorized airplanes to make a permanent physical invasion of the landowner's airspace and therefore constituted a Loretto-type regulatory per se taking that required just compensation under the Fifth Amendment. The court rejected arguments that the restrictions were merely regulatory or that prior easements eliminated the claim, focusing on the direct and ongoing intrusion into private property.

propertybusiness & regulatory

This case arose from a 2002 car accident in Nevada in which Arizona resident Heather Simmons was rendered a quadriplegic after her GM vehicle overturned on diesel fuel spilled on the highway; she sued GM (a Delaware corporation headquartered in Michigan) and an Arizona dealer for negligence, strict liability, and related claims tied to the vehicle's roof assembly. The defendants moved to dismiss for forum non conveniens or to apply Arizona law, but the district court denied dismissal and ruled that Nevada law would govern. In an original writ proceeding, the Nevada Supreme Court clarified the state's choice-of-law rules for tort actions, holding that the most significant relationship test of Restatement (Second) of Conflict of Laws §145 applies unless a more specific Restatement section controls, and abandoned the prior "overwhelming interest" test from Motenko v. MGM Dist., Inc. The court reasoned that the significant-relationship approach better advances uniformity and predictability than the hybrid test previously used or the older vested-rights rule that focused solely on the place of injury.

proceduretorts & liability

In this breach of contract case, State Drywall sued Rhodes Design & Development for unpaid amounts on insulation and drywall work after Rhodes failed to pay the final invoice due in January 1999. While the suit was pending, Rhodes made two partial payments, then offered a $180,000 judgment inclusive of costs, which State Drywall rejected; the district court later awarded State Drywall $106,502.01 plus prejudgment interest calculated under NRS 99.040(1) but denied interest on the interim payments and shifted costs to State Drywall after comparing the offer to the judgment. The Nevada Supreme Court reversed on the interest issue, holding that a plaintiff is entitled to prejudgment interest on contract payments made during litigation even when those amounts are not included in the judgment principal. The court further ruled that pre-offer prejudgment interest on such payments must be added to the judgment when determining whether the offer was more favorable for purposes of cost-shifting under NRCP 68(g) and NRS 17.115(5).

business & regulatoryprocedure

In Cheung v. District Court, petitioner Amy Cheung filed a small claims action in justice court against Amber Schlauder for $5,000 in medical expenses from a car accident; Schlauder sought removal or a jury trial on constitutional grounds, but the justice court denied it and entered judgment for Cheung. The district court reversed and ordered a jury trial, prompting Cheung to petition the Nevada Supreme Court for a writ of mandamus. The Supreme Court granted the writ, holding that Nevada's Constitution does not guarantee a jury trial in small claims actions. The court reasoned that the jury right is defined by English common law as modified by 1864 territorial statutes, under which small claims proceedings were informal bench trials without juries or removal options, and no Nevada statutes or rules authorize juries in this setting.

procedurecivil rights

In Shuette v. Beazer Homes Holdings Corp., homeowners sued a builder for construction defects in single-family homes, including expansive soil damage to foundations and over thirty other issues, seeking class certification on behalf of current owners under theories of warranty breach and negligence. The Nevada Supreme Court reversed the district court's class certification order, concluding that such cases generally cannot satisfy NRCP 23 requirements. The core reasoning was that single-family residence defect claims and defenses, such as comparative negligence tied to individual lot conditions, owner maintenance, and varying construction quality across homes, are too diverse and require individualized proof. The court also addressed related issues, holding that attorney fees are damages determined by the court and that prejudgment interest applies to repair costs regardless of whether they have been expended.

procedurepropertytorts & liability