53 results for 'court:"Nevada Court of Appeals"'.
J. Gibbons finds the juvenile court improperly adjudicated the subject a delinquent child. The minors says the hearing master did not provide him notice of information, as statutorily required. Though the statute outlines all those in authority over the child's welfare, the phrase, "any other person concerned" is ambiguous as to whether or not the child must also receive notice. Though related statutes indicate the child need not receive notice, the mother of the child also did not receive notice. Relief is warranted because the related statute says the juvenile court should consider any objections and the mother was not afforded the opportunity to object. Vacated.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: September 11, 2024, Case #: 87388-COA, Categories: Due Process, Juvenile Law
J. Gibbons finds the district court improperly denied defendant post-conviction habeas relief. Defendant says his counsel was ineffective for failing to challenge certain lewdness with a minor-related charges. He makes specific factual allegations that are supported by the record and would entitle him to relief if true. The court erroneously denied these claims without an evidentiary hearing. Reversed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: September 11, 2024, Case #: 87038-COA, Categories: Habeas, Sex Offender, Child Victims
J. Gibbons finds the district court improperly granted the mother's motion for summary judgment. The father filed the tort action alleging intentional infliction of emotional distress after the mother called the police, accusing him of inappropriate behavior with their daughter. The police investigation was ended without any action being taken and the father says he suffered multiple psychological, emotional and physical ailments, and symptoms. The court entered summary judgment after several discovery hearings, disputes and extensions. The father also attempted to file an untimely expert witness disclosure before the court decided the case on the pleadings. The district court failed to acknowledge the father's untimely expert disclosure and did not rule on his motion for leave to admit the expert's report. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: September 9, 2024, Case #: 86591-COA, Categories: Tort, Emotional Distress, Experts
J. Bulla finds the trial court improperly denied the trauma nurse's motion for a new trial. The nurse brought personal injury claims against the trauma doctor and others after the doctor dropped a patient transport board on her foot while working the busy ER. The nurse's foot was crushed, requiring multiple surgeries. The nurse timely moved for a new trial after the jury found in favor of the doctor, arguing the jury ignored negligence instructions and the court improperly restricted her use of the doctor's videotaped deposition, among other errors and irregularities. Multiple, minor violations are true, and the order must be reversed due to cumulative error. Reversed.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: August 29, 2024, Case #: 85087-COA, Categories: Tort, Negligence, Due Process
J. Gibbons finds the district court properly denied the hotel employee's petition for judicial review of her workers' compensation claim arising from a workplace fall that allegedly injured her head. Medical records show she has a history of migraines with photophobia, while multiple CT scans of her brain were negative for intracranial abnormality, traumatic injury, and bleeding. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: August 23, 2024, Case #: 87368-COA, Categories: Evidence, Health Care, Workers' Compensation
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J. Westbrook denies the mother's petition for an extraordinary writ challenging the district court's assumption of jurisdiction in this divorce action involving child custody. The mother says Nevada is not the children's home state for Uniform Child Custody Jurisdiction and Enforcement Act purposes because she removed them four days before the 6-month residency period. Under the totality of circumstances, the court properly found Nevada has jurisdiction regardless of any temporary absence of the children from the state.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: August 15, 2024, Case #: 88187-COA , Categories: Family Law, Jurisdiction, Guardianship
J. Gibbons finds the district court properly dismissed the inmate's complaint, in which he claims the holding facility failed to timely provide him with medical care for his injured hand. The inmate's allegations were vague and conclusory, failing to establish how the facility took any action involving a constitutional deprivation. He failed to allege the facility made intentional decisions to not provide medical care. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 31, 2024, Case #: 87088-COA, Categories: Constitution, Medical Malpractice, Prisoners' Rights
[Consolidated.] J. Gibbons finds the county court properly found in favor of the attorney and business purchaser on his business disparagement claims. The attorney purchased the divorced father's advocacy group and the seller started a "rogue website" that allegedly published defaming statements with the intent to harm. Though the court improperly found there was any discussion rising to a public controversy supporting defamation, the attorney did present evidence of false statements concerning the cost and quality of his services. The statements support an actionable claim for business disparagement. Attorney fees were improperly awarded. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 31, 2024, Case #: 85660-COA, Categories: Defamation, Business Practices, Attorney Fees
J. Gibbons finds the district court improperly denied the pandemic unemployment assistance applicant's petitions for judicial review. The self-employed applicant's claim was denied for failure to produce identifying documents and to explain how he was affected by Covid-19. The employment security division then found the applicant was liable for overpayments. The applicant submitted an affidavit from his friend saying the applicant had just started an accounting business, but his limited clientele stopped requesting services during the pandemic. The appeals referee's finding that the applicant failed to produce any documentation was not supported by substantial evidence, as the applicant did present the affidavit from his friend. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 30, 2024, Case #: 85993-COA, Categories: Administrative Law, Debt Collection, Covid-19
J. Gibbons finds the district court improperly dismissed the inmate's civil rights action in which he claims the prison interfered with his access to the courts. The district court dismissed the case without the inmate being present, depriving him the opportunity to be heard regarding his vexatious litigant designation and whether it applied to the current case. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 12, 2024, Case #: 87372-COA, Categories: Civil Rights, Due Process, Prisoners' Rights
J. Gibbons finds the trial court properly denied the property owner's motion for summary judgment, ruling in favor of the tenant. The owner acquired the property rented by the tenant and entered into a new lease. For 6 years, the owner accepted the tenant's consistently late rent payments without penalty or complaint. The owner is not entitled to retroactive late fees because the parties had established a mutual course of conduct. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 11, 2024, Case #: 85343-COA, Categories: Landlord Tenant, Contract
J. Westbrook finds the trial court improperly convicted defendant for battery (strangulation) constituting domestic violence, false imprisonment, and pandering. Defendant assaulted his then-girlfriend for taking too long during a prostitution "date." The trial court violated defendant's right to a public trial by excluding his family from the courtroom during the victim's testimony based on her nonspecific "concern" about their presence. The court's exclusion of the family did not comply with a cited case law test for excluding members of the public from a criminal trial. Reversed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: June 27, 2024, Case #: 86560-COA, Categories: Fair Trial, Prostitution, Battery
J. Gibbons finds the district court improperly denied the mother's motion for relocation in the child custody action. The mother moved to relocate over concerns of safety and well-being, saying the parents have struggled with coparenting and accusing the father of domestic violence in the presence of the children. Although the court denied the motion, saying the mother did not establish the move was in the children's best interest, it failed to conduct an evidentiary hearing. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 26, 2024, Case #: 86370-COA, Categories: Evidence, Family Law, Guardianship
J. Gibbons finds the trial court properly convicted defendant for unlawful dissemination of intimate images of another person. Defendant was charged after an intimate partner sought a protection order for sexual assault against him after she tried to end the relationship. The couple were involved with other people and defendant retaliated by sending intimate images to the other partners. Though defendant said that he sent the images to prove the affair was consensual, he did acknowledge that he sent them before the protection order was filed, while also having previously threatened to do it. The jury could reasonably infer that the intimate partner did not consent to her images being sent. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 20, 2024, Case #: 87378-COA, Categories: Evidence, Sex Offender
J. Gibbons finds the district court properly denied defendant's postconviction petition for genetic marker analysis. Though defendant seeks to compare his DNA samples to that of the victim, there is no evidence in state possession to test. Defendant confessed prior to indictment and there is no reasonable possibility he would not have been prosecuted or convicted based on genetic testing. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 20, 2024, Case #: 87147-COA, Categories: Dna, Evidence
J. Gibbons finds the district court improperly granted the law firm's motion to adjudicate its lien for attorney fees. Retained for a personal injury/wrongful death matter, the firm signed a retainer with the client agreeing that she not terminate or substitute the firm. The client requested the case be transferred to a practice begun by a former employee of the original firm, violating the agreement. The original firm sought nearly $1 million in fees. The court did not properly evaluate whether rates were reasonable according to case law factors involving the lawyer's skill and actual work done. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 20, 2024, Case #: 86710-COA, Categories: Wrongful Death, Attorney Fees
J. Gibbons finds the trial court properly convicted defendant for two counts of intimidating a public officer. The Marine Corp veteran defendant, diagnosed with post-traumatic stress disorder, posted internet podcasts containing threats directed at the county's DA and County Sheriff. Defendant says his constitutional protection against unreasonable search was violated because a search of his phone took more than ten days. The appeals court maintains the precedent of other courts in interpreting the relevant statute as referring to a search period beginning when an item is seized rather than when the warrant is issued. The jury was properly instructed as to defendant's subjective intent to communicate a threat, and sufficient evidence supports the court's compelling of a psychological exam. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 20, 2024, Case #: 86911-COA, Categories: Search, Threats, Jury Instructions
J. Gibbons finds the district court properly distributed the property and modified alimony in this post-divorce decree. The ex-wife says the ex-husband did not provide her with the tax credit information or the monthly alimony payment or his income information. Evidence shows the husband's income increased substantially, supporting the modification. Though the husband says the tax credits have zero value, evidence shows otherwise. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 17, 2024, Case #: 87017-CoA, Categories: Family Law, Tax, Contract
J. Gibbons finds the district court properly denied the applicant's petition for judicial review in this pandemic unemployment assistance matter. The self-employed "gig worker" claimed to experience a significant decrease in employment due to the pandemic, though his application for assistance was denied for failure to demonstrate he was unemployed for pandemic-related reasons. The applicant does not show he was engaged in bartending, failing to satisfy CARES Act document production requirement. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 17, 2024, Case #: 86369-CoA, Categories: Employment, Discovery, Covid-19
J. Gibbons finds the trial court properly found in favor of the property purchaser on a contractor's claims the buyer breached the verbal partnership agreement to purchase and develop commercial properties for sale, with the contractor sharing profits, as well as being paid a $150,000 developer fee for each property. The contractor admitted to signing a nondisclosure agreement that said the parties were contemplating an agreement with no existing agreement. The contractor also admits he did not read the NDA. Substantial evidence supports the jury verdict. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: June 17, 2024, Case #: 86226-CoA, Categories: Evidence, Property, Contract
J. Gibbons finds the trial court properly convicted defendant for sexual assault. Defendant says his trial counsel was ineffective for failing to present exculpatory evidence a partial mixture of semen and blood found on his penis was inconclusive. Counsel stated the police never swabbed defendant's penis and the court correctly found defendant's testimony was not credible. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: May 31, 2024, Case #: 86734-CoA, Categories: Evidence, Sex Offender, Experts
J. Gibbons finds the district court properly removed the guardian of the person and estate of her father. After a sibling alleged the guardian was intentionally isolating their father and depleting his assets, the court found the guardian had drained her father's retirement account, comingled funds, accepted loans, and made gifts without court approval or documentation. A financial forensic specialist testified the guardian was evasive and resistant during the investigation and did not keep records or receipts. Sufficient evidence supports the removal and imposing of sanctions. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: May 31, 2024, Case #: 85828-CoA, Categories: Fiduciary Duty, Guardianship
J. Gibbons finds the district court properly denied the postconviction petition for habeas corpus. Convicted for murder, defendant says the court incorrectly denied his claims for ineffective assistance arising from trial counsel's failure to present mental health evidence. The record shows defendant was resistant to psychiatric evaluation during trial, and he presented no evidence he suffers from depression, anxiety, or posttraumatic stress disorder. He also presented no evidence that there might have been a different outcome if mental health evidence had been presented. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: May 31, 2024, Case #: 86613-CoA, Categories: Habeas, Ineffective Assistance, Murder
J. Gibbons finds the district court properly divided property, calculated alimony and allowed the attorney's lien for fees in this divorce decree. The ex-wife filed for divorce after the ex-husband, she alleges, lost all community assets trading futures. The wife abandoned her marital waste claim, seeking to enforce an oral agreement that she receive the husband's interest in the residence. The court correctly allowed for the lien due to the wife's pursuit of the frivolous marital waste claim. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: May 3, 2024, Case #: 84255-COA, Categories: Family Law, Property
J. Bulla finds the district court improperly dismissed the professional negligence action. The spinal surgery patient experienced pain, numbness and paralysis in his left leg after surgery, filing suit more than two years after an MRI showed the presence of a hematoma. Irrefutable evidence does not support the patient was placed on inquiry notice at this time. The patient's degree of diligence was diminished while under the surgeon's care, being continually reassured his condition would improve. Reversed.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: April 25, 2024, Case #: 86005-COA, Categories: Negligence, Medical Malpractice
J. Gibbons finds the district court improperly denied the "gig" worker's petition for review of his liability for overpayment of pandemic assistance benefits. The appeals referee made no findings demonstrating he considered the nuances of the gig economy or whether a diminution of usual services occurred due to the pandemic. The referee improperly relied on the worker's testimony he had no job offers retracted due to the pandemic to conclude he was an unreliable witness. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 24, 2024, Case #: 85942-COA, Categories: Employment, Evidence, Covid-19
J. Bulla finds the trial court improperly convicted defendant for misdemeanor domestic battery. Defendant and his wife were involved in an incident after he discovered she had an affair. Defendant denied strangling his wife, though he admitted to carrying her against her will in a "bear hug" after she had run off into the desert threatening suicide. The jury could have found that defendant's "bear hug'' was necessary, being he is a trained EMT, and the couple lived in a remote location. He was entitled to assert a necessity defense in connection with that act. Reversed.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: April 22, 2024, Case #: 86040-C0A, Categories: Evidence, Battery, Domestic Violence
J. Gibbons finds the district court properly awarded primary custody of the divorced parties' child to the father. Though the mother says the summons was sent to a previous address and that she did not receive proper service, she did not seek dismissal. Seeking adjudication on the merits, she effectively consented to the court's jurisdiction and waived dismissal based upon a failure to effectuate service. The record supports the court's denial of the mother's request for child support arrears. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 12, 2024, Case #: 87208-COA, Categories: Family Law, Due Process, Guardianship
J. Gibbons finds the district court improperly granted the ex-wife's motion to enforce the divorce decree and enter an amended qualified domestic relations order. The order indicated the ex-wife is entitled to one half of her ex-wife's public employee retirement benefits, including survivor benefits. The order is inconsistent with guiding case law holding that "unless specifically set forth in the divorce decree, an allocation of a community property interest in the employee spouse's pension plan does not also entitle the nonemployee spouse to survivor benefits." Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 10, 2024, Case #: 86043-COA, Categories: Family Law, Property