30 results for 'court:"Nevada Court of Appeals"'.
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 that 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 that 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 that 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 that he had no job offers retracted due to the pandemic to conclude that 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
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J. Gibbons finds the district court improperly dismissed this DUI-causing-substantial-bodily-harm case. Defendant was witnessed attempting to exit the passenger side of a vehicle that had just run a stop sign and hit another vehicle, injuring the occupants. A blood test showed defendant's alcohol level at twice the legal limit. No other person was found in the car or area, and defendant's blood was found on the driver's side airbag. Though one of the responding officers referred to defendant as a "bitch," without considering the ensuing bad faith allegations as part of the whole investigation, this is insufficient to find bad faith conduct. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 8, 2024, Case #: 86371-COA, Categories: Dna, Evidence, Dui
J. Gibbons finds the district court properly dismissed this land and civil rights dispute. The landowner claims the Bureau of Land Management harmed his property rights by canceling his grazing permit for a portion of land over which he says he has right-of-way, as well as water and grazing rights. The road builder and users of the road built on the land were variously improperly served. The property owner also failed to correctly allege civil conspiracy claims and filed other claims outside limitations. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 8, 2024, Case #: 85779-COA, Categories: Property, Water, Agency
J. Westbrook finds the trial court properly convicted defendant for sexual assault upon a minor under 14 and use of the minor in pornography based on sufficient evidence. Though defendant contends the court improperly instructed the jury that a mistake as to the victim's age is not a defense to a charge of using a minor in pornography, the state is not required to prove the defendant "knowingly" used her. Because defendant admitted he believed the minor was 16 years old during their sexual relationship, the instructional error was harmless. Affirmed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: April 4, 2024, Case #: 85868-COA, Categories: Sex Offender, Child Pornography, Jury Instructions
J. Bulla finds the trial court properly convicted defendant for felony injuring or tampering with a motor vehicle. The court correctly instructed the jury on the proper measure of damages for the replacement value of replica, 1957 Chevy truck parts. However, one count of felony coercion was incorrectly based on force used on property and not a person. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: March 28, 2024, Case #: 85734-COA, Categories: Vehicle, Vandalism
J. Westbrook finds the trial court properly convicted defendant for leaving the scene of an accident involving injury. A day after the accident, the passenger in defendant's vehicle told the injured child's family that defendant had accidentally hit the child. Defendant turned himself in after this, but denied having been intoxicated, saying he thought he had hit a pothole. The passenger testified defendant was intoxicated, while other substantial evidence supports the conviction. Affirmed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: February 29, 2024, Case #: 86161-COA, Categories: Dui, Witnesses, Criminal Negligence
J. Gibbons finds the county court properly denied the state's petition for judicial review in a highway patrol officer's case concerning workers' compensation benefits for heart disease. The insurer denied the claim, finding the officer had predisposing conditions. However, an investigation following the officer's appeal showed he had taken proper measures to correct the condition, and the appeals officer then found the claim compensable. The state has not shown that correcting the predisposing condition was within the officer's ability. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 26, 2024, Case #: 84035-CoA, Categories: Evidence, Health Care, Workers' Compensation
J. Gibbons finds the county court properly granted summary judgment to Duetsche Bank on its action to enforce a lost note after being designated the assignee of the deed of trust used by the borrower to secure a home loan. The cited statute allows for the bank to enforce a lost instrument by showing its predecessor-in-interest was entitled to enforce when possession was lost. Though the borrower says the bank's prior loan servicer's lost note affidavit is inconsistent with the current loan servicer's affidavit, the affidavits still show possession had been lost. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 26, 2024, Case #: 84696-CoA, Categories: Bankruptcy, Evidence, Banking / Lending
J. Bulla grants the doctor's petition for a writ of mandamus challenging the county court's denial of his motion to dismiss a wrongful death suit. The inmate died after unsuccessful heart surgery, complicated by sickle cell anemia. The family members of the deceased, though having received requested medical records, did not file the complaint until after limitations had expired. No reason was given for the delay and, therefore, the court was required to dismiss the complaint.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: February 22, 2024, Case #: 86567-COA, Categories: Health Care, Wrongful Death, Prisoners' Rights
J. Gibbons finds the trial court properly convicted defendant for attempted sexual assault and incest. Defendant says the court incorrectly accepted his Alford plea being that he did not understand the elements of sexual assault. Defendant did not take his plea until after voir dire, when the victims were ready to testify. The court also based its sentencing decision on the facts of the crimes, indicating the defendant's failure to acknowledge his immorality was used as a sentencing factor. The court did not vindictively sentence defendant because he exercised his right to a jury trial. Affirmed
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 20, 2024, Case #: 85880-CoA, Categories: Jury, Sex Offender, Child Victims
J. Gibbons finds the county court properly denied defendant's petition for a writ of mandamus. Defendant seeks to challenge the court's denial of his motion to dismiss his DUI charge, claiming he faces fines in excess of $1,000, which raises the offense above that of a misdemeanor, depriving the court of jurisdiction. The legislature has shown its clear intent in requiring payment of a civil penalty, and defendant has failed to show he will pay a criminal penalty. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 20, 2024, Case #: 87000-CoA, Categories: Dui, Jurisdiction
J. Gibbons finds the district court properly denied the inmate's postconviction petition for a writ of habeas corpus without an evidentiary hearing. The inmate challenges the disciplinary panel's withdrawal of good time credit for his refusal to submit to handcuffs while being moved. The court's finding is supported by the officer's statements, and the inmate failed to allege facts showing he requested video evidence, or that it would contradict the statements. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 15, 2024, Case #: 86579-COA, Categories: Evidence, Prisoners' Rights
Per curiam, the appeals court grants the petition for a writ of certiorari in which defendant challenges the court's denial of her appeal from a conviction for obstruction. Defendant yelled something unclear, but to the effect of "being a witness," at officers involved in a potentially life-threatening matter with a juvenile. Though the relevant statute applies to physical conduct and threatening words specifically meant to hinder an officer, and is not unconstitutionally vague, the district court did not consider whether there was sufficient evidence.
Court: Nevada Court of Appeals, Judge: Per curiam, Filed On: February 8, 2024, Case #: 84353-COA, Categories: Constitution, Evidence, Obstruction
J. Gibbons finds the district court properly divided property according to the divorce decree. The husband continued filing motions to harass the wife, and the district court properly ordered each party keep any remaining property in their possession except for that specifically awarded to the other party. Though the husband claims bias due to the court's having seen him wearing a t-shirt bearing a slogan suggesting the court is corrupt, he has not shown the judge formed an opinion reflecting favoritism or antagonism. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 8, 2024, Case #: 86246-COA, Categories: Family Law, Property
J. Gibbons finds the trial court, by plea agreement, properly convicted defendant for attempted sexual assault. Though defendant claims the probation condition requiring drug testing improperly delegates authority to the division of parole, his cited federal statute requiring courts to set the number of tests is not applicable to this case. Also, that defendant may not possess sexually stimulating materials is not overbroad. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 8, 2024, Case #: 85986-COA, Categories: Sentencing, Sex Offender
J. Westbrook finds the district court properly denied defendant's petition for a writ of mandamus challenging her forgery and identity theft convictions due to an improper 76-day delay between her first appearance and preliminary hearing. Although the trial court improperly found good cause for the delay, defendant's request to dismiss due to unlawful detention should have been raised in a petition for a writ of habeas corpus. Affirmed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: January 25, 2024, Case #: 85383-COA, Categories: Habeas, Forgery, Identity Theft
J. Westbrook finds the district court improperly dismissed the estate's claims for negligence and wrongful death. The estate filed a survivorship suit a year after the decedent's death, which was dismissed as time-barred. The motion for reconsideration as timely of the claim's construal as wrongful death was dismissed for failure to state a claim. However, the affidavit of merit is not required to propose causation in order to support a negligence-base wrongful death claim. Reversed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: December 28, 2023, Case #: 84978-CoA, Categories: Health Care, Due Process, Wrongful Death
J. Gibbons finds the trial court properly divided property held in a revocable living trust in this divorce action. Though the ex-wife, as a licensed realtor, managed properties held in the trust, both parties are co-settlors and co-trustees, and the trust did not need to be named in the divorce or joined as a necessary party. The trial court had authority to distribute the trust's assets as community property. The ex-wife failed to overcome the community property presumption by clear and convincing evidence. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: November 30, 2023, Case #: 84950-COA, Categories: Family Law, Property, Trusts
J. Westbrook finds the district court properly entered judgment regarding a petition for judicial review of an administrative decision by the transportation authority. The charter bus company was cited and fined for improperly staging vehicles at casinos without a charter order. Though the charter service says the staging prohibition is federally preempted, this is incorrect since the prohibition is related to safety. The charter service has also failed to develop the record at the agency level. Affirmed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: November 30, 2023, Case #: 85007-COA, Categories: Transportation, Agency
J. Bulla finds the district court improperly found for an attorney in this bankruptcy and property dispute. The bankruptcy court placed a lien on property purchased with funds misappropriated from the family trust. Though the attorney is entitled to enforce any remainder of the lien, he is not entitled to a constructive trust, title to the property, or recovery for fraudulent transfer or conversion. The district court failed to recognize the preclusive effect of prior orders, and factual disputes remain. Reversed.
Court: Nevada Court of Appeals, Judge: Bulla , Filed On: November 22, 2023, Case #: 84908-COA, Categories: Bankruptcy, Fraud, Property
J. Westbrook finds the trial court properly convicted defendant for attempted lewdness with a child under the age of 14. After extradition from Michigan to Nevada, the court did not inquire into defendant’s ability to pay extradition and psychosexual evaluation restitutions after he objected on the basis of an inability to pay. The court is not required to make a psychosexual evaluation but is required to impose costs only to the extent of defendant’s ability to pay. Affirmed in part. Vacated in part, and remanded.
Court: Nevada Court of Appeals, Judge: Westbrook, Filed On: October 19, 2023, Case #: 85099-COA, Categories: Sex Offender, Child Victims, Extradition
J. Westbrook finds the trial court improperly granted the ex-wife awards for alimony and attorney and expert fees in an unequal distribution of community property and debt in the divorce decree. The court improperly adopted the wife’s proposed findings of fact and conclusions of law in its entirety, without modification. Though this does not in itself constitute an abuse of discretion, portions contain numerous legal and factual deficiencies. On remand, the court must reevaluate the awards. Reversed and remanded.
Court: Nevada Court of Appeals, Judge: Westbrook, Filed On: October 5, 2023, Case #: 84427-COA, Categories: Family Law, Property, Due Process
J. Bulla finds the district court properly denied the employee’s petition for judicial review of the entirety of her workers’ compensation matter. Although the employee was treated for injuries to her head, scalp and several parts of her spine, she sought to reopen her entire claim solely due to a worsening condition in her lumbar spine. Substantial evidence supports the decision that the claim should be reopened as to the employee’s lumbar spine only. She has failed to show evidence to support treatment of other body parts covered in her initial claim. Affirmed.
Court: Nevada Court of Appeals, Judge: Bulla, Filed On: September 28, 2023, Case #: 85122-COA, Categories: Evidence, Tort, Workers' Compensation
J. Westbrook finds the district court properly denied Larry Flynt's Hustler Club's request to quash and unseal warrants used to seize property regarding allegations of prostitution, as disclosure may compromise the police's ability to further investigate. However, the district court erroneously denied the return-of-property motion without allowing the club to demonstrate privilege, and improperly adopted the police's search protocol, which allowed the forensics lab to disclose confidential communications to law enforcement based on its unilateral determination of privilege without affording the club opportunity to challenge this. Nevada's return-of-property statute allows an owner to seek the return of privileged materials even when the government has an ongoing investigation. Reversed in part.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: August 24, 2023, Case #: 84931-COA, Categories: Search, Prostitution
J. Gibbons finds the district court properly found that there had been a substantial change in circumstances affecting the child's welfare and modified physical custody based on the child's best interest. The court, however, abused its discretion by improperly characterizing the custodial award as primary physical custody when it was in fact sole physical custody. This restricted the mother's parenting time without adequate findings, failing to consider a less restrictive arrangement and delegating substantive decision-making authority to a therapist. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 27, 2023, Case #: 84893-COA, Categories: Family Law