Welcome to the April 2021 and May 2021 summary of notable civil opinions issued by the Nevada Supreme Court. In this roundup we discuss super priority liens, supermajority legislation, super fraudsters, and several super important parental right and child custody issues.
Nelson v. Eighth Jud. Dist. Ct., 137 Nev., Adv. Op. 14 (April 1, 2020)
Eighth Judicial District Rule 5.518(a)(1) requires a district court, upon request, to impose a joint preliminary injunction that prohibits parties seeking a divorce from transferring or selling community property while the divorce is pending. In 2017, the Nevada Supreme Court originally remanded this matter back to the Eighth Judicial District Court for it to determine whether two trusts established by petitioner and her ex-husband contained community property. After the district court refused to re-impose a joint preliminary injunction over the trusts, petitioner brought a writ of mandamus seeking to compel the district court to enjoin petitioner and her ex from selling or transferring community property. The Nevada Supreme Court held that trusts fall within the scope of EDCR 5.518(a)(1) because trustees qualify as legal persons, and the trusts were joined, through their respective trustees, as parties to this litigation.
Anthony S. Noonan IRA, LLC v. U.S. Bank Nat’l Assoc. EE, 137 Nev., Adv. Op. 15 (Apr. 15, 2020)
In the early 1990’s, the Nevada Legislature passed what is now known as the “superpriority lien” statute, which gives homeowners’ association liens priority over deeds of trust (i.e., mortgages) with respect to the HOA’s unpaid fees/dues/etc. for common area expenses.
Since the great recession and mortgage foreclosure crisis, both the Ninth Circuit and the Nevada Supreme Court have been quite busy trying to figure out just what the hell this statute means and how it applies.
In this latest chapter of the Superpriority Lien Saga, the Nevada Supreme Court tackles the question of whether a payment equal to nine months of HOA assessments satisfied NRS 116.3116(2) when the HOA actually charged an annual assessment. Under NRS 116.3116(2), HOA liens only obtain superpriority for those charges “which would have become due in the absence of acceleration during the 9 months immediately preceding institution of an action to enforce the lien.” This means, in layman’s terms, if the money was due under normal circumstances within the 9 months before the HOA filed to foreclose on the home in order to enforce the lien, then the HOA can foreclose on your home. In this case, the Nevada Supreme Court agreed with the district court that an “annual” assessment means that 12 months, as opposed to nine months, actually became due prior to the foreclosure action. Because the amount tendered was not equivalent to twelve months’ worth of assessments . . . the HOA properly foreclosed on its lien.
The moral of this story is to pay your HOA dues.
DETWILER v. EIGHTH JUDICIAL DISTRICT COURT, 137 Nev. Adv. Op. 18 (May 6, 2021)
In this wild ride, the Nevada Supreme Court confronted the question of what constitutes an appropriate amount of sanctions against a roadster fraudster who was held in contempt. The fraudster defaulted on a loan secured by a classic car collection. When the bank came to collect, he conveniently no longer “owned” the cars because he had “sold” the cars to an affiliated company which was managed by Petitioner. The District Court didn’t buy it, and ordered that the cars be surrendered. When the fraudster absconded, the District Court held Petitioner in contempt.
Petitioner filed a writ petition, which the Nevada Supreme Court agreed was the appropriate remedy for a contempt order.
This might be the most important holding of this case, in my opinion, as the Nevada Supreme Court very rarely agrees that writ petitions are ever an appropriate remedy. And the Nevada Supreme Court has adopted that view because practitioners mistakenly believe they can file a writ petition on just about any issue they desire. That practice led former Justice Douglas to notably remind practitioners that “the Nevada Supreme Court is not Writs-R-Us.”
The Nevada Supreme Court also held that (1) peremptory challenges to judges cannot be brought after trial (as Petitioner attempted to do), (2) the mistake in the plaintiff’s name did not render the judgment a nullity, as Petitioner and all parties were on notice of who the plaintiff-bank actually was, and (3) Petitioner was properly held in contempt. The primary holding in this opinion, however, relates to the nature and amount of civil sanctions in contempt proceedings. After confirming that contempt sanctions are civil in nature, the Nevada Supreme Court held that they must be compensatory and limited to the opponent’s actual loss resulting from the contempt, whether that be damages, attorney fees, costs or all three.
NEVADA STATE LEGISLATURE V. SETTLEMEYER, 137 Nev. Adv. Op. 21 (May 13, 2021)
In 2019, the Nevada Legislature passed Senate Bill 542, which proposed to extend the $1 technology fee added to every DMV transaction for an additional four years, and Senate Bill 551, which proposed to repeal an earlier bill that reduced payroll taxes and allow the Department of Taxation to collect approximately $98.2 million.
Both of these bills generate public revenue. Under Nevada’s Constitution, Article 4, Section 18(2), bills which generate public revenue require an agreement of at least two-thirds of the members of each house of the Legislature (i.e., a “supermajority”). Both of these bills passed one vote short of the supermajority. Because neither of these bills were passed by supermajority, the Nevada Supreme Court held that they are invalid. The Nevada Supreme Court also rejected claims brought by certain senators against other legislators whom the senators engaged in wrongful conduct in passing the bills, because it found that all of the conduct at issue fell within Nevada’s legislative immunity statute NRS 41.071(3).
IN RE THE MATTER OF THE PARENTAL RIGHTS AS TO L.L.S., A MINOR, 137 Nev., Adv. Op. 22 (May 27, 2021)
In In re L.L.S., the Nevada Supreme Court held that a family court hearing master cannot preside over a termination of parental rights trial, and that these must be heard by the district courts.
IN RE THE MATTER OF THE PARENTAL RIGHTS AS TO T.M.R., A MINOR, 137 Nev., Adv. Op. 23 (May 27, 2021)
In In re T.M.R., the Nevada Supreme Court held that NRCP 16.2(e)(4) applies to parental right termination trials, and, therefore, all nonexpert witnesses must be disclosed 45 days prior to trial.
PELKOLA V. PELKOLA, 127 Nev., Adv. Op. 24 (May 27, 2021)
In Pelkola, the Nevada Supreme Court confirmed that NRS 125C.006(1)(b), which requires a custodial parent to petition the court before relocating the child’s residence to a place outside of Nevada absent non-custodial parental consent, also applies to relocation from a place outside of Nevada to another place outside of Nevada. In this matter, the custodial parent initially petitioned the Nevada district court to relocate her children from Nevada to Arizona. She subsequently petitioned the Nevada district court to relocate her children from Arizona to Ohio. Although the district court did not believe NRS 125C.006 applied to her second request, it nevertheless granted it. The Nevada Supreme Court held that NRS 125C.006 does apply, and remanded the matter back to the district court to make detailed findings as required by NRS 125C.007.