The Overlooked #1
Unpublished Nevada Supreme Court orders from August 19–30, 2024
To the unordained, it might seem odd to spill ink on unpublished orders. In some courts, such orders are of little to no value outside the in case in which they’re issued, unless related to doctrines res judicata, law of the case, or like doctrines. See, e.g., Ga. Ct. App. R. 33.2(b); State v. Little, 260 Mont. 460, 861 P.2d 154 (1993) (Montana); Tx. R. App. P. 47.7(a), (b). And in many courts citing such orders is even forbidden, unless related to such doctrines. See, e.g., Ala. R. App. P. 53(d); Alaska R. App. P. 214(d); Ariz. Sup. Ct. R. 111(c)(1); Cal. R. Ct. 8.1115(a), (b); D.C. Ct. App. R. 28(g); Ind. R. App. P. 65(d)(2); Miss. R. App. P 35-A(b), 35-B(b); S.D. Codified Laws § 15-26A-87.1(a); see also 9th Cir. R. 36-3 (if the decision predates 2007); 2d Cir. R. § 0.23(c)(2) (same); 7th Cir. R. 32.1 (same).
But in 2016, the Nevada Supreme Court repealed its rule barring citing its unpublished orders and amended Nevada Rule of Appellate Procedure 36 to permit citing such orders for “persuasive value”—even outside the case in which they’re issued and even if unrelated to res judicata, law of the case, or the like. See Order Amending Supreme Court Rule 36 (Sept. 12, 2017). So such orders after these rule changes are no longer largely useless to non-parties; thus they’re no longer largely ignorable—for ignoring a chance to bolster your advocacy is a disservice to it.
This newsletter aims to do some of the grunt work for you by highlighting some unpublished Nevada Supreme Court orders issued over the last two weeks.1 But it’ll be bare bones: it won’t list every order, nor will it describe in detail the orders it does list—so you will still have some work to do.
Reading below is a good start, though.
Aguilar v. Washoe Cnty. Bd. Cnty. Comm’rs (Aug. 19, 2024) (concluding (1) that Aguilar’s writ of mandamus to compel the Commissioners to canvass the County’s primary-election recount results no later than August 22, 2024, was moot because the Commissioners did so, Order at 1–2, and (2) that the issue isn’t “a matter of widespread importance capable of repetition” yet evading review because, if the Commissioners “refuse to canvass election results against in the future, [Aguilar] may seek” expedited relief), Order at 2–3).
LG 2007 Priv. Tr. v. Shah; LG 2007 Priv. Tr. v. Zanganeh (Aug. 15, 2024) (concluding (1) that the parties signed a valid contract for a residential-land sale—even though LG argued that “the wrong form was used” and the parties didn’t intent to contract for such land—because there were “multiple stages of negotiations” during which LG “could have corrected or rejected the offer if it believed the parties were contracting for the sale of vacant land” and the form “clearly indicated that the Shahs intended to occupy the property as a residence,” Order at 3–4; (2) that LG was required under NRS 113.150 to “provide to the Shahs [a] residential defect disclosure form” and didn’t do so, Order at 4; (3) that the vacant-land disclosures LG provided don’t satisfy its obligations under NRS 113.150 or the contract because “[t]he vacant land disclosures contain only a blanket statement that the structures on the property have ‘no commercial value’” and the “disclosure does not identify conditions that materially affect the value or use of the property, specifically it does not evaluate any of the systems on the property,” as NRS 113.150 requires, Order at 4–7; (4) that LG’s argument that NRS Chapter 113 doesn’t apply because the Shahs didn’t intend to occupy the property is “unavailing” because the chapter doesn’t “factor in the buyer’s intended use when defining and categorizing residential property—what matters is whether a residence exists on the land” and LG doesn’t dispute “several of the parcels contained residential property,” Order at 8; (5) that LG isn’t entitled to the Shah’s $500k early-money deposit because the Shahs didn’t’ default under the contract by cancelling it due to LG’s breach arising from failing to provide the required form and that the contract’s cancellation provision entitled the Shahs to a refund, Order at 8–9; and (6) LG wasn’t entitled to indemnification by the Shah’s real estate agent who handled the form and transaction because (a) noncontractual indemnity applies to torts, not contract claims, (b) the remedy is generally available only after the defendant has extinguished its own liability by paying the judgment, (c) the remedy generally applies when the defendant has “committed no independent wrong” but is held liable, (d) LG and Shah’s real estate agent don’t have the required legal relationship for an indemnity duty to exist, Order at 9–10).
Kimbrough v. Round Mountain Gold Corp. (Aug. 21, 2024) (concluding (1) that NRS 613.333(1) doesn’t support a discrimination claim “based on the non-use or ‘false perceived’ use of a lawful substance,” Order at 2; (2) that only a termination—not perceived use of an unlawful substance or a granted medical accommodation for such substances—can provide a basis for an unlawful employment practice because the termination here wasn’t causally related to the protected activity of filing an NERC complaint, Order at 2–3; and (3) that a positive marijuana test and a resulting firing doesn’t support a tortious-discharge claim, Order at 2–3).
Greater Las Vegas Short Term Rental Ass’n v. Clark County (Aug. 23, 2024) (concluding (1) that the Association lacked organizational standing to sue Clark County over its code provisions that permitted short-term rentals under a “stringent regulatory and licensing scheme” because (a) neither the association or its president (also a party in the case) because the association’s members don’t provide “concrete steps they have taken toward acting on their interest in operating a short-term rental” or alleged injuries that don’t “heavily hinge upon uncertain future occurrences, Order at 3–6, and (b) the association “cannot show that it will suffer irreparable harm when its members have not even applied for short-term rental licenses and, thus, are not governed by any of Chapter 7.100’s regulations,” Order at 7, and (2) that the public-importance exception to the general standing requirement doesn’t apply because this isn’t a “separation-of-powers case” and there’s no “legislative expenditure or appropriation” at issue).
In re C.A.C., A.M.C., and C.A.C. (Aug. 23, 2024) (concluding that a parent’s “failure to ‘consent’ to the guardianship” of a child before NRS 159A.1915 was enacted doesn’t trigger a “requirement that the welfare of the child be ‘substantially enhanced’” to end the guardianship because NRS 159A.1915 doesn’t apply retroactively, Order at 3).
Adventure Photo Tours, Inc. v. Nev. Dep’t of Tax’n (Aug. 27, 2024) (concluding (1) that NRS 360.395 “outlines the procedures for challenging a determination of the Commission, including a deficiency for the TCT . . . because Chapter 372B” (Transportation Connection Tax) “explicitly states that NRS Chapter 360’s provisions ‘relating to the payment, collection, administration and enforcement of taxes’ apply to ‘the payment, collection, administration and enforcement of’ NRS Chapter 372B’s excise taxes so long as “those provisions do not conflict with the [Chapter’s] provisions” and there’s no conflict, Order at 3–4, and (2) that NRS 360.395 on equal protection grounds, but “passes rational-basis review under the Equal Protection Clause,” Order at 5).
Any opinions on Nevada’s Appeal(s) are mine alone. Posts aren’t legal advice; if you have a legal issue, consult an attorney.
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For the last Decisions Digest, click here.
More details on the newsletter (and other content on Nevada’s Appeal(s)) are here. But here’s the gist. Nevada’s Appeal(s) focuses on Nevada’s two appellate courts—the Nevada Supreme Court and the Nevada Court of Appeals—and on appeals from the U.S. District Court for the District of Nevada to the U.S. Court of Appeals, as well as appeals in which any other federal circuit courts interpret Nevada law. This bi-weekly newsletter—The Overlooked—highlights some of the unpublished orders from the Nevada Supreme Court. And the newsletter will usually go out on Mondays (life delayed this initial post—my apologies).