author: By the Court, GIBBONS, C.J.:

text:
    WASTE MANAGEMENT OF NEVADA, INC., Appellant, v. WEST TAYLOR STREET, LLC, a Limited Liability Company, Respondent.
    No. 74876
    Supreme Court of Nevada.
    FILED JUNE 27, 2019
    Simons Law, PC, and Mark G. Simons, Reno, for Appellant.
    C. Nicholas Pereos, Ltd., and C. Nicholas Pereos, Reno, for Respondent.
    Peterson Baker, PLLC, and Tamara Beatty Peterson and Nikki L. Baker, Las Vegas, for Amicus Curiae.
    BEFORE THE COURT EN BANC.
   By the Court, GIBBONS, C.J.:

In 2005, the Nevada Legislature enacted the garbage lien statute to give waste collection companies a method for collecting delinquent payments for their services. See NRS 444.520. For the first time, we are asked to interpret this statute and the procedures required to perfect and foreclose on a garbage lien. This dispute focuses on whether NRS 444.520(3) 's reference to the mechanics' lien statute incorporates only the mechanics' lien statute's procedural requirements for foreclosure, as set forth in NRS 108.239. Or, rather, if that reference to the mechanics' lien statute also incorporates the requirements for perfecting a lien, as set forth in NRS 108.226. Additionally, we are asked to determine if the perpetual nature of the garbage lien means that the foreclosure of a garbage lien is not subject to a statute of limitations. We hold that the reference to the mechanics' lien statute in NRS 444.520(3) incorporates only the mechanics' lien statute's procedural requirements for foreclosure. We also hold that no limitations period applies to the foreclosure of a garbage lien.

FACTS AND PROCEDURAL HISTORY

Respondent West Taylor Street, LLC, is the owner of a duplex in Reno. This duplex has two addresses, and each address has a waste service account with appellant Waste Management of Nevada, Inc. At some point, both of these waste services accounts became delinquent. As a result, Waste Management filed three notices of liens against the property. West Taylor filed a complaint with the district court asking, among other things, for declaratory relief. West Taylor alleged that Waste Management did not properly follow the lien perfection requirements under NRS 108.226, which West Taylor argued the Legislature incorporated by reference into the garbage lien statute. West Taylor filed a motion for partial summary judgment as to this issue. The district court granted West Taylor's motion for summary judgment, holding that the lien perfection requirements outlined in NRS 108.226 applied to the garbage lien statute. Therefore, the district court held that Waste Management did not properly record the lien because it failed to record it within 90 days of the completion of the work. The district court also held, in the alternative, that Waste Management could no longer foreclose on its liens because a two-year limitations period applied to the foreclosing on garbage liens. As a result of this ruling, Waste Management voluntarily released all three of its liens against the property. The parties proceeded to litigate other claims, until West Taylor voluntarily dismissed those claims. Waste Management now challenges the grant of summary judgment in West Taylor's favor as to the recordation of the liens.

DISCUSSION

This case is not moot

As an initial matter, we address West Taylor's argument that this matter is moot because Waste Management released the three liens. As a general rule, this court will decline to hear any case in which there is no actual controversy.

Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't , 120 Nev. 712, 720, 100 P.3d 179, 186 (2004) ("[T]he duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue before it." (internal quotation marks omitted)). Therefore, if a case comes before this court when there is no actual controversy, even if the case had a live controversy at the outset, then we will dismiss the case as moot. Personhood Nev. v. Bristol , 126 Nev. 599, 602, 245 P.3d 572, 574 (2010) (holding that a case has to have an actual controversy during "all stages of the proceeding" or it would be dismissed as moot). Because the district court's order granting summary judgment prevents Waste Management from refiling its garbage liens against West Taylor, we conclude that there is still a live controversy, and the case is not moot.

The plain language of NRS 444.520(3) incorporates only the foreclosure procedures from the mechanics' lien statutes

We review questions of statutory construction de novo. Tam v. Eighth Judicial Dist. Court , 131 Nev. 792, 799, 358 P.3d 234, 240 (2015). "If the plain meaning of a statute is clear on its face, then [this court] will not go beyond the language of the statute to determine its meaning." Beazer Homes Nev., Inc. v. Eighth Judicial Dist. Court , 120 Nev. 575, 579-80, 97 P.3d 1132, 1135 (2004) (internal quotation marks omitted) (alterations in original). When a statute is clear on its face, this court gives the statute's plain language its "ordinary meaning." UMC Physicians' Bargaining Unit of Nev. Serv. Emps. Union v. Nev. Serv. Emps. Union / SEIU Local 1107 , 124 Nev. 84, 88, 178 P.3d 709, 712 (2008). If a statute is ambiguous, meaning that it is susceptible to multiple "natural or honest interpretation[s]," then this court will look beyond that statute to determine its meaning. Tam , 131 Nev. at 799, 358 P.3d at 240.

The plain meaning of NRS 444.520(3) is clear on its face. NRS 444.520(3) states:

Until paid, any fee or charge levied pursuant to subsection 1 constitutes a perpetual lien against the property served, superior to all liens, claims and titles other than liens for general taxes and special assessments. The lien is not extinguished by the sale of any property on account of nonpayment of any other lien, claim or title, except liens for general taxes and special assessments. The lien may be foreclosed in the same manner as provided for the foreclosure of mechanics' liens.

Based on the definition of foreclosure, the statute's meaning is clear on its face as to which provision of the mechanics' lien statutes is incorporated into the garbage lien statute. "Foreclosure" is defined as "[a] legal proceeding to terminate a mortgagor's interest in a property instituted ... either to gain title or to force a sale to satisfy the unpaid debt secured by the property." Foreclosure , Black's Law Dictionary (8th ed. 2004) (emphasis added). Under this definition, the ordinary meaning of the word "foreclosure" involves the actual legal proceeding itself and not the prerequisites of establishing the garbage lien and perfecting it. Therefore, to foreclose on a garbage lien, the lien holder must follow the foreclosure procedure established in the mechanics' Hen statutes, which is outlined in NRS 108.239. Based on the statute's plain meaning, the only provision of the mechanics' lien statutes incorporated into NRS 444.520 is NRS 108.239.

Therefore, the district court erred in incorporating into NRS 444.520 the perfection requirements under the mechanics' lien statute as outlined in NRS 108.226, which is separate from NRS 108.239 's foreclosure procedures. NRS 444.520(3) references mechanics' liens in the foreclosure context, not in the context of recording or perfecting a garbage lien. Further, NRS 444.520(4) already provides a method of perfecting a garbage lien. Thus, under the plain language of the garbage lien statute, the perfection requirements of the mechanics' lien statute, or any other requirements that do not involve the foreclosure of a mechanics' lien, are not incorporated. The district court erred when it incorporated anything beyond NRS 108.239 into the garbage lien statute. Accordingly, we hold that the district court erred in concluding that Waste Management needed to record its lien within 90 days of completing the work in accordance with NRS 108.226, and we reverse the district court's order on this ground.

The district court erred by concluding that there is a two-year statute of limitations to foreclose on garbage liens

Next, we address whether a statute of limitations applies to garbage liens, as the district court concluded that even if Waste Management had properly perfected its liens, it would be required to foreclose on those liens within two years. To determine whether there is an applicable limitations period for the foreclosure of a garbage lien, we again turn to the text of the statute.

NRS 444.520(3) provides that "[u]ntil paid, any fee or charge levied pursuant to subsection 1 constitutes a perpetual lien against the property served, superior to all liens, claims and titles other than liens for general taxes and special assessments." (Emphasis added.) "Perpetual" is defined as "lasting for eternity: never ending." Perpetual , Webster's II New College Dictionary (2011). Under a plain reading of the statute, the lien against the property should last until the debt is paid. Perpetual liens, while unusual, are not uncommon in the context of tax or assessment law. See 85 C.J.S. Taxation § 970 ("The duration of a tax lien is generally governed by statute and, ordinarily, a tax lien continues until the tax is paid or the property is sold for the tax."). States that have enacted perpetual liens have generally held that the liens last forever, and the ability to foreclose upon these liens is not limited by a general statute of limitations. See, e.g., James v. Strange , 407 U.S. 128, 132, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972) ("Florida's recoupment law has no statute of limitations and the State is deemed to have a perpetual lien against the defendant's real and personal property and estate."); Forman Realty Corp. v. Brenza , 11 Ill.2d 531, 144 N.E.2d 623, 628 (1957) ("The purpose of this statute is to make taxes a lien superior to all other liens without regard to priority in point of time and to continue such liens without limitation of time until taxes are paid...."); Swingley v. Riechoff , 112 Mont. 59, 112 P.2d 1075, 1079 (1941) ("The government's lien for taxes is based upon express statutory provision, and is a perpetual lien against which no statute of limitations can successfully be interposed.").

While the district court agreed that the garbage lien was perpetual, and that therefore the six-month statute of limitations in the mechanics' lien statute did not apply, it went on to conclude that the two-year statute of limitations under NRS 11.190(4)(b) applied. To support this proposition, the district court relied on an early case from this court, State v. Yellow Jacket Silver Mining Co. , 14 Nev. 220 (1879). In that case, this court held that a tax lien could be perpetual, but the remedy of foreclosure was subject to a statute of limitations. Id. at 232.

However, the reasoning underlying this conclusion in Yellow Jacket is outdated, and therefore we decline to apply it here. See Bryan A. Gamer et al., The Law of Judicial Precedent 178 (2016) ("[P]recedents become obsolete if the conditions or facts that existed when they were rendered are different or no longer exist, or if the underlying rationale is no longer sound."). In Yellow Jacket , this court, following California law, reasoned that the remedy of foreclosure could expire under the statute of limitations, but the obligation of the debt could remain. See id. at 232. ("A mortgage debt is not destroyed or extinguished by the statute of limitations. The remedy only is taken away." (citing McCormick v. Brown , 36 Cal. 180, 185 (1868) )). However, separating the foreclosure remedy from its underlying debt is paradoxical, and as such, many states have rejected the notion that the debt may be separated from the foreclosure remedy. Nancy Saint-Paul, Distinction Between Mortgage Lien and Mortgage Debt , Clearing Land Titles § 6:2 (3d ed. 2018); see also Cal. Civ. Code § 2911(1) (eliminating the separation of the underlying debt from the foreclosure remedy). Nevada, like other states, has moved toward eliminating this separation under the "one action rule," which states that "[t]here may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate." NRS 40.430(1) ; see also McDonald v. D.P. Alexander & Las Vegas Boulevard, LLC , 121 Nev. 812, 816, 123 P.3d 748, 751 (2005). Therefore, given that the underlying rationale for separating the remedy from the lien is outdated, we decline to follow the rule outlined in Yellow Jacket .

The plain language of NRS 444.520(3) indicates that the lien is perpetual, and therefore the remedy of foreclosure must also be perpetual. As another court has held regarding perpetual liens, "it is impossible to believe that the legislature meant to subject this lien, and the right to enforce it, to any limitation law; for then we would witness the anomalous condition, presented by a perpetual lien ... without any power in the public to make such lien available." Wells Cty . v . McHenry , 7 N.D. 246, 74 N.W. 241, 248 (1898). As that court aptly observed, "[a] lien that cannot be enforced is no lien at all." Id.

Accordingly, we hold that the district court properly concluded that garbage liens are perpetual but erred in applying both the lien perfection requirements set forth in NRS 108.226 and the two-year statute of limitations set forth in NRS 11.190(4)(b) to the foreclosure of those liens under NRS 444.520. Since a garbage lien is perpetual, it is not subject to a statute of limitations. Therefore, a municipal waste management company may foreclose upon such a lien at any time so long as it properly perfects the lien under NRS 444.520(4). Therefore, we reverse the judgment of the district court and remand this case to the district court for further consideration consistent with this opinion.

We concur:

Pickering, J.

Hardesty, J.

Parraguirre, J.

Stiglich, J.

Cadish, J.

Silver, J.

      NRS 11.190(4)(b) provides two years for bringing actions "upon a statute for a penalty or forfeiture, where the action is given to a person or the State, or both, except when the statute imposing it prescribes a different limitation."


source: Caselaw Access Project

author: Madelyn Shipman, Settlement Judge

license: Public Domain

text:
    Scott MEYERHOFF, Individually and as a Manager of Intermountain Traffic, LLC, a Nevada Limited Liability Company, Appellant, v. Frederick L. ROUSH, Individually and Derivatively on Behalf of Intermountain Traffic, LLC, a Nevada Limited Liability Company; and Intermountain Traffic, LLC, a Nevada Limited Liability Company Respondents.
    No. 78035
    Supreme Court of Nevada.
    FILED JULY 08, 2019
   Madelyn Shipman, Settlement Judge

Alex Flangas Law

McDonald Carano LLP/Reno

ORDER DISMISSING APPEAL

Pursuant to the stipulation of the parties, and cause appearing, this appeal is dismissed. The parties shall bear their own costs and attorney fees. NRAP 42(b).

It is so ORDERED.


text:
    Jeromy Michael RUCKDASCHEL, Petitioner, v. The FOURTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF ELKO; and the Honorable Nancy L. Porter, District Judge, Respondents, and the State of Nevada, Real Party in Interest.
    No. 79003
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Elko County Public Defender
    Attorney General/Carson City
    Elko County District Attorney
    ORDER DISMISSING PETITION
    This is a petition for a writ of mandamus. Fourth Judicial District Court, Elko County; Judge.
    Petitioner has filed a notice of withdrawal of the petition. Cause appearing, the court
    ORDERS this petition DISMISSED.


text:
    In the MATTER OF DISCIPLINE OF Andrew D. TAYLOR, Bar No. 8688.
    No. 78422
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Andrew D. Taylor
    Bar Counsel, State Bar of Nevada
    Executive Director, State Bar of Nevada
    ORDER OF DISBARMENT
   This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation that attorney Andrew D. Taylor be disbarred based on violations of RPC 1.2 (scope of representation), RPC 1.4 (communication), RPC 1.8 (conflict of interest), RPC 1.15 (safekeeping property), RPC 3.3 (candor toward tribunal), RPC 3.4 (fairness to opposing party and counsel), RPC 4.1 (truthfulness in statements to others), RPC 5.4 (professional independence of a lawyer), RPC 8.1(a), (b) (disciplinary matters), and RPC 8.4(c) (misconduct). Because no briefs have been filed, this matter stands submitted for decision based on the record. SCR 105(3)(b).

The State Bar has the burden of showing by clear and convincing evidence that Taylor committed the violations charged. In re Discipline of Drakulich , 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). Here, however, the facts and charges alleged in the second complaint filed by the State Bar are deemed admitted because Taylor failed to answer the second complaint and a default was entered. SCR 105(2). As to the first complaint, we defer to the panel's findings of fact in this matter as they are supported by substantial evidence and are not clearly erroneous. SCR 105(3)(b) (explaining that we employ a deferential standard of review with respect to the hearing panel's findings of fact); Sowers v. Forest Hill Subdivision , 129 Nev. 99, 105, 294 P.3d 427, 432 (2013) (providing that under a deferential standard of review, this court will not set aside findings of fact unless they are clearly erroneous or not supported by substantial evidence). Based on those findings, we agree with the panel's conclusions that the State Bar established by clear and convincing evidence that Taylor violated RPC 1.2 (scope of representation), RPC 1.4 (communication), RPC 1.8 (conflict of interest), RPC 1.15 (safekeeping property), RPC 3.3 (candor toward the tribunal), RPC 3.4 (fairness to opposing party and counsel), RPC 4.1 (truthfulness in statements to others), RPC 8.1(a), (b) (disciplinary matters), and RPC 8.4(c) (misconduct) as alleged in the first complaint.

The record therefore establishes that Taylor misappropriated more than $1 million of client funds. Further, he commingled personal funds with client funds and opened numerous different law firms with different trust accounts and operating accounts to mislead the State Bar and his clients. For one of those law firms, he named his non-lawyer assistant as the sole officer. Additionally, he entered into litigation-advancement loan agreements on behalf of his clients without their knowledge or consent, used those funds for his personal or business expenses, and failed to repay many of those loans. He failed to comply with reasonable requests for information from the State Bar and made false statements of material fact concerning his trust account to the State Bar.

Turning to the appropriate discipline, we review the hearing panel's recommendation de novo. SCR 105(3)(b). Although we "must ... exercise independent judgment," the panel recommendation is persuasive. In re Discipline of Schaefer , 117 Nev. 496, 515, 25 P.3d 191, 204 (2001). In determining the appropriate discipline, we weigh four factors: "the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors." In re Discipline of Lerner , 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).

Taylor intentionally or knowingly violated duties owed to his clients (communication, conflict of interest, and safekeeping property), the legal system (candor toward the tribunal and truthfulness in statements to others), and the profession (professional independence of a lawyer and failure to respond to lawful requests for information by a disciplinary authority). Taylor's clients suffered actual injury as they did not receive their funds and some were required to defend against collection attempts on loans they never took. Taylor's false statements to the State Bar and failure to cooperate in the disciplinary investigation harmed the integrity of the profession, which depends on a self-regulating disciplinary system. The baseline sanction for his misconduct, before consideration of aggravating and mitigating circumstances, is disbarment. See Standards for Imposing Lawyer Sanctions, Compendium of Professional Responsibility Rules and Standards , Standard 4.11 (Am. Bar Ass'n 2017) ("Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."); id ., Standard 5.11 (providing that disbarment is appropriate when "a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice"). The record supports the hearing panel's findings of no mitigating circumstances and ten aggravating circumstances (prior discipline, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules and orders, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law, indifference to making restitution, and illegal conduct). Having considered the four factors, we agree with the panel that disbarment is appropriate.

Accordingly, we disbar attorney Andrew D. Taylor from the practice of law in Nevada. Such disbarment is irrevocable. SCR 102(1). Taylor shall pay the costs of the disciplinary proceedings, including $3,000 under SCR 120, within 30 days of the date of this order. The State Bar shall comply with SCR 121.1.

It is so ORDERED.

      Taylor is currently suspended. In re Discipline of Taylor , Docket No. 75437 (Order of Suspension, July 19, 2018).

      The first complaint concerned Taylor's breach of probation from a 2015 disciplinary matter and grievances regarding misappropriation of one client's funds and allegations that he had fraudulently obtained loans in his clients' names. The second complaint was filed following an audit of Taylor's accounts and alleged commingling of personal and client funds and misappropriation of client funds.
      Taylor answered the first complaint filed on August 20, 2018. The second complaint filed on November 13, 2018, was served on Taylor through regular and certified mail and the State Bar attempted personal service of the complaint.


text:
    William Brodie SURMAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 77625
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Tanner Law & Strategy Group, Ltd.
    Attorney General/Carson City
    Washoe County District Attorney
    ORDER DISMISSING APPEAL
    This is a direct appeal from an order revoking probation and reinstating the judgment of conviction. Second Judicial District Court, Washoe County; Lynne K. Simons, Judge.
    Appellant's counsel has filed a notice of voluntary withdrawal of this appeal. Counsel advises this court that she has informed appellant of the legal consequences of voluntarily withdrawing this appeal, including that appellant cannot hereafter seek to reinstate this appeal, and that any issues that were or could have been brought in this appeal are forever waived. Having been so informed, appellant consents to a voluntary dismissal of this appeal. Cause appearing, this court
    ORDERS this appeal DISMISSED.

      Because no remittitur will issue in this matter, see NRAP 42(b), the one-year period for filing a post-conviction habeas corpus petition under NRS 34.726(1) shall commence to run from the date of this order.


text:
    A & A TOURISM, INC., a Domestic Corporation; and Mohammad Alam, an Individual, Appellants, v. Angeles Cornelio KEELER, an Individual, Respondent.
    No. 77953
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Esmeralda County District Attorney
    Law Office of Andrew H. Pastwick, LLC
    ORDER DISMISSING APPEAL
    This is an appeal from an order granting a motion for summary judgment. Eighth Judicial District Court, Clark County; Adriana Escobar, Judge.
    On March 25, 2019, this court entered an order adding attorney Robert E. Glennen to the docket in this appeal as counsel for appellants. The order further directed appellants to file and serve the transcript request form and docketing statement within 14 days. On April 15, 2019, respondent filed a motion to dismiss based on appellants' failure to file the transcript request form and docketing statement. See NRAP 9(a)(7), NRAP 14(c). To date appellants have not responded to the motion to dismiss, filed the missing documents, or otherwise communicated with this court. Further, the opening brief and appendix, which were due to be filed on June 6, 2019, are now overdue. This court construes appellants' failure to oppose the motion to dismiss as an admission that the motion has merit, see NRAP 31(d)(2), and appellants' failure to file any documents in this appeal indicates that appellants have abandoned this appeal. Accordingly, the motion to dismiss is granted, and the court
    ORDERS this appeal DISMISSED.


text:
    Robert Anthony HERNANDEZ, Appellant, v. The STATE of Nevada, Respondent.
    No. 78851
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Las Vegas Defense Group, LLC
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is an appeal from a judgment of conviction. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
    Appellant's counsel has filed a notice of voluntary withdrawal of this appeal. Counsel advises this court that he has informed appellant of the legal consequences of voluntarily withdrawing this appeal, including that appellant cannot hereafter seek to reinstate this appeal, and that any issues that were or could have been brought in this appeal are forever waived. Having been so informed, appellant consents to a voluntary dismissal of this appeal. Cause appearing, we
    ORDER this appeal DISMISSED.

      Because no remittitur will issue in this matter, see NRAP 42(b), the one-year period for filing a post-conviction habeas corpus petition under NRS 34.726(1) shall commence to run from the date of this order.


text:
    Donald Douglas EBY, Appellant, v. The STATE of Nevada, Respondent.
    No. 78931
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Donald Douglas Eby
    Attorney General/Carson City
    Douglas County District Attorney/Minden
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court order denying a motion to stay appeal. Ninth Judicial District Court, Douglas County; Thomas W. Gregory, Judge.
    Because no statute or court rule permits an appeal from an order denying a motion to stay appeal, we lack jurisdiction. Castillo v. State , 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990). Accordingly, we
    ORDER this appeal DISMISSED.


text:
    In the MATTER OF the Parental Rights as to J. M.C. J., a/k/a J. J. C., T. A.J.M.C. J.; A. A. J.; and A. M.I.J. D., Minors.
    Jessica J., Appellant, v. Clark County Department of Family Services; J. M.C. J.; J. J. C.; T. A.J.M.C. J.; A. A. J.; and A. M.I.J. D., Minors, Respondents.
    No. 78156
    Supreme Court of Nevada.
    FILED JULY 08, 2019
   Christopher R. Tilman

Clark County District Attorney/Juvenile Division

Legal Aid Center of Southern Nevada, Inc.

ORDER DISMISSING APPEAL

Pursuant to the stipulation of the parties, and cause appearing, this appeal is dismissed. NRAP 42(b).

It is so ORDERED.


text:
    In the MATTER OF DISCIPLINE OF Chad N. DENNIE, Bar No. 8789.
    No. 78364
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Chad N. Dennie
    Bar Counsel, State Bar of Nevada
    Executive Director, State Bar of Nevada
    ORDER OF DISBARMENT
   This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation that attorney Chad N. Dennie be disbarred based on violations of RPC 1.15 (safekeeping property), RPC 8.1(b) (disciplinary matters), and RPC 8.4 (misconduct). Because no briefs have been filed, this matter stands submitted for decision based on the record. SCR 105(3)(b).

The State Bar has the burden of showing by clear and convincing evidence that Dennie committed the violations charged. In re Discipline of Drakulich , 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). Here, however, the facts and charges alleged in the amended complaint are deemed admitted because Dennie failed to answer the amended complaint and a default was entered. SCR 105(2). The record therefore establishes that Dennie violated the above-referenced rules by misappropriating approximately $725,000 of client funds by routinely underpaying his clients and overpaying his earned fees. Additionally, Dennie failed to respond to the State Bar's requests for information and letters of investigation. Dennie was temporarily suspended on December 6, 2018. In re Discipline of Dennie , Docket No. 77460 (Order Imposing Temporary Suspension and Restricting Handling of Client Funds, Dec. 6, 2018).

Turning to the appropriate discipline, we review the hearing panel's recommendation de novo. SCR 105(3)(b). Although we "must ... exercise independent judgment," the panel recommendation is persuasive. In re Discipline of Schaefer , 117 Nev. 496, 515, 25 P.3d 191, 204 (2001). In determining the appropriate discipline, we weigh four factors: "the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors." In re Discipline of Lerner , 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).

Dennie intentionally violated duties owed to his clients (safekeeping property) and the profession (failing to respond to lawful requests for information by a disciplinary authority). Dennie's clients suffered an actual injury as they did not receive their funds. Dennie's failure to cooperate in the disciplinary investigation harmed the integrity of the profession, which depends on a self-regulating disciplinary system. The baseline sanction for his misconduct, before consideration of aggravating and mitigating circumstances, is disbarment. See Standards for Imposing Lawyer Sanction, Compendium of Professional Responsibility Rules and Standards , Standard 4.11 (Am. Bar Ass'n 2017) ("Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."). The record supports the hearing panel's findings of no mitigating circumstances and nine aggravating circumstances (prior discipline, dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of conduct, vulnerability of victims, substantial experience in the practice of law, indifference to making restitution, and illegal conduct). Having considered the four factors, we agree with the panel that disbarment is appropriate.

Accordingly, we disbar attorney Chad N. Dennie from the practice of law in Nevada. Such disbarment is irrevocable. SCR 102(1). Dennie shall pay the costs of the disciplinary proceedings, including $3,000 under SCR 120, within 30 days of the date of this order. The State Bar shall comply with SCR 121.1.

It is so ORDERED.

      The amended complaint and the notice of intent to take a default were served on Dennie through regular and certified mail. The amended complaint, the order appointing the hearing panel chair, and the scheduling order were emailed to Dennie. Dennie attended one telephonic conference on October 23, 2018, and bar counsel spoke with Dennie by phone the day before the hearing and Dennie confirmed that he knew when the hearing was occurring. Yet, Dennie did not appear at the hearing.


text:
    In the MATTER OF DISCIPLINE OF M. Lani ESTEBAN-TRINIDAD, Bar No. 6967.
    No. 78379
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    M. Lani Esteban-Trinidad
    Bar Counsel, State Bar of Nevada
    Executive Director, State Bar of Nevada
    ORDER APPROVING CONDITIONAL GUILTY PLEA
    This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation that this court approve, pursuant to SCR 113, a conditional guilty plea agreement in exchange for a stated form of discipline for attorney M. Lani Esteban-Trinidad. Under the agreement, Esteban-Trinidad admitted to violating RPC 1.15 (safekeeping property) and agreed to a six-month-and-one-day suspension and the payment of restitution.
    Esteban-Trinidad has admitted to the facts and violations as part of her guilty plea agreement. Thus, the record establishes that Esteban-Trinidad violated RPC 1.15 (safekeeping property) by misappropriating client funds for office and personal expenses and commingling personal funds with client funds. Esteban-Trinidad's clients were paid and their funds were generally missing for less than two months at a time.
    The issue for this court is whether the agreed-upon discipline is sufficient to protect the public, the courts, and the legal profession. See State Bar of Nev. v. Claiborne , 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988) (explaining the purpose of attorney discipline). In determining the appropriate discipline, we weigh four factors: "the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyers misconduct, and the existence of aggravating or mitigating factors." In re Discipline of Lerner , 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).
    Esteban-Trinidad admitted to knowingly violating a duty owed to her clients (safekeeping property). Her clients suffered actual or potential injury as a result of not timely receiving their funds. As the panel found, the baseline sanction for such misconduct, before considering aggravating or mitigating circumstances, is disbarment. Standards for Imposing Lawyer Sanctions, Compendium of Professional Responsibility Rules and Standards , Standard 4.11 (Am. Bar Ass'n 2017) (providing that disbarment is appropriate when "a lawyer knowingly converts client property and causes injury or potential injury to a client"). The record supports the panel's findings of three aggravating circumstances (pattern of misconduct, multiple offenses, and substantial experience in the practice of law) and five mitigating circumstances (absence of prior discipline in 19 years of practice, personal or emotional problems, full and free disclosure to disciplinary authority or cooperative attitude toward proceeding, character or reputation, and remorse). We agree with the hearing panel's finding that the mitigating factors, especially Esteban-Trinidad's lengthy career without prior discipline and her emotional and personal problems, warrant a downward deviation from the baseline sanction of disbarment. Thus, considering all four factors, we conclude that the agreed-upon discipline is appropriate.
    Accordingly, we hereby suspend attorney M. Lani Esteban-Trinidad from the practice of law for six months and one day commencing from the date of this order. Esteban-Trinidad shall pay restitution in the amount of $8,500 to Steven Sexton and $2,195 to Kalen Carlisle within 30 days from the date of this order. Lastly, Esteban-Trinidad shall pay the costs of the disciplinary proceedings, including $2,500 under SCR 120, within 30 days from the date of this order. The parties shall comply with SCR 115 and SCR 121.1.
    It is so ORDERED.


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    Julie A. GOLDBERG, TRUSTEE FOR the GOLDBERG FAMILY TRUST, Appellant, v. WELLS FARGO HOME MORTGAGE, INC.; and MTC Financial, d/b/a Trustee Corps, Respondents.
    No. 78881
    Supreme Court of Nevada.
    FILED JULY 05, 2019
   Julie A. Goldberg

Snell & Wilmer, LLP/Las Vegas

Kolesar & Leatham, Chtd.

Burke, Williams & Sorensen, LLP

ORDER DISMISSING APPEAL

This is a pro se appeal from a district court order dismissing appellant's complaint. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

Respondent Wells Fargo Home Mortgage, Inc. has filed a motion to dismiss this appeal for lack of jurisdiction. Respondent MTC Financial joins in the motion to dismiss. Respondents contend that the notice of appeal is improper because it is signed on behalf of the Goldberg Family Trust by appellant Julie Goldberg, who is not licensed to practice law in Nevada. Respondents argue that a trust must be represented on appeal by licensed Nevada counsel. Appellant has not opposed the motion.

A pro se litigant "is not permitted to represent an entity such as a trust." Guerin v. Guerin , 116 Nev. 210, 214, 993 P.2d 1256, 1258 (2000). "[A] trust must be represented by a licensed attorney in Nevada state courts." Id. "The proper and timely filing of a notice of appeal is jurisdictional," and this court "cannot treat a notice of appeal, which is the product of unauthorized practice of law, as having been properly filed." Id. The notice of appeal filed by Ms. Goldberg, who is not authorized to practice law in Nevada, is invalid. Accordingly, this court lacks jurisdiction over this appeal and

ORDERS this appeal DISMISSED.

      This court may construe the failure to oppose a motion as an admission that the motion is meritorious. Foster v. Dingwall , 126 Nev. 56, 66, 227 P.3d 1042, 1049 (2010).


text:
    Angel Rafael LORENZANA, Appellant, v. The STATE of Nevada, Respondent.
    No. 78970
    Supreme Court of Nevada.
    FILED JULY 9, 2019
    Angel Rafael Lorenzana
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a purported order denying a petition for writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael Villani, Judge.
    A review of the district court docket and minute entries does not indicate that a petition for writ of habeas corpus was filed in the underlying case. Further, it does not appear that the district court has entered any appealable order since the judgment of conviction was filed on November 14, 2018. Accordingly, we conclude that we lack jurisdiction to consider this appeal, and we
    ORDER this appeal DISMISSED.


text:
    Charles BROWN, Appellant, v. The STATE of Nevada, Respondent.
    No. 78732
    Supreme Court of Nevada.
    FILED JULY 9, 2019
   Charles Brown

Attorney General/Carson City

Clark County District Attorney

Clark County Public Defender

ORDER DISMISSING APPEAL

This appeal was initiated by the filing of a pro se notice of appeal. Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.

In his notice of appeal, appellant states that he is pursuing an appeal from an "order of commitment entered on 3/29/2019 or, in the alternative, petition for writ of habeas corpus.'' No statute or court rule provides for an appeal from an order of commitment or from an order denying a pretrial petition for a writ of habeas corpus. Castillo v. State , 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990) ; Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980). To the extent that appellant is attempting to file an original petition for a writ of habeas corpus in this court, "[a]n application for an original writ of habeas corpus should be made to the appropriate district court." See NRAP 22. Accordingly, this court

ORDERS this appeal DISMISSED.

      The documents before this court do not indicate that a pretrial petition for a writ of habeas corpus has been filed or denied in district court.

      Given this order, this court takes no action on the pro se documents filed in this appeal.


text:
    OMNI FAMILY LIMITED PARTNERSHIP, a Nevada Limited Partnership, Appellant, v. LUBAWY & ASSOCIATES, INC., a Nevada Corporation; Matthew J. Lubawy, Individually; and Chris C. Lauger, Individually, Respondents.
    No. 78108
    Supreme Court of Nevada.
    FILED JULY 9, 2019
   Brian K. Berman

Fennemore Craig, P.C./Phoenix

Fennemore Craig P.C./Reno

ORDER DISMISSING APPEAL

Pursuant to the stipulation of the parties, and cause appearing, this appeal is dismissed. The parties shall bear their own costs and attorney fees. NRAP 42(b).

It is so ORDERED.


text:
    Raymond G. PADILLA, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 78993
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Raymond G. Padilla
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a purported district court order dismissing a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
    This court's review of this appeal reveals a jurisdictional defect. Specifically, no decision had been made on the petition when appellant filed his appeal on June 10, 2019. Rather, the district court set a status check for 90 days. Thus, the notice of appeal is premature. See NRS 177.015(3). Accordingly, this court
    ORDERS this appeal DISMISSED.


text:
    Raymond G. PADILLA, Appellant, v. The STATE of Nevada, Respondent.
    No. 78995
    Supreme Court of Nevada.
    FILED JULY 05, 2019
    Raymond G. Padilla
    Attorney General/Carson City
    ORDER DISMISSING APPEAL
    This is a pro se appeal. Eighth Judicial District Court, Clark County; David M. Jones, Judge.
    Appellant claims this is an appeal from an order dismissing his civil rights complaint on May 5, 2019. Review of the documents transmitted to this court pursuant to NRAP 3(g) reveals a jurisdictional defect. No dismissal has been entered in the district court docket entries; the only relevant entry is an order to statistically close the case, lodged on May 9, 2019. This entry does not dispose of the action. See Brown v. MHC Stagecoach , LLC, 129 Nev. 343, 301 P.3d 850 (2013) (form orders statistically closing a case are not final and appealable). No written order dismissing the complaint has been entered. The notice of appeal is therefore prematurely filed, and is of no effect. See NRAP 4(a)(1) ; Rust v. Clark Cty. School District , 103 Nev. 686, 747 P.2d 1380 (1987) (explaining that the district court's oral pronouncement from the bench, the clerk's minute order, and even an unfiled written order cannot be appealed). Until a written order disposing of the claims is entered, the matter remains pending. Accordingly, this court lacks jurisdiction, and
    ORDERS this appeal DISMISSED.


text:
    Jermaine Jamaica CAMPBELL, Sr., Appellant, v. The STATE of Nevada, Respondent.
    No. 75123
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Karla K. Butko
    Attorney General/Carson City
    Washoe County District Attorney
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Egan K. Walker, Judge.

Appellant Jermaine Campbell, Sr. argues that the district court erred in denying claims of ineffective assistance of counsel. "A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review," Evans v. State , 117 Nev. 609, 622, 28 P.3d 498, 508 (2001), overruled on other grounds by Lisle v . State , 131 Nev. 357, 366 n.5, 351 P.3d 725, 732 n.5 (2015), but the district court's purely factual findings are entitled to deference, Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004). To prove ineffective assistance, a petitioner must show that (1) counsel's performance fell below an objective standard of reasonableness (deficient performance) and (2) a reasonable probability of a different outcome but for counsel's deficient performance (prejudice). Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984) ; Kirksey v. State, 112 Nev. 980, 987-88, 998, 923 P.2d 1102, 1107, 1114 (1996). The petitioner must demonstrate the facts underlying his claims by a preponderance of the evidence. Means v. State, 120 Nev. 1001, 1012, 103 P.25, 33 (2004).

First, appellant argues that counsel should have challenged Ashley Loftis' consent to the search of the apartment she shared with appellant because she was under the influence of drugs when the police obtained her consent. We conclude that appellant failed to demonstrate deficient performance. Medical records showed that Loftis had used drugs before police sought her consent to search the apartment she shared with appellant. However, neither the transcript of the motion to suppress nor the testimony at the evidentiary hearing demonstrated that she was so intoxicated as to render her consent involuntary. See McMorran v. State , 118 Nev. 379, 383, 46 P.3d 81, 83 (2002) ("A search pursuant to consent is constitutionally permissible if the State demonstrates that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." (internal quotation marks omitted)). Therefore, the district court did not err in denying this claim.

Second, appellant argues that postconviction counsel operated under a conflict of interest. Appellant sought new counsel in the district court because he did not trust his counsel or believe him competent. We discern no abuse of discretion in the district court's denial of that request. See Young v. State , 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (reviewing denial of a motion for substitution of counsel for an abuse of discretion). As postconviction counsel was not appointed pursuant to a statutory mandate, appellant did not have the right to effective assistance of counsel or the right to counsel of choice. See Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867, 870 (2014).

Third, appellant argues that counsel failed to inform him that he could be convicted of trafficking on a theory of constructive possession. He asserts that had counsel done so, he would have accepted a favorable plea offer. We conclude that substantial evidence supports the district court's conclusion that appellant failed to demonstrate that counsel convinced him to reject the plea offer. An attorney who represented appellant before trial testified that he discussed appellant's proposed defense that he did not own the drugs and concluded that it was not viable under Nevada law or the evidence against appellant. Trial counsel testified that he would have communicated all plea offers to appellant, and appellant agreed that the offer had been communicated. Counsel did not tell appellant to reject the plea offer. To the extent that appellant's testimony contradicted that of his counsel, it was for the district court to assess the relative credibility of each witness, and that determination receives substantial deference on appeal. See Bolden v. State , 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). The district court did not err in denying this claim.

Lastly, appellant argues that trial and appellate counsel were ineffective as to the sentencing hearing and not challenging the sentence on appeal based on inadequate jury instruction. Appellant did not raise this claim in his petition and we decline to consider it for the first time on appeal. See McNelton v. State , 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999).

Having concluded that no relief is warranted, we

ORDER the judgment of the district court AFFIRMED.


text:
    Bryan Lee SHONGARY, Appellant, v. Timothy FILSON, Warden; James Dzurenda, Director; the State of Nevada Department of Corrections; and the State of Nevada, Respondents.
    No. 78716
    Supreme Court of Nevada.
    FILED JULY 09, 2019
    Bryan Lee Shongary
    Attorney General/Carson City
    White Pine County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Seventh Judicial District Court, White Pine County; Gary Fairman, Judge.
    The district court entered the order challenged in this appeal on March 22, 2019. The clerk of the district court served appellant with notice of entry of the order that same day. Thus, appellant's notice of appeal was due to be filed in the district court by April 25, 2019. See NRS 34.575 ; NRAP 26(a), (c). Appellant's notice of appeal, however, was not filed in the district court until May 1, 2019.
    Because appellant dated his notice of appeal April 25, 2019, within the prescribed appeal period, this court entered an order directing the attorney general to obtain and transmit to the clerk of this court a certified copy of the notice of appeal log maintained at the prison indicating the actual date upon which appellant delivered his notice of appeal to a prison official. See NRAP 4(d) (a notice of appeal filed by an inmate confined in an institution is timely ''if it is delivered to a prison official for mailing on or before the last day for filing."); see also Kellogg v. Journal Commc'ns, 108 Nev. 474, 477, 835 P.2d 12, 13 (1992). If appellant used any other log maintained by the prison during the relevant time frame, the attorney general was to inform this court of that fact and provide a copy of the log.
    In response, the attorney general provides an affidavit from the Law Library Supervisor at Ely State Prison who states that there are no entries in the notice of appeal log for the month of April 2019; the last entry in the log was made in September of 2018. The attorney general also provides a heavily redacted copy of a legal mail log that seems to indicate the only legal mail appellant sent out during the month of April was placed in the prison mail system on April 29, 2019. Accordingly, there appears to be no record that appellant timely delivered his notice of appeal to a prison official.
    Because there is no record that appellant timely delivered his notice of appeal to a prison official, the May 1, 2019, date controls. See NRAP 4(d) (an inmate must use the notice of appeal log or other system designed for legal mail to receive the benefit of the rule). Appellant's notice of appeal was untimely filed. Accordingly, this court lacks jurisdiction, see Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994) ("[A]n untimely notice of appeal fails to vest jurisdiction in this court."), and
    ORDERS this appeal DISMISSED.


text:
    Dale Lynn BRAATEN, Appellant, v. The STATE of Nevada, Respondent.
    No. 78952
    Supreme Court of Nevada.
    FILED JULY 9, 2019
    Dale Lynn Braaten
    Attorney General/Carson City
    Lyon County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court "order denying motion to amend judgement of conviction." Third Judicial District Court, Lyon County; Leon Aberasturi, Judge.
    This court's review of this appeal reveals a jurisdictional defect. Specifically, the district court entered the order denying the motion to amend the judgment of conviction on April 24, 2019. Appellant did not file the notice of appeal, however, until June 5, 2019, well after the expiration of the 30-day appeal period prescribed by NRAP 4(b). Because an untimely notice of appeal fails to vest jurisdiction in this court, Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994), this court lacks jurisdiction to consider this appeal, and
    ORDERS this appeal DISMISSED.


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    NV EAGLES, LLC, a Nevada Limited Liability Company, Appellant, v. The BANK OF NEW YORK MELLON, f/k/a the Bank of New York, AS TRUSTEE FOR CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-20 ; and Mortgage Electronic Registration Systems, Inc., Respondents.
    No. 77676
    Supreme Court of Nevada.
    FILED JULY 9, 2019
    Hong & Hong
    Akerman LLP/Las Vegas
    ORDER DISMISSING APPEAL
    This is an appeal from a district court order granting motion for summary judgment in a quiet title action. Eighth Judicial District Court, Clark County; Nancy L. Allf, Judge.
    When this court's initial review of the docketing statement and documents before this court revealed a potential jurisdictional defect, this court ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Specifically, it appeared that the claims of respondent Bank of New York Mellon (BONY) against SFR, Majestic Hills Community Association, and Alessi & Koenig remained pending in the district court.
   In response to the order, appellant asserts that these claims were pleaded in the alternative and rendered moot by the summary judgment order confirming that the deed of trust remained a valid encumbrance. However, even assuming that BONY'S claims against Majestic Hills Community Association, and Alessi & Koenig were rendered moot, appellant fails to demonstrate that BONY's claims against SFR have been resolved. BONY's claims against SFR were not pleaded in the alternative. And the August 8, 2018, summary judgment order does not confirm that BONY's deed of trust remains valid against SFR. It is noted that appellant's August 22, 2018, motion to alter or amend specifically argued that the summary judgment order should be amended because it did not address whether the first foreclosure (pursuant to which SFR obtained title) extinguished the deed of trust. The district court seemed to agree with this assessment when it granted in part the motion to alter or amend. Under these circumstances, appellant fails to demonstrate that BONY's claims have been fully resolved and that the August 8, 2018, order constitutes a final judgment appealable under NRAP 3A(b)(1). See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (defining a final judgment). As no other statute or court rule appears to authorize this appeal, see Brown v. MHC Stagecoach, LLC , 129 Nev. 343, 345, 301 P.3d 850, 851 (2013) (this court "may only consider appeals authorized by statute or court rule"), it appears that this court lacks jurisdiction and

ORDERS this appeal DISMISSED.

      The district court's order granting in part the motion to alter or amend contemplates the entry of amended findings of fact and conclusions of law to address an additional issue. To date, it does not appear that any amended findings of fact and conclusions of law has been entered.


text:
    RENOWN HEALTH, a Nevada Non-Profit Corporation; and David Line, an Individual, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Elliott A. Sattler, District Judge, Respondents, and The Estate of Reno B. ("Kelly") Testolin, an Individual; Bryan Cave, LLP, a California Limited Liability Company; and Steven H. Sunshine, an Individual, Real Parties in Interest.
    No. 78641
    Supreme Court of Nevada.
    FILED JULY 10, 2019
   McDonald Carano LLP/Reno

Leonard Law, PC

Boies Schiller Flexner LLP

Dunlap & Laxalt

Woodburn & Wedge

ORDER DISMISSING PETITION

Cause appearing, petitioners' motion for a voluntary dismissal of this petition is granted. This petition is dismissed. NRAP 42(b).

It is so ORDERED.


text:
    DAYCO FUNDING CORPORATION, a California Corporation, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Elizabeth Goff Gonzalez, District Judge, Respondents, and Michael J. Mona, Jr. and Rhonda H. Mona, as Trustees of the Mona Family Trust; Norman Family Limited Partnership, a California Limited Partnership; A.O.E., LLC, a Nevada Limited Liability Company; Hamid M. Mahban, an Individual; Michael J. Mona, Jr., an Individual; Isaac Norman, an Individual; and Isaac Norman and Homa Norman as Trustees of the Norman Family Trust, Dated February 16, 1989, Individually and in Its Capacity as General Partner of the Norman Family Limited Partnership, Real Parties in Interest.
    No. 78785
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Kolesar & Leatham, Chtd.
    Marquis Aurbach Coffing
    ORDER DENYING PETITION FOR WRIT OF MANDAMUS
    This original petition for a writ of mandamus or prohibition challenges a district court order in a real property action. Having considered the petition and supporting documentation, we conclude that our extraordinary and discretionary intervention is not warranted. Int'l Game Tech ., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) ("A writ of mandamus is available to compel the performance of an act that the law requires ... or to control an arbitrary or capricious exercise of discretion."); Pan v. Eighth Judicial Dist . Court , 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (observing that the party seeking writ relief bears the burden of showing such relief is warranted); Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has sole discretion in determining whether to entertain a writ petition). In particular, we note that petitioner has filed a cross-appeal from the district court's order, and, to the extent the order is not a final judgment, petitioner may appeal after a final judgment is entered. See Pan, 120 Nev. at 224, 88 P.3d at 841 (recognizing that the right to appeal a final judgment generally precludes writ relief). Accordingly, we
    ORDER the petition DENIED.


text:
    Michael Edward HERROD, Appellant, v. The STATE of Nevada, Respondent.
    No. 75505
    Supreme Court of Nevada.
    JULY 10, 2019
    Anthony L. Abbatangelo
    Attorney General/Carson City
    Clark County District Attorney
    ORDER OF AFFIRMANCE
   This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping resulting in substantial bodily harm, battery resulting in substantial bodily harm constituting domestic violence, trafficking in a controlled substance, and two counts each of attempted murder and preventing or dissuading a witness from testifying or producing evidence. Eighth Judicial District Court, Clark County; Richard Scotti, Judge.

Appellant Michael Herrod first argues that the district court abused its discretion in denying his competency-evaluation request. We review for an abuse of discretion. Olivares v. State , 124 Nev. 1142, 1148, 195 P.3d 864, 868 (2008). An incompetent defendant lacks "the present ability to understand either the nature of the criminal charges against him or the nature and purpose of the court proceedings, or is not able to aid and assist his counsel in the defense at any time during the proceedings with a reasonable degree of rational understanding." Id.; see also NRS 178.400(2) (defining "incompetent" for trial and sentencing purposes). "[I]f doubt arises as to the competence of the defendant, the court shall suspend the proceedings ... until the question of competence is determined," NRS 178.405(1), and hold a formal competency hearing if substantial evidence-defined as that raising "a reasonable doubt about the defendant's competency to stand trial"-shows that the defendant may not be competent to stand trial, Olivares , 124 Nev. at 1148, 195 P.3d at 868 (internal quotation marks omitted) (quoting Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983) ).

Midway through the victim's direct examination, Herrod's attorneys apprised the district court that Herrod appeared to be hallucinating and wanted to have a psychological evaluation. In response, the district court canvassed Herrod and his counsel, who advised he had not previously seen Herrod having these issues. The State objected, arguing that Herrod previously raised competency issues during the victim's preliminary-hearing testimony, the same witness on the stand at trial when Herrod again requested an evaluation. Herrod's request during the preliminary hearing caused a continuance and resulted in two evaluations finding him competent. The State also proffered that after the continuance, Herrod made telephone calls from the jail urging others to keep the victim from appearing at his trial and discussing how to feign incompetence. Records from medical professionals at the Clark County Detention Center indicated a belief that Herrod was trying to manipulate his way out of court. The district court accepted the State's representations and admitted the jail calls and records as a court exhibit. Under these facts, we conclude Herrod did not raise a reasonable doubt as to his competency, particularly since the record demonstrates his understanding of the court proceedings, the criminal charges, and his ability to assist his counsel. Thus, we conclude the district court did not abuse its discretion in denying Herrod's mid-trial motion for a competency evaluation. Olivares , 124 Nev. at 1148, 195 P.3d at 868.

Herrod next argues that insufficient evidence supports the kidnapping and attempted murder charges. Specifically, Herrod contends that the State failed to prove kidnapping because the victim voluntarily entered his car and failed to exit when she had opportunities. We disagree. When reviewing a challenge to the sufficiency of the evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) ). The record shows that the victim voluntarily entered Herrod's vehicle intending to leave with him to discuss their relationship, but that, instead, Herrod immediately began to batter her as he drove to and stopped at different businesses, inflicting injuries that prevented her from readily fleeing.

In a related fashion, Herrod argues that the kidnapping was incidental to the battery and attempted murder. We disagree because driving and moving the victim to different areas was not required to physically harm or attempt to kill her. See Pascua v. State, 122 Nev. 1001, 1006, 145 P.3d 1031, 1034 (2006) (reiterating that dual convictions can stand where movement of the victim substantially exceeds that which is required to complete the associated crime). Thus, convictions for kidnapping, battery, and attempted murder were permitted in this case.

As to attempted murder, Herrod argues the State failed to prove intent. "An act done with the intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime." NRS 193.330(1). Contrary to Herrod's arguments, Nevada law only requires "some act, beyond mere preparation." Moffett v. State, 96 Nev. 822, 824, 618 P.2d 1223, 1224 (1980). The record shows that Herrod told the victim that she had pushed him to kill her, poured a liquid on her that smelled of gasoline, told her that he was going to set her on fire, and then clicked a lighter. Later Herrod told the victim that he wanted her to feel the pain he did from a motorcycle accident and then opened the passenger door and pushed her toward it, causing the victim to resist being pushed out of the moving vehicle. We conclude that viewing this evidence in the light most favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Herrod intended to kill the victim and in both instances took "direct but ineffectual act[s] toward the commission of the crime[s]." Darnell v. State, 92 Nev. 680, 682, 558 P.2d 624, 625-26 (1976) ; see also NRS 200.010 (defining murder); NRS 193.330(1) (defining attempt); Walker v. State , 91 Nev. 724, 726, 542 P.2d 438, 439 (1975) (recognizing that "it is the function of the jury, not the appellate court, to weigh the evidence and pass upon the credibility of the witness").

Lastly, Herrod argues that the district court erred in imposing consecutive sentences for kidnapping (count 1) and battery (count 2) because the convictions are redundant. This argument lacks merit for several reasons. First, if the convictions were redundant, the remedy would be to vacate one of them, not to impose concurrent sentences. Crowley v. State, 120 Nev. 30, 33, 83 P.3d 282, 285 (2004). Second, the factual premise for this argument-that the convictions arise from a single act on March 29, 2017-fails because the battery (count 2) involved conduct on March 26, 2017 (three days before the kidnapping) and March 29, 2017 (the day of the kidnapping). Finally, the convictions for battery and kidnapping are not redundant because they are not the same offense under the Blockburger test as each has at least one element that the other does not. Jackson v. State , 128 Nev. 598, 291 P.3d 1274 (2012) (discussing this court's redundancy cases and explaining that when the issue is whether a single act that violates more than one criminal statute can be punished cumulatively, the Blockburger same-elements test applies absent legislative direction regarding cumulative punishments); NRS 200.310 (defining kidnapping); NRS 200.320 (prescribing kidnapping penalties); NRS 200.481 (defining battery and specifying penalties); NRS 200.485 (delineating penalties for battery which constitutes domestic violence); NRS 33.018 (defining acts which constitute domestic violence).

Having considered Herrod's arguments and concluded that they lack merit, we

ORDER the judgment of the district court AFFIRMED.

      Herrod complains that the court should have reviewed the exhibit before determining whether to order a competency evaluation. While we agree that would have been the best practice, the record supports the State's representations and Herrod neither objected at the time, nor contends on appeal that the State's representations were inaccurate. Any error thus was harmless. See NRS 178.598 ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").

      Herrod's brief refers to counts 1, 2, and 4. The district court dismissed count 4 before sentencing, however, and therefore we address his argument only as it relates to counts 1 and 2.


text:
    Pasqual Andres MCMURRY, Petitioner, v. The STATE of Nevada, Respondent.
    No. 78907
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Pasqual Andres McMurry
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DENYING PETITION
    This pro se petition for a writ of certiorari challenges this court's decision in McMurry v. State, Docket No. 72805 (Order of Affirmance, February 22, 2019). A petition for a writ of certiorari cannot be used to seek this court's review of one of its own decisions. NRS 34.020. Accordingly, we
    ORDER the petition DENIED.

      In light of our disposition, petitioner is not required to provide proof of service.


text:
    Brian WILLIAMS, Warden; James Dzurenda, Director; the State of Nevada Department of Corrections; the State of Nevada; and Offender Management Division, Appellants, v. Preston JAKES, Respondent.
    No. 77128
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Attorney General/Las Vegas
    Preston Jakes
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order granting in part a postconviction petition for a writ of habeas corpus challenging the computation of time served. Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.

The district court granted respondent Preston Jakes claim seeking application of statutory good time credits to his minimum term for the crime of attempted sexual assault. The State argues the district court erred because the attempted sexual assault count was charged as a continuing offense with a date range of 2006-2010, and in 2007, the Legislature amended NRS 209.4465 to preclude application of statutory good time credits to the minimum term for a conviction of attempted sexual assault. 2007 Nev. Stat., ch. 525, § 5, at 3177 ( NRS 209.4465(8) ). Relying upon our unpublished decision in Smith v. Baca , Docket No. 71984 (Order of Affirmance, December 14, 2017) (child abuse is a continuing offense), the State argues that the statute in effect on the last date of a continuing offense controls for purposes of determining statutory credits. Because we disagree that attempted sexual assault is a continuing offense, we affirm.

This court "consider[s] an offense to be a continuing offense only when 'the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one.' " Rimer v. State , 131 Nev. 307, 319, 351 P.3d 697, 706 (2015) (quoting Toussie v. United States , 397 U.S. 112, 115 (1970) ). Nothing in NRS 200.366 (defining sexual assault as the act of sexual penetration) or NRS 193.330(1) (defining an attempt as "[a]n act done with the intent to commit a crime, and tending but failing to accomplish it") indicates that attempted sexual assault is a continuing offense. An attempted sexual assault is an act, not a pattern of behavior. The fact that child abuse is a continuing offense and may be committed by an act of sexual abuse, see NRS 200.508(4)(a), does not mean that the Legislature intended to treat the offense of attempted sexual assault as a continuing offense. And the fact that the charging document sets forth a date range for the offense does not mean that the offense was a continuing offense. Wilson v. State , 121 Nev. 345, 368-69, 114 P.3d 285, 301 (2005) (recognizing that the State is not required to allege an exact date unless time is an element of the charge provided that the defendant is given sufficient notice of the charges). The State has offered no other argument that the post-2007 version of NRS 209.4465 controls. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

      The district court denied several other claims relating to credits. Jakes did not file a cross-appeal or a brief in this matter. Thus, we do not address the decision denying relief on the remaining claims.


text:
    Jonathan Wayne MUNDO, Appellant, v. DIRECTOR OF N.D.O.C., Respondent.
    No. 77247
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Jonathan Wayne Mundo
    Attorney General/Carson City
    ORDER OF AFFIRMANCE
   This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eleventh Judicial District Court, Pershing County; Jim C. Shirley, Judge.

Appellant argues that the prison miscalculated the date that his Nevada sentences began, claiming that they should have started concurrently with the second of his California cases. Appellant's argument is legally incorrect.

The district court has authority to run a sentence for a Nevada conviction concurrently or consecutively with an out-of-state sentence. NRS 176.045(1). But if the judgment is silent, the Nevada sentence does not begin to run until the out-of-state sentence expires. NRS 176.045(4). Here, the Nevada sentences were imposed to run consecutively to the sentence in one of appellant's California cases, but the Nevada judgments were silent in regard to appellant's sentence in a second California case. Consistent with NRS 176.045(4), appellant's Nevada sentences did not begin until he was released from custody in the second California case. Accordingly, the district court did not err in denying the postconviction petition for a writ of habeas corpus. We therefore

ORDER the judgment of the district court AFFIRMED.

      Having considered the pro se brief filed by appellant, we conclude that a response from the State is not necessary. NRAP 46A(c). This appeal therefore has been submitted for decision based on the pro se brief and the record. See NRAP 34(f)(3).

      We deny the motion to voluntarily dismiss the appeal as moot.


text:
    Verenise ROBLES, Appellant, v. The STATE of Nevada, Respondent.
    No. 76402
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Terrence M. Jackson
    Attorney General/Carson City
    Clark County District Attorney
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order denying appellant Verenise Robles' postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

Robles argues the district court erred by denying her claims of ineffective assistance of counsel. To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) ; Warden v. Lyons , 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland ). Both components of the inquiry must be shown, Strickland , 466 U.S. at 697, and the petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means v. State , 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden , 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).

First, Robles argues that counsel should have filed a motion to suppress her confession because she was unsophisticated in legal matters, she did not understand her rights, her refusal to sign the Miranda warnings indicates that she had strong reservations about the interview, and the police grilled her relentlessly. The district court rejected this argument, concluding Robles did not demonstrate that the motion would have succeeded as her factual assertions were not supported by the record and a defendant's legal sophistication is not required for a confession to be admissible at trial. Robles did not provide copies of the trial transcripts, a transcript of her interview with the police, or any other evidence relating to her confession. It is Robles' burden to provide this court with an adequate record for review. See McConnell v. State, 125 Nev. 243, 256 n.13, 212 P.3d 307, 316 n. 13 (2009). Because Robles did not provide an adequate record to review this claim, she fails to meet her burden to demonstrate that she is entitled to relief.

Next, Robles argues counsel did not sufficiently investigate and prepare for trial. Trial counsel testified that he met with Robles, provided her discovery, had his investigator meet with her, and discussed anticipated defenses with her. Beyond a brief statement that there were other suspects the police did not pursue, Robles did not identify what evidence a more thorough investigation would have disclosed, and thus, she fails to demonstrate deficient performance. Further, Robles necessarily did not demonstrate prejudice because she failed to provide this court with the trial transcripts.

Next, Robles argues counsel should have requested a pretrial line-up because in-court identification is inherently suggestive. The district court concluded Robles did not demonstrate deficient performance, did not demonstrate that the in-court identification was unnecessarily suggestive, and did not demonstrate prejudice given her confession, the video evidence, and the fact that her personal identification was found in the vehicle with the codefendants. Robles' argument on appeal is based on speculation, and thus, she fails to demonstrate deficient performance. Robles further did not demonstrate prejudice as she failed to provide this court with the trial transcripts.

Next, Robles argues that counsel should have requested a jury instruction on the unreliability of eyewitness identification. Given the substantial evidence against her identified by the district court, including her confession and the video evidence, and given the fact that only one witness identified her, Robles did not demonstrate deficient performance in this regard.

Finally, Robles argues that counsel did not advise her of her right to a direct appeal and did not file a direct appeal on her behalf. At the evidentiary hearing, Robles testified that counsel never discussed a direct appeal with her and that she would have requested an appeal had trial counsel discussed her appellate rights. Contrarily, trial counsel testified that he did not remember if she asked for an appeal, but that his normal practice was to review appellate rights with his clients while reviewing the presentence investigation report and to file an appeal if a client asked for an appeal. Trial counsel also testified that if a client verbally requested an appeal that he would ask them to put the request in writing so that there was a record. There was no written request in his files. Trial counsel testified that regardless of whether there was a written request, he would have filed the notice of appeal based on a verbal request. The district court found that trial counsel's testimony was more credible and concluded that appellant did not demonstrate that counsel was ineffective in regard to filing an appeal. Giving deference to the district court's findings, we conclude that Robles failed to demonstrate that counsel was ineffective.

Having determined that Robles has not demonstrated any error in the district court's decision, we

ORDER the judgment of the district court AFFIRMED.

      Miranda v. Arizona, 384 U.S. 436 (1966).


text:
    David HOWELL, Appellant, v. Isidro BACA, Warden, Respondent.
    No. 76920
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    David Howell
    Attorney General/Carson City
    ORDER OF AFFIRMANCE
   This is a pro se appeal from a district court order denying a petition for a writ of habeas corpus challenging the revocation of parole. First Judicial District Court, Carson City; James Todd Russell, Judge.

Appellant claims that his parole revocation hearing violated due process. We conclude that the district court did not err in determining that appellant failed to demonstrate a due process violation as appellant received written notice of the alleged parole violations, appellant was provided 11 opportunities to attend the parole revocation hearing and he refused to attend, there is no allegation that the parole hearing officers were not neutral and detached, the Parole Board provided a written statement of the evidence relied upon and the reasons for revoking parole, and appellant did not request the appointment of counsel. See Morrissey v. Brewer , 408 U.S. 471, 488 (1972) (setting forth minimal due process for a parole revocation hearing); see also Gagnon v. Scarpelli , 411 U.S. 778, 790-91 (1973) (recognizing that whether counsel is required for a parole revocation proceeding would be decided on a case-by-case basis). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

      Having considered the pro se brief filed by appellant, we conclude that a response from the State is not necessary. NRAP 46A(c). This appeal therefore has been submitted for decision based on the pro se brief and the record. See NRAP 34(f)(3).


text:
    BRYAN CAVE LEIGHTON PAISNER LLP, a Missouri Limited Liability Company; and Steven H. Sunshine, an Individual, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Elliott A. Sattler, District Judge, Respondents, and The Estate of Reno B. ("Kelly") Testolin, an Individual; Renown Health, a Non-Profit Corporation; and David Line, an Individual, Real Parties in Interest.
    No. 78642
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Woodburn & Wedge
    McDonald Carano LLP/Reno
    Dunlap & Laxalt
    ORDER DISMISSING PETITION
    Cause appearing, petitioners' motion for a voluntary dismissal of this petition is granted. This petition is dismissed. NRAP 42(b).
    It is so ORDERED.


text:
    WASHOE COUNTY; and Cannon Cochran Management Services, Inc., Appellants, v. Gregory SAWYER, Respondent.
    No. 77980
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    McDonald Carano LLP/Reno
    Nevada Attorney for Injured Workers/Carson City
    ORDER DISMISSING APPEAL
    Cause appearing, appellants' motion for a voluntary dismissal of this appeal is granted. This appeal is dismissed. NRAP 42(b).
    It is so ORDERED.


text:
    DIAKONOS HOLDINGS, LLC, AS TRUSTEE OF LA CALERA TRUST, Appellant, v. NATIONSTAR MORTGAGE, LLC, Respondent.
    No. 75620
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Hong & Hong
    Akerman LLP/Las Vegas
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order granting summary judgment in an action to quiet title. Eighth Judicial District Court, Clark County; Adriana Escobar, Judge. Reviewing the summary judgment de novo, Wood v . Safeway , Inc. , 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we affirm.

The district court determined that NRS 116.31162 and NRS 116.311635 's notice provisions impose a duty of reasonable inquiry on an HOA to locate a unit owner's successor in interest when the HOA is aware that the unit owner is deceased and is aware that the foreclosure notices are not being successfully delivered the unit's address. Because the HOA in this case made no inquiry whatsoever, the district court declared the sale void for failure to provide the statutorily required notices.

Appellant contends that it would have been "legally and practically impossible" for the HOA to locate the unit owner's successor in interest because the unit owner's will was never presented for probate. However, appellant has not cited any legal authority to support the proposition that the only way to ascertain a decedent's successor in interest is via a probate proceeding, nor are we persuaded that the only practical means of doing so would be via a probate proceeding. Edwards v. Emperor's Garden Rest ., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (a party is responsible for supporting its arguments with salient authority). Thus, based on the facts of this case and the arguments that have been timely raised, we are not persuaded that the district court erred in declaring the sale void based on the HOA's failure to make any effort to locate the unit owner's successor in interest such that the statutorily required foreclosure notices could be successfully delivered. Cf. Bogart v. Lathrop , 90 Nev. 230, 232-33, 523 P.2d 838, 839-40 (1974) (determining that a statute requiring a tax foreclosure notice to be mailed to the taxpayer's "last known address" imposed a duty of "reasonable inquiry" to determine that address); cf. also Rosenberg v. Smidt , 727 P.2d 778, 783 (Alaska 1986) (same in context of a deed of trust foreclosure statute). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

      Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

      Appellant also contends that respondent was not prejudiced by the HOA's failure to mail the foreclosure notices to the unit owner's successor in interest. We decline to consider this argument as it was raised for the first time on appeal. Old Aztec Mine, Inc . v. Brown , 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).


text:
    In the MATTER OF the Application of Deborah Ann GECK, a/k/a Deborah Ann Guyton.
    Deborah Ann Geck, a/k/a Deborah Ann Guyton, Appellant, v. Clark County District Attorney, Respondent.
    No. 76799
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Nevada Legal Services/Las Vegas
    Clark County District Attorney
    ORDER OF REVERSAL AND REMAND
   This appeal challenges a district court order denying a petition to seal records. Eighth Judicial District Court, Clark County; Rob Bare, Judge.

Appellant Deborah Geck petitioned the district court to seal her criminal records, contending she was eligible for such relief under NRS 179.245 and NRS 179.255. Respondent, the Clark County District Attorney, agreed that Geck's record was statutorily eligible for sealing and informed the district court that it had "no objection to the granting of the Petition to seal the criminal record(s) of the petitioner." Despite this, the district court denied Geck's petition. In so doing, the district court relied on State v . Cavaricci , 108 Nev. 411, 834 P.2d 406 (1992), finding that "the nature of the subject incidents, the fact that the events are relatively recent, and the extent of Petitioner's criminal history" indicate that "the Petitioner is not the type of person upon whom the judiciary will confer such a substantial benefit as the sealing of her criminal records." We review the district court's decision for an abuse of discretion. Id. at 412-13, 834 P.2d at 407-08.

NRS 179.245(1) permits a person to petition the court for the sealing of all records for certain enumerated convictions after a specified period of time. NRS 179.255 governs the sealing of a record of dismissal and allows for a petition requesting the sealing of records of a dismissed charge any time after the dismissal date so long as the statute of limitations has expired, eight years from the time of arrest has passed, or there is a stipulation to seal. Enacted in 2017, NRS 179.2445 establishes a rebuttable presumption that records should be sealed "if the applicant satisfies all statutory requirements." 2017 Nev. Stat., ch. 378, § 4, at 2411.

Geck argues that the district court erred by failing to apply NRS 179.2445 's rebuttable presumption in favor of sealing records and that the district court should be required to seal the records where no evidence rebutted the presumption. Although the State suggests the district court must have considered the rebuttable presumption, the record is not so clear. Geck's petition and proposed order did not mention it. The district court's written order also does not mention the rebuttable presumption. And there apparently was no hearing on the petition, likely because it was uncontested. On this record, we are constrained to agree with Geck that the district court did not consider whether the rebuttable presumption applied. The failure to consider controlling authority is an abuse of discretion. See Davis v. Ewalefo , 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015) ("Although this court reviews a district court's discretionary determinations deferentially, deference is not owed to legal error, or to findings so conclusory they may mask legal error." (internal citations omitted)). We must therefore reverse and remand so that the district court can consider whether the presumption in NRS 179.2445(1) applies and, if so, whether it has been rebutted.

In light of the foregoing we,

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

      Geck also argues that the criminal history she submitted with her petition is not accurate. The record does not show that Geck argued this to the district court and we decline to address it in the first instance. See Ryans Eocpress Transp. Servs., Inc . v. Amador Stage Lines , Inc ., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) ("An appellate court is not particularly well-suited to make factual determinations in the first instance."). The parties also did not address below or adequately brief on appeal the extent to which the circumstances considered in Cavaricci remain relevant in determining whether NRS 179.2445(1) 's presumption has been rebutted. See generally Hearing on AB 327 Before the Assembly Comm, on Corrections, Parole, and Probation, 79th Sess., at 45 (Nev., April 4, 2017) (comment by Mike Palzes, Staff Attorney, Nevada Legal Services, indicating that inclusion of the presumption "would not abrogate [Cavaricci ]"). We therefore express no opinion on that question.


text:
    Ricky NOLAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 79042
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Ricky Nolan
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court order denying a motion for reconsideration. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.
    Because no statute or court rule permits an appeal from an order denying a motion for reconsideration, we lack jurisdiction. Phelps v. State , 111 Nev. 1021, 1022-23, 900 P.2d 344, 344-45 (1995) ; Castillo v. State , 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990). Accordingly, this court
    ORDERS this appeal DISMISSED.


text:
    Katrina GARCIA, Appellant, v. The STATE of Nevada, Respondent.
    Katrina Garcia, Appellant, v. The State of Nevada, Respondent.
    No. 79082 No. 79083
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Katrina Garcia
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEALS
    These are pro se appeals from district court orders denying appeals from convictions entered injustice court and remanding for further proceedings. Eighth Judicial District Court, Clark County; Richard Scotti, Judge.
    This court's review of these appeals reveals a jurisdictional defect. Specifically, the district court has final appellate jurisdiction over cases arising in the justice court. Nev. Const. art. 6, § 6 ; Tripp v. City of Sparks, 92 Nev. 362, 363, 550 P.2d 419, 419 (1976) ; Waugh v. Casazza , 85 Nev. 520, 458 P.2d 359 (1969). Accordingly, this court lacks jurisdiction to consider these appeals, and
    ORDERS these appeals DISMISSED.


text:
    Osvaldo LOPEZ, Jr., Appellant, v. The STATE of Nevada, Respondent.
    No. 75280
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Robert L. Langford & Associates
    Attorney General/Carson City
    Clark County District Attorney
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

Appellant claims the district court erred by denying his claims of ineffective assistance of counsel. To prove ineffective assistance of counsel, a petitioner must demonstrate counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability the outcome of the proceedings would have been different but for counsel's errors. Strickland v . Washington, 466 U.S. 668, 687-88 (1984) ; Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland ). Both deficient performance and prejudice must be shown. Strickland, 466 U.S. at 697. We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous, but we review the district court's application of the law to those facts de novo. Lader v. Warden , 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).

First, appellant argues trial counsel did not investigate witnesses. Specifically, he alleges that counsel did not make meaningful efforts to procure Claudia, a witness who could have provided exculpatory evidence. We conclude appellant has not demonstrated deficient performance or prejudice. At the evidentiary hearing, counsel testified that he contacted Claudia, realized there was a language barrier, and asked Claudia to call him back so he could use an interpreter. When Claudia did not return counsel's call, counsel tried to contact her two or three more times without success. Appellant did not present Claudia at the evidentiary hearing but merely hypothesized that she may have had custody and control of the victim the morning of the incident, which allegedly would have contradicted the State's version of events. Appellant's hypothesis does not demonstrate what further investigation of Claudia would have revealed that could have led to a reasonable probability of a different outcome, particularly given the evidence that the victim was playing, eating, and interacting with others the morning of the incident, activities that experts opined would have been inconsistent with her injuries when she arrived at the hospital in the evening. Accordingly, appellant has not shown that trial counsel was ineffective in this regard, and the district court did not err in denying this claim.

Second, appellant claims trial counsel should have obtained a psychological evaluation of appellant to use at sentencing. Appellant alleges that a psychological evaluation may have swayed the district court to grant him probation on the two child abuse charges, which could have a positive impact on appellant's parole date and hearing. Even assuming counsel was deficient in this regard, we conclude that appellant has not demonstrated resulting prejudice. Appellant was convicted of one count of first-degree murder, a non-probationable offense, and two counts of child abuse and neglect, both of which were ordered to be served concurrently to the sentence for murder. Because probation was not available to appellant for the murder conviction, he was subject to a minimum of 20 years before parole eligibility. See NRS 200.030(4)(b). The district court sentenced appellant to identical terms of 24 to 60 months for the child abuse counts; therefore, both terms will expire before appellant is eligible for parole for the murder count. Accordingly, appellant has not shown a reasonable probability of a different outcome had counsel obtained a psychological examination, and the district court did not err in denying this claim.

Third, appellant claims the district court erred by not holding an evidentiary hearing on his claim that trial counsel should have objected to prejudicial hearsay from three witnesses regarding the victim's accusations against appellant. We disagree. On appeal from his judgment of conviction, appellant argued that the district court erroneously allowed the same three witnesses to testify to accusations by the victim against appellant, and this court found the testimony was properly admitted. Lopez, Jr . v. State , Docket No. 49821 (Order of Affirmance, May 5, 2009). Therefore, appellant does not demonstrate that his counsel was deficient or a reasonable probability of a different outcome had counsel objected, as this court found that the statements were not inadmissible hearsay. See Ennis v. State , 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial counsel need not lodge futile objections to avoid ineffective assistance of counsel claims/'). Accordingly, the district court did not err in denying this claim without an evidentiary hearing. See Hargrove v. State , 100 Nev. 498, 503, 686 P.2d 222, 225 (1984) (concluding a petitioner is only entitled to an evidentiary hearing if he raises claims, supported by specific factual allegations, that would warrant relief if true and only if the claims are not belied by the record).

Lastly, appellant argues that cumulative error entitles him to relief. Because appellant has not shown any deficiencies in counsel's performance, there is nothing to cumulate.

Accordingly, we

ORDER the judgment of the district court AFFIRMED.

      Pursuant to NRAP 34(f)(3), we have determined that oral argument is not warranted in this appeal.

      To the extent appellant hypothesizes that Claudia could have testified as to the victim's clumsiness and roughhousing with her brother, such testimony was introduced through other witnesses. Therefore, appellant has not shown a reasonable probability of a different outcome at trial had this same testimony been introduced through Claudia.

      The parole board will consider appellant's criminal history, including the two convictions for child abuse and neglect, in determining whether to grant parole. See NRS 213.1099(2)(c).


author: Justice Law Center

text:
    In the MATTER OF DISCIPLINE OF Alexis PLUNKETT, Bar No. 11245
    No. 79000
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Bar Counsel, State Bar of Nevada
   Justice Law Center

ORDER OF REFERRAL TO DISCIPLINARY BOARD

This is a petition under SCR 111 concerning attorney Alexis Plunkett, based on her conviction of possession of a portable telecommunication device by a prisoner, a felony in violation of NRS 212.165. For purposes of SCR 111, the felony conviction is a "serious crime." SCR 111(6). Normally, upon being informed that an attorney has been convicted of a "serious crime," this court is required to impose an immediate temporary suspension and refer the attorney to the appropriate disciplinary board for a hearing to determine the extent of the discipline to be imposed. SCR 111(7), (8). But here, a temporary suspension is unnecessary because Plunkett is currently suspended from the practice of law under SCR 102(4)(b). In re Discipline of Plunkett, Docket No. 78337 (Order Imposing Temporary Suspension, April 5, 2019). To the extent that Plunkett's felony conviction is not within the scope of the disciplinary proceedings already pending against her, we refer this matter to the Southern Nevada Disciplinary Board.

It is so ORDERED.