Elements of Nevada Legal Theories

By Steven J. Klearman

Back and better in its 15th Anniversary Fourth Edition, this concise guide provides the elements of Nevada's most frequently pleaded common law and statutory claims, together with supplemental information for each claim that covers facts, proof, remedies and damages. A recently added section adds applicable statutes of limitation where possible. Utilized and valued by attorneys and judges throughout Nevada for more than 15 years.

• Language: English
• Publisher: BookBaby
• Release date: Jul 23, 2016
• ISBN: 9781483576145

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discussed.

Aiding and Abetting

1.   Defendant knows that a third party’s conduct constitutes a breach of duty to plaintiff;

2.   Defendant substantially assists or encourages the third party’s conduct; and

3.   Plaintiff sustained damages.

Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998), overruled on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11 (2001).

A. Facts

The Mahlums had to prove three elements: (1) that Dow Corning committed fraudulent misrepresentation that injured Mahlum; (2) that Dow Chemical was aware of its role in promoting the fraudulent misrepresentation at the time it provided assistance; and (3) that Dow Chemical knowingly and substantially assisted Dow Corning in committing fraudulent misrepresentation. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998), overruled on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11 (2001).

B. Proof

To amount to substantial assistance, such encouragement must take the form of a direct communication, or conduct in close proximity, to the tortfeasor. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998), overruled on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11 (2001).

Abuse of Process

1.   Defendant had an ulterior purpose other than resolving a legal dispute; and

2.   Defendant’s willful act in use of process was not proper in the regular conduct of the proceeding.

Franchise Tax Bd. of Cal. v. Hyatt, 335 P.3d 125 (Nev. 2014); LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002); Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 963 P.2d 465 (1998).

A. Facts

Company sued plaintiff for injunctive relief, breach of contract, fraud, misrepresentation, unjust enrichment, constructive trust, accounting, conversion, and conspiracy, involving its predecessor-in-interest. The district court granted summary judgment in favor of plaintiff and plaintiff then sued company and its president for abuse of process and malicious prosecution. LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

A doctor’s jury award for abuse of process was upheld where an attorney brought suit against the physician for medical malpractice, knowing that there was no basis for the claim, with the ulterior purpose of coercing the settlement of another claim. Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957, (1980), overruled on other grounds by Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987).

Award for abuse of process where a creditor attached property valued greatly in excess of the alleged debt with the ulterior purpose of coercing payment. Nevada Credit Rating Bureau, Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972), superseded by statute on other grounds as stated in Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 192 P.3d 243 (2008).

B. Proof

To survive summary judgment, plaintiff had to present specific facts that defendant had an ulterior purpose in the underlying lawsuit, other than resolving legal dispute with plaintiff, and that defendant willfully and improperly used the legal process to accomplish that purpose. LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

Malice, want of probable cause, and termination in favor of the person initiating or instituting proceedings are not necessary elements for a prima facie abuse of process claim. LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

While malice and want of probable cause are necessary elements for recovering in an action for malicious prosecution, they are not essential to recovery for abuse of process. Dutt v. Kremp, 111 Nev. 567, 894 P.2d 354 (1995), overruled on other grounds by LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

An action for abuse of process hinges on misuse of regularly issued process, in contrast to malicious prosecution, which rests upon wrongful issue of process. Dutt v. Kremp, 111 Nev. 567, 894 P.2d 354 (1995); Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972), overruled on other grounds by LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002); Laxalt v. McClatchy, 622 F. Supp. 737 (D. Nev. 1985).

C. Damages

The unclean hands doctrine should only apply when the egregiousness of the party’s misconduct constituting the party’s unclean hands and the seriousness of the harm caused by the misconduct collectively weigh against allowing the party to obtain such a remedy. In this case, the jury found Ahern liable for abuse of process. However, LVFF suffered no real damage as a result of Ahern’s abuse of process. Indeed, the jury awarded LVFF only $1 in compensatory damages, demonstrating the relative harmlessness of Ahern’s misconduct in bringing its unsupported breach of contract claim. Ahern’s misconduct (1) was not egregious and (2) did not cause LVFF any serious harm. Las Vegas Fetish & Fantasy Halloween Ball, Inc. v. Ahern Rentals, Inc., 124 Nev. 272, 182 P.3d 764 (2008).

Compensatory damages recoverable in an action for abuse of process include compensation for fear, anxiety, and mental and emotional distress, just as they do in an action for malicious prosecution. Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980).

D. Defenses

The unclean hands doctrine should only apply when the egregiousness of the party’s misconduct constituting the party’s unclean hands and the seriousness of the harm caused by the misconduct collectively weigh against allowing the party to obtain such a remedy. In this case, the jury found Ahern liable for abuse of process. However, LVFF suffered no real damage as a result of Ahern’s abuse of process. Indeed, the jury awarded LVFF only $1 in compensatory damages, demonstrating the relative harmlessness of Ahern’s misconduct in bringing its unsupported breach of contract claim. Ahern’s misconduct (1) was not egregious and (2) did not cause LVFF any serious harm. Las Vegas Fetish & Fantasy Halloween Ball, Inc. v. Ahern Rentals, Inc., 124 Nev. 272, 182 P.3d 764 (2008).

E. Miscellaneous

Dutt v. Kremp, 111 Nev. 567, 894 P.2d 354 (1995), is overruled to the extent that the opinion suggests that a plaintiff may claim malicious prosecution in the absence of a prior criminal proceeding. LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

Assault

1.   Defendant caused plaintiff to feel apprehension of harmful or offensive contact.

Prosser and Keeton on Torts, §10 at 43 (5th ed. 1984); Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

A. Facts

Where an employer is vicariously liable for the actions of their employees, and one employee is injured on the job by an intentional tort committed by a co-worker, the claim is not barred by the NIAA’s (Nevada’s workers compensation statute) exclusivity provisions. Fanders v. Riverside Resort & Casino, Inc., 245 P.3d 1159 (Nev. 2010).

Defendant homeowner appeared at a construction site where he was building a home and confronted plaintiff, a laborer on the project, about the fact that construction was behind schedule. Defendant homeowner was civilly liable for assault and battery where, without apparent provocation, he brandished a handgun and punched laborer in the face. According to laborer, homeowner then pointed the weapon at laborer’s head, threatened to take laborer’s life, and forced laborer to dismantle a portion of the completed work. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

Even though statute makes it a misdemeanor for one by word, sign or gesture to willfully provoke an assault, casino patron who had provoked casino employee by calling him an opprobrious name could recover from casino owner for injuries sustained when employee struck patron. Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d 399 (1970).

Not only the actual assailant but also all others who aided, abetted, or encouraged the wrongdoer are liable to an injured party, regardless of whether they were present when the wrong was committed. Johnson v. Fong, 62 Nev. 249, 147 P.2d 884 (1944).

B. Proof

An assault, a tort that does not require a physical impact, is in and of itself a predicate for an award of nominal or compensatory damages without proof of serious emotional distress. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

The standard of proof for emotional distress damages arising from assault and battery is not as stringent as the standard of proof requirement for bare claims of intentional or negligent infliction of emotional distress. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

Trial court’s review of companion criminal proceedings against homeowner did not result in prejudice to homeowner under the circumstances of review. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

Lack of consent is an essential element of a civil action for damages for assault and battery. One cannot consent to assault and battery because it is a crime against the state; however, lack of consent is still an element of the offense. Wright v. Starr, 42 Nev. 441, 179 P. 877 (1919).

C. Damages

The Nevada Supreme Court determined that the nature of a claim of assault is such that the safeguards against illusory recoveries mentioned in Barmettler v. Reno Air, 114 Nev. 441, 956 P.2d 1382 (1998) and Chowdhry v. NLVH, 109 Nev. 478, 851 P.2d 459 (1993) are not necessary. Claims for assault and battery provide the outer limits of extreme outrage. Thus, an assault, a tort that does not require a physical impact, is in and of itself a predicate for an award of nominal or compensatory damages without proof of serious emotional distress. Thus, the standard of proof for emotional distress damages arising from assault and battery is not as stringent as the standard of proof requirement for bare claims of intentional or negligent infliction of emotional distress. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000); see also Harrison v. Mitchell, 391 So.2d 1038 (1980) (holding that a jury may award nominal or compensatory damages for an assault where the only injury was insult, indignity, hurt feelings, mental suffering and fright caused by the assault)(citing Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328 (1915)).

Laborer physically attacked and threatened with handgun by homeowner during dispute at construction site was entitled to award of compensatory damages for emotional distress arising from both assault and battery, even though laborer required no medical or psychological treatment, where homeowner struck laborer in face and forced him to work at gunpoint, and laborer had continued to experience the terror of the incident through extreme nervousness, and had been forced to discontinue his independent contractor business out of fear of working in unsecured environment. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000).

D. Defenses

Oral abuse must be accompanied by an overt hostile act to constitute consent to fight. Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d 399 (1970).

Consent precludes a right of action for injuries received in ordinary assault and battery. To permit otherwise is to allow one to profit by one’s own wrong, a theory obnoxious to both law and equity. Steen v. Gass, 85 Nev. 249, 454 P.2d 94 (1969).

E. Miscellaneous

NRS 50.090 [Nevada’s rape shield law] is plain and unambiguous and applies to criminal prosecutions but not to civil trials…Nevertheless, in civil sexual assault cases…discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with NRCP 26(b)(1). Sonia F. v. Eighth Judicial Dist. Court, 125 Nev. 495, 215 P.3d 705 (2009).

NRS 41.745 relieves an employer of liability for the intentional conduct of an employee if certain conditions are met. NRS 41.745 provides as follows:

An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:

(a) Was a truly independent venture of the employee;

(b) Was not committed in the course of the very task assigned to the employee; and

(c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment.

For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.

NRS 41.745.

In Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 469 P.2d 399 (1970), the Nevada Supreme Court held an employer vicariously liable when its blackjack dealer hit a customer in the face while the blackjack dealer was dealing. The court found that the assault occurred within the scope of the very tasks assigned to the employee – dealing blackjack. Id., 469 P.2d at 399.

In J.C. Penney Co. v. Gravelle, 62 Nev. 434, 155 P.2d 477 (1945), a clerk assaulted a third party bystander because he attempted to prevent the clerk from catching a shoplifter who the clerk was pursuing outside of the store. The bystander followed the clerk back to the store after the clerk successfully retrieved the stolen item, and the two engaged in an altercation resulting in the clerk assaulting the bystander while in the store. Id., 155 P.2d at 477. The Nevada Supreme Court held that the employer was not liable for the clerk’s conduct because after he had returned to the store and returned the stolen merchandise to the manager, his actions in assaulting the bystander no longer involved his employment. Id., 155 P.2d at 477. The court reasoned that the assault was an independent adventure for the clerk’s own purposes and was not taken on the employer’s behalf or arising from a sense of duty to the employer. Id., 155 P.2d at 477.

In Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005), the guardian ad litem of a mentally handicapped store employee brought action against the store and the company that provided janitorial services to the store seeking to recover for the sexual assault committed on the store employee by the janitorial company’s employee. The janitorial company moved for summary judgment on the grounds that NRS 41.745 relieved it of liability. Id., 121 P.3d at 1026. The district court granted summary judgment on this ground and the Nevada Supreme Court affirmed. Id., 121 P.3d at 1026. Although the court found that the undisputed fact was that the employee was employed as a janitor, the assault was not reasonably foreseeable. Id., 121 P.3d at 1036-1037.

Attorney’s Liens

Attorneys may claim a lien in a civil proceeding. There are two types of attorney’s liens in Nevada, both of which may be utilized to ensure that a client pays attorneys’ fees:

I. GENERAL OR RETAINING LIENS

1.   Defendant retained plaintiff as attorney;

2.   Plaintiff has possession of defendant’s paper, property, or money in the course of this employment;

3.   Defendant discharged plaintiff;

4.   Therefore, plaintiff is entitled to a passive lien on defendant’s paper, property or money.

Leventhal v. Black & Lobello, 305 P.3d Nev. 907 (Nev. 2013); Figliuzzi v. Eighth Judicial Dist. Court, 111 Nev. 338, 890 P.2d 798 (1995); Morse v. Eighth Judicial Dist. Court, 65 Nev. 275, 195 P.2d 199 (1948).

A. Facts

"To the extent that the Sarman court held that a court has ‘incidental jurisdiction’ to resolve an attorney-client fee dispute regardless of whether a valid lien existed, we conclude that the Sarman opinion is overbroad." Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 216 P.3d 779 (2009).

[B]ecause a district court lacks jurisdiction to summarily adjudicate an attorney-client fee dispute in the underlying action when the attorney does not have an enforceable charging lien or the client does not request that a retaining lien be extinguished or consent to the district court’s adjudication of a retaining lien, we conclude that the district court was without power to adjudicate the fee dispute between Argentena and Jolley Urga. Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 216 P.3d 779 (2009).

A general or retaining lien entitles an attorney, if discharged by the client, to retain the client’s papers, property or money until a court, at the request of the client, requires the attorney to deliver the retained items upon the client’s furnishing of payment or security for the attorney’s fees. Figliuzzi v. Eighth Judicial Dist. Court, 111 Nev. 338, 890 P.2d 798 (1995).

Whether a lien is a retaining lien as opposed to a special or charging lien, in addition to whether the withdrawal was voluntary, will affect the ability of a lawyer to keep a client’s property. In re Kaufman, 93 Nev. 452, 567 P.2d 957 (1977).

Attorney’s right to be paid is not based upon his lien. Rather, it is based on contractual obligations, either express or implied, and the lien is only security for this right. Sarman v. Goldwater, Taber & Hill, 80 Nev. 536, 396 P.2d 847 (1964), overruled on other grounds by Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 216 P.3d 779 (2009).

The retaining lien, which attaches to all papers, books, documents, securities, and money that come to an attorney in the course of professional employment by the client, is entirely separate and without any special contract regarding it. The retaining lien gives the attorney the right to retain papers as against the client until the attorney is paid in full. It is not enforceable by judicial proceedings, except as may be accomplished through some incidental proceeding. Morse v. Eighth Judicial Dist. Court, 65 Nev. 275, 195 P.2d 199 (1948).

II. SPECIAL OR CHARGING LIENS – NRS 18.015

1.   Defendant retained plaintiff as attorney;

2.   Plaintiff obtained a judgment or settlement for defendant upon such claim, demand, or cause of action;

3.   Therefore, under NRS 18.015, plaintiff is entitled to a lien upon the claim, demand or cause of action.

NRS 18.015; Leventhal v. Black & Lobello, 305 P.3d 907 (Nev. 2013); Harvey L. Lerer, Inc. v. Eighth Judicial Dist. Court, 111 Nev. 1165, 901 P.2d 643 (1995).

A. Facts

A charging lien is a unique method of protecting attorneys, and permits an attorney, on motion in the case in which the attorney provided services, to obtain and enforce a lien or fees due for services provided in the case. Leventhal v. Black & Lobello, 305 P.3d 907 (Nev. 2013).

When a client enters into an independent retainer agreement with a forensic accountant for accounting services in furtherance of the client’s litigation, the attorney is not responsible for the accountant’s fees under the principal theory enunciated in Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978), and the attorney cannot claim the forensic accountant’s unpaid fees as costs in his attorney’s lien. Bero-Wachs v. Law Office of Logar & Pulver, 123 Nev. 71, 157 P.3d 704 (2007).

The attorney’s lien statute pertains to a voluntary, independent agreement between attorney and client that one will act on the other’s behalf. The claim, demand, or cause of action must be placed in that attorney’s hands by client. NRS 18.015; Harvey L. Lerer, Inc. v. Eighth Judicial Dist. Court, 111 Nev. 1165, 901 P.2d 643 (1995).

Whether a lien is a retaining lien as opposed to a special or charging lien, in addition to whether the withdrawal was voluntary, will affect the ability of a lawyer to keep a client’s property. In re Kaufman, 93 Nev. 452, 567 P.2d 957