Study: States must fill $1 trillion pension gap http://news.yahoo.com/s/ap/us_pension_shortfall_study
On February 18, 2010,
in Finance, Legislation,
by blacklobellolaw
Filing documents at the courthouse can be quite a nightmare due to long, frustrating lines. That wait time, however, can be cut significantly depending on your timing of when you go to court.
Attorney runner services are the culprit. If you coordinate your visit around their schedules, your wait time could be cut in half! Knowing where to go and what documents you will need beforehand can also save you time. Otherwise, you may be turned away after standing in line for a long time.
Family Court is very busy in the morning. Most cases are scheduled in the morning and runner services usually pile in during the A.M. hours. Therefore, try to file Family Court documents between 2 P.M. and 4 P.M. when the rush has passed.
Regional Justice Center usually brims with activity all day but most runner services avoid hitting the courthouse in the A.M. hours because of the longer-than-usual lines at security. Between 8 A.M. and 11 A.M. is when you should go for it! Once passed security, the longest lines are generally for Traffic Court. Justice Court, located on the 2nd floor, has a numbering system that helps with specific needs. In the morning, the wait in Justice Court should be about 20 to 30 minutes as opposed to 2 or more hours in the afternoon.
District Court, located on the 3rd floor, has a single file line that is usually between two to five people long in the morning. In the afternoon hours, however, the line can be 20 to 50 people plus the runner services which already occupy 2 or more windows. All these factors usually translate into at least an hour wait.
Lunch time is also a bad time to file. There may be less people in line but most clerks also take lunch from 11 A.M. to 1 P.M. The fewer clerks available to process files can contribute to extended wait times.
Another tip is to make sure you have plenty of quarters for parking. Tickets for expired meters can range from $20 to $35! Most meters give you up to 4 hours which should be more than enough time to complete your business at the courthouse.
Jason D. Wilder – Management Support/Utility
The Service Members Civil Relief Act of 2003 (SCRA) formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) is a federal law that gives all military members some important rights as they enter active duty and while on active duty. It covers such issues as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, and income tax payments.
The SCRA also protects active duty military members and reservists or members of the National Guard called to active duty (starting on the date active duty orders are received) and, in limited situations, dependents of military members (e.g., certain eviction actions).
To receive protection under some parts of the SCRA, the member must be prepared to show that military service has had a “material effect” on the legal or financial matter involved. Protection under the SCRA must be requested during the member’s military duty or within 30 to 180 days after military service ends, depending on the protection being requested.
In many situations, the SCRA protections are not automatic, but require some action to invoke the Act. For example, to obtain a reduction of your pre-active duty mortgage or credit card interest rates, you should send your lender/creditor a written request and a copy of your mobilization orders.
The Six Percent Loan Cap
One of the more well-known protections of the SCRA is the 6% loan provision. In general, service members may be entitled to have the interest rate on some loans reduced to 6% for the time the member is on active duty. This provision is especially useful for Reservists and National Guard members. Of course, there are a number of special requirements that must be met in order to qualify for the interest rate reduction. Some of the eligibility requirements are:
- The service member obtained the loan during a time when he or she was not on any form of active duty in any branch of the military.
- The interest rate is currently above 6% per year.
- The service member’s military service affects the ability to pay the loan at the regular (pre-service) interest rate. Generally this requirement means that the member makes less money in the military than as a civilian.
- The service member must notify the lender in writing, explain the situation, and provide a copy of the orders placing the member on active duty.
Delay of Court and Administrative Proceedings
A major benefit provided by the SCRA is that it permits active duty service members, who are unable to appear in a court or administrative proceeding due to their military duties, to postpone the proceeding for a mandatory minimum of ninety days upon the service member’s request. The request must be in writing and (1) explain why the current military duty materially effects the service member’s ability to appear, (2) provide a date when the service member can appear, and (3) include a letter from the commander stating that the service member’s duties preclude his or her appearance and that he is not authorized leave at the time of the hearing. This letter or request to the court will not constitute a legal appearance in court. Further delays may be granted at the discretion of the court, and if the court denies additional delays, an attorney must be appointed to represent the service member. (See Section 202, SCRA)
Default Judgment Protection
If a person does not appear in court when ordered to do so, the judge may render a verdict against that person. This is called a default judgment. Obviously, if a service member is overseas, deployed, on classified duty or in transit then the service member will not be able to appear at a court hearing and may suffer a default judgment. If a default judgment is entered against a service member during his or her active duty service, or within 60 days thereafter, the SCRA allows the service member to reopen that default judgment and set it aside. In order to set aside a default judgment, the service member must show that he or she was prejudiced by not being able to appear in person, and that he or she has good and legal defenses to the claims against him or her. The service member must apply to the court for relief within 90 days of the termination or release from military service. This provision is especially useful to Reservists and Guardsmen who may in the middle of a legal proceeding when they are ordered onto active duty. If the court ignores the Delay of Court provisions (discussed above) and renders a default judgment, the Reservist or Guardsman can have the default judgment set aside upon their return to their home. (See Section 201, SCRA)
Stay of Foreclosure
In today’s recession and drop in housing prices, many service members have seen civilian pay cuts or job loss and found themselves unable to make their mortgage payments. If a service member faces foreclosure and while ordered onto active duty, it can make a stressful situation even more so. The SCRA provides relief to such service members. A foreclosure action against a Reservist or Guardsman must be halted when that service member is called up onto active duty. The bank can only proceed if it obtains a court order. This provision protects mortgages entered into while the service member was in civilian status. (See Section 303, SCRA).
Termination of Leases
In the past, upon having to leave their home on active duty orders, many Reservists and Guardsmen were caught by surprise when the landlords or car companies with whom they had leases filed lawsuits for termination of the leases or demanded large cash payments to settle the lease. New provisions to the SCRA protect members in these situations.
The SCRA allows termination of leases by active duty service members who subsequently receive orders for a permanent change of station (PCS) or a deployment for a period of 90 days or more. The SCRA also includes automobiles leased for personal or business use by service members and their dependents. The pre-service automobile lease may be cancelled if the service member receives active duty orders for a period of one hundred and eighty (180) days or more. The automobile lease entered into while the service member is on active duty may be terminated if the service member receives PCS orders to a (1) location outside the continental United States or (2) deployment orders for a period of one hundred and eighty days or more. (See Section 305, SCRA).
Eviction for Nonpayment of Rent
Military members and their dependents (in their own right) have some protection from eviction if military service impacts their ability to pay rent. In order to evict a military member or his or her dependents, the landlord must obtain a court order. The court must find the member’s failure to pay is not materially affected by military service. Material effect is present where the service member does not earn sufficient income to pay the rent. Where the member is materially affected by military service, the member may request the court stay the eviction for three months. The court may decide on a shorter or longer period in the interest of justice. There is no requirement that the lease be entered into before entry on active duty, and the court could make any other “just” order under § 301 of the SCRA. The requirements of this section are:
- The landlord is attempting eviction during a period in which the service member is in military service or after receipt of orders to report to duty
- The rented premises is used for housing by the spouse, children, or other dependents of the service member
- The agreed rent does not exceed $2,465 per month. (See Section 305, SCRA)
Carlos L. McDade, Esq.
On December 3, 2009,
in Civil Litigation, Employment Law, Legislation, Wrongful Termination,
by blacklobellolaw
On November 25, 2009, the Nevada Supreme Court addressed an appeal on a lawsuit which was dismissed under Nevada’s anti-SLAPP statute. Nevada adopted a statute similar to several other states, which protects against a meritless suit filed primarily to chill the defendant’s exercise of First Amendment Rights, such as when a citizen makes a report or request to a government agency and someone else takes offense and sues them in retaliation. Thus, Nevada seeks to protect the free speech rights of its citizens. The Court found that Nevada’s anti-SLAPP statute can be applied to a cause of action based upon a federal statute, and that the district court was correct in dismissing the lawsuit under the terms of that statute.
In this employment discrimination lawsuit, commonly known as John v. Douglas County School District, a security officer at a school district had been disciplined and suspended for unprofessional conduct and sexual harassment. His appeal through his labor union went through three layers of appeals, and on each level the discipline was held. He then filed an Equal Employment Opportunity Commission (EEOC) complaint in Nevada district court, claiming both state and federal causes of action.
A year later, the school district found that he had improperly obtained confidential student records, and he refused to cooperate in their investigation. He was suspended during the investigation and at the end, was fired based upon information found during the investigation and his prior misconduct. He modified his lawsuit to assert numerous new claims against all parties involved. The district court dismissed his state law-based causes of action, as those claims were barred under the union’s collective bargaining agreement. The court then granted a special motion to dismiss, based upon application of Nevada’s anti-SLAPP statute and the security officer’s failure to show sufficient evidence that he would probably prevail on his claim.
The Nevada Supreme Court found that a state court can apply federal law, using the state civil procedures which are neutral and procedural and do not obstruct federal substantive law. The Court found that the defendants’ communications concerning his conduct were protected free speech and were truthful or made without knowledge of falsehood. The communications were important to the school district, as they addressed the school environment and impacted the possible legal liability of the school district. Once the school district had established that threshold, the burden of proof shifted to the claimant to establish a genuine issue of material fact regarding the relevant communications. Since the security guard did not raise such an issue, the lawsuit was properly dismissed.
This case was heard and decided by the entire panel of the Nevada Supreme Court.
Steven R. Bartell, Esq.
On December 3, 2009,
in Civil Litigation, Legislation,
by blacklobellolaw
In the medical malpractice arena, the Nevada Supreme Court has confirmed the Legislature’s speed bump to consumers trying to recover damages from Nevada doctors or dentists for injuries caused by their professional negligence. Since this is the first time the Court has looked at the new legislation passed to keep doctors from fleeing Nevada, it had to define its terms. First, it ruled that claims for “professional negligence” fall under the “medical malpractice” definition of the Nevada Revised Statutes. Second, it ruled that a medical corporation is covered under the “medical malpractice” requirements against “providers of health care” to establish a claim. Third, the Court visited the new regulation, N.R.S. 41A.071, which requires a doctor’s sworn statement to be filed with any new complaint alleging medical malpractice, or the complaint must be dismissed without prejudice. Fourth, the Court ruled a claim cannot be saved by filing an amended complaint with the required affidavit, as the complaint is void from the beginning. Why that was important in the Fierle v. Perez case, is that the amended complaint was filed after the new one-year medical malpractice statute of limitation (from actual knowledge of the claim) had passed, so the claim was now barred.
Factually, a cancer patient was severely burned when the chemotherapy she was receiving was misapplied. Instead of injecting the chemical into her vein through an implanted catheter, it was injected into her tissue by a nurse. When she experienced redness and swelling, an ultrasound was done which showed the catheter coiled in the tissues. Within two weeks, she was treating with other doctors, who agreed that medical malpractice had occurred. The patient suffered scarring
Almost a year after the ultrasound, the cancer patient’s attorneys filed a medical malpractice complaint against the doctor, the nurse, and the medical facility. Upon realizing they had failed to attach the required affidavit, the attorneys filed an amended complaint with the affidavit of the new treating physician. The defendants moved to dismiss the case entirely, and the court struck the amended complaint and dismissed the original complaint on the procedural basis of NRS 41A.071. Because the dismissal was done past the one-year statute of limitations, the patient was unable to file a new complaint with the required affidavit.
However, as a small bone to the claimant, the Supreme Court recognized that one of the original causes of action for res ipsa loquitor (latin for “the thing speaks for itself”) is a negligence claim which does not amount to medical malpractice, and therefore is an exception to the requirements of NRS 41A.071. Thus, the court ruled, only the patient’s claim against the nurse (who actually administered the therapy) would survive the dismissal.
Steven R. Bartell, Esq.
On Thursday, November 12, 2009, the Nevada Supreme Court gave its ruling in an international family law matter, commonly known as Ogawa v. Ogawa. This case involved three distinct issues effecting a child custody dispute and division of community property in a divorce action. Under the facts of this case, a now-Nevada resident was divorcing her spouse, who had returned to Japan with their three Japanese-born children.
The first issue was whether the Court had home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), when the Nevada resident filing for child custody didn’t file her divorce complaint until 8 months after the children left the State of Nevada. The parents had originally moved back and forth from Japan to Nevada with the children. The mother became a lawful permanent resident of Nevada and put the children in school. The children later returned to Japan for a temporary 3 month vacation with their father. When they were not returned, the mother filed for divorce and immediate return of the children.
The Supreme Court found that the court properly found jurisdiction to make custody decisions because Nevada was the children’s “home state” under the UCCJEA, as the expected 3-month temporary absence did not interrupt the six-month pre-complaint residency requirement necessary to establish home state jurisdiction. When the 3-month period was excluded, the action was timely filed under the UCCJEA and the Nevada district court had home-state jurisdiction.
The second issue was whether the district court found that Nevada was the children’s state of “habitual residence” and properly ordered the children be returned to Nevada. The Supreme Court ruled that the district court was correct to the extent that it was authorized to do so under the UCCJEA, even though the district court order was unenforceable under the international Hague Convention (adopted in the U.S. as the International Child Abduction Remedies Act) because Japan has not signed the Hague Convention. While the Supreme Court found that the Hague Convention does not apply here, the parties remained free to pursue other remedies and the court’s order was correct.
Finally, the Nevada Supreme Court found that the district court had improperly entered the divorce decree by default (awarding the mother all of the community property, spousal and child support, and attorneys fees and costs), because the father had filed an answer to the divorce complaint with a counter-complaint for divorce, and he appeared in court through counsel. Therefore, the district court erred in entering a default judgment without considering the merits of the case.
This case was heard and decided by the entire panel of the Nevada Supreme Court.
Steven R. Bartell, Esq.
On October 30, 2009,
in Civil Litigation, Legislation,
by blacklobellolaw
NC-DSH, Inc. d/b/a/ Valley Hospital v. Garner
125 Nevada Advanced Opinion Number 50
On October 29, 2009, the Nevada Supreme Court unanimously made a ruling in the above-referenced action involving clients whose claim was stolen by their own attorney. The attorney forged their signatures to settlement agreements (along with forged notary acknowledgements) on a medical malpractice case, got the opposing side/hospital to pay and sign a stipulation for dismissal, and submitted the order of dismissal to the court for execution. The lawyer then disappeared with the funds.
In a footnote, the Court explained that the Plaintiffs cooperated with the State Bar of Nevada in prosecuting the attorney criminally and with disbarment proceedings. However they waited 18 months before moving to have the dismissal set aside as “fraud on the court.” They labeled both the Plaintiffs and the Defendants as victims of the fraud.
The Supreme Court found that the attorney did not have the actual authority to settle on behalf of his client by forging the signatures, and affirmed setting aside the dismissal. They also affirmed the District Court allowing the Defendant/Hospital an offset for the settlement amount against any eventual recovery the family got from the medical malpractice action. The Court also overruled the argument that the Plaintiffs ratified the settlement by agreeing to accept the same (but additional) amount to settle their claims, which would double the costs for the Defendants, finding that the District Court’s finding on this issue was not clearly erroneous.
The Court explained that NRCP 60(b), which allows judgments to be set aside for fraud, only applies when there is fraud by the other side. NRCP 60(b) requires the motion to set aside (or separate action) be brought within 6 months of entry of judgment. The Court explained that because there was fraud on the court by their own attorney, the Plaintiffs could obtain relief to set aside the final judgment. They found there was no showing of prejudicial delay.
The decision was authored by Justice Pickering, and contains a comprehensive discussion of fraud on the court.
Steven R. Bartell, Esq.
Dobran v. Bunch, 125 Nevada Advance Opinion Number 3
6
On September 10, 2009, the Nevada Supreme Court adopted the Restatement (Third) of Suretyship and Guaranty section 14 (1966) on interpretation of guaranty agreements, at the same time as it abandoned the prior Nevada distinction between a guarantor who was compensated and one who is not, and abandoned the rule that a guaranty agreement must be strictly construed. The Court has ruled that general contract interpretation principles will apply and a guarantor will not be responsible for anything beyond what it clearly agreed to pay.
In this case, a company loaned money to five affiliated companies and demanded that their principal provide a personal guaranty. The affiliated companies then challenged the loans as usurious in a California court. The case was removed to Federal Court, and transferred to the U.S. District Court of Nevada, where the judge ruled that since Nevada law should apply to the loan, and Nevada has no usury law, Defendant/Lender should win. A year later, the company which lent the money, sued the principal in Nevada State District Court on the guaranty, seeking to recover attorney’s fees and costs in defending the usury action eventually found in their favor in Federal Court.
The Nevada Supreme Court found that since the language of the guaranty provision for attorney’s fees and costs was limited to “enforcing the guaranty” or “collection or compromising the indebtedness”, that the defense of the usury action was not covered. They found no affirmative action by the company to collect or compromise the loan. Therefore, the guarantor was not liable for those fees and costs.
This decision is consistent with the current Supreme Court’s apparent policy mandate to bring Nevada law into line with the rest of the states in the Western United States, while discarding antiquated distinctions and regulations.
Steven R. Bartell
On October 23, 2009,
in Civil Litigation, Legislation,
by blacklobellolaw
Webb V. Clark County School District
125 Nevada Advanced Opinion Number 47
On October 8, 2009, the Nevada Supreme Court made a ruling in the above-referenced action, which clarifies the law in some areas. This case arose out of a confrontation between a teacher and a student, with the student seeking damages.
First, the Court determined that the federal Paul D. Coverdell Teacher Protection Act of 2001 (20 U.S. C. Section 6731 (2006)) is an affirmative defense which must be affirmatively pled, or it is waived. The Cordell Act immunizes teachers, principals and other school professionals from liability and punitive damages when they take “reasonable actions to maintain order, discipline, and an appropriate educational environment.” However, it is not an absolute immunity if actions are unreasonable.
The other major issue addressed by the Court was the rendering of professional services (in this case, psychology) by a person not licensed in Nevada for that profession. The Court reasoned that if the State of Nevada regulates and licenses a practice, then public policy requires that those damages are not legally recoverable as a matter of law. A person practicing psychology without a license is guilty of a gross misdemeanor per statutes. The Legislature is intended to prevent laypeople from engaging in activities constituting the practice of psychology. Therefore, it would be contrary to Nevada law and public policy to permit parties to recover for psychological services rendered by unlicensed individuals. The ruling also cites favorably another state’s decision that insurance companies would not be required to pay for these unlicensed services.
It is assumed that the same rationale will by applied by the Nevada Supreme Court for non-licensed medical providers, including alternative medicine and self-prescribed physical therapy.
Steven R. Bartell, Esq.
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