Tuesday, September 29th, 2020-Las Vegas-J. Gibbons, J. Tao, and J. Bulla

JOHNSON VS. STATE, DEP'T OF CORR.
Docket Number: 76304-COA
Las Vegas - 10:00 A.M. - Court of Appeals

Appellant, Francis Johnson brought a civil rights action against respondents; State of Nevada, Department of Corrections, and Warden Mike Byrne. Johnson and asserts on appeal that the district court abused its discretion in dismissing his action, citing to Arnold v. Kip, 123 Nev. 410, 168 P.3d 1050 (2007). Johnson notes that this appeal involves dismissal under NRCP 16.1(e)(1) and Arnold involves a dismissal under NRCP 16.1(e)(2), but he argues that it provides guidance for the district court's discretion in this matter.

ISSUES:

Johnson asserts that the district court did not articulate that it relied on any of the Arnold factors, and argues that the factors support a lesser sanction than dismissal for the following reasons: (1) there was a short length of delay; (2) respondents had some responsibility for the delay as they filed and withdrew several motions, creating confusion; (3) the delay did not impede the timely prosecution of the case; (4) the delay did not impact general considerations of case management; and (5) Johnson had good reason for delay as he was transferred and did not have access to the prison's law library.

Disclaimer:

This synopsis is intended to provide only general information about this case before the Court of Appeals. It is not intended to be all-inclusive or reflect all positions of the parties.

BOLANOS-ALVARADO (CHILD CUSTODY)
Docket Number: 78392-COA
Las Vegas - 11:00 A.M. - Court of Appeals

Appellant Antonio Rojas brings this appeal after the district court entered an order granting his ex-wife, Anna Bolanos-Alvarado, primary custody of their two children. On appeal, Rojas argues that the district court abused its discretion by considering events prior to the most recent custody determination as a substantial change in circumstances. Specifically, Rojas argues that his prior drug use and Bolanos-Alvarado being sent to prison happened before the court awarded temporary guardianship to non-party Cynthia Martin. Rojas also argues that the district court abused its discretion by failing to support its findings that the modification of custody was in the best interest of the children with substantial evidence.

ISSUES:

ISSUE: (1) Whether the district court abused its discretion by failing to look to the most recent custody order when considering a substantial change in circumstances affecting the welfare of the children? (2) Whether the district court abused its discretion by failing to support its consideration of the best interest of the children factors with substantial evidence?

Disclaimer:

This synopsis is intended to provide only general information about this case before the Court of Appeals. It is not intended to be all-inclusive or reflect all positions of the parties.

APARICIO (HENRY) VS. STATE
Docket Number: 80072-COA
Las Vegas - 1:30 P.M. - Court of Appeals

Henry Aparicio pleaded guilty and was convicted of two counts of driving under the influence resulting in death (category B felony) and felony reckless driving (category B felony). He was sentenced to an aggregate term of 15 to 44 years. Aparicio appeals this sentence, arguing that the district court abused its discretion when it allowed the State to introduce inappropriate and prejudicial evidence and testimony at sentencing, and seeks a new sentencing hearing.

ISSUES:

ISSUES: Whether the district court abused its discretion when it (1) admitted victim impact statements at a sentencing hearing that came from the victim's unrelated friends, co-workers, supervisors, and other similarly situated individuals, who appellant argues are outside the scope of individuals allowed to make victim impact statements; (2) allowed victims to make statements directly to the court rather than through the presentencing investigation report as well as provide demonstrative exhibits such as posters and video; and (3) allowed victims to make statements at the sentencing hearing that improperly disparaged appellant's assertion of his rights and his pretrial litigation, as well as the system and sentencing suggestions of the parole and probation board.

Disclaimer:

This synopsis is intended to provide only general information about this case before the Court of Appeals. It is not intended to be all-inclusive or reflect all positions of the parties.

LOPEZ VS CANDELA, M.D.
Docket Number: 79590-COA
Las Vegas - 2:30 P.M. - Court of Appeals

Appellant Toney E. Lopez filed a pro se complaint against respondent, claiming respondent was negligence in his treatment and care for appellant related to a urological surgery, which he alleged caused him physical and psychological damage. Respondent Joseph V. Candela, M.D. filed a motion to dismiss the complaint, arguing Lopez's complaint sounded in medical malpractice and Lopez failed to file a medical affidavit as required by NRS 41A.071, which the district court granted. Lopez appeals.

ISSUES:

The issue on appeal is whether the district court erred in dismissing the complaint under NRS 41A.071, where appellant argues the district court did not make adequate findings as to whether appellant's claims sounded in ordinary negligence as opposed to medical malpractice. See Szymborski v. Spring Mtn. Treatment Ctr., 133 Nev. 638, 644, 403 P.3d 1280, 1286 (2017).

Disclaimer:

This synopsis is intended to provide only general information about this case before the Court of Appeals. It is not intended to be all-inclusive or reflect all positions of the parties.