782 P.2d 1336 (Nev. 1989), 19659, Hickey v. Eighth Judicial Dist. Court In and For County of Clark

Docket Nº:19659.
Citation:782 P.2d 1336, 105 Nev. 729
Party Name:Glen HICKEY and Chris Edward Hickey, Petitioners, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, the Honorable John S. McGroarty, District Judge, and the Honorable Miriam Shearing, District Judge, Respondents, Consuelo Hannl, individually and as Administratrix of the Estate of Tony Hernandez, Jr., Real Par
Case Date:November 27, 1989
Court:Supreme Court of Nevada
 
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Page 1336

782 P.2d 1336 (Nev. 1989)

105 Nev. 729

Glen HICKEY and Chris Edward Hickey, Petitioners,

v.

EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In

and For the COUNTY OF CLARK, the Honorable John S.

McGroarty, District Judge, and the

Honorable Miriam Shearing,

District Judge, Respondents,

Consuelo Hannl, individually and as Administratrix of the

Estate of Tony Hernandez, Jr., Real Party in Interest.

No. 19659.

Supreme Court of Nevada.

November 27, 1989.

Page 1337

Edwards, Hunt, Hale & Hansen and Trevor Atkin, Las Vegas, for petitioners.

Eva Garcia, Las Vegas, for respondents and real party in interest.

[105 Nev. 730] OPINION

YOUNG, Chief Justice:

Petitioner (Glen) and his wife took a vacation to a Mexican resort, leaving their teenaged son (Chris) at home alone. In his parents' absence, Chris allegedly hosted a party at their house which lasted for several days. Apparently, the primary activity at this party was the consumption of alcohol.

On December 3, 1986, after allegedly consuming a large amount of alcohol, Chris took a gun from an unlocked gun cabinet, loaded it, and went outside to shoot. Tony Hernandez, Jr., Chris' friend who had also allegedly consumed a large amount of alcohol, asked Chris if he could shoot the gun. Hernandez obtained possession of the gun and began "acting crazy." When Hernandez complained that he could find nothing to shoot, Chris advised him to "shoot into the ground." Hernandez placed the gun under his chin and, while he was still joking, the gun fired and killed Hernandez.

Consuelo Hannl, the administrator of Hernandez's estate, filed in the district court a complaint alleging that Glen was negligent for leaving Chris alone in his home with access to the gun. On April 6, 1988, Hannl petitioned the juvenile division of the Eighth Judicial District Court for permission to inspect Chris' juvenile records. After receiving opposition to the petition, the Honorable John McGroarty, District Judge, granted the motion to inspect Chris' juvenile records. Judge McGroarty specified, however, that Judge Miriam Shearing, who was presiding over Hannl's lawsuit, would have to review Chris' juvenile records to determine if they were relevant to Hannl's action against Glen. Judge Shearing inspected the records and, on January 4, 1989, ruled that Hannl should be permitted to copy Chris' juvenile records. One week later, Judge Shearing entered a formal, written order granting Hannl's motion.

After Judge Shearing announced her ruling on Hannl's motion, Glen requested a stay of that decision. Judge Shearing denied the stay, and later that day, Glen filed in this court a motion to stay enforcement of Judge Shearing's order. On January 5, 1989, this court granted the motion for a stay. Counsel for Glen prepared a [105 Nev. 731] petition for a writ of prohibition challenging the orders of the district court. While he was serving the petition, however, counsel learned that Hannl's counsel had already inspected and photocopied Chris' juvenile records. Therefore, counsel drafted a supplement to the petition which requested a writ of mandamus directing Judge Shearing to exclude Chris' juvenile records from evidence in the lawsuit below and further directing Hannl's counsel to return to the juvenile court the copies of Chris' juvenile records.

Initially, we note that a writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman,

Page 1338

97 Nev. 601, 637 P.2d 534 (1981). Further, a writ of prohibition may be issued if a lower court acts in excess...

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