Snyder v. Viani, 23726

CourtSupreme Court of Nevada
Citation916 P.2d 170,112 Nev. 568
Docket NumberNo. 23726,23726
Parties, 56 A.L.R.5th 951 Shauna SNYDER, as the Special Administrator of the Estate of Daniel Patrick Lovett, Decedent, Appellant, v. Joseph VIANI, Individually and d/b/a Joe's Tavern; Tommy Jo Montoya; Tammy Adams; Mineral County Sheriff's Office, a Political Subdivision; John Madraso, Jr., in his Official Capacity as Sheriff and Individually; John Leonhardt, in his Official Capacity as Sheriff and Individually, Respondents.
Decision Date03 May 1996

Erickson, Thorpe & Swainston, Reno; Bradley, Drendel & Jeanney, Reno, for Respondents.

OPINION

YOUNG, Justice:

The Nevada Supreme Court issued its opinion in this case on November 30, 1994, upholding our prior decisions that have refused to impose liability upon servers of alcoholic beverages for damage caused by patrons who subsequently use our highways absent legislation establishing such liability. Justice Robert Rose was part of the three-Justice majority; Chief Justice Steffen and Justice Springer dissented.

On February 1, 1995, Shauna Snyder's new counsel filed a motion to disqualify Justice Rose pursuant to NRAP 35(a) on the ground that Justice Rose should not have participated in the decision because he owned a restaurant/bar in Clark County, Nevada, and this created a conflict of interest with the issue decided. Snyder's motion also seeks vacation of the issued opinion and a rehearing before "non-disqualified" judges, pursuant to NRAP 40.

When a justice has participated in a case, NRAP 35 requires that a motion to disqualify must establish that it is timely filed and that the alleged disqualifying interest amounts to "fraud or like illegal conduct". Snyder and her attorney had actual and constructive We also conclude that Justice Rose's ownership did not create a direct, ongoing pecuniary interest such that would disqualify him from participation in this case. Accordingly, we deny Snyder's motion to disqualify Justice Rose and her petition for rehearing.

knowledge of Judge Rose's restaurant/bar ownership well prior to our decision in November, 1994 and Snyder waived any disqualification claim by not asserting it sooner. Further, Snyder's allegations, even if true, do not amount to "fraud or like illegal conduct" and therefore the grounds for her motion to disqualify are insufficient as a matter of law.

DISCUSSION

The threshold issue is whether Snyder had, as a matter of law, actual or constructive notice of Justice Rose's ownership of a restaurant/bar in Las Vegas prior to our decision in this case and is thereby precluded from now asserting this motion pursuant to NRAP 35. We answer this question in the affirmative.

Actual notice of interest

In addition to the substantial information that clearly gave constructive notice to the public at large about Justice Rose's restaurant/bar ownership, the record establishes that Snyder's attorney had actual notice of Rose's interest. In June 1994, Snyder's former attorney in the appeal of this case had a conversation with Clark Santini about this very case and Rose's ownership of a bar. Santini, an experienced investigator by profession, had a detailed recollection of that conversation. 1

While Snyder's former attorney initially denied having any knowledge of Rose's restaurant/bar interest prior to the decision, he did not respond to Santini's allegations when given the opportunity, and Snyder argued only that notice to her former attorney is insufficient to bind her.

Snyder's claiming that her attorney's knowledge does not bind her is directly contrary to our holding in the Ainsworth case and in numerous additional cases we have decided in the past decade. See, e.g., Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 273, 849 P.2d 305, 309 (1993); Arteaga v. Ibarra, 109 Nev. 772, 776-77, 858 P.2d 387, 390 (1993). Therefore, Snyder's former attorney's actual knowledge of Rose's restaurant/bar ownership is imputed to Snyder. Since Snyder did not take any action to object to Rose's sitting on this case on the basis of his restaurant/bar ownership, those grounds for disqualification have been waived.

Constructive notice of interest

This court has established that if a party or his/her attorney has constructive notice of a judge's interest or relationship before a case is decided and does not object, that conflict or relationship will be waived. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989). In that case, numerous conflicts or relationships of a former justice who authored an opinion were cited as grounds for a rehearing of the case, and this court stated what was sufficient, as a matter of law, to put the insurance company, Combined, and its attorneys on notice of an interest or relationship.

Combined alleged that the counsel for the winning party, Ainsworth, had assisted the former justice in a prior campaign and was also a close personal friend. After observing that allegations of bias in favor of or against an attorney for a litigant generally are not sufficient for disqualification of a judge, this court observed that Ainsworth's attorney's Well-reasoned authority supports a conclusion, however, that counsel, knowing facts assertively supportive of a motion for reconsideration, recusal or vacatur based upon charges of bias and impropriety, "may not lie in wait" and raise those allegations in a motion "only after learning the court's ruling on the merits."

                relationship with the campaign conducted years previous was "fully disclosed in numerous public, political advertisements and was well-known among members of the state bar long before this appeal was ever perfected."  Id. at 261, 774 P.2d at 1020.   The court determined [112 Nev. 573] that Combined knew or should have known of this political relationship and stated
                

Id. at 260, 774 P.2d at 1019 (quoting Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987)).

Combined Insurance also claimed that the former justice had a close association with the Nevada Trial Lawyers Association (NTLA) and had been given an award by it the previous year, this being grounds for disqualification because NTLA had filed an amicus brief in the case and Ainsworth's attorney was prominent in the organization. However, this court concluded that some of the attorneys representing Combined were members of NTLA and presumably had knowledge of the award at the time it was conferred. The court also referred to several newspaper articles about the former justice's award and concluded that Combined's counsel "knew or had reason to know of the award prior to the issuance of this court's decision," and that "Combined's failure to tender a prompt objection constitutes a waiver of its right to raise the issue at this late date." Ainsworth, 105 Nev. at 263-64 n. 17, 774 P.2d at 1022 n. 17.

Combined also claimed that the former justice had an interest in a business venture with Ainsworth's counsel. However, the court stated that: "[I]t is clear from the record that such a relationship was revealed in a public notice published in Reno's largest newspaper of general circulation on four separate occasions." Id. at 270 n. 22, 774 P.2d at 1026 n. 22. After a review of all the evidence sufficient to provide actual or constructive knowledge of the interests or relationships of the former justice prior to the decision, this court concluded that the former justice did not have "any direct, ongoing pecuniary interest in the outcome of any litigation before this court," that the factual allegations supporting a rehearing were known or should have been known to Combined's counsel well before the decision, and that no rehearing was warranted because it was not established that the former justice "had any direct disqualifying interest in this litigation or that his impartiality toward the litigants might reasonably be questioned." Id. at 269, 270, 774 P.2d at 1026.

In numerous instances of claimed conflicts of interest, we held in Ainsworth that newspaper articles, legal notices, or common knowledge provided actual or constructive knowledge to the litigant's attorney and precluded a challenge on those grounds after the issuance of the court's opinion. The information available to Snyder and her attorney of Rose's restaurant/bar ownership prior to the decision in this case was far more extensive than any such information cited in the Ainsworth case. Specifically, there was abundant evidence of Rose's restaurant/bar ownership presented throughout Nevada in the years prior to our decision, specifically including the following:

1. More than a decade of application filings and hearing notices made by the Nevada Gaming Control Board and Commission concerning Justice Rose's ownership of a restaurant/bar with fifteen slot machines in Las Vegas, Nevada.

2. A decade of applications, filings, and hearing notices before the Liquor and Gaming Control Board in Clark County, Las Vegas, and Henderson, Nevada, concerning Justice Rose's ownership of a restaurant/bar and fifteen slot machines.

3. The listing of the business entity that owned the restaurant/bar in Justice Rose's annual judicial disclosure reports for the years he has been a justice, most of the notices specifically describing the business as a restaurant/bar.

4. Numerous newspaper articles about Justice Rose's ownership of a restaurant/bar that appeared when the yearly disclosure reports were filed and when there was any activity taken by the Nevada Gaming Control Board or Commission concerning Justice Rose's ownership.

5. The enormous publicity given Justice Rose's restaurant/bar ownership during the 1994 election. This included an entire month of television and radio commercials about his ownership. One radio commercial stated that Justice Rose "moonlights as a poolroom and tavern...

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