STERLING LAW, LLC
A p p e l l a t e A t t o r n e y s
Sterling Law LLC, an appellate practice law firm, is dedicated to providing experienced, competent, and aggressive appellate representation in civil and criminal appeals before the Nevada Supreme Court, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court.
From laying the foundation for your appeal in the trial court, through briefing, to oral argument, put a dedicated appeal lawyer on your side.
To set up an initial consultation with a Nevada appellate attorney, call (702) 583-3333.
Ninth Circuit Appellate Win (Product Defect/Wrongful Death)
Plaintiffs (collectively "Lindner") brought a product defect action against Evenflo Company individually and on behalf of members of the Lindner family who were injured in a vehicle rollover accident in Mexico. During that accident, baby Camila Lindner was ejected from the vehicle and killed while strapped into a two-piece Evenflo "convenience" car seat. The district court granted Evenflo's motion to exclude the testimony of Lindner's experts on design defect and causation, and granted summary judgment in favor of Evenflo. The U.S. Court of Appeals for the Ninth Circuit reversed on both grounds. Sterling Law attorney Beau Sterling argued the case and prepared the briefs on behalf of appellants.
Ninth Circuit Rules in Roy Gomm School Uniform Case
Plaintiffs Mary and Jon Frudden challenged the mandatory school uniform policy at Roy Gomm Elementary School in Reno, Nevada, attended by their children. The school's policy mandates that the written motto Tomorrow's Leaders be displayed on uniform shirts worn by all students. The Fruddens appealed after the federal district court dismissed their First Amendment lawsuit against the Washoe County School District. The Ninth Circuit panel held that the school policy constituted compelled speech. Additionally, the panel held that the limited exemption for shirts of "nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days" was content based. Accordingly, the school's uniform policy implicates First Amendment protections and is subject to strict scrutiny review. Because the district court did not examine whether there was sufficient evidence of the school's countervailing interests—and the record did not contain such evidence—the panel remanded for further proceedings.
Eugene Volokh of Mayer Brown LLP, Los Angeles, California (also a law professor at the UCLA School of Law and founder of The Volokh Conspiracy blog) briefed and argued the appeal on behalf of the the Fruddens. Sterling Law attorney Beau Sterling volunteered his time pro bono as local counsel.
Beau Sterling Certified as Specialist in Appellate Law
Sterling Law attorney Beau Sterling has earned certification as a “specialist” in Appellate Law from the State Bar of California Board of Legal Specialization, the country’s oldest legal certification program.
Appellate law is the practice of law dealing with procedural and substantive aspects of matters before state and federal appellate courts. Specialists must demonstrate proficiency in their specialty field. This involves passing a comprehensive written examination, evaluation by a panel of experts, continuing educational requirements, and substantial involvement in the practice of appellate law during the previous five years. Substantial involvement includes advising clients with regards to appeals, identifying appealable orders, designating, reviewing and evaluating the record, preparing briefs, appellate motions, petitions for extraordinary writs, petitions for review, and presenting oral arguments. Specialists must also be favorably evaluated by other attorneys and judges familiar with their work.
More information on the rules and standards for certification as an appellate specialist is available here.
Nevada Supreme Court Appellate Win (Open and Obvious Danger Rule)
During a trip to a Costco membership warehouse store, appellant (Foster) tripped and fell over a wooden pallet, which had been positioned in an aisle of the warehouse by a Costco employee. Thereafter, Foster filed a complaint against Costco for injuries sustained from his fall. Costco subsequently moved for summary judgment. The district court granted summary judgment to Costco, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. Foster appealed. The Supreme Court reversed. In its opinion, the court examined the evolution of a landowner's duty of care to entrants on the landowner's property and refined the current status of that duty. In recognition of the continuing development of the law governing landowner liability, the court adopted the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, concluded that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner's property. In accordance with this position, the court held that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner.
Beau Sterling drafted the briefs and argued the case on behalf of the appellant. Foster vs. Costco, 128 Nev. Adv. Opinion 71 (December 17, 2012).
Sterling Law appellate attorney Beau Sterling has been selected for inclusion in the 2012 edition of Mountain States Super Lawyers. Mr. Sterling also will be listed in the 2012 edition of Super Lawyers Business Edition, their nationwide publication. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Information on the Super Lawyers selection process is available here. Mr. Sterling was previously selected for inclusion in the 2010 and 2011 editions of Mountain States Super Lawyers.
Beau Sterling to Moderate Appellate Practice CLE at Nevada State Bar Annual Meeting
Nevada Supreme Court Appellate Win (Homeowner Association Law)
Appellants (the Lytles) owned property in a subdivision governed by Covenants, Conditions, and Restrictions (CC&Rs), the provisions of which were enforced by respondent (the Association). After a dispute between the parties, they entered into arbitration pursuant to NRS Chapter 38. The Association ultimately prevailed, so the Lytles filed a civil action pursuant to NRS 38.330(5) (since amended), seeking declaratory and injunctive relief. The district court dismissed the Lytles' complaint and confirmed the arbitration award. The district court concluded that the complaint was untimely pursuant to NRS 38.330(5) because the Lytles filed it more than 30 days after service of an initial arbitration decision and award, which resolved all issues except for the amount of attorney fees and costs. The Lytles appealed. The Nevada Supreme Court reversed, agreeing with the Lytles that it would render arbitration far more cumbersome if trials de novo are sought each time the arbitrator issues multiple decisions and awards adjudicating various aspects of the case—instead, it is more reasonable to infer that the Legislature intended only one civil action to be filed after those proceedings, and that must take place after the entire arbitration has concluded.
Beau Sterling drafted the briefs and argued the case on behalf of the appellant. Lytle Trust v. Rosemere Estates Property Owners Association, Docket No. 54886 (September 29, 2011) (Order of Reversal and Remand).
Important Ninth Circuit Federal Sentencing Guidelines Opinion (Uncharged Conduct)
David Kent Fitch was convicted by a jury of bank fraud, fraudulent use of an access device, attempted fraudulent use of an access device, laundering monetary instruments, and money laundering. The applicable Sentencing Guidelines range was 41-51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months. A three-judge panel of the Ninth Circuit affirmed in a split decision.
The dissenting judge would have reversed on the ground that there was not clear and convincing evidence that Fitch murdered his wife. The majority concluded that the district court's decision must be affirmed under current precedents binding on the Court. But even the majority opinion expressed concerns about the outcome in this case:
As the Supreme Court has made clear, however, once there is a conviction, the sentencing judge is possessed of extraordinarily broad powers to find the facts that will drive the sentence. This case is a stark example of the diminishment of the role of the jury that can result when those powers reach their outer limits....
It is problematical whether much of the Sixth Amendment’s substance has been preserved in the present case, given the 360-year statutory maximum Fitch faced. It nonetheless remains the law that the sentencing judge has the power to sentence a defendant based upon facts not found by a jury up to the statutory maximum....
The majority found it "odd," for example, that the district judge, and not the jury, had to decide whether Fitch killed his wife as a means to commit his crimes. Whereas, by contrast, a defendant charged with selling heroin is entitled to a jury determination of the quantity of heroin sold because that fact increases the statutory maximum for the crime.
Mario Valencia (lead counsel) wrote the briefs and Beau Sterling argued the case on behalf of Mr. Fitch. They are evaluating whether to seek en banc reconsideration of the Court's decision. USA v. Fitch, 9th Cir. Docket 07-10607 (September 23, 2011) (Opinion).
Case-related documents and additional information available here.
Nevada Supreme Court Appellate Win (Political Subdivision Damages Cap)
Appellant Tami Schlack was injured in a car accident caused by the negligent driving of an employee of respondent Economic Opportunity Board of Clark County (EOB). Schlack sued and the parties agreed as to liability. However, the EOB asserted that it was a political subdivision of Nevada and, under NRS 41.035, entitled to a cap on tort damages of $75,000. The parties stipulated to a judgment of $75,000 and the EOB sought summary judgment to establish that damages were capped at that amount. The district court granted summary judgment for the EOB and Schlack appealed. Sterling Law attorney Beau Sterling wrote the briefs and argued the case before the Nevada Supreme Court on behalf of the EOB. The Court affirmed the judgment in an unpublished decision. Schlack v. EOB, Docket No. 55453 (September 19, 2011).
Beau Sterling Recognized in 2011 Mountain States Super Lawyers
Sterling Law appellate attorney Beau Sterling has been selected for inclusion in the 2011 edition of Mountain States Super Lawyers. Mr. Sterling also will be listed in the 2011 edition of Super Lawyers Business Edition, their nationwide publication. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
State Bar of Nevada 2011 Annual Meeting Photos
The State Bar has posted photos taken by Beau Sterling at the 2011 Annual Meeting in Kauai, Hawaii. The photos, and Mr. Sterling's article in the August issue of Nevada Lawyer magazine, are available through the State Bar of Nevada's Annual Meeting page.
Beau Sterling to Deliver CLE Workshop on Appellate Practice at State Bar Annual Meeting
Sterling Law attorney Beau Sterling will help deliver a CLE workshop on appellate practice at the State Bar Annual Meeting in Kauai, Hawaii. Mr. Sterling will join appellate attorney Dan Polsenberg and Judge Jay Bybee from the U.S. Ninth Circuit Court of Appeals. For more information, visit the State Bar of Nevada website.
Nevada Supreme Court Appellate Win (Statute of Limitations)
This was an appeal from a summary judgment in favor of appellant's treating physician in a medical malpractice action. The appellant, Reza, argued that the district court erred by concluding that her complaint was time-barred by NRS 41A.097(2)(a)'s limitation period for claims in which the plaintiff either knew or should have known of the defendant's alleged negligence. Specifically, Reza argued that a post-surgery complication or bad outcome, standing alone, is insufficient as a matter of law to provide constructive or inquiry notice of a claim, and that there was conflicting testimony as to when Reza should have known of her cause of action. The Supreme Court agreed and, in an unpublished en banc decision, reversed the district court's order granting summary judgment. Reza v. Hudson, M.D., Docket No. 54140 (May 17, 2011) (en banc).
Nevada Supreme Court Partial Reversal (Attorney Fees)
Appellant Schuck parked his twin-engine Cessna temporarily at respondent Signature Flight Support of Nevada, Inc.'s (SFS) facility at McCarran Airport, where he alleged it was damaged due to SFS's negligence. The district court granted summary judgment in favor of SFS. On appeal Schuck, now represented by Sterling Law LLC attorney Beau Sterling, sought to direct the Supreme Court to legal authorities and to specific portions of the factual record that, he argued, demonstrated that the summary judgment was inappropriate. The Supreme Court rejected these arguments, however, on the ground that they not been made by Schuck when he opposed summary judgment in the district court.
Although the Supreme Court affirmed the summary judgment in favor of SFS, it reversed a $70,014.09 judgment in favor of Schuck's previous attorneys for unpaid attorney fees and costs. Schuck did not ask for or consent to the district court summarily adjudicating the firm's charging lien in advance of there being a "verdict, judgment or decree entered" or "money or property recovered" to which the charging lien could attach. See NRS 18.015(3). Given the firm's dispute with Schuck over the work done and the fees charged, the district court should not have reduced the lien to personal judgment by way of summary proceeding before it decided Schuck's claims against SFS. Moreover, the Supreme Court concluded, the district court compounded its error when it denied Schuck NRCP 60(b) relief from the law firm's judgment since, by then, Schuck's claim against SFS had been rendered valueless by the summary judgment affirmed by the Supreme Court. Schuck v. Signature Flight Support, 126 Nev. Adv. Op. 42 (November 4, 2010).
U.S. Ninth Circuit Appellate Win (Americans with Disabilities Act)
The U.S. Court of Appeals for the Ninth Circuit reversed a summary judgment entered against plaintiff John Keenan and in favor of defendant Toys “R” Us, Inc. in an employment discrimination case brought by Keenan under the Americans with Disabilities Act. Keenan, who suffers from a mental disability stemming from a childhood accident, was employed at Toys “R” Us as a store maintenance person for eight years. Toys “R” Us allegedly fired Keenan after he reprimanded a customer for leaving trash on a store shelf. Sterling Law attorney Beau Sterling assisted in the briefing, with Kathleen England and Joselyn Cortez of the England Law Office, and argued the case before the Ninth Circuit. The unpublished decision is available here: Keenan vs. Toys “R” Us, Inc., Docket 08-16866 (September 13, 2010).
State Bar of Nevada 2010 Annual Meeting Photos
The State Bar has posted photos taken by Beau Sterling for Nevada Lawyer magazine at the annual meeting in Monterey, California. The photos, and Mr. Sterling's Nevada Lawyer annual meeting article, are available on the State Bar website.
Nevada Supreme Court Appellate Win (Sudden Emergency Jury Instruction)
The Nevada Supreme Court, sitting en banc, considered whether the district court erred in giving a sudden-emergency jury instruction in a rear-end automobile collision case. A jury had found against the rear-ended plaintiff. The Supreme Court concluded that the district court erred in giving the instruction and reversed. In its opinion, the Court clarifies that the sudden-emergency doctrine applies when an emergency affects the actor requesting the instruction and the actor shows that he or she was otherwise exercising due care. Posas v. Horton, 126 Nev. Adv. Op. 12 (April 15, 2010) (en banc).
Beau Sterling Recognized in 2010 Mountain States Super Lawyers
Sterling Law appellate attorney Beau Sterling has been selected for inclusion in the 2010 edition of Mountain States Super Lawyers. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Information on the Super Lawyers selection process is available here.
Amendments to Federal Appellate Rules and Ninth Circuit Local Rules Effective December 1, 2009
The Ninth Circuit has posted a redline PDF version of the Federal Rules of Appellate Procedure, Ninth Circuit Local Rules, and Circuit Advisory Committee Notes showing the recent amendments that went into effect on December 1, 2009. Also available, in PDF and HTML formats, is the revised FRAP and Ninth Circuit Rules as presently applicable. Note, in particular, the changes to the way days are counted in FRAP 26.
Congratulations to attorney Richard Vilkin, of counsel to Sterling Law LLC, for his recent trial victory. After a contentious 13-day bench trial, the district court found in favor of our client on all issues and awarded him a judgment in the amount of $439,499 on his claim for breach of a commercial contract. Mr. Vilkin was lead trial counsel. The case is presently on appeal to the Nevada Supreme Court.
Nevada Supreme Court Appellate Win (Homeowner Association Law)
In response to a petition for rehearing filed by Sterling Law attorney Beau Sterling, the Nevada Supreme Court reversed its prior ruling and vacated a district court injunction in a case involving the meaning and applicability of certain provisions of NRS Chapter 116, Nevada's Uniform Common Interest Ownership Act ("UCIOA"). Boulder Oaks Cmty. Ass’n v. B & J Andrews, 125 Nev. Adv. Op. 33 (August 20, 2009) (rehearing granted; reversed).
Nevada Supreme Court E-Filing Opens for Civil Cases
The Nevada Supreme Court has announced that, effective July 30, 2009, the Nevada Supreme Court Clerk’s Office will be accepting both civil and criminal documents for filing through its web-based electronic filing (e-filing) system. The system is available 24 hours a day, seven days a week for the submission of filings. The system allows attorneys and district court clerks to file documents; pay filing fees; view and print electronic versions of documents and docket sheets; and receive electronic notifications when other parties or participants file to your cases. To get started e-filing documents, please visit the Supreme Court's Court E-filing information page.
Nevada Supreme Court Appellate Rules Changes Take Effect July 1, 2009
On December 31, 2008, the Nevada Supreme Court adopted comprehensive changes to the Nevada Rules of Appellate Procedure. The Court's Order Amending the Rules of Appellate Procedure may be accessed from the Court's website here: ADKT 381 Order (7.14MB pdf) A text-searchable version is available on this website here (5.40MB pdf). The rules go into effect on July 1, 2009, and apply to all appeals docketed in the Nevada Supreme Court on or after that date.
Beau Sterling to Deliver CLE Seminars on New Appellate Rules
Sterling Law attorney Beau Sterling will provide a comprehensive review of the recent changes to the Nevada Rules of Appellate Procedure, which take effect on July 1, 2009. Mr. Sterling will also provide a general review of the procedures governing appeals in the Nevada Supreme Court. The seminars, sponsored by the State Bar of Nevada, will take place on July 16, 2009 in Reno and on July 17, 2009 in Las Vegas. Flyer here. For more information, visit the State Bar of Nevada website at www.nvbar.org.
State Bar of Nevada 2009 Annual Meeting Photos
The State Bar has posted photos taken by Beau Sterling for Nevada Lawyer magazine at the annual meeting recently held at Lake Tahoe. The photos are available on the State Bar website.
Pro Bono Appellate Victory
On June 4, 2009, the Nevada Supreme Court reversed the judgment for attorney fees and costs awarded against Eugene and Thelma Haselton. Sterling Law attorney Beau Sterling accepted the pro bono appeal through the Legal Aid Center of Southern Nevada's Pro Bono Project. The case is Haselton vs. Gladiator Corp. (No. 51356). A copy of the Court's unpublished order is available here. Gladiator's petition for reconsideration is pending.
Update: Rehearing denied on July 31, 2009.
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