Nevada Supreme Court has modified the privity requirement established in Five Star Capital Corp. v. Rudy, to incorporate the principles of nonmutual claim preclusion.

Weddell vs. Sharp, et al., 131 Nev. Adv. Op. 28 (May 28, 2015)
By Joseph P. Garin, Lipson Neilson Cole Seltzer & Garin, P.C., Las Vegas, NV Joseph Garin high res

Business partners, Appellant Rolland Weddell and nonparty Michael Stewart, submitted their commercial dispute to a panel of three attorney mediators, including Defendant attorney Sharp. Following a decision in his favor, Stewart filed lawsuit against Weddell for declaratory judgment. Weddell later confessed a judgment, acknowledged that mediators’ decision was valid and enforceable against him in its entirety, and stipulated to dismiss his counterclaim.

More than two years later, Appellant filed suit against the attorney mediators, alleging collusion with Stewart in the dispute resolution process. The district court granted respondents’ motion to dismiss on ground of claim preclusion, finding the three factors under Five Star Capital Corp. v. Ruby,1 had been satisfied: “(1) the parties or their privies are the same, (2) the final judgment is valid, and (3) the subsequent action is based on the same claim or any part of them that were or could have been brought in the first case.”

On appeal, the Nevada Supreme Court found there was erroneous finding of privity between respondents and Stewart, as their relationship did not fall within Five Star’s definition of privity and the “adequate representation” analysis. The Court concluded that Five Star‘s test was not satisfied. However, the Court that Five Star‘s test for claim preclusion does not fully cover the important principles of finality and judicial economy that it intended to capture.

The Court considered the concept of “nonmutual” claim preclusion whereby a plaintiff’s second suit against a new party should be precluded “if the new party can show good reasons why he should have been joined in the first action and the [plaintiff] cannot show any good reasons to justify a second chance”.2 Here, Appellant failed to provide a “good reason” for not having joined the attorney mediators earlier and the Court affirmed the district court’s dismissal on the basis of claim preclusion.

The Court’s decision promotes finality of litigation and judicial economy. Under Weddell, a defendant may validly use claim preclusion as a defense by demonstrating that (1) there has been a valid, final judgment in a previous action; (2) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first action; and (3) privity exists between the new defendant and the previous defendant or the defendant can demonstrate that he or she should have been included as a defendant in the earlier suit and the plaintiff fails to provide a “good reason” for failing to include the new defendant in the previous action.

Practice Note: Defendants may now use non-mutual claim preclusion as a defense to a complaint even if he was not a party or in privity with a defendant in an earlier action brought by plaintiff based on the same type of claims.

1 24 Nev. 1048, 194 P.3d 709 (2008)

2 8A Charles Alan Wright, et al., Federal Practice and Procedure §4464.1 (2nd ed.2002); Airframe Systems, Inc. v. Raytheon Co., 601 F.3d 9 (1st Cir. 2010)


Sandra D. Glazier has co-authored a paper on Undue Influence

Sandra D. Glazier, a partner at Lipson/Neilson, Sandra_Glazier_001_full_crop hi resolution photo 2-3-15 (BH548194xAF0CA), entitled What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It.  Sandra co-presented the paper in NYC to Bloomberg’s BNA Estate and Gift Tax Advisory Board on March 19, 2015 and at the ABA’s 2015 Estate Planning and Real Property Spring Symposia in Washington, D.C. on April 30, 2015.  In March and April 2015 Sandra was also a panelist on two separate webinars produced for Michigan’s Institute for Continuing Legal Education which focused on Undue Influence; one related to litigating issues related to undue influence with the second focused on estate planning considerations.  BBNA recently published the paper “What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It” as a Tax Management Memorandum, at Bloomberg BNA, Vol. 56, No. 11, June 1, 2015,  at pp. 185-209.

Michigan Supreme Court Hears Oral Arguments on Two Medical Malpractice Cases That May Impact All Cases Filed in Michigan Courts

_DSC9496-8_0x10_0-03A-Q01C. Thomas LuddenOn May 5, 2015, the Michigan Supreme Court held oral argument in Tyra v Organ Procurement Agency of Michigan (Docket Nos. 148079 & 148087) and Furr v McLeod (Docket No, 149344), two medical malpractice case whose resolution will affect how medical malpractice cases are handled in Michigan and could affect how attorneys in all civil cases and probate court litigation raise claims and defenses.

Attorneys C. Thomas Ludden and Karen Smyth, of the Lipson, Neilson, Cole, Seltzer and Garin, P.C. law firm, appeared on behalf of one of the Defendant-Appellants in Tyra, to argue that the Michigan Supreme Court should find that the failure of a plaintiff to abide by the statutorily mandated waiting period prevents them from commencing a medical malpractice lawsuit. As a result, the Supreme Court should find that all of the claims in Tyra are now barred by the statute of limitations.

Additionally, Tyra raises the question of how factually specific affirmative defenses and other pleadings must be under the Michigan Court Rules and what the proper court remedy should if a party does not believe that a party has filed factually sufficient pleadings. This ruling could govern how factually specific the complaint and other pleading must be.

A decision in this matter is expected by July 31, 2015, when the current Michigan Supreme Court term ends.

Karen Smyth Invited to Discuss Ethics in a Wireless World at Professional Liability Law Conference in June

Karen Smyth_DSC9496-8_0x10_0-03A-Q01, a Partner at Lipson, Neilson, Cole, Seltzer & Garin, P.C. will be featured on a panel of leading industry professionals discussing “Ethics in a Wireless World” at the National Claims & Litigation Management (CLM) Professional Liability Conference in Chicago during June 4-5. The other panelists are Haralyn Isaac – Vice President Claims for the Great American Insurance Group, Kim Noble – Senior Vice President and lead underwriter for the Lawyers’ Professional Liability product at Argo Pro, and Regan Miller – Associate Director for Wortham Insurance.

This panel will focus on technology and risk management for law firms, including external threats, internal threats, danger of BYOD (bring your own device), unintended data disclosure and implications for professional liability. Emphasis will be put on how lawyers, insureds, claim professionals and risk managers can successfully navigate our ever-evolving wireless world and ensure they are not breaking ethical and professional obligations.

Karen Smyth is the President of the Michigan CLM Chapter. Karen has considerable experience in the defense of professional liability cases, including legal malpractice, medical malpractice, and employment practices litigation. She is a licensed attorney in Michigan and New York, and a graduate of the Litigation Management Institute. She has co-authored on the topic of the statute of limitations and legal malpractice claims, and she has been invited to speak to Oakland University’s William Beaumont Hospital Graduate School of Nurse Anesthetists on the topic of Medical Malpractice.

Steven Malach has been published on

IMG_1392Steven Malach’s article on the future of senior housing has been published on . This is the first of many articles to be posted to their website.

Open Retirement is dedicated to helping retirees make the best use of their public pension benefits and Social Security. The site also provides news regarding scams that target those depending on public pensions and social security.

Click here to see his article.

Sandra Glazier to Address the Oakland County Bar Association’s Probate Estate and Trust Committee on the Topic of Undue Influence

Sandra_Glazier_001_full_crop hi resolution photo 2-3-15 (BH548194xAF0CA)On February 23, 2015 Lipson Neilson attorney Sandra Glazier, together with Thomas Sweeney of Clark Hill PLC, will address the Oakland County Bar Association’s Probate Estate and Trust Committee on the topic of Undue Influence.

Sandra Glazier, an attorney for more than 30 years, is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law. The cases she works on tend to be very complex and require technical as well as legal expertise. She’s represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings.  She is the current vice-chair of the Oakland County Bar Association’s Probate, Estate & Trust committee and chair elect of that committee for 2015-2016. An AV-Rated attorney, her articles have been published by some of the legal industry’s leading publications, and she has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters level course. Sandra is a Principal at the firm. You can email Sandra at:

“Most Important Opinions of 2014″ Includes Ground Breaking Case Argued by Lipson Neilson Attorneys

RAJ_028_e_smRAJ_016_e_smMichigan Lawyers Weekly recently reported on the “Most Important Opinions of 2014″, which includes one involving a major legal victory in the defense of a legal malpractice case by attorneys PHILLIP E. SELTZER and STARR M. KINCAID.

The Michigan Court of Appeals ruled that the trial court correctly dismissed a legal malpractice suit against the attorney and his law firm because the underlying product liability claim plaintiffs’ asserted should have been pursued was statutorily preempted under the federal Medical Device Act (“MDA”). The opinion provides a ground breaking analysis of the MDA preemption defense and explains why the plaintiffs could never prove they would have succeeded on their underlying product liability claim necessary to sustain a viable legal malpractice suit. To view the case, click here.

Nevada formally recognizes litigation malpractice tolling rule

Brady, Vorwerck, Ryder & Caspino v. New Albertson’s Inc., 130 Nev. Adv. Op. 68, 333 P.3d 229 (August 7, 2014), rehearing denied.
By Joseph P. Garin and Kaleb D. Anderson, Lipson, Neilson, Cole, Seltzer & Garin, P.C., Las Vegas, Nevada,

A recent Nevada Supreme Court Decision clears up the question of the applicability of the Litigation Malpractice Tolling rule following a 1997 amendment to the legal malpractice statute of limitations.

New Albertson’s had a maintenance agreement with Farm Road Retail, which provided that Farm Road Retail would indemnify New Albertson’s for certain incident occurring on the property covered by the agreement. A woman fell on a flight of stairs at the New Albertson’s location to which the agreement applied. She filed suit and New Albertson’s hired Brady Vorwerck to handle the case. New Albertson’s denied all liability in an answer to the complaint. It also filed a cross–claim against Farm Road based on Farm Road’s initial refusal to indemnify New Albertson’s.

Due to perceived malpractice by Brady Vorwerck, New Albertson’s fired Brady Vorwerck, substituted in new counsel, and settled the case against Plaintiff on January 5, 2008. Following that settlement agreement, New Albertson’s cross–claim against Farm Road remained. The cross claim against Farm road was ultimately settled and a pending appeal on the cross claim was dismissed in May 2009.

On January 22, 2010—over two years after New Albertson’s firing of Brady Vorwerck and settlement with the claimants and, but less than two years after New Albertson’s settlement with Farm Road and the dismissal of the appeal—New Albertson’s filed an attorney malpractice suit against Brady Vorwerck.

After answering the complaint, Brady Vorwerck filed a motion for summary judgment, arguing that the malpractice action was untimely filed after the expiration of NRS 11.207’s two–year statute of limitations for attorney malpractice actions. BVRC asserted that, at the latest, NRS 11.207’s two–year limitation period commenced on January 5, 2008, the date of New Albertson’s settlement with the claimants. Accordingly, it contended that New Albertson’s attorney malpractice action was untimely because it was filed over two years after that settlement. The Federal Court ultimately certified the question to the Nevada Supreme Court.

The Nevada Supreme Court addressed the interpretation of NRS 11.207, and stated that in cases involving legal malpractice Nevada has adopted the discovery rule, which starts the statute of limitations when the claimant discovers, or reasonably should have discovered, the material facts for the action, including the damages. The Court also formally adopted the “litigation malpractice tolling” rule, which provides that the damages for a malpractice claim do not accrue until the underlying litigation is complete and, thus, a malpractice claim does not accrue and its statute of limitations does not begin to run during a pending appeal of an adverse ruling from the underlying litigation. The Brady Court further stated that so long as the litigation in which the malpractice occurred continues, the damages on which the attorney malpractice action is based remain uncertain. The Court acknowledged the possibility of adopting the continuing representation tolling rule, but did not address it because it was not asked to in the Federal Court’s Certification Order. (Note: NRS 11.207 does not list “litigation malpractice tolling” as a basis for tolling the legal malpractice statute of limitations. So, the Court’s decision in Brady, contradicts an earlier published decision in Libby v Dist. Ct., 130 Nev. __, 325 P.3d 1276 (2014), which held that a court should not read tolling language into a statute of limitation when the Legislature specifically omitted such language.)

Practice Note. This opinion formally expands the time to file a legal malpractice case in Nevada. It also opens the door to arguments that the continuous representation rule might be applicable under the right set of facts (it has not previously been addressed in a published opinion in Nevada).

Understanding a Child’s Right to Special Education

by Mary T. Schmitt Smith, CELA, Special Needs Alliance

Pioneering efforts by staunch parent advocates led to enactment of the Individuals with Disabilities Education Act (IDEA). This law guarantees students with I/DD a “free and appropriate education in the least restrictive environment possible.” But the language in the law and regulations is often vague, leaving details to be worked out by states and school districts.

With budget cuts and a growing, diverse population of children needing services, tensions can build between families and local schools. Parent advocacy is as important as ever, but there is a learning curve full of acronyms. The special education process is complex and varies significantly among states. This process can be intimidating, so it’s important to know your child’s rights.

Federal law requires that all school districts:

  • identify children entitled to receive special education services;
  • develop and implement an Individualized Education Program (IEP) for each eligible student;
  • pay for necessary services to be delivered elsewhere if they cannot provide them.

Evaluation and IEP

Schools must pay to have an assessment of a child’s physical, social, psychological and behavioral development. Families can also provide any outside evaluations. Together, a determination is made whether the student is entitled to receive special ed services. If so, then an IEP team- including the parents- is developed. The IEP outlines written goals for the school year and how they’ll be measured and achieved. It addresses academics, physical education, and social and life skills. Consideration must be given to delivering services in a mainstream classroom (inclusive), and/or goals better met in a separate, more intensive environment. A student’s eligibility for special education must be assessed every three years. Special education students may receive services from the public school system until graduation or age 22 (26 in Michigan).

Family Rights

Parents are entitled to attend all IEP meetings and to receive a written copy of the IEP, which must be evaluated at least annually. Parents must be notified of all plans to evaluate a student or change an IEP, and they can call an IEP meeting at any time to address concerns about the plan.

If the parents disagree with the IEP, they are entitled to an impartial hearing. Since such proceedings can be daunting, they may find it helpful to work with a professional advocate such as a special needs attorney. If necessary, they can carry their grievance to the federal courts and. if successful, are entitled to reimbursement of attorney fees. Other advocacy resources for parents include chapters of The Arc, state protection and advocacy agencies, parent information and resource centers, and private educational consultants.

Transition Planning

By the time a student is 14, the IEP should address “transition planning,” needed in adulthood. Since the child’s personal goals should shape the curriculum, his/her involvement becomes increasingly important. Considerations include employment options, housing and independent living skills. Nutrition, travel skills, handling of money, appropriate behavior around strangers and much more should also be addressed, with the goal of becoming as independent as possible.

Upon the student’s 18th birthday, he/she is considered a legal adult, so parents need to determine whether a power of attorney or other legal authorization is needed to keep participating in the student’s education and other aspects of their lives such as health care and personal finances.

Community-based vocational initiatives should be investigated as early as possible during the transition process. Many localities coordinate hob fairs where special ed students can explore opportunities. Local chapters of The Arc can be a useful source for available employment supports.

While the special education system can be both confusing and frustrating, its goal is building the foundation for a self-directed, fulfilling life. Knowing how to effectively work with the school district can make all the difference.

SNA ( is partnering with The Arc to provide educational resources, build awareness,and advocate for policies benefiting people with I/DD. The author is the founder of the Theresa Law Center.

Lawyers Have Heart

download (1)Lipson Neilson’s Las Vegas office is leading the Lawyers Have Heart Campaign for the American Heart Association’s Las Vegas Heart & Stroke Walk/Run. In addition to sponsoring this event, they also have a team in place to participate in the festivities.

Our Lawyers Have Heart team has set a fundraising goal of $10,000, to help raise critically needed funds to support life-saving medical research as well as community education and awareness programs. Our team views this walk as the perfect opportunity to support the mission to build healthier lives and communities free of cardiovascular diseases and stroke. 

The walk will take place on Saturday, November 8. It will start at the Fremont Street Experience in Downtown Las Vegas.