law of the case doctrine in Nevada

2022SUPREME COURT OF NEVADA I947A 2Z- 3 2-°-.3) Now in this appeal, appellants do "argue otherwise." Namely, they contend that "maintaining" and "commencing" have different meanings, and that respondent needed to be licensed in Nevada to "commence" the underlying action.2 We decline to consider this argument, both because it is barred by the law-of-the-case doctrine and because it was not raised in district court.3 See Recontrust Co. v. Zhang, 130 Nev. 1, 7-8, 317 P.3d 814, 818 (2014) ("The law-of-the-case doctrine refers to a family of rules embodying the general concept that a court involved in

2022SUPREME COURT OF NEVADA I947A 2Z- 3 2-°-.3) Now in this appeal, appellants do "argue otherwise." Namely, they contend that "maintaining" and "commencing" have different meanings, and that respondent needed to be licensed in Nevada to "commence" the underlying action.2 We decline to consider this argument, both because it is barred by the law-of-the-case doctrine and because it was not raised in district court.3 See Recontrust Co. v. Zhang, 130 Nev. 1, 7-8, 317 P.3d 814, 818 (2014) ("The law-of-the-case doctrine refers to a family of rules embodying the general concept that a court involved in

2024As we noted in Hsu, federal courts have identified three specific circumstances when a judge may revisit a prior ruling under the law-of-the-case doctrine: "(1) [where] subsequent proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the prior decision was clearly erroneous and would result in manifest injustice if enforced." 123 Nev. at 630 , 173 P.3d at 729 .

2024As we noted in Hsu, federal courts have identified three specific circumstances when a judge may revisit a prior ruling under the law-of-the-case doctrine: "(1) [where] subsequent proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the prior decision was clearly erroneous and would result in manifest injustice if enforced." 123 Nev. at 630 , 173 P.3d at 729 .

2021Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334 (2010) (defining the doctrine and holding that "[i]n order for the law-of-the-case doctrine to apply, the appellate court must SUPREME COURT OF NEVADA 2 t 1)47A actually address and decide the issue explicitly or by necessary implication").

2021Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334 (2010) (defining the doctrine and holding that "[i]n order for the law-of-the-case doctrine to apply, the appellate court must SUPREME COURT OF NEVADA 2 t 1)47A actually address and decide the issue explicitly or by necessary implication").

2017The law of the case doctrine applies "to issues previously determined, not to matters left open by the appellate court." Wheeler Springs Plaza, LLC v. Beemon, 119 Nev. 260, 266, 71 P.3d 1258, 1262 (2003); compare Recontrust Co. v. Zhang, 130 Nev. 1, 8, 317 P.3d 814, 818 (2014) (for a prior appellate disposition to establish law of the case that is binding on the district court "the appellate court must actually address and decide the issue explicitly or by necessary implication") (quoting Dictor v. Creative Mgmt.

2017The law of the case doctrine applies "to issues previously determined, not to matters left open by the appellate court." Wheeler Springs Plaza, LLC v. Beemon, 119 Nev. 260, 266, 71 P.3d 1258, 1262 (2003); compare Recontrust Co. v. Zhang, 130 Nev. 1, 8, 317 P.3d 814, 818 (2014) (for a prior appellate disposition to establish law of the case that is binding on the district court "the appellate court must actually address and decide the issue explicitly or by necessary implication") (quoting Dictor v. Creative Mgmt.

2018See generally In re Reno, 55 Cal.4th 428 , 146 Cal.Rptr.3d 297 , 283 P.3d 1181 , 1210 (2012) (observing that the mere omission of a claim that has been further developed by new counsel " 'does not raise a presumption that prior habeas corpus counsel was incompetent' " (quoting In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 , 749 (1993) ) ).

2014Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 630 , 173 P.3d 724, 729 (2007) (recognizing grounds for avoiding the law-of-the-case doctrine); see also In re Reno, 283 P.3d 1181, 1224, 1250 (Cal. 2012).

2015See Wyatt v. State, 86 Nev. 294, 298 , 468 P.2d 338, 341 (1970).

2015See Wyatt v. State, 86 Nev. 294, 298 , 468 P.2d 338, 341 (1970).

2021Wallner, Docket No. 73644, at *3; see also Arizona v. California, 460 U.S. 605, 61 .8 n.8 (1983) (holding that the law-of-the-case doctrine does not apply if the prior decision "is clearly erroneoue); Hsu v. Cty. of Clark, 123 Nev. 625, 630, 1 .73 P.31 724, 728-29 (2007) (quoting Arizona, 460 U.S. at 618 n.8).

2021Wallner, Docket No. 73644, at *3; see also Arizona v. California, 460 U.S. 605, 61 .8 n.8 (1983) (holding that the law-of-the-case doctrine does not apply if the prior decision "is clearly erroneoue); Hsu v. Cty. of Clark, 123 Nev. 625, 630, 1 .73 P.31 724, 728-29 (2007) (quoting Arizona, 460 U.S. at 618 n.8).

2022As the investigating detective previously attested to the nonidentification, the prosecutor's discussion of the same matter in his recent deposition does not constitute "substantially new or different evidence and thus does not justify deviating from the law- of-the-case doctrine.' See Rippo v. State, 134 Nev. 411 , 427-28, 423 P.3d 1084, 1101 (2018).

2022See Thomas III, 122 Nev. at 1368-69, 148 P.3d at 733; see also Rippo v. State, 134 Nev. 411 , 436, 423 P.3d 1084, 1107 (2018) (concluding that postconviction counsel's failure to raise claims that had been rejected on 28 direct appeal did not fall below an objective standard of reasonableness given that the law-of-the-case doctrine barred further litigation of those claims); Ennis v. State, 122 Nev. 694, 706 , 137 P.3d 1095, 1103 (2006) (recognizing that counsel need not make futile objections to not be held ineffective).

2018We first address the claims that had been raised before on direct appeal and then turn to the new claims. *1107 The allegations of prosecutorial misconduct that were raised and rejected on direct appeal, Rippo v. State (Rippo I), 113 Nev. 1239 , 1253-55 & n.5, 946 P.2d 1017 , 1026-28 & n.5 (1997), are subject to the law-of-the-case doctrine, which precludes further litigation of those claims.

2018We first address the claims that had been raised before on direct appeal and then turn to the new claims. *1107 The allegations of prosecutorial misconduct that were raised and rejected on direct appeal, Rippo v. State (Rippo I), 113 Nev. 1239 , 1253-55 & n.5, 946 P.2d 1017 , 1026-28 & n.5 (1997), are subject to the law-of-the-case doctrine, which precludes further litigation of those claims.

2024In particular, we have held that "[a] district court may reconsider a previously decided issue if substantially different evidence is subsequently introduced or the decision is clearly erroneous," Masonry & Tile Contractors Ass'n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741 , 941 P.2d 486, 489 (1997), and that SUPREME COURT OF NEVADA 5 (0) 1947A lolnly in very rare instances in which new issues of fact or law are raised supporting a ruling contrary to the ruling already reached should a motion for rehearing be granted," Moore v. City of Las Vegas, 92 Nev. 402, 405 , 551 P.2d 244

2024In particular, we have held that "[a] district court may reconsider a previously decided issue if substantially different evidence is subsequently introduced or the decision is clearly erroneous," Masonry & Tile Contractors Ass'n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741 , 941 P.2d 486, 489 (1997), and that SUPREME COURT OF NEVADA 5 (0) 1947A lolnly in very rare instances in which new issues of fact or law are raised supporting a ruling contrary to the ruling already reached should a motion for rehearing be granted," Moore v. City of Las Vegas, 92 Nev. 402, 405 , 551 P.2d 244

2022Cf. Hsu v. Cty. of Clark, 123 Nev. 625, 630 , 173 P.3d 724, 729 (2007) (recognizing exceptions to the law-of-the-case doctrine that have been adopted by federal courts and adopting an exception); Bejarano v. State, 122 Nev. 1066, 1074 , 146 P.3d 265, 271 (2006) ("[T]he doctrine of the law of the case is not absolute . . . .").

2022Cf. Hsu v. Cty. of Clark, 123 Nev. 625, 630 , 173 P.3d 724, 729 (2007) (recognizing exceptions to the law-of-the-case doctrine that have been adopted by federal courts and adopting an exception); Bejarano v. State, 122 Nev. 1066, 1074 , 146 P.3d 265, 271 (2006) ("[T]he doctrine of the law of the case is not absolute . . . .").

2020See Reconstrust Co., N.A. v. Zhang, 130 Nev. 1 , 7-8, 317 P.3d 814 , 818 (2014) (The law-of-the-case doctrine 'refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as law of the case) by that court or a higher one in earlier phases.) (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.

2020See Reconstrust Co., N.A. v. Zhang, 130 Nev. 1 , 7-8, 317 P.3d 814 , 818 (2014) (The law-of-the-case doctrine 'refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as law of the case) by that court or a higher one in earlier phases.) (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.

2018See generally In re Reno, 55 Cal.4th 428 , 146 Cal.Rptr.3d 297 , 283 P.3d 1181 , 1210 (2012) (observing that the mere omission of a claim that has been further developed by new counsel " 'does not raise a presumption that prior habeas corpus counsel was incompetent' " (quoting In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 , 749 (1993) ) ).

2018See generally In re Reno, 55 Cal.4th 428 , 146 Cal.Rptr.3d 297 , 283 P.3d 1181 , 1210 (2012) (observing that the mere omission of a claim that has been further developed by new counsel " 'does not raise a presumption that prior habeas corpus counsel was incompetent' " (quoting In re Clark, 5 Cal.4th 750 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 , 749 (1993) ) ).

2016See Office of State Eng'r v. Curtis Park Manor Water Users Ass'n, 101 Nev. 30, 32 , 692 P.2d 495, 497 (1985) (providing that "Nile doctrine of the law of the case provides that where an appellate court states a principle of law in deciding a case, that rule becomes the law of the case, and is controlling both in the lower court and on subsequent appeals, as long as the facts are substantially the same").

2016See Office of State Eng'r v. Curtis Park Manor Water Users Ass'n, 101 Nev. 30, 32 , 692 P.2d 495, 497 (1985) (providing that "Nile doctrine of the law of the case provides that where an appellate court states a principle of law in deciding a case, that rule becomes the law of the case, and is controlling both in the lower court and on subsequent appeals, as long as the facts are substantially the same").

2020See Pellegrini v. State, 117 Nev. 860, 879 , 34 P.3d 519, 532 (2001) (explaining that claims previously raised in a postconviction petition, rejected by the district court, and upheld on appeal, are barred by the law of the case doctrine), abrogated on other grounds by Rippo v. State, 134 Nev. 411 , 423 n.12, 423 P.3d 1094 , 1097 n.12 (2018).

2020See Pellegrini v. State, 117 Nev. 860, 879 , 34 P.3d 519, 532 (2001) (explaining that claims previously raised in a postconviction petition, rejected by the district court, and upheld on appeal, are barred by the law of the case doctrine), abrogated on other grounds by Rippo v. State, 134 Nev. 411 , 423 n.12, 423 P.3d 1094 , 1097 n.12 (2018).

2024See Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 780 , 766 P.2d 1322, 1324 (1988) (holding that violations of the law-of-the-case doctrine constitute reversible error).

2024See Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 780 , 766 P.2d 1322, 1324 (1988) (holding that violations of the law-of-the-case doctrine constitute reversible error).

2007Ct. App. 2005) (stating that a court is not bound by the law of the case doctrine when a party brings a persuasive new argument based on new information or new developments in the law). 21 119 Nev. 615, 620 , 81 P.3d 521 , 525 (2003). 22 118 Nev. 773, 780 , 59 P.3d 440, 445 (2002). 23 Brezinka, 403 N.W.2d at 843 . 24 See, e.g., Hopkins v. Dyer, 820 N.E.2d 329, 333 (Ohio 2004) (holding that an intervening opinion issued by the Ohio Supreme Court constituted a change in controlling law necessitating departure from the law of the case doctrine); Dedge v. State, 832 So. 2d 835, 836 (Fla. Dist.

2007Ct. App. 2005) (stating that a court is not bound by the law of the case doctrine when a party brings a persuasive new argument based on new information or new developments in the law). 21 119 Nev. 615, 620 , 81 P.3d 521 , 525 (2003). 22 118 Nev. 773, 780 , 59 P.3d 440, 445 (2002). 23 Brezinka, 403 N.W.2d at 843 . 24 See, e.g., Hopkins v. Dyer, 820 N.E.2d 329, 333 (Ohio 2004) (holding that an intervening opinion issued by the Ohio Supreme Court constituted a change in controlling law necessitating departure from the law of the case doctrine); Dedge v. State, 832 So. 2d 835, 836 (Fla. Dist.

2020The analysis of whether the party acted on reasonable grounds "depends upon the actual circumstances of the case rather than a hypothetical set of facts favoring [the party's] averments." Bergmann v. Boyce, 109 Nev. 670, 675 , 856 P.2d 560, 563 (1993), superseded by statute on 2We need not address the Lytles argument that the district court improperly relied on the law-of-the-case doctrine, as the record demonstrates the district court based its decision on the parties' arguments and, moreover, we conclude the district court reached the correct result here.

2020The analysis of whether the party acted on reasonable grounds "depends upon the actual circumstances of the case rather than a hypothetical set of facts favoring [the party's] averments." Bergmann v. Boyce, 109 Nev. 670, 675 , 856 P.2d 560, 563 (1993), superseded by statute on 2We need not address the Lytles argument that the district court improperly relied on the law-of-the-case doctrine, as the record demonstrates the district court based its decision on the parties' arguments and, moreover, we conclude the district court reached the correct result here.

2020See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599 , 245 P.3d 1198, 1202 (2010) ("This court will affirm a district court's order if the district court reached the correct result, even if for the wrong reason."). 6 other grounds as stated in In re DISH Network Derivative Litig., 133 Nev. 438 , 451 n.6, 401 P.3d 1081 , 1093 n.6 (2017).

2020See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599 , 245 P.3d 1198, 1202 (2010) ("This court will affirm a district court's order if the district court reached the correct result, even if for the wrong reason."). 6 other grounds as stated in In re DISH Network Derivative Litig., 133 Nev. 438 , 451 n.6, 401 P.3d 1081 , 1093 n.6 (2017).

2020The doctrine applies where "the issue in question [was] 'decided explicitly. . . in [the] previous disposition."' Jingles, 702 F.3d at 499 (second alteration in original) (quoting United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)).

2020The doctrine applies where "the issue in question [was] 'decided explicitly. . . in [the] previous disposition."' Jingles, 702 F.3d at 499 (second alteration in original) (quoting United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)).

2020See McNelton v. State, 115 Nev. 396, 415 , 990 P.2d 1263, 1275 (1999) (recognizing that the law-of-the-case doctrine applies in the context of a habeas petition); Hall v. State, 91 Nev. 314, 315 , 535 P.2d 797, 798 (1975) CThe law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same." (quoting Walker v. State, 85 Nev. 337, 343 , 455 P.2d 34, 38 (1969))); see also NRS 34.810(2) (requiring dismissal of second or successive petition if it "fails to allege new or different grounds for relief and that the prior determination was on the SUP

2020See McNelton v. State, 115 Nev. 396, 415 , 990 P.2d 1263, 1275 (1999) (recognizing that the law-of-the-case doctrine applies in the context of a habeas petition); Hall v. State, 91 Nev. 314, 315 , 535 P.2d 797, 798 (1975) CThe law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same." (quoting Walker v. State, 85 Nev. 337, 343 , 455 P.2d 34, 38 (1969))); see also NRS 34.810(2) (requiring dismissal of second or successive petition if it "fails to allege new or different grounds for relief and that the prior determination was on the SUP

2020Cir. 1995)); see also United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) CUnder the law of the case doctrine, a court is 6 ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.") (internal quotation marks omitted).

2020Cir. 1995)); see also United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) CUnder the law of the case doctrine, a court is 6 ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.") (internal quotation marks omitted).

2018See Moore v. City of Las Vegas, 92 Nev. 402, 405 , 551 P.2d 244, 246 (1976) SUPREME COURT OF NEVADA 9 WI 1947A e „Art a (reviewing a judge's reconsideration of a prior judge's ruling in the same case for abuse of discretion); Harvey's Wagon Wheel, Inc. v. MacSween, 96 Nev. 215, 217-18 , 606 P.2d 1095, 1096-97 (1980) (upholding a district court's grant of summary judgment after a previous denial of the same motion when the judge became more familiar with the case and was persuaded by newly cited authority).

2018See Moore v. City of Las Vegas, 92 Nev. 402, 405 , 551 P.2d 244, 246 (1976) SUPREME COURT OF NEVADA 9 WI 1947A e „Art a (reviewing a judge's reconsideration of a prior judge's ruling in the same case for abuse of discretion); Harvey's Wagon Wheel, Inc. v. MacSween, 96 Nev. 215, 217-18 , 606 P.2d 1095, 1096-97 (1980) (upholding a district court's grant of summary judgment after a previous denial of the same motion when the judge became more familiar with the case and was persuaded by newly cited authority).

2015This would be exceedingly difficult because, at the relevant time, this court's interpretation of the law-of-the-case doctrine indicated that "Mlle supreme court has no power to review its own judgments in the same case, except upon petition for rehearing, in accordance with the rules established for that purpose," State v. Loveless, 62 Nev. 312, 318 , 150 P.2d SUPREME COURT OF NEVADA 4 (0) 19474 me 1015, 1017 (1944) (quoting Wright v. Carson Water Co., 22 Nev. 304, 308 , 39 P. 872, 874 (1895)).

1969The doctrine of the law of the case in Nevada was stated in State v. Loveless, 62 Nev. 312 , 150 P.2d 1015 (1944), which reads: “All the propositions assumed by the court to be within the case and all the questions presented and considered, and deliberately decided by the court, leading up to the final conclusion reached are as effectually passed upon as the ultimate questions solved. . . .

2007Ct. App. 2005) (stating that a court is not bound by the law of the case doctrine when a party brings a persuasive new argument based on new information or new developments in the law). 21 119 Nev. 615, 620 , 81 P.3d 521 , 525 (2003). 22 118 Nev. 773, 780 , 59 P.3d 440, 445 (2002). 23 Brezinka, 403 N.W.2d at 843 . 24 See, e.g., Hopkins v. Dyer, 820 N.E.2d 329, 333 (Ohio 2004) (holding that an intervening opinion issued by the Ohio Supreme Court constituted a change in controlling law necessitating departure from the law of the case doctrine); Dedge v. State, 832 So. 2d 835, 836 (Fla. Dist.

2007Ct. App. 2005) (stating that a court is not bound by the law of the case doctrine when a party brings a persuasive new argument based on new information or new developments in the law). 21 119 Nev. 615, 620 , 81 P.3d 521 , 525 (2003). 22 118 Nev. 773, 780 , 59 P.3d 440, 445 (2002). 23 Brezinka, 403 N.W.2d at 843 . 24 See, e.g., Hopkins v. Dyer, 820 N.E.2d 329, 333 (Ohio 2004) (holding that an intervening opinion issued by the Ohio Supreme Court constituted a change in controlling law necessitating departure from the law of the case doctrine); Dedge v. State, 832 So. 2d 835, 836 (Fla. Dist.

2018See Byford v. State, 116 Nev. 215 , 232, 994 P.2d 700, 711 (2000).

2002Hall v. State, 91 Nev. 314 , 535 P.2d 797 (1975). [8] See Williams v. State, 113 Nev. 1008, 1020 , 945 P.2d 438, 445 (1997), receded from on other grounds by Byford v. State, 116 Nev. 215 , 994 P.2d 700 (2000); Doyle v. State, 104 Nev. 729, 734 , 765 P.2d 1156, 1159-60 (1988); Williams v. State, 103 Nev. 106, 109 , 734 P.2d 700, 702-03 (1987); Jacobs v. State, 101 Nev. 356, 359 , 705 P.2d 130, 132 (1985). [9] The instruction required the jury to determine: (a) Whether an aggravating circumstance or circumstances ... exist; and (b) Whether a mitigating circumstance or circumstances... exist; an