IN THE SUPREME COURT OF THE STATE OF NEVADA
CYNTHIA RENEE GILBERT, AN No. 78943
INDIVIDUAL,
Appellant,
vs. FILED
JESSICA LEANN JONES, AN
INDIVIDUAL, NOV 2 3 2020
Res • ondent. ELIZABETH A. BROWN
CLERK OF SUPREME COURT
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a final judgment following a jury trial in
a negligence action. Eighth Judicial District Court, Clark County; Joanna
Kishner, Judge.
Appellant Cynthia Gilbert filed a complaint for negligence and
negligence per se following an automobile accident. Gilbert alleged that
respondent Jessica Jones sped through an intersection to beat a red light,
while Gilbert was turning left through the same intersection. The jury
returned a verdict in favor of Jones, finding her not liable. Gilbert filed a
notice of appeal on May 31, 2019, and then after, filed a motion for a new
trial. The district court denied the motion, both on the merits and because
the notice of appeal divested it of jurisdiction. Briefing on this appeal
followed. Gilbert argues that the district court erred by rejecting her
proposed instruction about NRS 484B.307 (setting forth the duties of
drivers at traffic lights), unreasonably restricting voir dire, improperly
restricting closing argument, and denying her motion for new trial.
We review Gilbert's argument that the district court erred by
not instructing the jury on NRS 484B.307 for an abuse of discretion. See
Atkinson v. MGM Grand Hotel, Inc., 120 Nev. 639, 642,
98 P.3d 678, 680
(2004) (noting that a district court's decision to give or decline a proposed
jury instruction is reviewed for an abuse of discretion or judicial error).
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"Jury instructions that tend to confuse or mislead the jury are erroneous."
Carver v. EI-Sabawi, 121 Nev. 11, 14,
107 P.3d 1283, 1285 (2005).
The district court did not abuse its discretion in settling jury
instructions. Problematically, Gilbert does not squarely acknowledge the
basis for the district coures ruling: It did not refuse Gilbert's proposed
instruction on lack-of-evidence grounds. Gilbert requested a bulky, blockquoted instruction to explain that a driver turning left needed to yield the
right-of-way, then after yielding, had the right-of-way to turn. The district
court found that the instruction did not "articulate the issues" in the case
or focus the jury on the applicable law, and seemed to credit Jones's
argument that the instruction contained confusing information
unnecessary to resolve the case. We agree—particularly because the
district court did instruct the jury on negligence per se and provided the
jury with the relevant information from Gilbert's proposed instructions in
an instruction on NRS 484B.253, which precisely articulated the principle
of law Gilbert sought to convey. The district court was not obligated to give
a duplicative and confusing additional instruction.
Turning to Gilbert's voir dire claim, we note at the outset that
she failed to adequately preserve the issue for appeal. The record shows an
objection from Jones, an off-the-record conference, and an on-the-record
withdrawal of the question. And Gilbert did not accept the district court's
offer to make a record of any bench conference outside the presence of the
jury. In light of Gilbert's failure, the issue was waived. See Foreman v. Ver
Brugghen, 81 Nev. 86, 90,
398 P.2d 993, 995 (1965) (requiring an offer of
proof to preserve an issue for appeal when the record is silent).
Even assuming that, as Gilbert argues on appeal, she did not
mean to withdraw the question, the district court did not abuse its
discretion. Whitlock v. Saln2on, 104 Nev. 24, 28,
752 P.2d 210, 213
(1988) ("Both the scope of voir dire and the method by which voir dire is
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• :;;;,1".
pursued remain within the discretion of the district court."); Parodi v.
Washoe Medical Center, Inc., 111 Nev. 365, 368,
892 P.2d 588, 590 (1995)
(claim that the district court made improper comments during voir dire was
only subject to review for plain error because the appellant failed to object
below). Of note, the district court only prevented Gilbert from asking one
question. This restriction fell within the district court's wide discretion and
was not plainly unreasonable—especially since, from what appears from the
limited record we have, the question seemed to poll the jury on the ultimate
issue, rather than ask about whether the jury could fairly follow the
evidence. Cf. Khoury v. Seastrand,
132 Nev. 520, 527-29,
377 P.3d 81, 86-
88 (2016) (holding that allowing an attorney to badger, bully, and almost
reduce jurors to tears did not constitute an abuse of discretion).
Gilbert's assertion of error regarding closing argument also
falls short. Once again, we review for an abuse of discretion. See Jain v.
McFarland, 109 Nev. 465, 475-76,
851 P.2d 450, 457-58 (1993) (recognizing
wide discretion afforded in closing arguments). The district court sustained
Jones's objection to Gilbert's argument because it violated a pre-trial in
limine order. And because Gilbert has not addressed the in limine order,
we decline to address this claim. See Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (declining to
consider claim where appellant failed "to cogently argue, and present
relevant authority" in support of their arguments)."
'Even though we decline to address this claim, we note that Gilbert
faults Jones for briefing the in limine order because it is not in the record.
But Gilbert bore the burden to include it in the record, and where, as here,
such evidence is not included, this court assumes "that the record supports
the district court's decision." See Investment Company, Inc. v. Mandarino,
103 Nev. 711, 718,
748 P.2d 488, 493 (1987).
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Finally, Gilbert contends that the district court erred when it
did not grant her motion for a new trial. "'The decision to grant or deny a
motion for new trial rests within the sound discretion of the trial court."'
Bayerische Motoren Werke Aktiengesellschaft v. Roth, 127 Nev. 122, 133,
252
P.3d 649, 657 (2011) (quoting Southern Pac. Transp. Co. v. Fitzgerald,
94
Nev. 241, 244,
577 P.2d 1234, 1236 (1978)). But Gilbert divested the district
court of jurisdiction to grant her motion by waiting to file it until after she
filed the notice of appeal and this court docketed her appeal. See Smith v.
Ernery, 109 Nev. 737, 740,
856 P.2d 1386, 1388 (1993) (Upon the filing of a
timely notice of appeal, the district court is divested of jurisdiction and
jurisdiction vests in this court."). And on appeal, Gilbert only supports his
contention by incorporating by reference the same assignments of alleged
error we rejected above. Thus, the district court did not abuse its discretion
by denying her motion for new trial. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Stiglich
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cc: Hon. Joanna Kishner, District Judge
Hon. Kerry Louise Earley, District Judge
Jay Young, Settlement Judge
The Schnitzer Law Firm
Hanratty Law Group
Messner Reeves LLP
Eighth District Court Clerk
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