from a final judgment in a breach of contract action. Eighth
Judicial District Court, Clark County; Ronald J. Israel,
Judge. Reversed and remanded with instructions.
Jeffrey R. Albregts, LLC, and Jeffrey R. Albregts, Las Vegas,
Semenza Kircher Rickard and Lawrence J. Semenza, III,
Christopher D. Kircher, and Jarrod L. Rickard, Las Vegas, for
DOUGLAS, C.J., PICKERING and HARDESTY, JJ.
Wynn Las Vegas, LLC, filed a breach of contract action to
collect $1, 000, 000 in unpaid casino markers from appellant
Mario LaBarbera. In this appeal, we must determine whether
the district court erred when it precluded LaBarbera from
testifying at trial by video conference from Italy and
excluded evidence of his intoxication.
conclude that the district court abused its discretion under
the Nevada Supreme Court Rules Part IX-B(B) when its written
order summarily denied LaBarbera's request to testify at
trial using audiovisual equipment. While recognizing the very
high burden required for a voluntary intoxication defense in
a contract action, we also conclude that the district court
abused its discretion when it applied an incorrect standard
to exclude any evidence of intoxication. We reverse the
judgment and remand for a new trial.
AND PROCEDURAL HISTORY
is an Italian citizen and business owner who serves as a
consultant for the pharmaceutical industry. He claims to
suffer from gambling addiction, as certified in Italy, and
does not speak any English. LaBarbera visited Las Vegas in
late March through early April of 2008 after being recruited
by Alex Pariente, an Italian-speaking former employee and VIP
host of Wynn. While staying at the Wynn, LaBarbera gambled
and lost $1, 000, 000 of his own money. Wynn then extended
$1, 070, 000 worth of gaming credit in the form of casino
markers to LaBarbera, $1, 000, 000 of which was left unpaid.
LaBarbera claims he was intoxicated at the time he signed the
casino markers and that the signatures on the markers are not
after LaBarbera left Las Vegas, Wynn filed a complaint with
the Clark County District Attorney's Office for passing
bad checks in violation of NRS 205.130,  resulting in a
bench warrant being issued for LaBarbera's arrest. Wynn
also filed a breach of contract suit against LaBarbera.
Before the jury trial, Wynn filed three motions in limine
seeking to exclude evidence or argument of LaBarbera's
gambling addiction, intoxication, and any alleged forgery.
The district court granted the first two motions, prohibiting
LaBarbera from arguing about his gambling addiction or
intoxication at trial, but denied the third motion, allowing
LaBarbera to argue that the casino markers were invalid
forgeries. Because LaBarbera's outstanding bench warrant
would cause him to be arrested if he came to Clark County to
testify, he moved for permission to testify at trial from
Italy via video conference and an interpreter. The district
court denied LaBarbera's motion and the trial proceeded
without his presence.
jury returned a verdict in favor of Wynn in the principal
amount of $1, 000, 000. Thereafter, the district court
entered a final judgment awarding Wynn contract interest at a
rate of 18 percent per annum, attorney fees, costs, and
prejudgment interest, totaling $2, 626, 075.81. This appeal
seeks reversal of the judgment, arguing, among other things,
that the district court abused its discretion when it refused
to let him testify by audiovisual communication and excluded
evidence of his intoxication.
district court abused its discretion by denying
LaBarbera's motion to testify via ...