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LaBarbera v. Wynn Las Vegas, LLC

Supreme Court of Nevada

July 19, 2018

MARIO LABARBERA, AN INDIVIDUAL, Appellant,
v.
WYNN LAS VEGAS, LLC, D/B/A WYNN LAS VEGAS, A NEVADA LIMITED LIABILITY COMPANY, Respondents.

          Appeal 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, for Appellant.

          Semenza Kircher Rickard and Lawrence J. Semenza, III, Christopher D. Kircher, and Jarrod L. Rickard, Las Vegas, for Respondent.

          BEFORE DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

          OPINION

          HARDESTY, J.

         Respondent 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.

         We 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.

         FACTS AND PROCEDURAL HISTORY

         LaBarbera 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 his.

         Shortly 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, [1] 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.

         The 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 followed.

         DISCUSSION

         LaBarbera 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.[2]

         The district court abused its discretion by denying LaBarbera's motion to testify via ...


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