ELL: CLE5 

BY 

BROWN 

134 Nev., Advance Opinion 51 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

MARIO LABARBERA, AN 

INDIVIDUAL, 

Appellant, 

vs. 

WYNN LAS VEGAS, LLC, D/B/A WYNN 

LAS VEGAS, A NEVADA LIMITED 

LIABILITY COMPANY, 

Respondents. 

No. 71276 

AIlED 

JUL 1 9 2018 

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 

By the Court, 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. 

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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, 1resulting in a bench warrant being issued for 

LaBarbera's arrest. Wynn also filed a breach of contract suit against 

1NRS 205.130 was amended in 2011 and now states that an 

instrument's amount must be greater than $650, not $250. 2011 Nev. Stat., 

ch. 41, § 11, at 162-63. This change in law is irrelevant to our rulings here. 

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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 

2LaBarbera also argues that Wynn's claims should have been barred 

by the doctrines of unclean hands and laches, that the casino markers were 

improperly classified under the bad check statute, and that the district 

court abused its discretion by excluding evidence of his bench warrant and 

allowing Wynn to call untimely disclosed witnesses. We conclude that these 

arguments lack merit. LaBarbera also claims that the district court erred 

when it excluded evidence of his gambling addiction, but we conclude this 

claim lacks merit under NRS 463.368(6) (stating that a patron's claim of 

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

testify via video conference and an interpreter 

LaBarbera argues that the district court abused its discretion 

when it denied his motion to testify from Italy via video conference with an 

interpreter. Specifically, LaBarbera points to NRCP 43(a), which states 

that "Mlle court may, for good cause shown in compelling circumstances 

and upon appropriate safeguards, permit presentation of testimony in open 

court by contemporaneous transmission from a different location." 

LaBarbera contends that he made a sufficiently compelling showing of 

special circumstances, and it was an abuse of discretion for the district court 

to refuse to accommodate him. Citing Barry v. Lindner, 119 Nev. 661, 668, 

81 P.3d 537, 542 (2003), Wynn argues that telephonic or video conference 

testimony is not permissible at trial absent a showing of special 

circumstances. Wynn contends that LaBarbera failed to demonstrate such 

a showing or how he would preserve appropriate safeguards. 

Neither LaBarbera, Wynn, nor the district court reference Part 

IX-B(B) of the Nevada Supreme Court Rules, which addresses this issue. 

Part IX-B(B), Rule 2 states that "[t]o improve access to the courts and 

reduce litigation costs, courts shall permit parties, to the extent feasible, to 

having a gambling disorder is not a defense in an action to enforce a 

gambling debt). Further, LaBarbera argues that the district court abused 

its discretion when it gave jury instruction number 36, which read: 

"[s]imilarly, whether a person cannot read, write, speak or understand the 

English language is also immaterial to whether an agreement written in 

English is enforceable. Prior to signing a contract, a person has the duty to 

learn the terms of the contract." However, because LaBarbera did not object 

to the inclusion of this instruction at trial, his argument is waived. See J.A. 

Jones Constr. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 285, 89 P.3d 

1009, 1015 (2004) ("No party may assign as error the giving or the failure 

to give an instruction unless he objects . . . ." (quoting NRCP 51(c))). 

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appear by simultaneous audiovisual transmission equipment at 

appropriate proceedings pursuant to these rules." We note that the 

rule includes the word "shall," and "[fin these rules . `[siliall' is 

mandatory." SCR Part IX-B(B)(1)(5). "Appropriate proceedings" include 

"[t]rials . provided there is good cause as determined by the court in 

accordance with Rule 1(6)." SCR Part IX-B(B)(4)(1)(a). "Good cause' may 

consist of one or more of the following factors as determined by the 

court: . . . kflhether any undue surprise or prejudice would 

result; . . . convenience of the parties, counsel, and the court; . . . cost and 

time savings." SCR Part IX-B(B)(1)(6)(b)-(d). The Barry case cited by Wynn 

predates Part 1X-B(B) of the Nevada Supreme Court Rules—which became 

effective on July 1, 2013—by ten years and thus does not control here. See 

generally SCR Part IX-B(B); Barry, 119 Nev. at 661, 81 P.3d at 537. 

We conclude that the district court abused its discretion in 

denying LaBarbera's request to testify via video conference. The Nevada 

Supreme Court Rules favor accommodation of audiovisual testimony upon 

a showing of good cause. LaBarbera demonstrated in his motion that good 

cause existed since he showed convenience and cost and time savings, and 

he otherwise would be unable to testify at all. Additionally, Wynn's 

arguments fail to establish how LaBarbera's testimony by video conference 

would have caused any undue surprise or prejudice. During discovery, 

Wynn took LaBarbera's deposition in Italy and some of the deposition 

testimony was used at trial. Moreover, the district court summarily denied 

LaBarbera's motion without explanation. We conclude that the district 

court abused its discretion and violated the policy promoted by NRCP 43(a) 

and SCR Part IX-B(B), Rule 2. Additionally, we perceive this error to be 

prejudicial because LaBarbera's absence conveyed to the jury a lack of 

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interest in the case and prevented him from responding to other testimony 

presented at trial. 

The district court abused its discretion by excluding evidence of LaBarbera's 

intoxication 

LaBarbera argues that a lack of capacity due to excessive 

intoxication is a valid defense to a contract claim and the district court 

abused its discretion when it excluded evidence of his intoxication at the 

time he signed the casino markers. In his deposition, LaBarbera claimed 

that Wynn continually brought drinks he did not order, that he was 

especially intoxicated while gambling, and that on one occasion he became 

intoxicated to the point where he became physically ill and vomited. Wynn 

argues that LaBarbera never complained or brought attention to his 

intoxication while he executed multiple gaming markers over several days. 

Wynn cites to cases showing the extremely high burden required to prove a 

voluntary intoxication defense and claims that LaBarbera's argument fails 

because he cannot identify any specific facts about how much or how long 

he drank. 

In the context of capacity to contract, this court has held that 

intoxication may render a person incompetent where "actual intoxication 

dethroned his reason, or that his understanding was so impaired as to 

render him mentally unsound when the act was performed." Seeley v. 

Goodwin, 39 Nev. 315, 324-25, 156 P. 934, 937 (1916) (internal quotation 

marks omitted). According to the Restatement, 

[a] person incurs only voidable contractual duties 

by entering into a transaction if the other party has 

reason to know that by reason of intoxication 

(a) he is unable to understand in a reasonable 

manner the nature and consequences of the 

transaction, or 

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(b) he is unable to act in a reasonable manner 

in relation to the transaction. 

Restatement (Second) of Contracts § 16 (Am. Law Inst. 1981). In addition, 

in dicta, Seeley recognizes a duty on the part of an intoxicated person to 

promptly disaffirm the contract. See Seeley, 39 Nev. at 323, 156 P. at 936; 

see also Restatement (Second) of Contracts § 16 cmt. c ("On becoming sober, 

the intoxicated person must act promptly to disaffirm [the contract] ."). The 

rule in the Restatement is an extension of what this court previously held 

in Seeley, and we adopt it as the appropriate standard for an intoxication 

defense in a contract action. 

In proving intoxication, or a subsequent ratification, the burden 

of proof is usually the higher standard of clear and convincing evidence. 

In an action on a contract, a party must present 

convincing proof of claims that due to intoxication 

at the time of making a contract, the party was 

bereft of mental faculties. When a party to a 

contract was lacking in mental capacity at the time 

of execution by reason of drunkenness, proof of a 

subsequent ratification must be clear and 

convincing. 

17B C.J.S. Contracts § 988 (2018) (footnote omitted). Although some courts 

have applied a preponderance of the evidence standard, see Ewert v. 

Chirpich, 211 N.W. 306, 307 (Minn. 1926), most courts that have reviewed 

this issue have applied the clear and convincing evidence standard, see In 

re Wills, 126 B.R. 489, 497 (Bankr. E.D. Va. 1991); Van Meter v. Zumwalt, 

206 P. 507, 508-09 (Idaho 1922); Coppolina v. Radice, 164 N.E. 643, 644 

(Ohio Ct. App, 1928); In re Amending & Revising Okla. Unif. Jury 

Instructions—Civil, 217 P.3d 620, 625 (Okla. 2009). We adopt the clear and 

convincing standard. On remand, the district court should instruct the jury 

on both the correct rule of law and burden of proof. 
When the district court granted Wynn's motion in limine to 

exclude evidence of intoxication, it relied on FGA, Inc. v. Giglio, 128 Nev. 

271, 278 P.3d 490 (2012). The district court stated: 

In [Giglio], there was evidence of drinking, but they 

precluded anybody from talking about that because 

there's nobody to testify regarding the fact that the 

individual was—had drank so much that they were, 

in fact, intoxicated. 

The district court further stated, "I think that the case law and the statutes 

are clearly—you know, voluntary intoxication is not a defense. If it was, 

half the people in the casino could ask for their money back because they 

would say: Hey, they gave me a free drink, I kept drinking." 

Giglio was a tort case in which this court affirmed the district 

court's decision to exclude evidence of the plaintiffs alcohol consumption 

because there was insufficient evidence that she was intoxicated or that the 

intoxication caused the injury. 128 Nev. at 285-86, 278 P.3d at 499. Giglio 

did not involve a contract dispute nor hold that intoxication was not a valid 

contract defense. Id. at 275-76, 278 P.3d at 493. We conclude that Giglio 

does not provide the district court with an adequate basis for excluding 

LaBarbera's intoxication evidence, as it is too factually dissimilar and does 

not provide the applicable rule of law. Here, LaBarbera, as the defendant, 

was trying to use evidence of his own intoxication to show lack of capacity 

in a contract dispute. 

Wynn does not argue that the district court's legal analysis was 

correct Instead, the essence of Wynn's argument is that the voluntary 

intoxication defense is disfavored and the standard of proof is very high. 

Wynn also argues that even if LaBarbera was legally incapacitated, he was 

required to disavow the contract after regaining capacity. See Hernandez 

v. Banks, 65 A.3d 59, 67 (D.C. 2013) ("The power of avoidance also 

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terminates if the incapacitated party, upon regaining capacity, affirms or 

ratifies the contract."). Wynn's arguments tend to show that LaBarbera 

may have difficulty proving his voluntary intoxication defense at trial, but 

those arguments do not justify the district court's decision to bar LaBarbera 

from making his argument altogether. 

We conclude that the district court abused its discretion in 

excluding the intoxication evidence because its ruling was erroneous under 

Seeley and misinterpreted the holding in Giglio. See Staccato v. Valley 

Hosp., 123 Nev. 526, 530, 170 P.3d 503, 506(2007) (stating that "the district 

court abuses its discretion if it applies an incorrect legal standard"). On 

remand, we instruct the district court to apply the correct standard, set 

forth in the Restatement, to determine the admissibility of LaBarbera's 

intoxication evidence. 

CONCLUSION 

The district court abused its discretion by denying LaBarbera's 

request to appear via video conference in violation of SCR Part IX-B(B), 

which states that courts shall, "to the extent feasible," permit parties to 

appear via simultaneous audiovisual transmission at trial where good cause 

is shown. We further hold that the district court abused its discretion by 

excluding evidence of LaBarbera's intoxication when it improperly relied on 

FGA, Inc. v. Giglio, 128 Nev. 271, 278 P.3d 490 (2012). 

Accordingly, we reverse the district court's judgment and 

remand with instructions for the district court to conduct a new trial on all 

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issues, consistent with this opinion. Additionally, we reverse the district 

court's award of contract interest, attorney fees, costs, and prejudgment 

interest. 

Hardesty 

Liczyck \ 

We concur: 

CA. 

geks4 

Pickering 

10 

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