Nevada Reports 1987 (103 Nev.) PDF

103 Nev.
1, 1 (1987)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 103
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103 Nev. 1, 1 (1987) Crow-Spieker #23 v. Helms
CROW-SPIEKER #23, a Co-Partnership, Appellant and Cross-Respondent, v. ROBERT L.
HELMS CONSTRUCTION AND DEVELOPMENT CO., a Nevada Corporation, and
ROBERT L. AND PAULINE HELMS, Respondents, and FLORENCE C. ROBINSON,
as Executrix of the Estate of JOHN E. ROBINSON, Deceased, and FLORENCE C.
ROBINSON, Respondent and Cross-Appellant.
No. 15907
January 21, 1987 731 P.2d 348
Appeal and cross-appeal from final judgment. Second Judicial District Court, Washoe
County; Roy L. Torvinen, Judge.
Purchasers, who were granted right of first refusal for first tract in letter accompanying
proposed sale agreement for their purchase of second tract, brought action against vender for
breach of contract. The district court determined that vendor had breached right of first
refusal and awarded damages and attorney fees to purchasers but denied specific
performance. Purchasers appealed. The Supreme Court held that: (1) right of first refusal for
first tract was not implicated by good faith decision of vendor to sell larger parcel of land
which included first tract, and {2) right of first refusal was not validly exercised by
purchasers after third parties made offer to purchase parcel of land which included first
tract.
to sell larger parcel of land which included first tract, and (2) right of first refusal was not
validly exercised by purchasers after third parties made offer to purchase parcel of land which
included first tract.
Affirmed in part; reversed and remanded in part, with directions.
Daniel W. Stewart, Reno, for Appellant and Cross-Respondent.
Frank R. Petersen, Reno, for Respondents Robert L. Helms Construction and
Development Co., Robert L. Helms and Pauline Helms.
Leslie B. Gray, Sparks, Hale, Lane, Peek, Dennison & Howard, and Gregg W. Zive, Reno,
for Florence C. Robinson, as Executrix of the Estate of John E. Robinson, Deceased, and
Florence C. Robinson, Respondent and Cross-Appellant.
1. Vendor and Purchaser.
Right of first refusal for tract of land was not implicated by good faith decision of vendor to sell larger
parcel of land which included the tract.
Right of first refusal for first tract of land, which was granted to purchasers of second tract of land in
letter accompanying proposed sale agreement for second tract and required purchasers to purchase the first
tract for the price offered by another party and subject to the same terms contained in that offer, was not
validly exercised by purchasers of second tract after third parties made offer to purchase parcel of land
which included first tract, where vendor had no desire to sell only first tract, and purchasers' offer for first
tract alone, for less than its market value, was less favorable than third parties' offer to purchase entire
parcel, including first tract, taking into account relative values of various portions of the parcel of land.
OPINION
Per Curiam:
In early 1973, John E. Robinson (Robinson) and appellant Crow-Spieker #23 (#23 or
the Partnership) began negotiations for the purchase of a tract of land (Tract A) belonging
to Robinson. In a letter accompanying the proposed sale agreement, Robinson granted #23 a
right of first refusal on another tract (Tract B), just south of Tract A.
1
The right of first
refusal was set forth as follows: As I stated in our telephone conversation of May 3, if and
when we decide to sell the parcel of land south of Parcel A, between Kleppe Lane and
Greg Street, you shall have the first opportunity to purchase the same for the price for,
and subject to the terms under, which we are willing to sell the same; or if we receive a
bona fide offer for said parcel which is acceptable to us, from another party, you shall
have the first opportunity to purchase the same for the price offered by the other party
and subject to the same terms as contained in such offer.
____________________

1
The enforceability of that right is disputed; however, our resolution of this appeal makes discussion of that
issue unnecessary.
As I stated in our telephone conversation of May 3, if and when we decide to sell the
parcel of land south of Parcel A, between Kleppe Lane and Greg Street, you shall have
the first opportunity to purchase the same for the price for, and subject to the terms
under, which we are willing to sell the same; or if we receive a bona fide offer for said
parcel which is acceptable to us, from another party, you shall have the first opportunity
to purchase the same for the price offered by the other party and subject to the same
terms as contained in such offer. This is of course conditioned on there being no
defaults on your part under the terms of the enclosed agreement for the purchase of
Parcel A.
Much later, Robinson concluded that it would be advantageous to sell as a single tract a
parcel of approximately 198 acres of land; Tract B, containing between forty and fifty acres,
was part of that parcel. Robinson dealt with at least three prospective purchasers of the entire
tract: #23, Robert L. Helms (Helms), and one John Dermody, who is not a party to this
action. Helms made the highest offer: somewhat more than two million dollars. That offer
was for the entire 198 acres, with no allocation of a specific value to any particular portion of
the tract. However, it was undisputed at trial that Tract B was substantially more valuable
than other portions of the tract. There was considerable evidence indicating that Tract B was
worth more than $20,000.00 per acre, as opposed to the indiscriminate, average price of
approximately $10,600.00 per acre in Helms' offer for the entire tract.
Robinson favored #23 with the details of the Helms' offer and invited the Partnership to
match it. The Partnership, however, responded with a letter purporting to exercise the right of
first refusal as to Tract B alone. The Partnership estimated that Tract B contained 46.5 acres;
its offer was $493,500.00, or approximately $10,600.00 per acre. Robinson sold to Helms,
and #23 sued.
The trial court found that Robinson had breached the right of first refusal and awarded #23
damages and attorney's fees, but denied specific performance. The lower court erred in
concluding that there was a breach; the right of first refusal was neither implicated nor
exercised.
2
Therefore, #23 was not entitled to any of the relief it sought.
[Headnote 1]
It is apparent from the terms of the right of first refusal, that the right applied only to
offers to purchase Tract B.
____________________

2
This issue was not raised by the parties. However, the error is glaringly apparent upon the face of the record.
The ability of this court to take cognizance of plain error sua sponte is well established. Bradley v. Romeo, 102
Nev. 103, 716 P.2d 227 (1986).
the right applied only to offers to purchase Tract B. In this case, there was no such offer. Of
course, we would not condone an attempt to evade #23's contractual rights by engineering the
sale of a larger parcel, see Myers v. Lovetinsky, 189 N.W.2d 571 (Iowa 1971); Maron v.
Howard, 66 Cal.Rptr. 70 (Cal.Ct.App. 1968), but in this case there was no evidence of any
wrongful intent. Rather, the record reflects a good faith decision by Robinson to sell the
entire tract. Thus, #23's contractual right was totally inapplicable by its own terms. Accord
Aden v. Estate of Hathaway, 427 P.2d 333 (Colo. 1967); Guaclides v. Kruse, 170 A.2d 488
(N.J.Super.Ct.App.Div. 1961).
[Headnote 2]
If, in the alternative, we viewed Helms' offer as an offer to purchase Tract B, #23 did not
match the terms and conditions of that offer. Robinson had no desire to sell only the smaller
portion of his land. An offer for Tract B alone, and for less than its market value, was less
favorable than the Helms' offer to purchase Tract B and all the other property, taking into
account the relative values of the various portions of the tract. Thus, even if the right of first
refusal was implicated, it was not validly exercised.
This necessarily resolves the other issues presented for review; #23 was not entitled to any
recovery. We reverse the judgment to the extent that it granted relief to the Partnership, and
remand with directions to enter judgment for respondents.
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103 Nev. 4, 4 (1987) Downey v. State
GARY LEE DOWNEY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17163
January 21, 1987 731 P.2d 350
Appeal from judgment. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Defendant was convicted before the district court of murder, robbery, and kidnapping, and
he appealed. The Supreme Court held that testimony by homicide victim's friend, that victim
had stated he had met defendant about one year before time in question, that victim had taken
defendant to his apartment and engaged in homosexual sex, that victim told friend that he was
surprised to see defendant again, and that victim stated he had had sex again with defendant
on day in question, was inadmissible hearsay and violated defendant's rights under
confrontation clause, due to unavailability of victim for cross-examination.
ble hearsay and violated defendant's rights under confrontation clause, due to unavailability of
victim for cross-examination.
Reversed and remanded.
Earl & Earl, Las Vegas for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, Dan
Seaton, Deputy District Attorney, James Tufteland, Deputy District Attorney, and Bradford
Jerbic, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Testimony by homicide victim's friend, that victim had stated he had met defendant about one year before
time in question, that victim had taken defendant to his apartment and engaged in homosexual sex, that
victim told friend that he was surprised to see defendant again, and that victim stated he had had sex again
with defendant on day in question, was inadmissible hearsay and violated defendant's rights under
confrontation clause, due to unavailability of victim for cross-examination. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Normally, failure of defense to object would have barred appellate review of erroneous admission of
evidence; however, Supreme Court reviewed erroneous admission of hearsay evidence which violated
defendant's rights under confrontation clause and compromised defendant's right to fair trial.
U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Even though in response to unwarranted attack by defense counsel on one of prosecution's witnesses,
comments made by prosecutor during closing argument, hinting that there was evidence which prosecutor
was not allowed to present to jury, were improper.
4. Criminal Law.
Trial court must be careful to avoid any statements which could be interpreted as setting deadline for jury
during deliberations.
OPINION
Per Curiam:
Appellant Downey was convicted by a jury of murder, robbery and kidnapping. Because
the district court admitted prejudicial hearsay evidence, his conviction must be reversed.
FACTS
On September 27, 1984, Jack Robedeau's body was found by his neighbor, David
Moensch. Robedeau was nude, with a towel over his body. The cause of death was asphyxia
produced by a combination of strangulation (probably accomplished by a person standing
behind the victim, choking him with an arm) and gagging caused by a sock pushed into his
mouth. He was probably killed in the early afternoon of September 27.
Moensch described the events of the day of Robedeau's death. Moensch and Robedeau
were old friends, both homosexuals, who had once been lovers. Moensch had dropped into
Robedeau's apartment earlier in the day, around noon. Appellant Downey was present, and
the three men sat and conversed.
After Downey left, Moensch said Robedeau related how he met Downey. Robedeau stated
he met Downey a year before when he saw him jogging and picked him up and gave him a
ride. He took Downey to his apartment and engaged in homosexual sex. Robedeau told
Moensch he was surprised to see Downey again on September 27. Robedeau also stated he
had had sex again with Downey that day. Moensch also testified that Robedeau had a healthy
sexual appetite and often picked up his sexual partners hitchhiking, in gay bookstores, and at
bars.
Moensch stated he left Robedeau's apartment about one o'clock. He went home and told
his roommate, Pasquale Vargas, about what Robedeau had told him. Vargas tried to call
Robedeau around two o'clock, but got no answer. Vargas picked Moensch up from work at
eleven p.m., and they drove by Robedeau's apartment to check on him. Robedeau worked
nights and should have been at work when Moensch and Vargas checked on him. As
Moencsh and Vargas drove by the apartment, they saw Robedeau's car in its place, and lights
on in the apartment. They tried to call Robedeau, but got no answer, so they went to the
apartment. When they entered, they discovered the body.
Downey testified in his own behalf. His story of his relationship with the victim differed
markedly from Moensch's testimony. He stated he met the victim at the check-out stand in a
drugstore. They talked, and then left the store. Downey heard the victim yell at someone in
the parking lot and went to his assistance. Robedeau then gave Downey a ride home. On the
way, they stopped by Robedeau's apartment, but did not go in. Downey next saw Robedeau in
August 1984. Robedeau was dressed in a suit and had a flat tire on his car. Downey changed
the flat tire, and in the process broke the crystal on his watch. Robedeau offered to have the
watch fixed.
Downey next saw Robedeau on September 27. He had been to an arcade near Robedeau's
apartment, looking for a job, and decided to jog over to visit Robedeau. He had gone to see
Robedeau to find out if his watch had been fixed. He explained to Robedeau that he was
going to hitchhike to Texas to see his fiancee and needed the watch. Robedeau had not had
the watch repaired, but loaned Downey one of his own. Robedeau inquired about whether he
had enough money and gave Downey his telephone credit card number to use to pay for
telephone calls to his fiancee. Moensch arrived at Robedeau's apartment and the three men
conversed. Downey telephoned the arcade, and then his friend Danny Gandulla who agreed
to meet him at a nearby park.
his friend Danny Gandulla who agreed to meet him at a nearby park. Downey denied any
homosexual contact with Robedeau, or anyone else.
Danny Gandulla testified and corroborated Downey's alibi. He stated he spent the
afternoon of September 27 with Downey, working out in a park. After the workout, he and
Downey went out for lunch. This meeting lasted until about 4 p.m. on September 27.
DISCUSSION
[Headnote 1]
Downey contends the district court improperly admitted hearsay evidence, the testimony of
David Moensch regarding the victim's account of his relationship with Downey. It is clear this
testimony is hearsay and there is no exception to the hearsay rule which would permit its
admission into evidence. The admission of this evidence violated Downey's right under the
confrontation clause because the victim was not available for cross-examination. See
California v. Green, 399 U.S. 149 (1970); see also Corbin v. State, 97 Nev. 245, 627 P.2d
862 (1981).
The admission of this hearsay evidence is similar to Summers v. State, 102 Nev. 195, 718
P.2d 676 (1986). In Summers, the district court admitted a co-defendant's suicide note which
implicated the defendant in the murder into evidence over defense objection. The district
court believed the note was admissible as a prior inconsistent statement. We found that it was
not, and it thus was inadmissible hearsay. Id. at 201. We found this to be reversible error
because the evidence of guilt was circumstantial and not overwhelming. Id. at 202. Further,
the prejudicial effect of the dramatic statements in the suicide note was significant. Id.
[Headnote 2]
Here, too, the evidence of guilt is not overwhelming and guilt is based solely on
circumstantial evidence. The hearsay in this case is extremely prejudicial, both because of its
content and because it is, in effect, testimony from the dead victim. The State argues that the
failure of defense counsel to object to this evidence precludes our review of this issue. See
Pasgove v. State, 98 Nev. 434, 435, 651 P.2d 100, 101 (1982). However, we have made
exceptions to this rule where the errors are patently prejudicial and required the court to
intervene sua sponte to protect the defendant's right to a fair trial. See Sipsas v. State, 102
Nev. 119, 125, 716 P.2d 231, 235 (1986); see also Garner v. State, 78 Nev. 366, 374 P.2d 525
(1962); Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985). Although failure of the defense
to object normally would bar appellate review of this issue, we hold the erroneous admission
of this evidence has compromised Downey's right to a fair trial. See Sipsas v. State, supra,
102 Nev. at 125.
Because the improper admission of the hearsay evidence requires that Downey be given a
new trial, we need not address his remaining contentions. However, for the guidance of the
bench and bar, we will comment briefly on two issues.
[Headnote 3]
Downey claims the prosecutor committed misconduct in closing argument by hinting there
was evidence he was not allowed to present to the jury. We note these comments were made
in response to an unwarranted attack by defense counsel on one of the prosecution's
witnesses. [C]ounsel on both sides of the table share a duty to confine arguments to the jury
within proper bounds. United States v. Young, 470 U.S. 1, 8(1985). While we commend
zeal in vigorous argument, we do not condone unprofessional conduct by either the defense or
the prosecution.
[Headnote 4]
Downey also argues that the district court improperly set a deadline for the jury at penalty.
As noted, we need not decide this issue, but caution the trial courts of this state to avoid any
statements that could be interpreted as setting a deadline for a jury during deliberations. We
have long held that a criminal defendant has a right to have a jury verdict free from any type
of coercion. See State v. Clark, 38 Nev. 304, 149 P. 185 (1915) (impermissible inquiry as to
how jury divided). Courts have found reversible error in giving a jury a deadline for
completing deliberations. Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966); Goff v.
United States, 446 F.2d 623 (10th Cir. 1971); see also United States v. Lansdown, 460 F.2d
164, 169, n. 3 (4th Cir. 1972).
In sum, our review of the record in this case makes it apparent that Downey was denied his
right to a fair trial because of the erroneous admission of the hearsay evidence. Accordingly,
the judgment is reversed, the sentence vacated, and the cause remanded for a new trial.
____________
103 Nev. 8, 8 (1987) Ybarra v. State
ROBERT YBARRA, JR., Appellant, v. THE
No. 17462
January 21, 1987 731 P.2d 353
Appeal from denial of petition for post-conviction relief. Seventh Judicial District Court,
White Pine County; Merlyn H. Hoyt, Judge.
Defendant appealed denial by the district court of his petition for post-conviction relief.
The Supreme Court held that defendant was not denied effective assistance of counsel.
Affirmed.
Crowell, Crowell, Crowell & Susich, Carson City, for Appellant.
Brian McKay, Attorney General, and Brian Randall Hutchins, Deputy Attorney General,
Carson City; Daniel Papez, District Attorney, White Pine County, for Respondent.
1. Criminal Law.
Claims of ineffective assistance will be evaluated under reasonably effective assistance standard.
2. Criminal Law.
In view of overwhelming evidence of defendant's guilt, defendant was not prejudiced by any deficiency in
counsel's performance. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Counsel was not ineffective for believing State had probable cause to hold defendant, and therefore not
challenging sufficiency of evidence by pretrial petition for writ of habeas corpus, where both sexual assault
and first degree kidnapping charges were supported by sufficient evidence at preliminary hearing.
4. Criminal Law.
Defense counsel was not ineffective in permitting defendant to be tried, despite defendant's contention
that there were serious doubts as to his mental capacity, where there was ample evidence that defendant
was competent. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Defense counsel was not ineffective for allowing defendant to be tried while in medication, where
defendant was not forced to stand trial while incompetent. U.S.C.A.Const. Amend 6.
6. Criminal Law.
Defense counsel was not ineffective in foregoing objection to admission of victim's statements, where
counsel's decision was a strategic choice. U.S.C.A.Const. Amend. 6.
7. Criminal Law.
Defense counsel was not ineffective for failing to voir dire jury on insanity defense, where defendant
changed his plea to not guilty by reason of insanity during trial. NRS 174.035, subd. 2; U.S.C.A.Const.
Amend. 6.
8. Criminal Law.
Prosecutor's and defense counsel's argument of facts not presented by defendant's case was improper, but
most of prosecutor's improper remarks were invited by far ranging arguments of defense counsel, and there
was no reversible error, either in defense counsel's failure to object or in prosecutor's improper remarks.
9. Criminal Law.
Factual matters outside record are not generally proper subjects for argument at penalty unless counsel is
discussing general theories of penology, punishment, deterrence and death penalty.
10. Criminal Law.
Where evidence of defendant's guilt is overwhelming and death penalty is particularly appropriate,
prosecutorial misconduct may be deemed harmless error.
OPINION
Per Curiam:
Ybarra was convicted of murder, sexual assault, battery, and first degree kidnapping, and
sentenced to death. We affirmed his conviction on appeal. Ybarra v. State, 100 Nev. 167, 679
P.2d 797 (1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372 (1985). He filed his
supplemental petition for post-conviction relief in June 1985 and alleged forty-seven claims
of error, multiple instances of ineffective assistance of counsel at trial and on appeal, and
several substantive claims. The district court held a two day hearing in September 1985 and
took the matter under submission. In July 1986, the district court issued its fifty-eight page
order denying relief. Ybarra now renews five of his claims of ineffective assistance of counsel
at trial, and his claim of prosecutorial misconduct. We agree with the district court that none
of his claims warrants relief.
[Headnote 1]
Ybarra's claims of ineffective assistance will be evaluated under the reasonably effective
assistance standard set out in Strickland v. Washington, 466 U.S. 668 (1984), adopted by
this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S.
1004 (1985); see also Point v. State, 102 Nev. 143, 717 P.2d 38 (1986). In Strickland, the
high court stated the test as follows:
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. at 687. The high court also said a reviewing court need not address the two components of
the test in the order stated. Id. at 697. In particular, a court need not determine whether
counsel's performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. Id.
[Headnote 2]
Here, because of the overwhelming evidence of Ybarra's guilt, the issue of prejudice will
be examined first. The Strickland court noted that a verdict or conclusion weakly supported
by the record is more likely to have been affected by counsel's errors than one with
overwhelming record support. Id. at 696. The defendant must show that the decision reached
would reasonably likely have been different absent the asserted errors. Id. This is a showing
Ybarra cannot make because of the overwhelming evidence of his guilt, particularly in
connection with the murder charge. Ybarra's fingerprints were found on a gas can located at
the scene where the victim was burned. Bootprints and tire tracks found at the scene matched
Ybarra's boots and truck tires. The victim's fingerprints were found on a beer can in Ybarra's
trailer, and the victim's friend positively identified Ybarra as the man who had picked the two
girls up and later left with the victim after the friend went home. Ybarra, 100 Nev. at 170. In
light of this strong evidence, it is unlikely the jury would have reached a different conclusion
concerning Ybarra's guilt. In fact, defense counsel conceded his guilt in opening statement,
and Ybarra's bizarre version of the killing was introduced into evidence through the testimony
of a psychiatrist.
Even though Ybarra has failed to make the requisite showing of prejudice under
Strickland, which obviates addressing the other prong of the test, we will briefly analyze each
alleged instance of attorney error. Because Ybarra had a number of counsel at trial and on
appeal, a brief history of his representation is in order.
Ybarra was first represented by an inexperienced public defender, who was assisted by
several more experienced members of the public defender's office. J. Gregory Damm assisted
at the preliminary hearing. He was replaced by Martin Weiner, who conducted the voir dire,
and worked on the change of venue motion which was appealed to this court. Ybarra became
incompetent during the pendency of the appeal on the venue motion, and was committed to
Lake's Crossing. Thomas Perkins was involved with the case at that time, but did not make
any court appearances. When Ybarra was finally returned to Ely for trial, Norman Herring
was acting as lead counsel. He continued his representation through the trial and penalty
hearing, except for the prosecution's final closing argument.
Robert Bork wrote the initial briefs on appeal, after the public defender unsuccessfully
moved to be relieved as counsel. Perkins replaced Bork as counsel on appeal, and Laura
Fitzsimmons was co-counsel. They reopened the briefing and filed a supplemental brief.
brief. Perkins found the Seattle attorney who drafted the petition for certiorari to the United
States Supreme Court after the direct appeal was unsuccessful. Ybarra's present counsel,
Crowell, Crowell, Crowell & Susich, were appointed by the district court in White Pine
County at the beginning of the post-conviction proceedings.
Failure to File Pretrial Petition for Habeas Corpus
Ybarra first claims counsel was ineffective for failing to file a pretrial petition for writ of
habeas corpus challenging the sufficiency of the evidence at the preliminary hearing. There
was no argument before the magistrate concerning the sufficiency of the evidence and no
petition for writ of habeas corpus was filed. Defense counsel filed a motion to dismiss the
kidnapping and battery charges because of insufficient evidence about a year and a quarter
after Ybarra's arraignment in district court. Attached to this motion was McGuire's affidavit
stating that the motion had not been brought earlier because he was inexperienced and
unfamiliar with Nevada criminal procedure.
In addressing this claim below, the district court found counsel had not been ineffective
because the initial decision not to challenge the sufficiency of the evidence was not made by
McGuire alone, but by McGuire and Damm. McGuire testified at the post-conviction hearing
that he and Damm concluded the State had shown probable cause to hold Ybarra to answer.
Further, the district court noted that there was arguably sufficient evidence presented at the
preliminary hearing to support the charges.
[Headnote 3]
Our independent review of the transcript of the preliminary hearing confirms this view.
Ybarra argues the evidence of sexual assault and kidnapping was marginal at best. He
correctly notes that the evidence does show the victim went willingly with him, but this does
not mean a kidnap did not occur. NRS 200.310 defines first degree kidnapping in Nevada.
One of the ways it can be committed is be leading, enticing, taking or carrying away or
detaining any minor with the intent to perpetrate any unlawful act upon the minor. NRS
200.310(1); see also Jensen v. Sheriff, 89 Nev. 123, 125, 508 P.2d 4, 5 (1973). The evidence
of sexual assault presented at the preliminary hearing includes the presence of sperm in the
victim's vagina found during the autopsy, and the victim's own statement to her rescuers that
she had been raped. From this evidence, one could conclude that Ybarra had enticed, or led
the victim away, or detained her for the purpose of the sexual assault, an unlawful act. Thus,
both the sexual assault and first degree kidnapping charges were supported by sufficient
evidence at the preliminary hearing. See Sheriff v. Crockett, 102 Nev. 359, 724 P.2d 203
{19S6) {slight evidence is enough).
Nev. 359, 724 P.2d 203 (1986) (slight evidence is enough). Counsel was not ineffective for
believing the State had probable cause to hold Ybarra, and therefore not challenging the
sufficiency of the evidence by pretrial petition for writ of habeas corpus.
Ybarra's Mental Competence at Trial
[Headnote 4]
Ybarra next contends trial counsel permitted him to be tried when there were serious
doubts as to his mental competency. There was ample evidence of Ybarra's competency when
it was determined he could return from Lake's Crossing to stand trial in Ely. Five doctors
agreed Ybarra was competent, and the district court thought they were correct. McGuire
testified that he and Herring had decided not to further contest competency because all the
doctors had found Ybarra competent, Ybarra himself believed he was competent and was
anxious to go to trial. From this it is clear there were no serious doubts in anyone's mind that
Ybarra was competent to be tried at the time that determination was made.
[Headnote 5]
Ybarra further argues that counsel was ineffective for allowing him to be tried while under
medication. He claims a defendant who is tried while medicated or sedated is denied due
process, relying on State v. Murphy, 355 P.2d 323 (Wash. 1960), where a capital defendant
was granted a new trial because he had been drugged. However, the majority of courts that
have considered the issue have held that competency may be attained through the use of
medication. See, e.g., State v. JoJola, 553 P.2d 1296, 1299-1300 (N.M.Ct.App. 1976); State
v. Buie, 254 S.E.2d 26, 28 (N.C. 1979), cert. denied, 444 U.S. 971 (1979); Ake v. State, 663
P.2d 1, 6-7 (Okla.Crim.App. 1983), rev'd on other grounds, Ake v. Oklahoma, 470 U.S. 68
(1985); State v. Law, 244 S.E.2d 302, 305-08 (S.C. 1978); State v. Stacy, 556 S.W.2d 552,
557-59 (Tenn.Crim.App. 1977). Ybarra argues competency attained through drugs is not
competency, but this argument is not supported by the cases just cited, or by the conclusions
of the five doctors who determined Ybarra was competent, and knew he was on medication.
In sum, Ybarra was not forced to stand trial while incompetent, and defense counsel was not
ineffective for allowing him to be tried while on medication.
Failure to Suppress the Victim's Statements
Ybarra next argues defense counsel should have filed a motion to suppress the victim's
statements. He claims they might not have been admissible as dying declarations since there
was no evidence the victim was aware she was about to die.
evidence the victim was aware she was about to die. This claim is totally without merit.
[Headnote 6]
McGuire and Herring testified that the defense made a tactical decision not to move to
suppress the statements because: 1. they would be admissible as dying declarations; 2. the
defense did not want to make motions with no chance of success because it would detract
from others with more merit; and 3. the victim's statements contained inconsistencies the
defense wanted to stress before the jury. In Strickland, the high court noted that . . . strategic
choices, made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable . . . Id. at 690. Since it is apparent from counsel's testimony that
the decision to forego objection to the admission of the victim's statements was a strategic
choice, this claim of error is meritless.
Failure to Voir Dire on the Insanity Defense
Ybarra next claims his counsel erred by failing to voir dire the jury on the insanity defense.
When the jury was impaneled, the plea was not guilty, but by the time the case came to trial,
after several plea changes, the plea was not guilty by reason of insanity. The defense had
moved to discharge the jury, primarily because of the lengthy interval between impanelment
and trial, thirteen months. The district court denied the motion.
[Headnote 7]
As the district court noted, in Nevada a defendant may tender a plea of not guilty by reason
of insanity during trial. NRS 174.035(2).
1
There is no further provision allowing for
supplemental voir dire of the jury on an insanity defense when the change of plea occurs
during trial. Ybarra changed his plea during trial. Since his jury had been sworn when it was
first impaneled, jeopardy then attached, and technically the trial began at that point. Ex Parte
Maxwell, 11 Nev. 428, 434-435 (1876). Because Ybarra changed his plea during trial,
counsel was not ineffective for failing to voir dire the jury on the insanity defense.
Failure to Object to Prosecutorial Misconduct
Ybarra's final arguments concern counsel's failure to object to prosecutorial misconduct in
closing argument in the penalty phase.
____________________

1
NRS 174.035(2) provides:
The defendant may, in the alternative or in addition to any one of the pleas permitted by subsection 1,
plead not guilty by reason of insanity. A defendant who has not so pleaded may offer the defense of
insanity during trial upon good cause shown. Under such plea or defense, the burden of proof is upon the
defendant to establish his insanity by a preponderance of the evidence.
phase. Herring and McGuire both argued in closing for the defense, but Herring left before
the prosecution made its final closing argument. Ybarra claims McGuire's inexperience
precluded objection to improper argument by the prosecution.
Both Herring and McGuire argued facts not presented by Ybarra's case. Herring, who
argued first, began his remarks by relating to the jurors his experiences in Vietnam, to
emphasize that all legal killing is not morally right. He then went into a long discourse on
Biblical subjects to show that some who killed were forgiven by God and became his chosen.
He described the firing squad executions in Utah of Gary Gilmore and another. He also
graphically portrayed details of execution by lethal gas in Nevada. In other parts of his
argument, Herring described capital offenses through the ages in different countries.
McGuire's argument focused primarily on mitigating circumstances. However, he also
mentioned other capital cases in which he had been involved, and the other murder cases in
which the death penalty was not pursued.
In response, the prosecutor discussed Gary Gilmore's victims in some detail. He also
remarked upon the Biblical references in Herring's argument and made some references of his
own. He discussed the other murder cases referred to by McGuire and talked about mitigating
circumstances. Then he began to discuss a case in New York, where a young woman was
repeatedly attacked on the street while thirty-eight people looked on and did nothing. He
exhorted the jury not to respond in a similar fashion. The prosecutor also stated that cancer is
a problem which can only be treated by surgery, and said that, Likewise certain people are
no longer fit to be a part of society. They reach a point by their conduct where they need to be
cut out, eliminated.
[Headnotes 8, 9]
As the district court noted, this argument was improper, as was the argument of defense
counsel. Factual matters outside the record are not generally proper subjects for argument at
penalty unless counsel is discussing general theories of penology, punishment, deterrence and
the death penalty. Collier v. State, 101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985). The
district court correctly found that most of the prosecutor's improper remarks were invited by
the far ranging arguments of defense counsel, citing United States v. Young, 470 U.S. 1
(1985). Both defense counsel and the prosecution showed unprofessional conduct in their
arguments.
It is clear that counsel on both sides of the table share a duty to confine arguments to
the jury within proper bounds. Just as the conduct of prosecutors is circumscribed,
[t]he interests of society in the preservation of courtroom control by the judges are no
more to be frustrated through unchecked improprieties by defenders."
the judges are no more to be frustrated through unchecked improprieties by defenders.
Young at 8, citations omitted. Further, McGuire testified that he knew the prosecutor's
remarks were improper, but felt that the defense had opened the door.
[Headnote 10]
On these facts, there is no reversible error, either in counsel's failure to object or in the
prosecutor's improper remarks. While it is true this court condemned remarks similar to those
here in Collier, there was no invited error in Collier and defense counsel there promptly
objected to most of the improper comments. Collier, 101 Nev. at 477-481. Moreover, where,
as here, evidence of a defendant's guilt is overwhelming and the death penalty is particularly
appropriate, prosecutorial misconduct may be deemed harmless error. Nevius v. State, 101
Nev. 238, 248, 699 P.2d 1053, 1059 (1985); see also Sechrest v. State, 101 Nev. 360, 368,
705 P.2d 626, 632 (1985); Miranda v. State, 101 Nev. 562, 569-572, 707 P.2d 1121,
1126-1127 (1985), cert. denied, ___ U.S. ___, 106 S. Ct. 1239 (1986); Jones v. State, 101
Nev. 573, 577-578, 707 P.2d 1128, 1131 (1985); Milligan v. State, 101 Nev. 627, 639, 708
P.2d 289, 296 (1985), cert. denied, ___ U.S. ___, 107 S. Ct. 238 (1986).
In sum, none of Ybarra's claims entitle him to relief. We therefore affirm the district
court's ruling, and in so doing commend Judge Hoyt for the thorough job he did analyzing the
forty-seven claims of error raised below. We adopt as our own his findings on all issues not
addressed in this opinion. We note that federal courts generally give great deference to state
court findings in federal habeas corpus matters. 28 U.S.C. 2254(d); Sumner v. Mata, 449
U.S. 539 (1980), 455 U.S. 591 (1982). We therefore urge district courts in this state to make
specific findings in post-conviction matters because many of our criminal defendants find
their way to federal court after they have exhausted their state remedies. E.g., Shuman v.
Wolff, 791 F.2d 788 (9th Cir. 1986), cert. granted, ___ U.S. ___, 107 S. Ct. 431 (1986);
Neuschafer v. Whitley, 630 F.Supp. 897, remanded sub nom. Neuschafer v. McKay, 807 F.2d
839 (1987).
Because Ybarra's assignments of error are meritless, we affirm the district court's denial of
Ybarra's supplemental petition for post-conviction relief.
____________
103 Nev. 17, 17 (1987) SIIS v. Swinney
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. LOUIS D. SWINNEY, Respondent.
No. 16929
January 21, 1987 731 P.2d 359
Appeal from a district court order reversing a decision of the appeals officer. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from order of the district court reversing decision of appeals officer
affirming denial of request to reopen claim. The Supreme Court held that record supported
appeals officer's finding that employee's back injury sustained while lifting soft drink canister
was separate industrial accident resulting in aggravation of prior back injury sustained while
lifting counter top, rather than mere recurrence of it.
Reversed.
Pamela M. Bugge, General Counsel, Carson City; Robert Giunta, Assoc. General Counsel,
Las Vegas, for Appellant.
King, Clark, Gross & Sutcliffe, Las Vegas, for Respondent.
1. Workers' Compensation.
Under last injurious exposure rule, full liability is place upon carrier covering risk at time of most
recent injury that bears causal relation to disability.
Last injurious exposure rule applies to both occupational disease and successive injuries situations.
When employee sustains subsequent industrial accident which is found to be new injury or aggravation of
prior injury, employer/insurer at time of second injury is liable for all claimant's benefits even if second
injury would have been much less severe in absence of prior condition, and even if prior injury contributed
to final condition.
If second injury is merely recurrence of first, and does not contribute even slightly to causation of
disabling condition, insurer/employer covering the risk at time of original injury remains liable for second.
Appeals officer's determination that injured employee's subsequent injury is separate industrial accident
resulting in aggravation of his original injury is question of fact which may not be set aside unless it is
against manifest weight of evidence.
Record supported appeals officer's finding that employee's back injury sustained while lifting soft drink
canister was separate industrial accident resulting in aggravation of prior back injury sustained while lifting
counter top, rather than mere recurrence of it. NRS 616.020, 616.110, 616.110, subd. 1.
OPINION
Per Curiam:
On July 2, 1979, Louis Swinney sustained a back injury lifting a countertop weighing 200
lbs. On July 4, 1979, he was diagnosed as having acute lumbar facet syndrome, and
admitted to Sunrise Hospital. He was discharged July 10, 1979, and released to work August
1, 1979. The NIC provided insurance benefits for this injury under Claim No. 80-51330.
In August 1980, Swinney experienced back pain and submitted a request to reopen Claim
No. 80-51330. An appeals officer directed him to seek further medical attention. On
December 15, 1980, Dr. Gordon, an orthopedic surgeon, examined Swinney and found he had
full range of motion, not tenderness, and normal x-rays. He further found that sensation,
muscle strength and reflexes were within normal limits with no sign of disease. In April 1981,
Swinney experienced additional pain in his back while working as a fry cook, but was unable
to pinpoint any specific reason for this onset of pain. Dr. Gordon diagnosed a lumbar-sacral
sprain, and recommended three weeks of conservative therapy. NIC reopened Claim No.
80-51330 for this treatment.
1

On June 23, 1982, over a year after his last medical treatment, Swinney injured his back
lifting a soft drink cannister while working for John's Hard Hat Cafe. Dr. Gordon examined
him and concluded that Swinney's recurrent back aches have now become discogenic in
nature. On his physician's report to NIC, Swinney noted the claim stemmed from an old
injury. NIC, however, assigned a new claim number, No. 82-80447, and provided appropriate
benefits under the claim. Treatment eventually included surgery. In April 1983, Swinney
requested the reopening of his initial 1979 claim for an injury suffered while working at
Denny's. NIC notified him that it could not reopen the original 1979 claim due to the fact that
he had a new injury on June 23, 1982. NIC did reopen the June 23, 1982 claim, No.
82-80447. Benefits under the latter claim, however, were lower than the original claim and
Swinney appealed NIC's decision.
The appeals officer affirmed the denial. After reviewing Swinney's medical and NIC claim
history, the appeals officer concluded:
The SIIS properly denied the request to reopen Claim No. 80-51330, because the
incident of June 23, 1982, represented a new industrial accident. The claimant's
description of the June 23, 19S2 accident establishes a separate accident which
resulted in aggravation on his original injury.
____________________

1
NIC has been reorganized and is now known as the State Industrial Insurance System. See 1981 Nev. Stat.
ch. 642, p. 1449.
of the June 23, 1982 accident establishes a separate accident which resulted in
aggravation on his original injury. The claimant's subsequent condition was more than a
reoccurance [sic] of his previous injury.
The district court reversed, finding the appeals officer had improperly characterized
Swinney's current condition as one resulting from his subsequent injury and that there was
insufficient evidence to show that the original injury was not the precipitation factor. SIIS
argues that the district court erred by substituting its judgment for that of the appeals officer
as to the weight of the evidence on a question of fact, thereby violating NRS 233B.140(5).
We agree.
[Headnote 1]
The hearing officer and appeals officer based their decision upon the last injurious
exposure rule. The district court also applied the rule in its decision. We have adopted the
last injurious exposure rule for occupational disease, successive employer/carrier case. See
SIIS v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985). The last injurious exposure rule applies to
successive injury cases in the same way as occupational disease cases. Full liability is placed
upon the carrier covering the risk at the time of the most recent injury that bears a causal
relation to the disability. 4 Larson Workmen's Compensation Law 95.20 (1986).
[Headnote 2]
Extending the last injurious exposure rule to successive injury cases has several
advantages. It is easy to administer, and in most instances will provide the highest level of
benefits for the claimant. SIIS also applies the rule in administering its claims. We therefore
extend the last injurious exposure rule to include both occupational disease and successive
injuries situations.
Neither party is contesting the application of the last injurious exposure rule in the present
case. The present controversy concerns the characterization of the type of injury sustained.
Successive accidental injuries may be divided into three typesnew injuries, aggravations of
a prior injury, and recurrenceswith the question of who is liable often depending on how
the injury is characterized. 4 Larson Workmen's Compensation Law 95.11 (1986).
[Headnotes 3, 4]
When an employee sustains a subsequent industrial accident which is found to be a new
injury or an aggravation of the prior injury, the employer/insurer at the time of the second
injury is liable for all the claimant's benefits even if the second injury would have been much
less severe in the absence of the prior condition, and even if the prior injury contributed to the
final condition.
condition. 4 Larson Workmen's Compensation Law 95.21 (1986). This is consistent with the
normal compensation rule for preexisting injuries. Id. Accordingly, this court has held that if
an injury operating on an existing bodily condition or predisposition, produces a further
injurious result, that result is caused by the injury. SIIS v. Kelly, 99 Nev. 774, 776, 671 P.2d
29, 30 (1983). However, if the second injury is merely a recurrence of the first, and does not
contribute even slightly to the causation of the disabling condition, the insurer/employer
covering the risk at the time of the original injury remains liable for the second. 4 Larson
Workmen's Compensation Law 95.23 (1986).
The appeals officer characterized Swinney's injury as a separate industrial accident which
resulted in aggravation of his original injury, and that his subsequent condition was more than
a recurrence of this previous injury. The district court, however, reversed and characterized
the injury as a recurrence. The Administrative Procedure Act, NRS 233B.140(5), requires the
court to affirm the decision of the administrative agency on questions of fact if the decision is
supported by substantial evidence in the record. See SIIS v. Thomas, 101 Nev. 293, 295, 701
P.2d 1012, 1014 (1985); State of Nev. Emp. Sec. Dep't v. Weber, 100 Nev. 121, 676 P.2d
1318 (1984).
[Headnote 5]
How a subsequent injury is characterized depends on the facts, medical evidence and
circumstances. An appeals officer's determination that an injured employee's subsequent
injury is a separate industrial accident resulting in an aggravation of this original injury is a
question of fact which may not be set aside unless it is against the manifest weight of the
evidence. See Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 50, 675 P.2d 401, 404
(1984).
[Headnote 6]
Our review of the record supports the appeals officer's finding that Swinney's June 23,
1982 injury was separate industrial accident resulting in an aggravation of the prior injury
rather than a mere recurrence of it. See also Bearden Lumber Co. v. Bond, 644 S.W.2d 321
(Ark.App. 1983); Professional Furniture Serv. v. Indus. Com'n, 650 P.2d 508 (Ariz.App.
1982). In December 1980, Dr. Gordon examined Swinney and found that he had full range of
motion with no tenderness and no sign of disease. Although NIC reopened Claim No.
80-51330 for conservative treatment in April 1981, Swinney had received no medical
treatment for over a year prior to the June 23, 1982 injury.
Furthermore, Swinney's description of the June 23, 1982 injury meets the statutory
standard for injury or accident as defined by NRS 616.110 and NRS 616.020.2 See
American International Vacations v. MacBride, 99 Nev. 324
defined by NRS 616.110 and NRS 616.020.
2
See American International Vacations v.
MacBride, 99 Nev. 324, 661 P.2d 1301 (1983). As he lifted the soft drink cannister he felt his
lower back pulling out and had a sudden onset of pain. This injury was treated and benefits
paid under Claim No. 82-80447. We find substantial evidence in the record to support the
decision of the appeals officer. For these reasons, we hold that the judgment of the district
court was error and must be reversed. The decision of the appeals officer is reinstated.
____________________

2
Injury' and personal injury' means a sudden and tangible happening of a traumatic nature, producing an
immediate or prompt result, including injuries to artificial members . . . .
NRS 616.020 provides:
Accident' means an unexpected or unforeseen event happening suddenly and violently, with or without
human fault, and producing at the time objective symptoms of an injury.
____________
103 Nev. 21, 21 (1987) Hogan v. State
MICHAEL RAY HOGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 16778
February 6, 1987 732 P.2d 442
Appeal from judgment of conviction for first-degree murder and attempted murder, each
involving the use of a deadly weapon, and from sentence of death. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted of first-degree murder and attempted murder, each involving the
use of a deadly weapon, and was sentenced to death in the district court and he appealed. The
Supreme Court held that: (1) refusal to ask a number of proposed voir dire questions was not
abuse of discretion; (2) aggravating circumstances instructions were proper; and (3) death
penalty was not excessive or disproportionate to crime and defendant.
Affirmed.
Morgan D. Harris, Public Defender, George E. Franzen, Deputy Public Defender, and
Marcus D. Cooper, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City, Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
103 Nev. 21, 22 (1987) Hogan v. State
1. Jury.
Refusal to ask number of proposed voir dire questions to prospective jurors was not abuse of discretion;
many of defendant's proposed questions were repetitive, others appeared to be aimed more at
indoctrination than acquisition of information, and several dealt with issues of law to be covered in future
jury instruction and were thus excludable.
2. Criminal Law.
Evidence that murder defendant had, several days before killing, dropped murder victim to ground from
shoulder height was admissible evidence of other acts demonstrating ill-will as motive for crime. NRS
48.045, subd. 2.
3. Criminal Law.
Testimony by two witnesses that murder victim told them that defendant had threatened to kill her was
admissible under excited utterance exception to hearsay rule where one statement came just after threat and
the other approximately one hour later and in both cases victim was frightened, shaky, nervous and crying.
NRS 51.095.
4. Criminal Law.
Any deficiency in State's formal showing of county pathologist's unavailability to testify at time of trial
was inconsequential in determining admissibility of pathologist's preliminary hearing testimony where
court was independently aware that coronary bypass surgery rendered pathologist unavailable to testify at
trial. NRS 171.198, subd. 7.
5. Criminal Law.
Defendant's previous conviction of felony involving violence to person in another state could be
considered as aggravating circumstance, regardless of whether sentencing court told defendant elements of
offense, where defendant failed to show that counsel had not adequately explained elements of crime to
him, transcript showed defendant had received adequate opportunity to consult with his attorneys and to
obtain their advice, and that defendant had been informed of nature of crime before sentencing. NRS
200.033, subd. 2.
6. Homicide.
Two intentional shootings closely related in time and place constituted a course of action for purposes
of aggravating circumstance, for defendant who knowingly created a great risk of death to more than one
person by means of a course of action which would normally be hazardous to lives of more than one
person, particularly where second attack may have been motivated by desire to escape detection in original
shooting. NRS 200.033, subd. 3.
7. Homicide.
Homicide defendant was not entitled to requested jury instruction that there was no reputable evidence
that capital punishment acted as general deterrent.
8. Criminal Law.
Instructing jury in capital trial not to base its penalty decision on sympathy was not improper where jury
was also instructed to consider any mitigating circumstances.
9. Homicide.
Death penalty was not excessive or disproportionate considering both crime and defendant; case involved
premeditated murder with no clear motive, followed by brutal attempt to kill only apparent witness, offense
constituted second time defendant had killed woman with whom he was involved, and defendant repeatedly
shot victim's daughter who witnessed shooting, ending with a shot to the head of the helpless girl after
pause for observation.
103 Nev. 21, 23 (1987) Hogan v. State
OPINION
Per Curiam:
In the afternoon of November 19, 1984, after a weekend marked by quarrels and death
threats, appellant Michael Hogan shot and killed his female companion, Heidi Hinkley.
Hogan also fired five bullets into the victim's teenage daughter, who nevertheless survived
and was able to testify at trial.
Hogan was convicted of murder and attempted murder, each involving the use of a deadly
weapon; he was sentenced to death. We affirm.
[Headnote 1]
Hogan alleges that the trial court erred in refusing to ask a number of proposed voir dire
questions. Decisions concerning the scope of voir dire and the manner in which it is
conducted are reviewable only for abuse of discretion. Summers v. State, 102 Nev. 195, 718
P.2d 676 (1986). Although we certainly favor a thorough examination of prospective jurors,
particularly in capital cases, we perceive no abuse of discretion. Many of Hogan's proposed
questions were repetitive; others appeared aimed more at indoctrination than acquisition of
information; a number dealt with issues of law to be covered in future jury instructions, and
so were excludable under Oliver v. State, 85 Nev. 418, 456 P.2d 431 (1969). Several of the
questions were asked, although perhaps not in the precise form Hogan proposed. Therefore,
we perceive no basis for reversal on this ground.
[Headnote 2]
Hogan next contends that the trial court erred in several of its evidentiary rulings. First, the
court properly allowed testimony that Hogan, several days before the killing, had dropped
Ms. Hinkley to the ground from shoulder height. This was evidence of other acts,
admissible under NRS 48.045(2) to demonstrate ill-will as a motive for the crime.
[Headnote 3]
Second, hearsay testimony that Hogan had threatened to kill Ms. Hinkley was admissible
under NRS 51.095, the excited utterance exception to the hearsay rule. Two witnesses
testified that the victim told them Hogan had threatened to kill her. One statement came just
after the threat; the other, approximately an hour later. In each case, Ms. Hinkley was
frightened, shaking, nervous and crying. Thus, the court did not err in finding the statement
admissible, see Dearing v. State, 100 Nev. 590, 691 P.2d 419 (1984).
[Headnote 4]
Third, we perceive no error in the trial court's ruling that the State could use the
preliminary hearing testimony of the county's pathologist, Doctor Green.
103 Nev. 21, 24 (1987) Hogan v. State
pathologist, Doctor Green. The court was independently aware that coronary bypass surgery
rendered the doctor unavailable to testify at the time of the trial. Therefore, any deficiency in
the State's formal showing of unavailability was inconsequential. The requirements of NRS
171.198(7) and Drummond v. State, 86 Nev. 4, 462 P.2d 1012 (1976), were satisfied.
[Headnote 5]
The trial court also ruled correctly, in the penalty phase of trial, that the jury could
consider as an aggravating circumstance the State's allegation that Hogan was previously
convicted of a felony involving violence to the person of another, NRS 200.033(2). Hogan
was convicted of manslaughter in 1971, pursuant to a guilty plea in an Iowa prosecution. He
now alleges that the Iowa court did not tell him the elements of that offense. There is no
requirement that it do so; all that is necessary is that the accused actually be aware of the
nature of the offense. It is proper to presume that counsel has explained the elements of the
crime to the accused, Henderson v. Morgan, 426 U.S. 637, 647 (1976); see also Bryant v.
State, 102 Nev. 268, 721 P.2d 364 (1986). Hogan has done nothing to rebut that presumption.
Further, the transcript of the Iowa proceedings discloses that Hogan received adequate
opportunity to consult with his attorneys and obtain their advice. In addition, the Iowa
sentencing report states that the court informed Hogan of the nature of the crime and asked
for his comments before pronouncing sentence. Hogan thereafter affirmed the propriety of his
plea by serving his sentence for the manslaughter conviction without any challenge to its
validity.
1

[Headnote 6]
The court likewise did not err in refusing to disallow as an aggravating circumstance the
allegation that Hogan had knowingly created a great risk of death to more than one person
by means of a . . . course of action which would normally be hazardous to the lives of more
than one person, NRS 200.033(3). While there is a divergence of authority on this question,
we believe that the statute includes a course of action consisting of two intentional
shootings closely related in time and place, particularly where the second attack may have
been motivated by a desire to escape detection in the original shooting.2 Accord Alvord v.
State, 322 So.2d 533 {Fla. 1975), cert. denied, 42S U.S. 923, reh'g denied, 429 U.S. S74
{1976) {statute applies to successive murders by strangulation, in separate rooms of a
home, to eliminate witnesses to the initial killing); State v.
____________________

1
Hogan also alleges that there was no adequate waiver of his rights, as required by Boykin v. Alabama, 395
U.S. 238 (1969). We have reviewed the transcript and conclude that each of the rights enumerated in Boykin was
waived, though the Iowa court referred to them rather obliquely. And allegations of prosecutorial misconduct in
connection with questions regarding the Iowa conviction are meritless. To the extent that a question as to
whether manslaughter was a lesser offense than that originally charged may have raised an inaccurate inference,
the proper tool to dispel that inference was cross-examination. Cf. Wallace v. State, 84 Nev. 603, 606-07, 447
P.2d 30, 31-32 (1968). Hogan declined to cross-examine. Therefore, he can hardly assert that any prejudice is
the fault of others.
103 Nev. 21, 25 (1987) Hogan v. State
been motivated by a desire to escape detection in the original shooting.
2
Accord Alvord v.
State, 322 So.2d 533 (Fla. 1975), cert. denied, 428 U.S. 923, reh'g denied, 429 U.S. 874
(1976) (statute applies to successive murders by strangulation, in separate rooms of a home,
to eliminate witnesses to the initial killing); State v. Glass, 455 So.2d 659, 669 (La. 1984),
cert. denied, 105 S.Ct. 2159, reh'g denied, 105 S.Ct. 3516 (1985) (statute applies to the
shooting of two burglary victims after commission of the burglary, as part of a single and
consecutive course of conduct); Dutton v. State, 674 P.2d 1134, 1141 (Okla.Ct.Crim.App.
1984) (statute covers the shooting of a robbery victim and his mother, plus confession of
participation in still another killing). Thus, there was no error.
3

[Headnotes 7, 8]
Finally, the court did not err in the manner in which it instructed the jury. Hogan requested
an instruction that there is no reputable evidence that capital punishment acts as a general
deterrent. His request was not warranted under any authority of which we are aware. The
court likewise did not err in instructing the jury not to base its penalty decision on sympathy,
since the jury was also instructed to consider any mitigating circumstances. Nevius v. State,
101 Nev. 238, 699 P.2d 1053 (1985).
4
Moreover, such an instruction is not without benefit
to a defendant since it precludes a jury from selecting a penalty provoked by sympathy for
victims or their survivors.
[Headnote 9]
We have considered other cases in which the death penalty was imposed, and we conclude
that Hogan's sentence is neither excessive nor disproportionate,
5
considering both the crime
and the defendant.
____________________

2
Hogan shot the daughter three times just after her mother had urged her to flee; the final two shots came
when she attempted to use the telephone.

3
Hogan's claim that the statute is unconstitutionally vague is meritless. Proffit v. Florida, 428 U.S. 242,
255-56, reh'g denied, 429 U.S. 875 (1976); Gregg v. Georgia, 428 U.S. 153, 202, reh'g denied, 429 U.S. 875
(1976). His claim that the State gave no adequate advance notice of the specific conduct at issue reads into the
law a nonexistent requirement; proof at trial of the facts constituting the aggravating circumstance suffices.
Deutscher v. State, 95 Nev. 669, 678, 601 P.2d 407, 413 (1979).

4
The instruction regarding mitigating circumstances was skeletal, but only because Hogan had first requested
deletion of inapplicable statutory circumstances, than proposed in their place a properly objectionable list of
nonstatutory circumstances; that list contained assertions of facts not in evidence, general statements of penal
theory, and mere negations of inapplicable statutory aggravating circumstances.

5
NRS 177.055(2)(d) was recently amended to abolish the proportionality review requirement. This
amendment became effective June 6, 1985. 1985 Stats. ch. 527 1, at 1597-98. The prohibition against ex post
facto laws requires that we apply the law as it existed when the crime was committed. See Goldsworthy v.
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970) (an act
103 Nev. 21, 26 (1987) Hogan v. State
defendant. This was a premeditated murder with no clear motive, followed by a brutal attempt
to kill the only apparent witness to the crime. This is the second time Hogan has killed a
woman with whom he was involved, and we are cognizant of the fact that Hogan's repeated
shooting of Ms. Hinkley's daughter ended with a shot to the head of a helpless girl after a
pause for observation. The death penalty has been applied in less egregious cases. See, e.g.,
Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985); Farmer v. State, 101 Nev. 419, 705 P.2d
149 (1985); Nevius v. State, supra; Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
There is also no evidence that passion, prejudice or any other arbitrary factor influenced the
choice of penalty. Accordingly, Hogan's conviction and sentence are affirmed.
____________________
amending parole eligibility could not be applied to the detriment of a defendant whose crime was committed
before the amendment took effect). Because the murder occurred well before June 6, 1985, we must conduct a
proportionality review of Hogan's sentence.
____________
103 Nev. 26, 26 (1987) Dagher v. Dagher
RITA ANN DAGHER, Appellant, v.
MARK DAGHER, Respondent.
No. 17427
February 6, 1987 731 P.2d 1329
Appeal from custody order and denial of motion to set order aside. Second Judicial
District Court, Washoe County; William N. Forman, Judge.
An order modifying physical custody of divorced parties' minor daughter was entered in
the district court. Wife's subsequent motion to have order set aside was denied, and she
appealed. The Supreme Court held that: (1) court erred in changing custody of child without
prior specific notice to wife and as sanction for perceived maternal misconduct, and (2)
uncontroverted evidence demonstrated excusable neglect by wife in failing to attend hearing.
Vacated and remanded, with directions.
Lew W. Carnahan, Reno, for Appellant.
Conner and Steinheimer, Reno, for Respondent.
1. Divorce.
Judicial policy favoring decision on the merits is heightened in domestic relations cases where interest of
nonlitigants are affected; thus appellate court would review trial court's refusal to set aside default
judgment.
2. Divorce.
Changing custody of divorced parties' minor child to award custody to father without specific prior notice
and as a sanction for perceived maternal misconduct, rather than based on best interest of the child, was
improper. NRS 125.480.
3. Divorce.
Uncontroverted evidence that divorced wife's attorney orally agreed to represent her and consistently
affirmed that he was working on custody case and allegations that divorced wife thought counsel would
attend hearing at which custody was modified on her behalf constituted excusable neglect for purposes of
setting aside default judgment.
4. Divorce.
Minor child whose custody had been modified pursuant to apparently invalid order would remain with
father pending outcome of custody modification hearing where there was evidence that mother may have
sought to evade jurisdiction of court.
OPINION
Per Curiam:
The Daghers were divorced in 1983. They have two children: Mark, Jr., now age 15, and
Monique, now age 8. The period since the divorce has been marked by repeated litigation.
The present appeal involves an order awarding Mark Dagher (Mark) physical custody of
Monique.
At Mark's request, a five-minute hearing was set for April 3, 1985, on motions for
modification of divorce and an order to show cause.
1
According to the record on appeal, at
that time no motion for modification of divorce was pending before the court. There was an
outstanding motion to set aside the decree of divorce, but Mark had not recently acted on that
motion and in fact had remarried. The motion for an order to show cause did not seek a
permanent change of physical custody. Thus, it appears that Rita Dagher (Rita) was never
apprised that the hearing might involve a change of custody.
Rita did not appear at the hearing, and the challenged order followed. The court stated that
Rita intended to disobey court orders and to deny Mark a normal relationship with their
daughter. Rita, alleging that she had thought counsel would attend the hearing on her behalf,
moved to have the order set aside. That motion was denied. Because the change of custody
was precipitous and denial of the subsequent motion erroneous, we reverse and remand for
further proceedings.
[Headnotes 1, 2]
The trial court implicitly treated Rita's motion as one to set aside a default judgment for
excusable neglect, pursuant to NRCP 60{b).
____________________

1
The order, however, recites that it is based on Mark's motion for Modification of Custody. No such
motion is of record.
60(b). For purposes of this opinion we shall analyze the court's action accordingly, although
NRCP 55 does not provide that a default may be entered as to a mere motion. Orders refusing
to set aside default judgments are normally reviewable only for abuse of discretion. Fagin v.
Fagin, 91 Nev. 794, 798, 544 P.2d 415, 417 (1975). However, the judicial policy favoring
decision on the merits is heightened in domestic relations cases where, as here, the interests
of nonlitigants are affected. Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841
(1961); Guardia v. Guardia, 48 Nev. 230, 229 P. 386 (1924); Blundin v. Blundin, 38 Nev.
212, 214, 147 P. 1083, 1084 (1915). Further, under NRS 125.480, the best interest of the
child is the sole lawful criterion in making a custody determination.
2
Therefore, it follows
that the court erred in changing custody without prior specific notice and as a sanction for
perceived maternal misconduct.
3

[Headnote 3]
Additionally, Mark did not controvert Rita's assertions that attorney Samuel Francovich
orally agreed to represent her and that, thereafter, Francovich's secretary consistently affirmed
that he was working on the case. Counsel's abandonment of a client, not known by the client,
constitutes excusable neglect, Passarelli v. J-Mar Development, 102 Nev. 283, 720 P.2d 1221
(1986); Stachsel v. Weaver Brothers, Ltd., 98 Nev. 559, 655 P.2d 518 (1982), as does a
reasonable belief that one will be represented, either by counsel, Gravely v. Gaffney, 437
A.2d 1041, 1043 (Pa.Commw.Ct. 1981), or through the actions of another party to the
litigation, Banks v. Heater, 95 Nev. 610, 600 P.2d 245 (1979). Since there was evidence of
just such a belief, and no demonstrable evidence to the contrary, it follows that Rita
demonstrated excusable neglect. Considering the matters just discussed, the trial court should
have set its order aside.
[Headnote 4]
If there is to be a change of custody, Rita is first entitled to a proper hearing on that issue.
That hearing should be expedited in every way, since Monique already has been away from
her mother for over a year. However, since there is evidence to the effect that Rita may indeed
have sought to evade the jurisdiction of Nevada's courts, it is clear that Monique should
remain with her father pending the outcome of that hearing.
____________________

2
Throughout this appeal the hostility of Mark and Rita toward each other has, sadly, been far more apparent
than their concern for their daughter's best interest. We can only hope that this will change when the question of
custody is given a hearing.

3
Disobedience of court orders is, of course, punishable in other ways. See, e.g., NRS 22.010(3), .100.
Further, an intent to deny a child a normal relationship with her father could bear on the child's best interest.
However, a court may not use changes of custody as a sword to punish parental misconduct.
of Nevada's courts, it is clear that Monique should remain with her father pending the
outcome of that hearing.
The order changing custody of Monique is vacated and the cause is remanded for a priority
setting to consider the issue of custody in accordance with Nevada law.
4

____________________

4
We note that the present counsel of record did not represent either of the parties to this appeal in the lower
court.
____________
103 Nev. 29, 29 (1987) Huebner v. State
ROSS VINCENT HUEBNER, Appellant, v.
No. 16739
February 6, 1987 731 P.2d 1330
Appeal from jury verdict of guilty on charges of carrying a concealed weapon on the
person; Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of carrying concealed weapon, and he
appealed. The Supreme Court held that: (1) notwithstanding fact that portion of weapon
protruded from under defendant's belt, conviction was supported by evidence that weapon
was sheathed in what appeared to be ballpoint pen; (2) defendant was not denied his right to
speedy trial; and (3) illegal detention between arrest and arraignment did not deny defendant
right to fair trial.
Affirmed.
John G. Watkins, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Weapons.
Notwithstanding fact that weapon protruded from under defendant's belt, defendant's conviction for
carrying concealed weapon was supported by evidence that weapon was sheathed in what appeared to be
ball-point pen, and place where weapon was clipped was concealed by jacket worn by defendant at time of
his arrest. NRS 202.350, subd. 1(b)(2).
2. Criminal Law.
Dismissal for denial of speedy trial is mandatory where there is lack of good cause shown for delay.
NRS 178.556.
3. Criminal Law.
State has burden of showing that delay in bringing criminal prosecution to trial within 60 days as
mandated by statute was for good cause. NRS 178.556.
4. Criminal Law.
Defendant was not denied his right to speedy trial, even though he was not brought to trial until 71 days
after filing of information, where arresting officer was scheduled for vacation at time of trial, and officer's
testimony was critical part of prosecution's case. U.S.C.A.Const. Amend. 6; NRS 178.556.
5. Arrest.
Speedy arraignment requirement is principally intended to ensure that accused is promptly informed of
his privilege against self-incrimination. NRS 171.178.
6. Arrest.
Mere delay between arrest and arraignment, without some showing of prejudice to defendant's
constitutional rights, does not deprive court of jurisdiction to proceed. NRS 171.178.
7. Arrest.
Where there has been no interrogation during delay between arrest and arraignment, and accused has not
confessed or made incriminating statements, trial court is not deprived of jurisdiction to proceed, as delay
has caused no prejudice to accused, and his rights have not been violated. NRS 171.178.
8. Arrest.
Illegal detention of defendant for three days beyond statutorily prescribed period of 72 hours did not deny
defendant his right to fair trial where there was no substantial prejudice by virtue of admission of any
evidence extracted from defendant during time of illegal incarceration. NRS 171.178.
OPINION
Per Curiam:
Ross Vincent Huebner appeals his conviction of carrying a concealed weapon. The
weapon was a sharp, pointed instrument, four and one-half inches in length, sheathed in what
appears outwardly to be a ball-point pen.
Huebner does not argue that the device was not a weapon;
1
rather, he argues that there is
no evidence that it was concealed.
The weapon, a four and one-half inch, spring-loaded, pointed implement designed for
stabbing, was cleverly concealed within the shell of what appeared to be a ball-point pen.
When Huebner was put under arrest for driving under the influence of intoxicants, the
arresting officer noticed the pen and did not remove it from Huebner's person. The weapon
was so well concealed within the pen shell that it was not discovered to be a weapon until the
personal property inventory at booking.
____________________

1
NRS 202.350(1)(b)(2), the basis of the charge against Huebner, makes it unlawful for one to [c]arry
concealed upon his person any . . . [d]irk, dagger or dangerous knife. although it was not raised on this appeal,
we note that a dagger is a short weapon used for thrusting and stabbing and that stabbing is using a pointed
weapon to wound or kill. The Oxford Dictionary of English Etymology (1983).
[Headnote 1]
Huebner argues that the weapon was not concealed because a portion of the pen
protruded from under his belt. Huebner will not be heard by this court to say that this stabbing
implement was not being concealed simply because a casual observer could see only a pen
clipped to his belt and not the sheathed, stabbing device. The weapon was certainly concealed
from the arresting officer by its disguise as a pen, or it would have been confiscated at the
time of the arrest. In addition, there is evidence that the place on Huebner's belt where the
weapon was clipped was concealed by a jacket worn by Huebner at the time of his arrest.
The nature of this case renders harmless any error that might have been committed by the
claimed unavailability of a witness who, according to Huebner's counsel, was going to give
expert testimony on the meaning of English words and phrases as they related to Huebner's
guilt. We can see no possibility of this weapon's not being covered by the statute and can see
no benefit to Huebner to be derived from etymological testimony. Further, we see no
possibility of this masquerading stabbing device's not being considered either as concealed
within the pen shell or as being concealed under Huebner's belt or both. The conviction must
therefore be affirmed unless there is substance to Huebner's claim that he was denied his right
to a speedy trial under the Constitution or under NRS 178.556 or that his rights under NRS
171.178(1) were violated.
Speedy Trial
Huebner was arrested on January 10, 1985, and incarcerated until January 18, at which
time he was brought before a magistrate. The criminal complaint was filed on January 18,
1985; the information was filed on April 10, 1985. Trial was held July 1, 1985, 103 days from
the date of filing the complaint and 82 days from the date of filing the information.
[Headnotes 2, 3]
NRS 178.556 provides that [i]f a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment, complaint
or filing of the information, the court may dismiss the indictment or information. Eighty-two
days elapsed between filing of the information and trial. Huebner is responsible for
approximately eleven days of delay. Dismissal is mandatory where there is a lack of good
cause shown for the delay. Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595, 598 (1970).
The state has the burden of showing good cause. Anderson, 86 Nev. at 834, 477 P.2d at 598.
[Headnote 4]
The state's motion to continue the trial under Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918
(1969), was based on an affidavit claiming that the arresting officer was scheduled for
vacation at the time of the trial. Although the affidavit incorrectly states that the arresting
officer, Alessandra, discovered the weapon, his testimony was still a critical part of the
prosecution's case, if for no reason other than to show that the pen-weapon was hidden under
Huebner's jacket at the time of arrest.
Failure to Bring a Magistrate
NRS 171.178(1) provides that an arrested person shall be brought before a magistrate
without unnecessary delay after his arrest. Morgan v. Sheriff, Clark County, 92 Nev. 544,
546, 554 P.2d 733, 734 (1976). NRS 171.178(3) provides that:
[i]f the arrested person is not brought before a magistrate within 72 hours after arrest,
excluding nonjudicial days, the magistrate (a) shall give the prosecuting attorney an
opportunity to explain the circumstances leading to the delay; and (b) may release the
arrested person if he determines that the person was not brought before a magistrate
without unnecessary delay.
[Headnote 5]
The purpose behind NRS 171.178 is to prevent resort to those reprehensible practices
known as the third degree' which, though universally rejected as indefensible, still find their
way into use. It aims to avoid all the evil implications of secret interrogation of persons
accused of crime. McNabb v. United States, 318 U.S. 332, 344 (1943); Sheriff, Clark
County v. Berman, 99 Nev. at 105-06, 659 P.2d at 300; Morgan, 92 Nev. at 546, 554 P.2d at
734. Speedy arraignment is principally intended to ensure that the accused is promptly
informed of his privilege against self-incrimination. Berman, 99 Nev. at 106, 659 P.2d at 300;
Brown v. Justice's Court, 83 Nev. 272, 276, 428 P.2d 376, 378 (1967).
[Headnotes 6, 7]
Mere delay between arrest and arraignment, without some showing of prejudice to
defendant's constitutional rights, does not deprive the court of jurisdiction to proceed.
Berman, 99 Nev. at 106, 659 P.2d at 300; Brown, 83 Nev. at 276, 428 P.2d at 378. Where
there has been no interrogation during the delay, and the accused has not confessed or made
incriminating statements, the delay has caused no prejudice to the accused, and his rights
have not been violated. Berman, 99 Nev. at 106, 659 P.2d at 300. Huebner does not assert
that he was prejudiced by the admission of any evidence which was extracted from him
during this time of illegal incarceration.
of any evidence which was extracted from him during this time of illegal incarceration.
[Headnote 8]
While we hold that the illegal detention of Huebner for three days beyond the statutorily
prescribed period of seventy-two hours was reprehensible, this violation of Huebner's rights
did not taint his trial. See State v. Maldonado, 373 P.2d 583 (1962). Since Huebner was not
denied a fair trial, his conviction should not be reversed on the grounds of illegal detention.
We perceive no substantial prejudice to the appellant's rights arising out of the delays in
this case. Huebner had the weapon, and it was concealed. Not much could be said or done in
his defense. His charges of prejudice caused by delay are stated to be that he lost employment
as a result of the delay and that he was unable to secure needed witnesses. Neither of these
claims has much substance.
The judgment of conviction is affirmed.
____________
103 Nev. 33, 33 (1987) Regent International v. Lear
REGENT INTERNATIONAL, Appellant, v. MOYA OLSEN LEAR, Executor of the Estate
of WILLIAM POWELL LEAR, also known as W. P. LEAR and
BILL LEAR, Deceased, Respondent.
No. 16389
February 12, 1987 732 P.2d 861
Appeal from final judgment. Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
After remand, 97 Nev. 617, 637 P.2d 1207 (1981), of vendor's action for breach of real
estate contract, the district court awarded damages in the amount of $15,000,000 plus
consequential damages based on fair market value at time of breach of contract. Purchaser
appealed. The Supreme Court held that: (1) court properly awarded damages based on market
value at time of the breach, and (2) judgment would be modified to reflect acceptance of
damages in the amount of earnest money paid of $250,000 in satisfaction of award.
Modified and affirmed.
Glade L. Hall, Reno, for Appellant.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, William A. S. Magrath, II, and
Valerie N. Strandell, Reno, for Respondent.
Court properly awarded damages based on market value of real estate at time of breach of contract to
convey real estate, where resale of the property could not be effectuated within a reasonable time following
judgment, despite diligent efforts. NRS 148.300.
In recognition of vendor's willingness to accept the amount of purchaser's earnest money deposit in
satisfaction of claim for breach of real estate sales contract, judgment would be modified to reflect
damages totaling $250,000, rather than $15,000,000 awarded at trial.
OPINION
Per Curiam:
In this appeal, we deal for the second time with the breach of a contract for the sale of a
large tract of realty. Our previous opinion, Regent International v. Lear, 97 Nev. 617, 637
P.2d 1027 (1981), sets forth the facts with particularity. Briefly, Regent International (Regent)
agreed to pay $24,000,000 for some 1800 acres of land, and paid $250,000 both as a deposit
and as liquidated damages in the event of breach. Regent breached the agreement, and the
trial court awarded liquidated damages. However, NRS 148.300 required that the court order
a resale when it vacated its confirmation of the original sale; therefore, we held that mere
forfeiture of liquidated damages was inappropriate, and remanded the matter for further
proceedings.
The trial court found that a resale of the entire tract could not reasonably be accomplished;
that finding is supported by the record and therefore must be upheld. NRCP 52(a). Therefore,
the court calculated damages without resale. It found that the tract had a fair market value of
$9,000,000 at the time of the breach, so that damages of $15,000,000 resulted. The court also
awarded $110,199 in consequential damages; that award is not in dispute on appeal.
[Headnote 1]
Regent now contends that it was improper to calculate damages as of the time of breach;
Regent also asserts that property values have since risen to the extent that respondent actually
stands to benefit from the breach. We note, however, that the breach of the sale contract
occurred in 1979; it would be unfair, and clearly is not within the intent of NRS 148.300, to
force an estate to wait indefinitely before damages may be awarded where a resale cannot
reasonably be accomplished. Therefore, we hold that if a resale is not effectuated within a
reasonable time despite diligent efforts, the court may award damages based on the market
value of the property at the time of the breach. It follows that the trial court did not err in its
approach to damages. However, at oral argument respondent conceded that Regent is
unable to satisfy a judgment for damages and that, accordingly, respondent considers the
$250,000 earnest money deposit the only practical source of recovery for Regent's
breach.
argument respondent conceded that Regent is unable to satisfy a judgment for damages and
that, accordingly, respondent considers the $250,000 earnest money deposit the only practical
source of recovery for Regent's breach.
[Headnote 2]
In recognition of respondent's willingness to accept the amount of Regent's deposit in
satisfaction of her claim, thereby effectuating an expeditious recovery out of sums available
without need for this court to review the correctness of the $15,000,000 damage award, we
modify the judgment to reflect that damages shall total $250,000. In all other respects, the
judgment is affirmed.
1

Gunderson, C. J. and Steffen and Young, JJ., and Brennan, D. J., concur.
____________________

1
The Governor designated the Honorable James A. Brennan, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const., art. 6, 4.
The Honorable John C. Mowbray, Justice, has voluntarily disqualified himself and took no part in the
deliberation of this matter.
____________
103 Nev. 35, 35 (1987) Atlantic Commercial v. Boyles
ATLANTIC COMMERCIAL DEVELOPMENT CORPORATION, Appellant, v. STEPHEN
BOYLES; FIRST INTERSTATE BANK, Respondents.
No. 16687
February 24, 1987 732 P.2d 1360
Appeal from dismissal with prejudice. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
Delaware corporation filed complaint alleging Florida state attorney, who mailed Florida
subpoena duces tecum to Nevada bank requesting copies of financial records concerning
corporate checking account, and Nevada bank, which honored such request, had not complied
with Disclosure of Financial Records to Governmental Agencies act. Florida state attorney
filed motion to dismiss on grounds that corporation had not qualified to do business in
Nevada. The district court dismissed with prejudice, and corporation appealed. The Supreme
Court held that: (1) dismissal, if any, of action brought by corporation which complied with
qualifying statutes prior to dismissal should have been without prejudice; (2) Disclosure of
Financial Records to Governmental Agency act did not apply to foreign governmental
agencies; and (3) subpoena duces tecum issued by Florida court without obtaining jurisdiction
through Nevada court did not have power or jurisdiction to order Nevada bank to produce
corporation's Nevada bank records.
power or jurisdiction to order Nevada bank to produce corporation's Nevada bank records.
Reversed and modified.
Carl F. Martillaro and Paul A. Sherman, Carson City; Davenport & Perry, Reno, for
Appellant.
Bible, Santini, Hoy, Miller & Trachok, and Victor G. Drakulich, Reno, for Respondents.
1. Corporations.
Statute prohibiting a corporation which fails or neglects to comply with requirements for doing business
in state to commence, maintain, or defend any action on proceeding in any court of state does not limit
rights of corporations beyond plain import of language used in statute. NRS 80.210, 80.210, subd. 1.
2. Pretrial Procedure.
Complaint alleging violation of Disclosure of Financial Records to Governmental Agencies act, filed by
Delaware corporation while charter was inoperative and void in Delaware, when corporation did not
qualify to do business as foreign corporation in Nevada, should have been dismissed, if at all, without
prejudice, where corporation complied with qualifying statutes four months prior to dismissal. NRS
239A.010 et seq.; NRCP 12(b)(5); 8 Del.C. 312; NRS 80.210, 80.210, subd. 1.
3. Banks and Banking.
Disclosure of Financial Records to Governmental Agencies act prohibits governmental agencies from
requesting and financial institutions from releasing financial records unless authorized by customer or
pursuant to subpoena or search warrant. NRS 239A.010 et seq., 239A.080, 239A.100
4. Banks and Banking.
Statute defining governmental agency, for purpose of Disclosure of Financial Records to Governmental
Agencies act, as officer, board, commission, department, division, bureau, district or any other unit of
government, including political subdivisions, of this state, is plain and unambiguous; act does not apply to
foreign governmental agencies. NRS 239A.010 et seq., 239A.050.
5. Witnesses.
Subpoena duces tecum issued by Florida court did not have power or jurisdiction to order Nevada bank
to produce foreign corporation's Nevada bank records, even if corporation was involved in criminal
activity, where jurisdiction was not obtained through Nevada court. NRS 174.395-174.445.
6. Witnesses.
Disclosure of Financial Records to Governmental Agencies act does not apply to subpoena served
pursuant to Uniform Act to secure the attendance of witnesses from without a state in criminal proceedings.
NRS 174.395-174.445, 239A.010 et seq.
7. Witnesses.
Florida state attorney who sought financial records of Delaware corporation concerning checking account
at Nevada bank should have obtained records through court of competent jurisdiction in Nevada, pursuant
to Uniform Act to secure the attendance of witnesses from without a state in criminal proceedings. NRS
174.395-174.445.
OPINION
Per Curiam:
On March 17, 1983, Stephen Boyles, the State Attorney for the State of Florida, mailed a
Florida subpoena duces tecum to First Interstate Bank (FIB) requesting copies of financial
records concerning an Elko checking account held by Atlantic Commercial Development
Corporation (Atlantic). FIB forwarded copies of the materials to Boyles in Florida. Atlantic
filed a complaint alleging that Boyles and FIB had not complied with Nevada's Disclosure of
Financial Records to Governmental Agencies act, NRS Chapter 239A; specifically, there had
been no process from a court of competent jurisdiction in Nevada. An injunction was issued
prohibiting the use of the records and ordering their return to FIB.
On June 8, 1985, Boyles filed an NRCP 12(b)(5) motion to dismiss on the grounds that
Atlantic, a Delaware corporation, had not qualified to do business in Nevada and therefore
was not entitled to commence or maintain an action or proceeding in any court the state.
Discovery revealed that Atlantic had incorporated in Delaware in February 1977, but its
charter became void and inoperative for nonpayment of taxes March 1, 1982. Atlantic had
filed its complaint on April 30, 1984, during this inactive period. However, it filed for
renewal and revival of the corporate charter in August 1984, and filed with the Nevada
Secretary of State in February 1985, four months before the action was dismissed.
The district court held that because Atlantic had filed its complaint while its charter was
inoperative and void in Delaware, and without qualifying to do business as a foreign
corporation in Nevada, it could not maintain an action for any harm sustained during its
period of nonexistence. Atlantic's action was dismissed with prejudice.
[Headnotes 1, 2]
Atlantic contends that the district court should have dismissed its complaint, if at all,
without prejudice. We agree. Under Delaware law, reinstatement of the corporate charter
retroactively confirms a corporation's standing to sue with respect to a lawsuit commenced in
the forfeiture period. 8 Delaware Code Ann., 312; Frederick G. Krapf & Son, Inc. v.
Gorson, 243 A.2d 713 (Del. 1968). Under NRS 80.210(1) a corporation which fails or
neglects to comply with the requirements for doing business in Nevada shall not be allowed
to commence, maintain, or defend any action or proceeding in any court of this state until it
shall have fully complied with NRS 80.010 to 80.040. NRS 80.210 does not limit the rights
of corporations beyond the plain import of the language used in the statute.
of the language used in the statute. Pettit v. Management Guidance, Inc., 95 Nev. 834, 603
P.2d 697 (1979). In Pettit, we held that where the relevant statute of limitations had not run
and the corporation was in the process of effecting compliance with Nevada's qualifying
statutes, dismissal was to be without prejudice. Id. We hold that since Atlantic had complied
with the qualifying statutes prior to dismissal, dismissal, if at all, should have been without
prejudice.
[Headnote 3]
Boyles argues that dismissal with prejudice is appropriate because Atlantic's complaint
that he violated the Disclosure of Financial Records to Governmental Agencies act, NRS
Chapter 239A, is unenforceable or subject to an absolute defense. NRS Chapter 239A
prohibits governmental agencies from requesting and financial institutions from releasing
financial records unless authorized by the customer or pursuant to a subpoena or search
warrant. NRS 239A.080, 239A.100.
[Headnote 4]
NRS 239A.050 defines a government agency as an officer, board, commission,
department, division, bureau, district or any other unit of government, including political
subdivisions, of this state. (Emphasis added.) Boyles contends that because he is with the
Florida State Attorney's office, he is not an agency of this state and therefore not subject to
the provisions of the statute. It is well established that if the language of a statute is plain and
unambiguous, there is simply no room for construction of that statute by the courts. Nevada
Power Co. v. Public Service Commission, 102 Nev. 1, 711 P.2d 867 (1986). We find the
language of NRS 239A.050 to be plain and unambiguous and hold that NRS 239A does not
apply to foreign governmental agencies. Nevertheless, this does not mean that foreign
governmental agencies may circumvent the intent of the statute, nor does it bar Atlantic from
making a claim.
[Headnote 5]
Regardless of the effect of NRS Chapter 239A, the question of jurisdiction to serve the
subpoena duces tecum is apparent from the face of the compliant. The subpoena duces tecum
sent to FIB was issued by a Florida court requesting records relating to an Elko bank account.
The fact that Atlantic may be involved in criminal activity does not give the State of Florida
the right to abandon legal process. There is authority that under traditional notions of power
and jurisdiction, a court cannot order production of records in the custody and control of a
non-party in a foreign judicial district. Cates v. LTV Aerospace Corporation, 480 F.2d 620,
624 (5th Cir. 1973) (citations omitted). Certainly, a Florida court could not enforce a
subpoena duces tecum if FIB refused to comply.
a Florida court could not enforce a subpoena duces tecum if FIB refused to comply. Nevada
procedure statutes only contemplate process served under the jurisdiction of Nevada courts.
We hold that a subpoena duces tecum issued by a foreign court in this matter did not have the
power or jurisdiction to order FIB to produce Atlantic's Nevada bank records.
[Headnotes 6, 7]
The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings, NRS 174.395-174.445, inclusive, provides a method whereby jurisdiction to
serve a subpoena duces tecum issued by a court in a foreign jurisdiction may be properly
obtained through a Nevada court.
1
The language of NRS 174.415 specifically provides only
for subpoenas requesting witnesses for out-of-state criminal proceedings but arguably would
apply to a subpoena duces tecum for production of documents. The Act requires that a
certificate from the out-of-state court be presented to a judge of record in the county where
the person is. NRS 174.415. The judge must then fix a time and place for a hearing and direct
the witness to appear. Id. We hold that if Boyles still wants Atlantic's bank records, he should
obtain them through a court of competent jurisdiction in Nevada.
We modify the district court's dismissal with prejudice and dismiss without prejudice. The
subpoena duces tecum, having been improperly served, is quashed.
____________________

1
NRS 239A.070 provides that the Disclosure of Financial Records to Governmental Agencies, NRS 439A,
does not apply to a subpoena issued pursuant to Title 14 of NRS. (NRS Chapters 169-189.) A subpoena served
pursuant to NRS 174.395-174.445 would, therefore, be exempt.
____________
103 Nev. 39, 39 (1987) K Mart Corp. v. Ponsock
K MART CORPORATION, a Michigan Corporation, Appellant, v. GEORGE J. PONSOCK
and BARBARA PONSOCK, Respondents.
No. 16736
February 24, 1987 732 P.2d 1364
Appeal from a judgment awarding compensatory and punitive damages; Second Judicial
District Court, Washoe County; Jerry Carr Whitehead, Judge.
Tenured employee brought action against employer for breach of convenant of good faith
and fair dealing, alleging employer dismissed employee in order to avoid paying employee
retirement benefits. The district court entered judgment on jury verdict awarding
compensatory and punitive damages, and employer appealed. The Supreme Court,
Springer, J., held that: {1) employee was tenured rather than at-will employee; {2)
discharge of employee by large, nationwide employer for improper motive of defeating
contractual retirement benefits was bad faith discharge giving rise to tort liability; and {3)
employer's duties were so explicit and so subject of common understanding as to justify
punitive damages award.
awarding compensatory and punitive damages, and employer appealed. The Supreme Court,
Springer, J., held that: (1) employee was tenured rather than at-will employee; (2) discharge
of employee by large, nationwide employer for improper motive of defeating contractual
retirement benefits was bad faith discharge giving rise to tort liability; and (3) employer's
duties were so explicit and so subject of common understanding as to justify punitive
damages award.
Affirmed.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, Reno, for Appellant.
Woodburn, Wedge, Blakey & Jeppson, and Chris Wicker, Reno, for Respondents.
Marquis & Haney, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.
1. Master and Servant.
At-will employee can be properly discharged without cause at will of employer.
Employee who was hired until retirement and for as long as economically possible, pursuant to written
employment contract stating that if there were any deficiencies in employee's performance, employer would
provide assistance and would release employee only after giving him series of correction notices and only
upon determination that his performance remained unacceptable, was tenured employee, rather than at-will
employee.
3. Appeal and Error.
Upon appeal following jury verdict for employee in action against employer for breach of covenant of
good faith and fair dealing, court must assume jury believed all evidence favorable to employee and must
give employee benefit of inferences that might reasonably be drawn from such evidence.
Employer which fired employee for using paint on forklift, without allowing employee to defend his
actions or to explain incident to higher management, breached employment contract stating that if there
were any deficiencies in employee's performance, employer would provide assistance and would release
employee only after giving him series of correction notices and only upon determination that his
performance remained unacceptable.
Amount allegedly lost by employee when he was forced to sell his home after being fired was not
claimable as contract damages in employee's action against employer for breach of employment contract.
Mere discharge of tenured employee in violation of employment contract is not tortious conduct.
Tortious discharge or public policy tort for retaliatory discharge of employee can not ordinarily be
committed absent employer-employee relationship, but tort is not dependent upon or directly related to
contract of continued employment.
Employer in typical at-will employment situation has absolute right to dismiss employee at-will or
at-whim, except for reasons which offend public policy, such as rightful filing of industrial insurance claim.
Discharge of employee by large, nationwide employer for improper motive of defeating employee's
contractual retirement benefits was bad faith discharge giving rise to tort liability. NRS 104.1203.
10. Torts.
Tort requires presence of duty created by law, not merely duty created by contract.
11. Contracts; Torts.
Duty of good faith and fair dealing is created by law in all contracts, but such duty gives rise to tort
liability only in rare and exceptional cases.
12. Torts.
Breach of duty of good faith and fair dealing brings into play bad faith tort only where there are special
relationships between tort-victim and tort-feasor.
13. Torts.
Underlying rationale for extending tort liability in certain instances of breach of duty of good faith and
fair dealing is that ordinary contract damages do not adequately compensate victim and do not require party
in superior or entrusted position, such as insurer, partner, or franchiser, to account adequately for grievous
and perfidious misconduct.
Evidence that tenured employee was dismissed for arbitrary infraction, without opportunity to explain his
actions and in violation of express written employment contract, six months prior to 100 percent vesting of
employee's retirement benefits, was sufficient to support jury's express finding that employer was guilty of
bad faith.
Evidence that employer fired tenured employee in order to deprive employee of his pension and that,
when employee applied for unemployment relief, employer wrongfully characterized employee as thief,
was sufficient to sustain finding that employer acted with malice and oppression.
16. Damages.
Use of punitive damages in appropriate cases of breach of duty of good faith and fair dealing expresses
society's disapproval of exploitation by superior power and creates strong incentive for superior powers to
conform to clearly defined legal duties.
Employer's duty of good faith and fair dealing was so explicit and so subject of common understanding as
to justify punitive damage award to employee who was maliciously and oppressively discharged by
employer in order to defeat employee's retirement entitlement.
OPINION
By the Court, Springer, J.:
Ponsock was a tenured employee of K Mart. Evidence supports a jury finding that K Mart
dismissed Ponsock in order to save having to pay him retirement benefits provided for in the
employment contract. The question is whether such conduct is tortious. We find that it is and
approve a jury award for compensatory and punitive damages for the tort of breach of the
covenant of good faith and fair dealing.
Ponsock's Status as Tenured Employee
[Headnotes 1, 2]
Although for some inexplicable reason K Mart insists on referring to the
employer-employee relationship with Ponsock as being at-will,
1
it is not. In contrast to our
case of Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), wherein we held
that a factfinder could find from the evidence that an employee handbook was part of an
employment contract, here we have K Mart stipulating that the written provisions of its
employee handbook are part of the contract of the parties. Ponsock is a tenured employee; K
Mart hired him until retirement and for as long as economically possible. K Mart agreed
in its contract with Ponsock that if there were any deficiencies in Ponsock's performance, the
company would provide assistance and would release Ponsock only after giving him a
series of correction notices. Ponsock could be released only on a determination that his
performance remain[ed] unacceptable.
K Mart breached its contract; it released Ponsock without notifying him of any
employment deficiencies, failed to give assistance to him as promised, and certainly,
therefore, could not possibly have based Ponsock's dismissal on a conclusion that the
employee's conduct had remained unacceptable.
____________________

1
An at-will employee is one that can be properly discharged without cause at the will of the employer.
Ponsock most certainly is not an at-will employee; rather, by stipulation of K Mart, Ponsock could not be
discharged unless the conditions set forth in the employee handbook were followed. In Southwest Gas Corp. v.
Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), a tacit agreement was implied in fact from the conduct of the parties;
here there was an express contract in both oral and written form. At the time Ponsock was hired, K Mart agents
represented to him that he would remain on the job until he retired as long as he did his job satisfactorily. This
understanding was incorporated in the written handbook which is stipulated by K Mart to be the contract of the
parties. Such an arrangement cannot possibly be characterized as being at-will.
Facts Surrounding Discharge
[Headnote 3]
In stating these facts we must assume that the jury believed all the evidence favorable to
the prevailing party, Ponsock, and give Ponsock the benefit of inferences that might
reasonably be drawn from such evidence. Paullin v. Sutton, 102 Nev. 421, 724 P.2d 749
(1986); Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961).
In 1972 Ponsock, 43 years of age, was hired as a forklift driver at K Mart's Distribution
Center in Sparks, Nevada. Ponsock left his former job as a coin counter at a casino in order to
take advantage of the increased job security and enhanced benefits offered by K Mart. The
starting wages at K Mart were virtually the same as those he had been making at the casino
($3.75 per hour). At K Mart Ponsock was categorized as an excellent employee by his
immediate supervisor and was considered to be a good employee by the higher management
at the distribution center. After nine and one half years at K Mart, Ponsock was earning $9.40
per hour and was approximately six months away from 100 percent vesting of his retirement
benefits, which are paid in full by K Mart.
On March 30, 1982, Ponsock was fired for applying gray primer spray paint to the battery
cover of the forklift which he operated. Ponsock testified that on this day he noticed that an
area on the battery cover where he placed his hand while backing the forklift had become
sticky and gunky. After an unsuccessful attempt to have the maintenance department clean
the forklift, and after Ponsock had unsuccessfully attempted to clean the cover himself, he
decided to spray gray primer paint on the battery cover to correct the condition.
Earlier in the day, Ponsock had found a damaged can of gray primer spray paint, retail
value eighty-nine cents, and had taken it to the salvage area. The forklift drivers are
authorized to remove damaged merchandise to the salvage area; but, according to company
rules, any employee wanting to retrieve damaged goods from salvage must gain approval
from management. After unsuccessful attempts at cleaning the sticky area, Ponsock returned
to the salvage area, retrieved the damaged can of paint and sprayed the battery cover. This
was done without Ponsock's having secured permission to do so.
When a Mr. Williamson of the maintenance department saw that Ponsock had painted the
battery cover, he told Ponsock to clean it off. Ponsock complied. While in the process of
cleaning off the primer the operations manager at the center, mentioned to Ponsock that he
should not have done what he did. After the center manager, the personnel manager and the
operations manager conferred about the matter, they decided to terminate Ponsock.
sock. Ponsock was then called to the personnel office, whereupon the personnel manager
presented him with his final paycheck and told him he was fired. Ponsock was stunned by this
statement, and was puzzled as to why he was being terminated. When the personnel manager
mentioned the painting incident, Ponsock attempted to defend his actions; but he was given
no opportunity to explain the incident. In the days that followed, Ponsock attempted to see the
higher management at the center, but the security guard refused to allow Ponsock on the
property.
The company's separation report listed as the reason for termination: defacing company
property, forklift, with misappropriated merchandise, paint, on company time. When the
State Department of Unemployment inquired of K Mart management regarding the reason for
Ponsock's termination, K Mart, in referring to Ponsock's retrieval and use of the spray paint,
characterized Ponsock as a thief.
At trial K Mart claimed that its decision to fire ponsock was based, to a large extent, on a
prior painting incident involving Ponsock. Regarding the claimed prior painting incident, the
evidence is in sharp conflict. Ponsock testified that during the time he was assigned to a
painting detail, some red paint spilled on his forklift and that while he was attempting to wipe
it off, the operations manager had merely commented: Make sure you clean it up before you
leave. Other witnesses for K Mart testified that the paint was green and appeared to have
been purposely brushed on the forklift rather tan spilled and claimed that Ponsock was
warned by the operations manager that he would be fired if caught painting the forklift again.
Ponsock flatly denied these allegations, and Ponsock's immediate supervisor, a Mr. Britt,
testified that he knew nothing of a prior painting incident even though Ponsock had been
under his supervision at the time of the alleged incident. None of K Mart's witnesses could
state that they actually observed Ponsock paint the forklift. Much contradictory testimony
appears in the record concerning this incident.
Testimony revealed that approximately ten percent of the forklifts at the distribution center
have unauthorized paint on them and that no other employee has ever been fired, either before
or after Ponsock, for applying paint to the vehicles without permission. Also, importantly,
during a tour of the distribution center by Ponsock and his counsel, K Mart attempted to hide
a forklift that had unauthorized green paint applied to it in a fashion similar to the manner in
which K Mart alleges that Ponsock had done in the first painting incident in January of 1982.
One of K Mart's maintenance employees admitted that he placed the forklift in the
out-of-the-way place in order to hide it from Ponsock's lawyers.
After being fired, Ponsock went through a long period of unemployment. Ponsock was
unable to obtain any employment comparable to his position at K Mart. After several short
term or part time jobs, he finally gained full time employment in a manual labor position at
$4.20 per hour with no benefits. After Ponsock lost his job, the family house went into
foreclosure only to be saved from the foreclosure sale by his nephew who purchased the
home for $11,000 less than the claimed market value.
Contract Liability
[Headnote 4]
Under the stated circumstances it cannot be honestly argued that Ponsock was an at-will
employee. He had definite rights of employment tenure and was contractually entitled to be
retained until dismissal for cause was properly carried out in the manner provided for in the
employment contract. The employment contract was violated by K Mart, and Ponsock is
entitled to damages for breach of contract.
[Headnote 5]
An economist was called to testify as to the damages resulting from the breach. The sum
of $382,120.00 was offered as the expert's opinion on the amount of damages suffered by
Ponsock. The award of $382,120.00 as compensatory damages for breach of contract is
supported by substantial evidence and will be affirmed.
A total of $393,120.00 in compensatory damages was awarded by the jury. The difference
between this amount and the above-mentioned $382,120.00 in contract damages is
$11,000.00, an amount awarded as a result of a claimed $11,000.00 lost by Ponsock when he
was forced to sell his home after being fired.
It cannot be seriously argued that this $11,000.00 is properly claimable as contract
damages. See Las Vegas Oriental, Inc. v. Sebella's of Nev., Inc., 97 Nev. 311, 630 P.2d 255
(1981); Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854). The $11,000.00 award
can be affirmed only if tort liability was correctly determined by the jury to exist in this case.
Indeed, the only jury instruction allowing for an award based on the loss of Ponsock's home
required a jury finding that K Mart tortiously failed to act in good faith; so we now pass to a
consideration of whether or not K Mart may be subject to tort liability under the
circumstances of this case.
Tort Liability
[Headnote 6]
Mr. Blackstone tells us: [C]ourts of justice are instituted in every society in order to
protect the weak from the insults of the stronger by expounding and enforcing those laws
by which rights are defined and wrongs punished.
stronger by expounding and enforcing those laws by which rights are defined and wrongs
punished.
2
The impression on reading this record is that K Mart's actions
3
can be
described in terms of insults of the stronger and appear to be inherently wrong and abusive.
One gets the impression that a Rawlsian
4
observer looking at this kind of conduct would
have to conclude that if such actions were not actionably tortious, they should be.
[Headnote 7]
A tort, as generally defined, is a civil wrong, other than breach of contract, for which the
court will provide a remedy in the form of an action for damages. Black's Law Dictionary,
Fifth Edition, 1335 (1979). This court has already recognized the presence of tort liability in
non-contractual
5
employment situations founded upon strong public policy. Hansen v.
Harrah's, 100 Nev. 60, 675 P.2d 394 (1984). In Hansen this court recognized a tortious
discharge or public policy
6
tort for retaliatory discharge of an employee dismissed for
filing a workmen's compensation claim. Although this kind of a public policy tort cannot
ordinarily be committed absent the employer-employee relationship, the tort, the wrong itself,
is not dependent upon or directly related to a contract of continued employment such as that
existing in the present case.
____________________

2
Commentaries on the Laws of England, Vol. II, Bk. III, p. 2; Lippencott & Co., 1860.

3
We note that K Mart's actions in breaching its obligation of continued employment is not the gravamen of
the tort action in this case. The mere discharge of a tenured employee in violation of the employment contract
does not constitute tortious conduct. Here, as seen from the fact statement, we have a course of action on the part
of K Mart which the jury expressly found to be malicious and oppressive and from which the jury could very
reasonably have concluded that K Mart dismissed Ponsock for the very unworthy motive of evading its duty to
pay his retirement benefits. This is much more than a mere breach of contract and, as is discussed below, rises to
the level of what is termed a bad faith tort.

4
John Rawls, a contemporary jurisprudent, in A Theory of Justice (1972), attempts to establish an objective
theory of justice. Rawls postulates a hypothetical situation in which one does not know his place in society or his
own fortune and thus formulates principles of justice and fairness form behind a veil of ignorance. Under such
conditions no one would be able to favor his own particular condition and would, accordingly, make
disinterested and rational choices. Such an observer would most likely see the justice in affording compensation
for the wrong, the tort, suffered by Ponsock at the hands of K Mart.

5
By non-contractual is meant the absence of any contractual obligation of continued employment, the
so-called at-will employment contract.

6
A worthwhile distinction among the various kinds of actions arising out of employment situations is found
in the California case of Koehrer v. Sup. Ct., 181 Cal.App. 1155, 1163, 226 Cal.Rptr. 820, 824 (1986), in which
we find this useful language:
[Headnote 8]
The public policy torts in general and the tort of retaliatory discharge in particular cannot
be seen as erosions of the so-called at-will doctrine. An employer still has in the typical
at-will employment situation the absolute right to dismiss an employee at-will or at-whim; the
employer just cannot do so for reasons which offend public policy, such as the rightful filing
of an industrial insurance claim. Such dismissals are contrary to the established public policy
of this state, Hansen, 100 Nev. at 64, 675 P.2d at 397, and constitute tortious conduct in this
state.
Bad Faith Discharge
[Headnote 9]
The case before us is distinguishable from the public policy tort of Hansen and can be
labeled in accordance with the Koehrer case, cited in the margin, as a bad faith discharge.
K Mart, in light of the evidence most favorable to Ponsock, must be judged to have fired
Ponsock to get rid of his retirement claims. This is a bad faith discharge giving rise to tort
liability.
7
As we have recognized, in the absence of statutory declaration, a public policy
tort for retaliatory discharge in an industrial compensation case, we now recognize a bad
faith discharge case in this fact-specific instance of discharge by a large, nationwide
employer of an employee in bad faith for the improper motive of defeating contractual
retirement benefits.

____________________
It would be conducive to proper analysis if courts and lawyers used a different nomenclature to
denominate these different situations in which liability is imposed after all on different legal theories.
Appropriate nomenclature might be breach of employment contract, for the true breach of contract
case, tortious discharge, for public policy cases, and bad faith discharge, for the cases involving
breach of the implied covenant of good faith and fair dealing.

7
Even without the jury's express finding of bad faith on the part of K Mart, K Mart's bad faith is manifest.
Even though none of the contractual conditions for proper dismissal was followed by K Mart, it still insists that
Ponsock was properly dismissed for violating company policy on forklift paintings.
Regarding the two incidents of unauthorized forklift painting, it is notable that in the first alleged incident
Ponsock's version differed radically from management's version. The jury could have sensibly believed
Ponsock's version since his immediate supervisor knew nothing of the incident. No K Mart witness testified that
Ponsock intentionally painted the forklift, nor did K Mart, at the time, document the incident as required by the
contractual procedure for disciplining serious incidents of employee misconduct. From the stark conflict in the
testimony coupled with the inconsistencies in K Mart's version of this supposed infraction by Ponsock, it would
have been quite reasonable for the jury to infer that Ponsock's version was correct: that the paint was
accidentally spilled, that he was never reprimanded for the incident, and that there must be some other reason for
the dismissal than the excuse offered by K Mart.
K Mart's actions surrounding the painting of the battery cover are similarly suspect. Ponsock was given no
opportunity to explain the incident, even though he was completely cooperative in cleaning off the primer paint.
When Ponsock tried to confer with management to explain the incident, he was repelled by the guard at the gate.
Again, K Mart failed to follow the promised disciplinary procedure outlined in the employee handbook.
The fact that K Mart attempted to hide a forklift with unauthorized paint on it undermines the credibility of
its witnesses. Although K Mart's reason
As we have recognized, in the absence of statutory declaration, a public policy tort for
retaliatory discharge in an industrial compensation case, we now recognize a bad faith
discharge case in this fact-specific instance of discharge by a large, nationwide employer of
an employee in bad faith for the improper motive of defeating contractual retirement benefits.
Had K Mart merely breached its contract by firing Ponsock, as it did, arbitrarily and
without providing him with the agreed upon protections of assistance, correction notices and
a finding of continued unacceptable performance, than Ponsock would have a remedy, but
only a contractual remedy. The holding of this case certainly does not imply that mere breach
of an employment contract by a large and powerful employer, or any employer, gives rise to
tort damages. Such is not the intention of this ruling. Tort remedies are allowed here only
because K Mart's conduct goes well beyond the bounds of ordinary liability for breach of
contract.
[Headnotes 10-12]
The bad faith discharge case finds it origins in the so-called covenant of good faith and fair
dealing implied in law in every contract.
8
The fact that such a covenant exists by legislative
fiat most certainly does not mean that out of every contract can emanate a tort action.
Still, oftentimes {see, e.g., Summa v. Greenspun, 9S Nev. 52S
____________________
for hiding the forklift is unclear, the avowed purpose was to hide the forklift from the lawyers. The obvious
and reasonable inference from the incident is that K Mart had serious doubts about the propriety of Ponsock's
firing and felt that the company needed artificially to shore up its justifications for the termination.
Finally, although approximately ten percent of the forklifts at K Mart had unauthorized paint on them, no
other persons had been terminated either before or after Ponsock for applying paint to their forklifts. This,
coupled with the suspect circumstances surrounding Ponsock's painting incidents, would naturally lead a jury to
the conclusion that K Mart decided to get rid of Ponsock for a particular, undisclosed reason but, instead of
saying so, justified his dismissal on its apparently contrived indignation relative to the painting incidents.
K Mart's explanation of the reasons for firing Ponsock does not hold together very well. Ponsock was only
six months away from retirement. That K Mart fired Ponsock, an admittedly excellent, long-term employee, over
the trivial paint episode may very well have been rejected by the jury. K Mart's characterization of Ponsock as a
thief also was likely to have done very little to the company's credit in this lawsuit. All in all, it is likely, rather
than merely possible, that the jury saw K Mart's true motive as being to divest Ponsock of his retirement rights.

8
NRS 104.1203 provides that an obligation of good faith and fair dealing applies to the entire Commercial
Code embodied in NRS Chapter 104:
104.1203. Obligation of good faith.
Every contract or duty within this chapter imposes an obligation of good faith in its performance or
enforcement.
Section 205 of the Restatement (Second) of Contracts, provides:
205. Duty of Good Faith and Fair Dealing.
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and
its enforcement.
most certainly does not mean that out of every contract can emanate a tort action. Still,
oftentimes (see, e.g., Summa v. Greenspun, 98 Nev. 528, 655 P.2d 513 (1982)) tortious
conduct arises out of or is related to a contractual relationship. A tort, however, requires the
presence of a duty created by law, not merely a duty created by contract; and, although a duty
of good faith and fair dealing is created by law in all cases, it is only in rare and exceptional
cases that the duty is of such a nature as to give rise to tort liability. The kind of breach of
duty that brings into play the bad faith tort arises only when there are special relationships
between the tort-victim and the tort-feasor as described below.
This court has recognized the bad faith tort in cases in which the relationship of the parties
is that of insurer and insured. United States Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070
(1975). As the tort in the present case arose out of an employment contract of continued
tenure with a large corporate employer, the tort in the Peterson case arose out of an insurance
contract. As put in Aluevich v. Harrah's, 99 Nev. at 215, 660 P.2d 986 (1983), this court
recognized a cause of action in tort for the breach of an implied covenant of good faith and
fair dealing where an insurer fails to deal fairly and in good faith with its insured by refusing,
without proper cause, to compensate for a loss covered by the policy. The tort, we say in
Aluevich, 99 Nev. at 217, 660 P.2d at 987, arises out of a need for a special protection of
insured in light of the quasi-public nature of the insurance industry and the element of an
insured's heavy reliance upon the insurer's credibility. The court in Aluevich also recognized
that the implied good faith covenant involves a special element of reliance by the aggrieved
party, the type of reliance that is found, for example, in the relationship engendered by
insurance, partnership and franchise agreements.
[Headnote 13]
One of the underlying rationales for extending tort liability in the described kinds of cases
is that ordinary contract damages do not adequately compensate the victim because they do
not require the party in the superior or entrusted position, such as the insurer, the partner, or
the franchiser, to account adequately for grievous and perfidious misconduct; and contract
damages do not make the aggrieved, weaker, trusting party whole.
If we are to be consistent in trying to protect the weak from the insults of the stronger
(Blackstone, above), we should in the present case be asking ourselves these questions:
1. Is there, as in the insurance cases, such a superior-inferior power differential as to
create a special element of reliance resulting from the employee's reliance on the employer's
credibility and the employer's promise and powerfully expectant guarantee of retirement
benefits?
bility and the employer's promise and powerfully expectant guarantee of retirement benefits?
2. Would contract damages hold employers like K Mart accountable for this kind of
misconduct?
3. Would contract damages, under circumstances such as these, make an aggrieved
employee whole?
In holding that a tort action is available for breach of the covenant in an insurance
contract, we have emphasized the special relationship' between insurer and insured,
characterized by elements of public interest, adhesion and fiduciary responsibility. . . . No
doubt there are other relationships with similar characteristics and deserving of similar legal
treatment. Seaman's Direct Buying Service, Inc. v. Standard Oil Co., 686 P.2d 1158, 1166
(Cal. 1984). Such an other relationship (other than the insurer-insured relationship) has
already been recognized by this court. In Mitchell v. Baily & Selover Inc., 96 Nev. 147, 605
P.2d 1138 (1980), this court held that the good faith obligation of the Uniform Commercial
Code, NRS 104.1203, applies to the enforcement of a warehouseman's lien pursuant to NRS
104.7209-104.7210. In Mitchell a customer had signed a written storage contract with a
warehouse company. The warehouse gave notice to the customer that on nonpayment of
storage fees the stored goods were to be sold. The customer then advised that she intended to
redeem her goods on the anticipated receipt of an ample sum of money from a Social Security
settlement. She asked that the foreclosure sale be postponed for this reason; but the
warehouse, deeming itself insecure, refused and sold the property. In a unanimous opinion,
this court held that summary judgment in favor of the warehouse must be reversed because a
determination by [the warehouse] that it was insecure with regard to [the customer's] debt is a
determination that must be made in good faith, and that the question of good faith is a
question of fact that must be decided by the fact finder. In the case at hand we already have an
express jury finding that K Mart did not act in good faith.
We refused to allow a bad faith tort action in the case of Aluevich v. Harrah's, above.
Aluevich involved the cancellation of a lease in accordance with the termination provisions of
the lease. The court pointed out in Aluevich that the relationship of the parties was merely that
of lessor and lessee, that the unqualified termination privilege in the lease had been the
subject of ten years' negotiation and that the plaintiff was an experienced business person and
attorney. Under such circumstances this court did not find the special element of reliance
which prompted this court in Peterson to recognize a cause of action in tort. . . . Aluevich, 99
Nev. at 218, 660 P.2d at 987.
Although careful analysis in Mitchell is lacking, we are still mindful of our having
recognized a bad faith tort arising out of the bailment relationship there existing. Much more
worthy of tort recovery, it would seem, is the claim asserted by Ponsock in the case before us.
[Headnote 14]
The reality of Ponsock's dependency and economic vulnerability is highlighted by the
following expression taken form F. Tannenbaum, A Philosophy of Labor 9 (1951):
We have become a nation of employees. We are dependent upon others for our means
of livelihood, and most of our people have become completely dependent upon wages.
If they lose their jobs they lose every resource except for the relief supplied by the
various forms of social security. Such dependence of the mass of the people upon
others for all of their income is something new in the world. For our generation, the
substance of life is in another man's hands.
(Emphasis added.)
In this case we have a contract in which the relationship of the parties is in many ways
analogous to those present in an insurance contract. Ponsock was just as dependent in
specially relying on K Mart's commitment to his extended employment and subsequent
retirement benefits as is an insurance policy holder dependent on the good faith indemnity
promised by the insurance carrier. The special relationships of trust between this employer
and this employee under this contract under this kind of abusive and arbitrary dismissal cries
out for relief and for a remedy beyond that traditionally flowing from breach of contract. To
permit only contract damages as the sole remedy for this kind of conduct would be to render
K Mart totally unaccountable for these kinds of actions. If all a large corporate employer had
to do was to pay contract damages for this kind of conduct, it would allow and even
encourage dismissals of employees on the eve of retirement with virtual impunity. Having to
pay only contract damages would offer little or no deterrent to the type of practice apparently
engaged in by K Mart in this case. Further, an aggrieved employee, relying on, and anxiously
awaiting his retirement benefits would not be made whole by an award of contract damages
resulting from wrongful discharge, even if he were awarded the expected retirement benefit.
The jury was entitled to believe that K Mart did more than merely discharge wrongfully and
without cause, that it went further. After involving itself in a relationship of trust and special
reliance between itself and its employee and allowing the employee to rely and depend on
continued employment and retirement benefits, the company, to serve its own financial
ends, wrongfully and in bad faith, breached the employment agreement.
company, to serve its own financial ends, wrongfully and in bad faith, breached the
employment agreement. The jury specifically found this reliance and concluded that K Mart
was guilty of bad faith. Under such circumstances we are loathe to set aside the tort verdict on
the ground that K Mart's misconduct does not rise to the level of wrong encompassed by the
definition of this tort as expressed in United States Fidelity and other Nevada cases.
Given the relationship of the parties and the circumstances of this case, it does not appear
that K Mart would be held adequately accountable by mere payment of contract damages. A
thief or embezzler is not thought to be held accountable for his crime by merely being
required to return the stolen or embezzled goods; an additional penalty must be imposed.
Merely having to compensate for its breach of contract would not hold K Mart and other
similarly situated employers accountable for this kind of bad faith.
Similarly, contract damages do not make the Ponsocks of the world whole. Merely giving
to Ponsock that to which he is contractually entitled does not make him whole, does not
compensate him for the injury, the insult, the wrong suffered at the hands of K Mart. For
these reasons we find that the jury's express finding that K Mart was guilty of bad faith was
supported by the evidence and that the district court's allowance of bad faith tort damages in
this case was without error.
Punitive Damages
[Headnote 15]
The jury awarded Ponsock $50,000.00 in punitive damages. K Mart claims that is was
error to instruct the jury on punitive damages. The instruction on this point provided that
punitive damages should be awarded only if (1) K Mart breached its duty of good faith and
fair dealing and (2) that it was guilty of actual oppression, fraud or malice. By awarding
punitive damages the jury must again be seen to have found K Mart guilty of bad faith and, as
well, to have found K Mart guilty of oppression, fraud or malice.
There is no difficulty in upholding the jury's finding oppression and malice in this record.
The legitimate inference that K Mart fired Ponsock to deprive him of his pension reeks of
oppression and malice. In addition, we note, that when Ponsock applied for relief at the
Unemployment Security Department, K Mart characterized Ponsock as a thief which, under
the circumstances of this case, could well have been construed as a wilfully defamatory act.
These facts, coupled with the course of conduct described above, justify a jury finding of
malice and oppression. Certainly it cannot be said as a matter of law that these elements are
absent from the record. The punitive damage award will be affirmed.
Although all legal justification for allowance of punitive damages were present, we
decided to disallow punitive damages in Hansen v. Harrah's, above, because it would not be
fair. In Hansen we held that although punitive damages might properly be awarded in a
retaliatory discharge case where the employee could demonstrate malicious, oppressive or
fraudulent conduct on the part of the employer, it would be unfair to punish employers for
conduct which they could not have known beforehand was actionable in this jurisdiction.
100 Nev. at 65, 675 P.2d at 397.
If, as the jury was entitled to infer, K Mart maliciously and oppressively discharged
Ponsock in order to defeat his retirement entitlement, K Mart cannot very well argue that it
could not appreciate the unlawful nature of its bad faith and that it should not therefore be
punished for it.
[Headnotes 16, 17]
The use of punitive damages in appropriate cases of breach of the duty of good faith and
fair dealing expresses society's disapproval of exploitation by a superior power and creates a
strong incentive for employers to conform to clearly defined legal duties. Such duties are so
explicit and so subject of common understanding as to justify the punitive award.
Other contentions of K Mart have been considered and rejected. The judgment of the
district court is affirmed.
Gunderson, C. J., and Steffen, Young and Mowbray, JJ., concur.
____________
103 Nev. 53, 53 (1987) Glenda S., A Minor v. State
GLENDA KAY S., A Minor, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 17232
February 24, 1987 732 P.2d 1356
Appeal from the juvenile court's disposition of minor Glenda Kay S.; Sixth Judicial
District Court, Humboldt County; Jerry V. Sullivan, Judge.
Petition charged child with battery at school committed against junior high school
schoolmate. The district court committed child to girls' training center for one year, and child
appealed. The Supreme Court, Springer, J., held that: (1) child who was never formally
adjudicated delinquent child could not have been legally committed to training center; (2)
commitment of child, who had never been adjudicated delinquent and had never been on
juvenile probation, was improper; and (3) in all cases in which disposition included order or
commitment to training center or comparable institution, judge of juvenile division had to
state on the record, in presence of juvenile, reasons for selecting such a disposition,
stating in particular why disposition served welfare of child or interest of state or both.
included order or commitment to training center or comparable institution, judge of juvenile
division had to state on the record, in presence of juvenile, reasons for selecting such a
disposition, stating in particular why disposition served welfare of child or interest of state or
both.
Robert Bork, State Public Defender, Michael K. Powell, Chief Appellate Deputy Public
Defender, Carson City, Kay Ellen Armstrong, Deputy Public Defender, Humboldt County, for
Appellant.
Brian McKay, Attorney General, Carson City; Jack Bullock, District Attorney, Wilbur H.
Sprinkle, Deputy District Attorney, Humboldt County, for Respondent.
1. Infants.
Child who was never formally adjudicated to be delinquent child could not have been legally committed
to girls' training center for confinement.
2. Infants.
Imposition of one year sentence on juvenile committed to girls' training center for confinement was
inappropriate; proceedings in juvenile court were not criminal in nature, it was only in adult system that
court should sentence defendant to imprisonment for definite period of time, and children committed to
girls' center were released by superintendent of school by agreement with Chief of Youth Parole Bureau.
NRS 62.193, 62.211, 176.033, 210.670.
3. Infants.
Preferred or presumed disposition of child adjudicated delinquent must be placement in child's home
unless it appears to juvenile division that continued home residence would not be conducive to child's
welfare or best interest of state. NRS 62.031, subd. 1, 62.211.
4. Infants.
Although it may become necessary, when all other measures fail, to place child adjudicated delinquent in
training center, when delinquent has shown himself to be beyond parental or other adult control and beyond
control of court, and all other measures have failed, instances in which it is necessary to put delinquent in
training center are rare, and caution is to be exercised that child's welfare is not used as rationalization for
transporting juvenile nuisances from their homes and communities.
5. Infants.
Child who formally admitted in open court to having committed delinquent act of battery, based on her
having struck junior high school schoolmate should not have been committed to girls' training center,
which was place of involuntary confinement and punitive incarceration.
6. Infants.
In all cases in which disposition of delinquent child includes order of commitment to training center or
comparable institution, judge of juvenile division must state on the record, in presence of juvenile, reasons
for selecting such a disposition, and must state in particular why disposition serves welfare of child or
interest of state, or both.
7. Infants.
Concern over what judge perceived to be flippant attitude on part of child charged with committing
battery at school on schoolmate did not justify penalty imposed, of one year commitment to girls' training
center, which was place of involuntary confinement and punitive incarceration.
OPINION
At issue in the appeal is whether the juvenile division of the district court abused its
discretion in committing to the girls' training center a thirteen-year-old girl who had struck a
schoolmate. We reverse the commitment order and declare standards to be followed in
ordering delinquent children committed to state training centers.
Glenda had been involved in an ongoing quarrel with a schoolmate at Winnemucca Junior
High School. On February 11, 1985, she struck the girl. There is nothing in the record to
indicate that the other girl was injured or that this was a serious or aggravated battery. On
February 12, 1985, Glenda was arrested and locked up. Inexplicably, she was kept in
detention from that day until March 10, the date on which the district judge pronounced
sentence to the Nevada Girls' Training Center for a period of one year. The order of
commitment was signed March 11, 1985. The total period of detention of Humboldt County
together with confinement in the training center cannot be determined from the record now
before us.
[Headnote 1]
The petition charging the battery at school was filed on February 20, 1985, and on
February 24, 1985 Glenda formally admitted in open court to having committed the
delinquent act of battery. The child was never formally adjudicated to be a delinquent child.
1

On March 10, 1985, a dispositional hearing was conducted in the juvenile division. No
testimony or other evidence was taken at this hearing, and the court gave no reasons or
grounds for incarcerating Glenda. The court's dispositional decision must necessarily rest
entirely upon the report and recommendation of the juvenile probation department as that is
all that was before the court at the dispositional hearing. The juvenile authorities
recommended that Glenda be placed on probation and be given counseling.
____________________

1
Since Glenda is not an adjudicated delinquent, she cannot have been legally committed to the Girls' Training
Center. A Minor v. Juvenile Division, 97 Nev. 281, 630 P.2d 245 (1981). Nevertheless, we go on to consider
other aspects of the commitment order.
mended that Glenda be placed on probation and be given counseling.
From the juvenile probation report we learn that Glenda was, at the time of the school
contretemps, thirteen years and seven months old. The girl was residing with her natural
mother, a nurse, and her father, a railroad employee. According to the reporting officer,
Glenda had a close relationship with her mother. Glenda confirms this and told the
probation officer that she had a lovely home and a caring family.
Glenda has no record of adjudicated delinquency but had once been referred to juvenile
officials for a petit larceny. Glenda's problems stem entirely, it seems, from her school
situation. The probation report lists a number of continuing disciplinary problems noted by
the school principal. Glenda's grades range from A in Mathematics to D in Social
Studies.
The report indicates that during her four weeks' detention awaiting the dispositional
hearing, Glenda did not at first respond well to being locked up but that later there was a
marked improvement in Glenda's overall behavior. It appears from the report that Glenda
was putting forth effort to do better. Glenda told the probation officer: All I wish to do is
go home and start all over again, and I do believe I can because I have faith in myself.
At the dispositional hearing Glenda's counsel offered a counseling program through
Glenda's church and agreed with the recommendation of the probation officer that probation
and counseling comprised an appropriate dispositional program. Glenda said nothing. The
district attorney agreed with Glenda's attorney and the probation department's
recommendation of probation and counseling.
[Headnote 2]
Without stating any reasons for his decision to incarcerate the girl (other than, I did what I
thought was right, and if you don't like my decision, appeal me.), the judge announced from
the bench: I'm going to sentence you to the Nevada Girls' Training Center for a period of one
year.
2

The Nevada Girls' Training Center is a place of involuntary confinement and punitive
incarceration. See A Minor v. Juvenile Division, 97 Nev. 2S1, 2SS
____________________

2
The sentence for one year was inappropriate. Proceedings in juvenile court are not criminal in nature.
NRS 62.193. It is only in the adult system that the court shall sentence the defendant to imprisonment for a
definite period of time. NRS 176.033. The juvenile court act authorizes the juvenile court to [c]ommit the
child to the custody . . . of a public institution. NRS 62.211 (emphasis supplied). There is no provision for
committing a child for a one-year term. Children committed to the girls' center are released by the superintendent
of the school by agreement with the chief of the youth parole bureau. NRS 210.670.
Division, 97 Nev. 281, 288, 630 P.2d 245, 249 (1981). It has been pointed out by the United
States Supreme Court that it is of no constitutional consequenceand of limited practical
meaningthat the institution to which [a child] is committed is called an Industrial School.
The fact of the matter is that, however euphemistic the title, a receiving home' or an
industrial school' for juveniles is an institution of confinement in which the child is
incarcerated for a greater or lesser time. In re Gault, 387 U.S. 1, 27 (1967). The Supreme
Court in Gault goes on to describe the world of the child committed to these schools as one of
regimented routine and institutional hours. Instead of mother and father and sisters and
brothers and friends and classmates, [her] world is peopled by guards, custodians, state
employees and delinquents'. . . . Id. The question is whether, under the circumstances of this
case, the trial judge abused his discretion in committing Glenda to this type of an institution.
The stated purpose of the Juvenile Court Act in Nevada is that each child coming before
the court should receive such care, guidance and control, preferably in his own home, as will
be conducive to the child's welfare and the best interests of the state. NRS 62.031(1)
(emphasis supplied).
[Headnote 3]
The preferred or presumed disposition, then, must be placement in the child's home unless
it appears to the juvenile division that continued home residence would not be conducive to
the child's welfare or the best interest of the state. Put another way, the preference for home
placement must be honored absent some showing that the juvenile's remaining in the home
environment is contrary to the child's welfare or the state's interest in peace and good order.
There is no such showing here.
It is difficult to imagine any reason why taking Glenda away from her lovely home and
caring family could serve the child's welfare. It is almost as difficult to imagine how the
interest of the state could be served by committing this child to a training center.
[Headnote 4]
There are times, of course, when a juvenile delinquent's best interests mandate placement
in a controlled setting. When a delinquent has shown himself or herself to be beyond parental
or other adult control and beyond the control of the court, it may become necessary, when all
other measures fail, to put the delinquent in a training center. Such instances are rare and
caution should be exercised that the child's welfare not be used as a rationalization for
transporting juvenile nuisances from their homes and communities. Certainly one instance of
a child failing to follow some Rhadamanthine ruling of a [juvenile] court does not justify
instant removal to an industrial school, but a consistent course of noncooperation,
particularly when combined with a predilection to commit dangerous or destructive acts
does justify the court in resorting to commitment."
does not justify instant removal to an industrial school, but a consistent course of
noncooperation, particularly when combined with a predilection to commit dangerous or
destructive acts does justify the court in resorting to commitment. State ex rel. D.D.H. v.
Dostert, 269 S.E.2d 401, 414, (W.Va. 1980).
[Headnote 5]
It is difficult to argue on the record before us that the welfare of Glenda, a girl who has
never been adjudicated a delinquent and has never been on juvenile probation, would be
served in any way better than that recommended by her probation officer, namely,
probationary supervision and counseling while she continues to live with her parents at home.
This, obviously, is not a case in which the best interest of the state requires punitive
incarceration.
The state's interest and purpose in enacting laws relating to juvenile delinquency is well
put in the IJA-ABA Juvenile Justice Standards, Standards Relating to Disposition.
3
Standard
1.1 states that the
purpose of the juvenile correctional system is to reduce juvenile crime by maintaining
the integrity of the substantive law proscribing certain behavior and by developing
individual responsibility for lawful behavior. This purpose should be pursued through
means that are fair and just, that recognize the unique characteristics and needs of
juveniles, and that give juveniles access to opportunities for personal and social growth.
The integrity of the criminal law is maintained by seeing to it that those who commit
crimes are punished. This proposition necessarily applies to young as well as to older
criminals. Punitive incarceration in training centers may be justified in the case of the more
serious or repetitive offender because the offender deserves the punishment or because it is
necessary for commonly accepted utilitarian reasons of deterrence or incapacitation.
The state's interest is further served by training school commitment where the unique
characteristics and needs of juveniles can be recognized and served, and juveniles can be
given access to opportunities for personal and social growth.
Glenda, at worst a misdemeanant, does not deserve long-term incarceration. It would be
unreasonable to think that it is in the public interest to incarcerate thirteen-year-olds in
order to deter them or others from committing offenses of this nature.
____________________

3
IJA-ABA Juvenile Justice Standards is a publication of the Joint Commission on Juvenile Justice Standards,
which was appointed by the American Bar Association (Copyright, 1977, Ballinger Publishing Company). After
eight years of study, seventeen volumes covering the entire spectrum of the juvenile justice system were
approved by the ABA in 1979. The IJA-ABA Standards have in many respects become guideposts to the future
of juvenile law for legislators, judges, administrators, and agencies concerned with the juvenile justice system.
public interest to incarcerate thirteen-year-olds in order to deter them or others from
committing offenses of this nature.
It was an abuse of judicial discretion for the juvenile division to order Glenda committed
to the training center.
As noted, the juvenile court judge made no mention of his reasons for incarcerating
Glenda. One cannot help but think that had he attempted to articulate reasons for his decision,
the judge might very well have eschewed the training school commitment and followed the
recommendation of his probation officer.
[Headnote 6]
There are a number of reasons favoring a requirement that juvenile court judges state
reasons on the record for a decision to incarcerate. Doing so provides an objective focus to
the dispositional judge's thinking; it promotes a perception of fairness in the proceedings; it
enables the delinquent to understand the basis of the court's action; and it facilitates the
review process.
IJA-ABA Juvenile Justice Standards, Standards Relating to Dispositional Procedures,
Standard 7.1A requires that the judge should state for the record, in the presence of the
juvenile, the reasons for selecting the particular disposition. Such a statement is particularly
advisable when the disposition involves deprivation of liberty or other coercive intervention.
We now hold that in all cases wherein disposition includes an order of commitment of any
delinquent child to one of the training centers or comparable institutions, the judge of the
juvenile division must state on the record, in the presence of the juvenile, the reasons for
selecting such a disposition an must state in particular why the disposition serves the welfare
of the child or the interest of the state, or both.
Strong support for this holding can be found in Kent v. United States, 383 U.S. 541, 561
(1966), in which the United States Supreme Court held that a District of Columbia juvenile
court, in making the dispositional decision to transfer a minor from juvenile to adult
jurisdiction, must place on the record the reasons for such a decision. Deciding to incarcerate
a juvenile in a training center is of comparable weight and consequence to that of the transfer
decision; and, the subject juvenile is equally entitled to be given a statement of reasons in
either case.
[Headnote 7]
After hearing her daughter's sentence, Glenda's mother remarked that a year's incarceration
was too severe a penalty for the kind of minor altercation that occurred at school.
4
Our
review of the record reveals no basis for supporting the juvenile division's decision to
incarcerate this girl for a year or for any other term in the Girls' Training Center.
____________________

4
The mother may well have viewed her daughter's four weeks' imprisonment in a juvenile detention center as
ample punishment for her misdeed. There is nothing in this record which shows justification for the period of
precommitment detention, but this has not been raised on appeal.
of the record reveals no basis for supporting the juvenile division's decision to incarcerate this
girl for a year or for any other term in the Girls' Training Center. No one on behalf of the state
urged or even suggested that Glenda be committed to the training center. On the record, the
only conceivable precipitating event for the sentence occurred when the child smiled in the
courtroom.
5
There is simply no reason to believe that the counseling and probation
supervision in the child's home, as recommended by the probation officer, would not serve
the child and society in the best possible manner.
The order of commitment is reversed, and this matter is remanded to the juvenile division
for further proceedings.
Gunderson, C. J., and Steffen, Young and Mowbray, JJ., concur.
____________________

5
During the dispositional hearing the judge said: Take that smile off your face. This isn't fun. If you think
this is a joke, young lady, you forget it. While the judge may have been justifiably concerned over what he
perceived to be a flippant attitude on the part of the child, such concern does not constitute a valid basis for the
penalty imposed.
____________
103 Nev. 60, 60 (1987) Holiday Inn v. Barnett
HOLIDAY INN DOWNTOWN, Appellant, v.
DOROTHY BARNETT, Respondent.
No. 16638
February 26, 1987 732 P.2d 1376
Appeal from orders affirming the decision of an appeals officer in a worker's
compensation case, denying a motion to vacate the order affirming the decision of the appeals
officer, and awarding attorney's fees. Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
Employer appealed from orders of district court affirming decision of appeals officer in
worker's compensation case, denying motion to vacate order affirming decision of appeals
officer and awarding attorney fees. The Supreme Court held that: (1) notice of appeal of order
was untimely; (2) time limit within which claimant was obligated to challenge closure of her
claim never commenced; (3) although district court did not expressly state that employer's
motion to vacate was frivolous, such finding could be implied from its award of attorney fees;
and (4) employer's refusal to communicate with claimant's counsel, its filing of frivolous
motion to vacate and its taking of appeal solely for purposes of delay warranted award of
attorney fees and double costs incurred in appeal.
Affirmed; sanctions imposed.
Jerry Collier Lane, Las Vegas, for Appellant.
Dennis A. Kist, Las Vegas, for Respondent.
Motion to vacate order did not toll time within which to file notice of appeal, and notice of appeal, filed
more than 30 days after mailing of written notice of entry of order, was untimely. NRAP 4(a); NRCP
60(b)(3).
Time limit within which claimant in worker's compensation case was obligated to challenge closure of her
claim never commenced, where employer failed to send notice of closure to claimant's attorney. NRCP
5(b); NRS 616.567, subd. 2; SCR 182; Code of Prof.Resp., DR7-104(A)(1).
Although district court did not expressly state that employer's motion to vacate order affirming decision
of appeals officer in worker's compensation case was frivolous, such finding could be implied from its
award of attorney fees. NRS 616.544
Employer's refusal to communicate with claimant's counsel, its filing of frivolous motion to vacate and its
taking of appeal solely for purposes of delay warranted award of attorney fees and double costs incurred in
appeal. NRAP 38; Code of Prof.Resp., DR7-104(A)(1); NRCP 5(b).
OPINION
Per Curiam:
This is an appeal from orders of the district court affirming the decision of an appeals
officer in a worker's compensation case and denying appellant's motion to vacate the order
affirming the decision of the appeals officer.
1

On June 24, 1982, respondent was raped while working as a maid for appellant. On June
25, 1982, respondent filed an injury report regarding that incident. On June 30, 1982, William
White, a California attorney, informed appellant that respondent had retained White to
represent her in her worker's compensation claim. The letter also requested that all
correspondence regarding respondent's claim be forwarded to White's Beverly Hills office.
Thereafter, appellant determined that respondent's injuries were compensable, and paid her
medical and temporary total disability benefits.
On April 6, 1983, appellant sent respondent a letter advising her that her claim was closed
and that she had thirty days within which to appeal that decision.
____________________

1
Based on our review of the record and the briefs, we conclude that oral argument is unwarranted, and we
therefore proceed to resolve this appeal. NRAP 34(f)(1).
which to appeal that decision. That letter, however, was not sent to White's office; rather, it
was sent to respondent's home address. It is undisputed that appellant never sent any notice of
the closure of respondent's claim to attorney White.
On May 11, 1983, thirty-five days after the notice of closure was sent to respondent's
home, White filed a written notice of respondent's intent to appeal the closure of her claim.
On July 21, 1983, the hearing officer determined that respondent's notice of appeal was
untimely. Consequently, the hearing officer dismissed respondent's appeal for lack of
jurisdiction.
On August 17, 1983, respondent appealed the decision of the hearing officer to an appeals
officer. On January 25, 1984, counsel for appellant sent a letter to the appeals officer,
advising him of certain objections to a proposed decision submitted by White. Again,
however, counsel for appellant did not send a copy of that letter to White; instead, it sent a
copy to respondent's home address. On January 28, 1984, the appeals officer entered a
decision reversing the hearing officer's dismissal of respondent's appeal. In that decision, the
appeals officer specifically noted that appellant had failed to notify respondent's attorney of
the closure of respondent's claim. Because the appeals officer concluded that respondent's
attorney was entitled to notice of the closure of respondent's claim, the appeals officer
determined that the time for filing respondent's notice of appeal never commenced.
On February 13, 1984, appellant filed a petition for judicial review of the appeals officer's
decision. See NRS 233B.130. Again, the certificate of mailing attached to that document
reveals that respondent's attorney was not served with a copy of that document; rather, it
reflects that respondent was sent two copies of the petition with the notation one for
advisor. Appellant subsequently filed a motion to submit its petition for judicial review for
decision. Appellant contended that respondent abandoned her right to oppose the petition
because she had failed to file a response to the petition. Appellant also contended that the
appeals officer lacked jurisdiction to issue his decision because the hearing officer did not
entertain respondent's appeal on the merits. Again, appellant served only respondent with a
copy of its motion.
On March 15, 1985, and March 27, 1985, respondent, through Nevada counsel, filed
responses to appellant's motion to submit its petition. Respondent asserted that she never
received a copy of appellant's petition for judicial review, and that the first notice she had of
that petition was when she received a copy of appellant's motion to submit the matter.
Respondent then pointed out that the certificate of mailing attached to appellant's petition
indicates that it was served on January 7, 1984, thirty-seven days before the petition was
actually filed. In light of these facts, respondent argued that appellant's office procedure
may have broken down and that appellant's petition might not have been mailed to her.
respondent argued that appellant's office procedure may have broken down and that
appellant's petition might not have been mailed to her. Respondent further argued that the
appeals officer was not deprived of jurisdiction to enter his decision simply because the
hearing officer did not entertain the merits of respondent's appeal. Finally, respondent argued
that appellant's petition was frivolous.
On April 1, 1985, the district court held a hearing on appellant's motion to submit its
petition. The district court affirmed the decision of the appeals officer, concluding it was
neither clearly erroneous nor an abuse of discretion. Appellant did not file a notice of appeal
from the order affirming the decision of the appeals officer. Instead, appellant filed a motion
to vacate void order. On June 13, 1985, the district court entered an order denying the
motion to vacate. That order also awarded respondent attorney's fees in the amount $250.00.
This appeal followed.
[Headnote 1]
Preliminarily, we note this appeal contains a jurisdictional defect. The notice of appeal in
this case was filed on July 8, 1985, and states that this appeal is taken from the final
judgment in this judicial review proceeding entered herein on the 13th day of June, 1985.
The order of June 13, 1985, however, is not the final judgment in this matter; rather, the order
denied appellant's post-judgment motion to vacate the court's previous order of April 3, 1985,
affirming the decision of the appeals officer. NRAP 4(a) requires the notice of appeal to be
filed within thirty (30) days of the date of service of written notice of the entry of the
judgment or order appealed from. In the present case, written notice of entry of the order of
April 3, 1985, was mailed to appellant on April 5, 1985. Further, appellant's motion to vacate
that order pursuant to NRCP 60(b)(3) did not toll the time within which to file its notice of
appeal. See NRAP 4(a). Thus, on July 8, 1985, when appellant filed its notice of appeal, the
thirty day period set forth in NRAP 4(a) had already expired. Consequently, we lack
jurisdiction to entertain this appeal insofar as it challenges the lower court's order of April 3,
1985. See Walker v. Scully, 99 Nev. 45, 657 P.2d 94 (1983). Our review of this appeal shall
therefore be limited to the propriety of the order of June 13, 1985, denying appellant's motion
to vacate the order of April 3, 1985, pursuant to NRCP 60(b)(3). See, e.g., Smilanich v.
Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956).
Appellant first contends that the hearing officer correctly determined that he lacked
jurisdiction in this matter because respondent failed to file a timely notice of appeal from the
closure of her claim. See SIIS v. Partlow-Hursh, 101 Nev. 122, 696 P.2d 462 {19S5).
(1985). Appellant therefore asserts that neither the appeals officer nor the district court had
jurisdiction to enter their orders reversing the determination of the hearing officer.
Accordingly, appellant argues that the district court erred when it denied appellant's motion to
vacate. We disagree.
[Headnote 2]
NRS 616.567(2) provides that a claimant in a worker's compensation case must appeal the
closure of his claim within thirty days after the date that notice of the insurer's intent to close
the claim was mailed. In the present case, however, appellant had notice that respondent was
represented by counsel and that counsel had requested that all correspondence regarding
respondent's claim be sent to his office. Nevertheless, appellant failed to send notice of the
closure of respondent's claim to her attorney as required by NRCP 5(b). See also SCR 182
(formerly DR 7-104(A)(1)).
2
Therefore, under the circumstances of this case, we hold that
the time limit within which respondent was obligated to challenge the closure of her claim
never commenced. The district court, therefore, correctly affirmed the decision of the appeals
officer.
[Headnote 3]
Appellant next contends that, in a worker's compensation case, the district court may
impose attorney's fees against a party only if it finds that a petition for judicial review is
frivolous. See NRS 616.544. Appellant asserts that the district court did not expressly
determine that the petition for judicial review was frivolous and that, therefore, the district
court lacked jurisdiction to impose attorney's fees in this case. We disagree. Although the
district court did not expressly state that appellant's motion to vacate was frivolous, such a
finding may clearly be implied from the district court's award of attorney's fees. See IAMA
Corp. v. Wham, 99 Nev. 730, 669 P.2d 1076 (1983). Therefore, the district court did not err
when it awarded attorney's fees to respondent. Accordingly, we affirm the order of the district
court denying appellant's motion to vacate and awarding fees.
[Headnote 4]
Moreover, we conclude that appellant's conduct throughout the course of this dispute has
been reprehensible. In particular, throughout most of these proceedings appellant ignored the
fact that respondent was represented by counsel and therefore engaged in a series of
direct communications with respondent.
____________________

2
DR 7-104(A)(1), the predecessor to SCR 182, was in effect at all times relevant to the proceedings below,
and provided:
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he
knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
that respondent was represented by counsel and therefore engaged in a series of direct
communications with respondent. Such conduct was expressly forbidden by DR 7-104(A)(1).
Further, by refusing to communicate with respondent's counsel, appellant failed to comply
with NRCP 5(b), which mandates that where a party knows that an opposing party is
represented by counsel, service of process must be effected on that attorney representing the
opposing party. Finally, we note that appellant's motion to vacate was frivolous, and we
conclude that this appeal was taken solely for purposes of delay. Therefore, appellant shall
pay respondent $2,500.00 as and for the attorney's fees she incurred in this appeal; further,
appellant shall pay respondent an amount equal to double the costs she incurred in this
appeal. See NRAP 38; Imperial Palace v. Dawson, 102 Nev. 88, 715 P.2d 1318 (1986).
Appellant shall have thirty (30) days from the date of this opinion within which to make the
payment specified above, and to provide proof of such payment to the clerk of this court.
____________
103 Nev. 65, 65 (1987) Works v. Kuhn
WILLIAM J. WORKS, Appellant, v. HARRY KUHN and MARJORIE KUHN, dba
CAPITAL FIREWOOD & TREE COMPANY, Respondents.
No. 17203
February 26, 1987 732 P.2d 1373
Appeal from orders dismissing respondents' counterclaim and denying appellant's motion
for attorney's fees. First Judicial District Court, Carson City. Michael E. Fondi, Judge.
Buyer of Firewood brought suit against sellers asserting breach of warranty, fraud,
deceptive trade practices, violation of statute and a count entitled class action. Sellers
counterclaimed seeking damages for breach of alleged accord and satisfaction and malicious
abuse of legal process. Following settlement, the district court dismissed counterclaim and
refused to award attorney fees to buyer, and buyer appealed. The Supreme Court held that
buyer was not entitled to attorney fees.
Affirmed; sanctions imposed.
[Rehearing denied March 24, 1987]
Madison & Works, Carson City, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Respondents.
103 Nev. 65, 66 (1987) Works v. Kuhn
1. Costs.
Buyer was not entitled to attorney fees for frivolous counterclaim, where sellers alleged sufficient
grounds to support their counterclaim and there was no indication that counterclaim was unwarranted by
existing law or that counsel filed it for improper purpose. NRCP 11.
2. Malicious Prosecution.
Buyer was not entitled to attorney fees as damages for sellers' malicious prosecution of their counterclaim
for abuse of process, absent proof that sellers maliciously or otherwise improperly asserted their
counterclaim.
3. Costs.
Buyer was not entitled to attorney fees as prevailing party, where buyer agreed to sellers' offer to settle
prior to proceeding to trial and sellers voluntarily dismissed their counterclaim with prejudice prior to trial
based on buyer's acceptance of offer to settle action. NRS 18.010; NRCP 41(a)(2).
4. Attorney and Client.
Buyer's contentions on appeal of denial of attorney fees were so lacking in merit as to constitute frivolous
appeal, warranting sanction of costs and attorney fees against buyer's attorney. NRAP 38, 38(b), 39(a).
OPINION
Per Curiam:
This is an appeal from orders of the district court dismissing respondents' counterclaim
and refusing to award attorney's fees to appellant William Works.
In August of 1985, appellant Works purchased three cords of firewood from the
respondents. Works agreed to pay three hundred and sixty ($360.00) dollars for the wood and
respondents agreed to deliver it to Works' home. Subsequently, Works allegedly became
dissatisfied with the condition and quantity of the wood which respondents delivered.
Accordingly, on September 11, 1985, Works filed a complaint in the district court against
respondents asserting breach of warranty, fraud, deceptive trade practices, violation of statute
(NRS 581.450) and a count entitled class action, all in connection with the purchase of the
firewood.
Thereafter, respondents filed an answer and a counterclaim. Respondents asserted that,
prior to filing his complaint, Works had agreed to accept $90.00 from respondents in
satisfaction of any perceived defects in the wood. Respondents further asserted that they sent
Works $90.00, thus creating an accord and satisfaction. Accordingly, respondents'
counterclaim sought damages for breach of the alleged accord and satisfaction and malicious
abuse of legal process. Appellant subsequently filed a motion to dismiss the abuse of process
count of respondents' counterclaim. Prior to proceeding to trial, however, respondents offered
to settle the underlying complaint for five hundred dollars ($500.00) plus costs.
103 Nev. 65, 67 (1987) Works v. Kuhn
costs. Works agreed to this offer and filed an acceptance to the offer on February 3, 1986.
On February 19, 1986, however, Works filed a motion for attorney's fees. On March 4,
1986, the district court entered a judgment pursuant to the above-noted offer and acceptance
of judgment. On March 19, 1986, the district court entered an order denying Works' motion
for attorney's fees.
On March 11, 1986, Works filed a notice to set respondents' counterclaim for trial.
Thereafter, respondents field a consent to dismissal of their counterclaim with prejudice
based upon Works' prior acceptance of the offer of judgment. Works filed an opposition to
dismissal of the counterclaim on the morning of March 20, 1986. He argued that the
counterclaim should not be dismissed unless he was awarded attorney's fees. The district
court, however, entered an order later that afternoon dismissing respondents' counterclaim
with prejudice with each party to bear their own attorney's fees and costs.
Appellant first contends on appeal that the district court erred by dismissing respondents'
counterclaim without awarding attorney's fees as requested by appellant. Appellant contended
below that respondents' counterclaim for abuse of process was frivolous and was filed in
violation of NRCP 11. Therefore, appellant moved the district court to dismiss the
counterclaim and to award him attorney's fees as an appropriate sanction for respondents'
conduct. Appellant now contends that by subsequently consenting to a dismissal of their
counterclaim, respondents conceded all issues and claims raised by appellant in this motion to
dismiss and, therefore, the district court erred in refusing to award attorney's fees. We
disagree.
[Headnote 1]
Our review of the record on appeal reveals that respondents alleged sufficient grounds to
support their counterclaim. Further, we perceive no indication that the counterclaim was
unwarranted by existing law or that respondents' counsel filed it for an improper purpose. See
NRCP 11. Therefore, appellant's claim for attorney's fees predicated upon a violation of the
provisions of NRCP 11 was baseless. Further, as noted above, respondents' consent to
dismissal of their counterclaim expressly stated that it was based on the [appellant's]
acceptance of their Offer of Judgment. Respondents in no way conceded that their
counterclaim was filed for an improper purpose, or that appellant was entitled to attorney's
fees as an appropriate sanction pursuant to the provisions of NRCP 11. We conclude,
therefore, that appellant's contentions in this regard are groundless.
[Headnote 2]
Appellant next contends that judicial economy mandates that the district court should have
awarded appellant attorney's fees as damages for respondents' malicious prosecution of
their counterclaim.
103 Nev. 65, 68 (1987) Works v. Kuhn
damages for respondents' malicious prosecution of their counterclaim. Appellant asserts that
the failure of the district court to award attorney's fees will require him to file an additional
lawsuit against respondents for malicious prosecution. As previously noted, we perceive no
indication in the record on appeal that respondents maliciously or otherwise improperly
asserted their counterclaim for abuse of process. Moreover, although appellant contended
below that respondents asserted their counterclaim in violation of the provisions of NRCP 11,
the record reveals that appellant never contended below that judicial economy mandated an
award of attorney's fees as damages for the tort of malicious prosecution. Because appellant
did not raise this precise question below, we will not consider the issue on appeal. See Old
Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981, 983 (1981). Accordingly, we
conclude that appellant's contentions in this regard not only are improperly raised on appeal,
but they lack any foundation whatsoever in the record on appeal.
[Headnote 3]
Appellant further contends that the district court abused its discretion in refusing to award
attorney's fees pursuant to NRS 18.010. We disagree. NRS 18.010(2) provides that a district
court may award attorney's fees in specified circumstances to a prevailing party. (Emphasis
added.) This court has previously held that a party to an action cannot be considered a
prevailing party within the contemplation of NRS 18.010, where the action has not
proceeded to judgment. See Sun Realty v. District Court, 91 Nev. 774, 775 n. 2, 542 P.2d
1072, 1073 (1975); see also County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653
P.2d 1217, 1220 (1982) (NRS 18.010(3) appears to contemplate the award of fees following a
trial or special proceeding). In the instant case, appellant agreed to respondents' offer to settle
prior to proceeding to trial. Similarly, respondents voluntarily dismissed their counterclaim
with prejudice prior to trial based upon appellant's acceptance of the offer to settle the action.
Under these circumstances, we conclude that appellant cannot be considered as having
prevailed in this action Therefore, appellant was not entitled to attorney's fees under the
provisions of NRS 18.010, and the district court did not abuse its discretion in refusing to
award them.
Appellant also contends that he is entitled to attorney's fees because NRCP 41(a)(2)
provides that no action shall be dismissed except upon order of the court and upon such
terms and conditions as the court deems proper. Respondents correctly observe, however,
that federal courts have interpreted an identical federal rule to preclude the award of attorney's
fees where an action is dismissed with prejudice and no independent statutory authority
provides for such an award.
103 Nev. 65, 69 (1987) Works v. Kuhn
authority provides for such an award. See Colombrito v. Kelly, 764 F.2d 122, 133-134 (2nd
Cir. 1985). Appellant asserts that NRS 18.010 provides the requisite independent statutory
authority. As we previously observed, because appellant cannot be considered a prevailing
party, that statute provides no authority whatsoever for an award of fees. We conclude,
therefore, that the district court did not abuse its discretion by refusing to award fees pursuant
to NRCP 41(a)(2). We have considered appellant's remaining contentions and we conclude
they are without merit. Accordingly, we affirm the orders of the district court.
[Headnote 4]
Respondents assert that the circumstances surrounding this appeal justify our imposition of
sanctions against appellant pursuant to the provisions of NRAP 38. We agree and we
conclude that appellant's contentions on appeal are so lacking in merit as to constitute a
frivolous appeal and a misuse of the appellate processes of this court. See NRAP 38(b).
Accordingly, to discourage like conduct in the future, and in addition to the normal costs
taxable against appellant pursuant to NRAP 39(a), we hereby order attorney Works to pay
respondents one thousand five hundred dollars ($1500.00) to defray the expense and costs
that respondents have incurred in retaining counsel to represent them in this appeal. See
NRAP 38(b). Attorney Works shall pay this sum within thirty (30) days of the date of this
opinion and shall promptly furnish the clerk of this court with proof of such payment.
____________
103 Nev. 69, 69 (1987) Mazzan v. State
JOHN FRANCIS MAZZAN, Appellant, v. THE STATE
No. 16292
March 4, 1987 733 P.2d 850
Appeal from sentence of death. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court, 100 Nev. 74, 675 P.2d 409, affirmed conviction, but vacated sentence and
remanded. On remand, the district court sentenced defendant to death, and he appealed. The
Supreme Court held that prosecutor's reference to appellate review process did not invalidate
death sentence where statement heightened sentencing jury's awareness of gravity of its task.
Sentence affirmed.
David G. Parraguirre, Public Defender, Jane G. McKenna, Chief Appellate Deputy Public
Defender, Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Mere reference to process of appellate review does not invalidate death sentence.
2. Criminal Law.
In order to invalidate death sentence because of prosecutor's reference to process of appellate review,
defendant must show that because of nature of prosecutor's reference to process of appellate review, capital
sentencing jury failed to apprehend gravity of its task in determining whether death is appropriate
punishment.
3. Criminal Law.
Prosecutor's reference to process of appellate review during capital sentencing proceedings did not
invalidate death sentence where prosecutorial argument did not shift responsibility of determining whether
death was appropriate punishment to appellate court, but rather heightened sentencing jury's awareness of
gravity of its task.
4. Constitutional Law; Criminal Law.
Where, at time defendant committed crime, proportionality review of death sentence was required by
statute, prohibition against ex post facto laws required that court conduct proportionality review of death
sentence, notwithstanding subsequent amendment to abolish proportionality review requirement. NRS
177.055, subd. 2.
5. Homicide.
Imposition of death sentence for first degree murder was not excessive or disproportionate to penalty
imposed in similar cases in state, where defendant committed murder while engaged in commission of
burglary and robbery, and there were no mitigating circumstances, NRS 200.033.
OPINION
Per Curiam:
Pursuant to a jury verdict, appellant John Francis Mazzan was convicted of first degree
murder and was sentenced to death. See Mazzan v. State, 100 Nev. 74, 675 P.2d 409 (1984).
This court affirmed Mazzan's conviction, but vacated his sentence and remanded the case to
the district court for a second penalty hearing because Mazzan was denied effective assistance
of counsel during his first penalty hearing. Mazzan, supra. At Mazzan's second penalty
hearing, the jury found as aggravating circumstances that Mazzan committed the murder
while engaged in the commission of a burglary and robbery. The jury found no mitigating
circumstances sufficient to outweigh the aggravating circumstances and sentenced Mazzan to
death. We affirm the imposition of the death sentence against Mazzan.
Mazzan, a thirty-one year old hairdresser, and the victim were friends who spent much of
the last day of the victim's life together. The victim, who had given Mazzan permission to
spend the night at his residence, was found dead in a pool of blood the following morning.
The victim had been stabbed fifteen times and had died of internal organ damage and massive
blood loss. Many of the chest wounds had the same depth and angle, suggesting that the
victim was helpless when the violent attack began. There were a number of defensive wounds
on the victim's body, indicating that before he fell, fatally wounded, the victim had attempted
to shield himself from his assailant.
Investigators found virtually no money or drugs in the victim's residence, although the
victim was known to have quantities of both before his death. Two days following the
victim's death, Mazzan paid his delinquent rent from a large roll of bills. Based on this and
other evidence, the jury found that Mazzan had burglarized, robbed, and brutally murdered
his friend. We conclude that the record supports the jury's finding that this crime involved a
violent, premeditated murder committed in furtherance of a robbery and during a burglary.
See NRS 200.033.
[Headnotes 1-3]
Mazzan appeals the sentence of death on two grounds. First, Mazzan contends that his
capital sentence is invalid because of the prosecutor's reference to the process of appellate
review. In his closing argument at the second penalty hearing, the prosecutor stated:
Well, if you are convicted of murder, and you appeal and appeal and appeal, and if
sometime for whatever reasonand as the judge told you that's not before youthe
sentence is overturned or changed, and you have to come back to do it again, does that
mean we lay down and quit? You can't do that.
Mazzan argues that this statement presented an intolerable danger of bias toward a death
sentence because it implied that any error may be corrected later on appeal. To support this
contention, Mazzan relies on Caldwell v. Mississippi, 472 U.S. 320, 323 (1984) in which the
Supreme Court vacated a death sentence when the prosecutor urged the jury not to view
itself as determining whether the defendant would die, because the death sentence would be
reviewed for correctness by the State Supreme Court. The Court noted that it has always
premised its capital punishment decisions on the assumption that a capital sentencing jury
recognizes the gravity of its task and proceeds with the appropriate awareness of its truly
awesome responsibility.' Id. at 341. Since the prosecutor had sought to minimize the jury's
sense of responsibility, the Court held that the death sentence must be vacated and concluded
that it is constitutionally impermissible to rest a death sentence on a determination made
by a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant's death rests elsewhere." Id. at 329.
missible to rest a death sentence on a determination made by a sentencer who has been led to
believe that the responsibility for determining the appropriateness of the defendant's death
rests elsewhere. Id. at 329. In the present case. Mazzan argues that the prosecutor's remarks
mandate reversal. We disagree. Mere reference to the process of appellate review does not
invalidate a death sentence. The criminal defendant must also show that because of the nature
of the prosecutor's reference to the process of appellate review, the capital sentencing jury
failed to apprehend the gravity of its task in determining whether death is the appropriate
punishment. Here, the prosecutorial argument did not shift responsibility to the appellate
court, but rather heightened the sentencing jury's awareness of the gravity of its task. The
prosecutor's remarks did not constitute a Caldwell violation.
[Headnotes 4, 5]
Mazzan next contends that the death sentence in his case is excessive and disproportionate
to the penalty imposed in similar cases in Nevada. At the time this crime was committed,
NRS 177.055(2) required that this court review Mazzan's death sentence to determine
whether it is excessive or disproportionate to the penalty imposed in similar cases in this
state, considering both the crime and defendant.
1
This court stated that [p]roportionality
review' dictates that we compare all capital cases, as well as appealed murder cases in which
the death penalty was sought but not imposed, and set aside those death sentences which
appear comparatively disproportionate to the offense and the background and characteristics
of the offender. Harvey v. State, 100 Nev. 340, 343, 682 P.2d 1384, 1385 (1984). See Biondi
v. State, 101 Nev. 252, 699 P.2d 1062 (1985). Having compared Mazzan's offense,
background and characteristics to that of other capital defendants, we conclude that the
sentence of death is not excessive or disproportionate to the penalty imposed in similar cases
in this state. See, e.g., Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985); Rogers v. State,
101 Nev. 457, 705 P.2d 664 (1985); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985);
Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985). Our review of the record also reveals the
sentence of death was not imposed under the influence of passion, prejudice, or arbitrary
factor. Accordingly, we affirm the judgment of conviction and the sentence of death.
____________________

1
The United States Supreme Court has held that state courts are not constitutionally required to conduct
proportionality reviews of death sentences. Pulley v. Harris, 465 U.S. 37 (1984). NRS 177.055(2) was amended
to abolish the proportionality review requirement. This amendment became effective June 6, 1985. 1985 Stats.
ch. 527, Sect. 1, at 1597-1598. The prohibition against ex post facto laws requires that we apply the law as it
existed when the crime was committed. See Goldsworthy v. Hannifin, 86 Nev. 252, 468 P.2d 350 (1970).
Therefore, we must conduct a proportionality review of Mazzan's death sentence.
____________
103 Nev. 73, 73 (1987) Hampton v. Brewer
STEPHEN D. HAMPTON, Appellant, v. JAY W. BREWER, APPEAL OFFICER FOR
DEPARTMENT OF ADMINISTRATION, STATE OF NEVADA, Respondent.
No. 17727
March 4, 1987 733 P.2d 852
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Non-attorney sought declaration that he was entitled to represent claimants in
administrative proceedings held on contested workers' compensation claims. The district
court granted summary judgment in favor of Department of Administration. On appeal, the
Supreme Court held that statutory scheme clearly allowed only employer or insurer to be
represented by non-attorney agents.
Affirmed
Stephen D. Hampton, In Proper Person.
Brian McKay, Attorney General, Carson City, for Respondent.
Attorney and Client.
Workers' compensation claimants could not be represented in administrative proceedings held on
contested state industrial insurance claims by agents other than counsel; statutes clearly allowed only
employer or insurer to be represented by non-attorney agents. NRS 616.541, subd. 2, 616.5422, subd. 3.
OPINION
Per Curiam:
1

This is a proper person appeal from an order of the district court granting summary
judgment in respondent's favor.
Appellant filed a complaint in the district court seeking a declaration that claimants
seeking worker's compensation benefits could be represented in administrative proceedings
held on contested claims by agents other than counsel. Respondent answered the complaint
and thereafter the parties filed cross motions for summary judgment. On September 10, 1986,
the district court found that claimants seeking worker's compensation benefits were not
entitled to be represented by agents other than counsel during the administrative
proceedings at issue.
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon motion of
the respondent, we have determined that our decision should be issued in a published opinion. Accordingly, we
hereby issue this opinion in place of our Order Dismissing Appeal filed December 23, 1986.
103 Nev. 73, 74 (1987) Hampton v. Brewer
than counsel during the administrative proceedings at issue. Therefore, the district court
granted respondent's motion for summary judgment and denied appellant's counter-motion for
summary judgment. This appeal followed.
Summary judgment is appropriate only where no genuine issues of fact remain for trial and
one party is entitled to judgment as a matter of law. See NRCP 56(c); Pacific Pools Constr. v.
McClain's Concrete, 101 Nev. 557, 706 P.2d 849 (1985). In the present case, appellant
claimed that, pursuant to NRS 616.5422(3), he was entitled to represent claimants in
administrative proceedings held on contested worker's compensation claims even though he is
not an attorney. NRS 616.5422(3) provides:
The appeals officer shall, within 10 days after receiving a notice of appeal, schedule
a hearing for a date and time within 60 days after his receipt of the notice and give
notice by mail or by personal service to all parties to the appeal and their attorneys or
agents at least 30 days before the date and time scheduled. (Emphasis added.)
Appellant claimed the reference to agents in NRS 616.5422(3), supra, conferred upon
claimants the right to be represented by non-attorney agents in administrative proceedings
before the State Industrial Insurance System (SIIS). We disagree.
As respondent correctly pointed out below, NRS 616.5422(3), supra, must be read in
conjunction with NRS 616.541(2). See White v. Warden, 96 Nev. 634, 636, 614 P.2d 536,
537 (1980) (statutes must be construed in light of their purpose as a whole). NRS 616.541(2)
provides:
An insurer or employer may be represented in a contested case by private legal
counsel or by any other agent. (Emphasis added.)
We conclude that the statutory scheme set forth above is clear; the statutes in question allow
only an employer or an insurer to be represented by non-attorney agents in administrative
proceedings held on contested SIIS claims. Accordingly, the district court did not err by
granting respondent's motion for summary judgment.
Having reviewed the record on appeal, we conclude that appellant cannot demonstrate
error in this appeal, and that further briefing and oral argument are not warranted. See Luckett
v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976).
Accordingly, we hereby affirm the judgment of the district court.
2

____________________

2
In light of this disposition, we hereby deny as moot appellant's motion for leave to proceed in proper person
in this appeal.
____________
103 Nev. 75, 75 (1987) Caruso v. Nev. Emp. Sec. Dep't
NICHOLAS M. CARUSO, Appellant, v. NEVADA EMPLOYMENT SECURITY
DEPARTMENT, STATE OF NEVADA, STANLEY P. JONES, in his capacity
as Executive Director of the NEVADA EMPLOYMENT
SECURITY DEPARTMENT, and XEBEC, Respondents.
No. 16809
March 24, 1987 734 P.2d 224
Appeal from order granting motion to dismiss for lack of subject matter jurisdiction. Ninth
Judicial District Court, Douglas County; Norman C. Robison, Judge.
The district court dismissed unemployment compensation benefits claimant's petition for
judicial review, and claimant appealed. The Supreme Court held that claimant could only
secure judicial review of adverse decision of Employment Security Board of Review by filing
appeal to district court serving county in which claim was filed.
Affirmed.
Sharon E. Claassen, Carson City, for Appellant.
Crowell, Crowell, Crowell & Susich, Carson City, for Respondents.
Administrative Law and Procedure; Social Security and Public Welfare.
Claimant for unemployment compensation benefits was required to appeal decision of Employment
Security Board of Review to district court serving county in which claim was filed, and district court of any
other county lacked subject matter jurisdiction over petition for judicial review. NRS 612.530, subd. 1.
OPINION
Per Curiam:
1

This is an appeal from an order of the district court granting respondents' motion to
dismiss appellant's petition for judicial review for lack of subject matter jurisdiction. NRS
612.530(1).
Appellant filed an unsuccessful claim for unemployment compensation benefits in Carson
City, Nevada. The decision of the Employment Security Board of Review advised appellant
that he could secure judicial review of the board's adverse decision "by filing an appeal to
the district court serving the county in which the claim was filed," consistent with the
provisions of NRS 612.530{1).
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. On motion of
respondents, we have determined that our decision should be issued in a published opinion. Accordingly, we
hereby issue this opinion in place of our order dismissing appeal filed December 30, 1986.
103 Nev. 75, 76 (1987) Caruso v. Nev. Emp. Sec. Dep't
could secure judicial review of the board's adverse decision by filing an appeal to the district
court serving the county in which the claim was filed, consistent with the provisions of NRS
612.530(1). Appellant did not follow the board's instructions and, instead, filed a petition for
judicial review in the Ninth Judicial District Court, Douglas County, Nevada. Subsequently,
the district court granted respondent's motion to dismiss based on lack of subject matter
jurisdiction.
Appellant contends that the provisions of NRS 612.530(1) are not jurisdictional based on our
holding in Scott v. Nev. Employ. Sec., 70 Nev. 555, 278 P.2d 602 (1954). More specifically,
appellant contends that our decision in Scott contemplates that claimants be able to pursue
judicial review of decisions of the Employment Security Board of Review in the county of
their residence. This contention is without merit. In Scott, we noted that where a statute upon
a particular subject has provided a tribunal for the determination of questions connected with
the subject . . . the jurisdiction thus conferred is exclusive, unless otherwise expressed or
clearly manifested. . . . 70 Nev. at 559, 278 P.2d at 603-604 (quoting Minnesota Valley
Canning Company v. Rehnblom, 49 N.W.2d 553, 555 (Iowa 1951)) (emphasis added). The
legislature has, by explicit language, directed claimants to file their petitions for judicial
review in the county wherein the appealed claim was filed. While this legislative mandate
may occasionally result in hardship, it is not the function of this court to substitute its
judgment for that of the legislature. See Klosterman v. Cummings, 86 Nev. 684, 687, 476
P.2d 14, 16 (1970). The Ninth Judicial District Court lacked subject matter jurisdiction over
appellant's petition for judicial review and, accordingly, properly dismissed the case below.
We have considered appellant's remaining contentions, and we conclude that they lack
merit. We affirm the order of the district court.
____________
103 Nev. 76, 76 (1987) Dawson v. State
HENRY DANIEL DAWSON, JR., Appellant, v. THE
No. 17045
March 24, 1987 734 P.2d 221
Appeal from judgment of conviction of first degree murder with use of a deadly weapon
and from sentence of death; Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Defendant was convicted in the district court of first degree murder. Defendant appealed.
The Supreme Court held that: (1) there was sufficient evidence before jury at penalty hearing
to support finding beyond a reasonable doubt of commission of crimes of kidnapping and
attempted sexual assault, which were aggravating circumstances upon which death penalty
was based, and (2) prosecutor's statements in closing argument at death penalty hearing to the
effect that black defendant had a preference for white women and had had a physical
relationship with a white woman were prejudicially improper.
Affirmed in part; reversed in part.
Lynn R. Shoen, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
1. Homicide.
There was sufficient evidence before jury at penalty hearing to support finding beyond a reasonable
doubt of commission of crimes of kidnapping and attempted sexual assault, which were aggravating
circumstances upon which death penalty for first degree murder was based; although victim may have
entered defendant's vehicle voluntarily, it was improbable that victim, described as a reliable employee,
would have voluntarily left her work station unattended, and although there was no physical evidence of
rape, victim's body was found nude from the shoulders down.
2. Criminal Law.
Although prosecutor's statement during closing argument at penalty hearing bidding farewell to defendant
may have been inappropriately facetious, it did not rise to such a level of prejudice to defendant as to move
the court to set aside, on ground that prosecutor's remark was an expression of opinion on whether
defendant deserved death penalty, jury determination that death penalty should be imposed.
3. Criminal Law.
Prosecutor's words, I say let the light go out on defendant, as used in closing argument at penalty
hearing, was merely an invocation to jury asking that it impose death penalty and was not improper.
4. Criminal Law.
Prosecutor's comments in closing argument at death penalty hearing to the effect that black defendant had
a preference for white women and that he had had a physical relationship with white woman were
prejudicially improper, even if there was some logic to racial allusion and even if, as prosecutor claimed,
no racial bias was intended to be elicited by remarks.
OPINION
Per Curiam:
Dawson stands convicted of first degree murder and is under sentence of death.
sentence of death. The conviction is sustained, but the case is returned to the trial court for
resentencing.
Dawson's primary claims of error relate to the penalty phase of these proceedings.
1

Dawson's conviction of first degree murder stems from a brutal kidnapping, beating and
rape of a Las Vegas woman. Dawson is black; the victim was white.
[Headnote 1]
The aggravating circumstances upon which the death penalty is based are kidnapping and
attempted sexual assault. Dawson claims that there was was insufficient evidence before the
jury at the penalty hearing to support a finding beyond a reasonable doubt of the commission
of these crimes.
That Dawson kidnapped the victim is supported by the evidence. Although the victim may
have entered Dawson's vehicle voluntarily, it is improbable under the circumstances that this
victim, described as a very reliable employee, would have voluntarily left unattended her
work station at a gas station. The kidnap is further supported by Dawson's admission that he
forced the victim to remain in his car by use of a sticker being held against her body.
That Dawson at least attempted to assault the victim sexually is also supported by the
evidence. Even though no physical evidence of rape was discovered, the victim's body was
found nude from the shoulders down.
The jury was justified, from the evidence in this case, in finding beyond a reasonable
doubt that Dawson kidnapped the victim and attempted sexual assault, indicating that there
was some kind of sexual insult inflicted on the victim by Dawson.
[Headnote 2]
Dawson claims that his death sentence should be vacated by reason of prejudicial
statements made by the prosecutor during closing argument at the penalty hearing. First,
Dawson complains of the prosecutor's aside to Dawson during argument, Bye-bye, which
Dawson takes to mean the prosecutor's implication that in his opinion Dawson deserved the
death penalty. The entire objectionable but unobjected-to remark is set out in the margin.
2
For the prosecutor to bid adieu to the defendant is more of a prediction than an
expression of opinion.

____________________

1
Dawson did attack his conviction on the ground that statements which he made during his initial interview
with police detectives should have been excluded from the trial. He claims he was interrogated under custodial
detention, while not having been advised of his Miranda rights. We disagree because Dawson was not in
custody at the time of any supposed interrogation.

2
During the prosecutor's closing argument at the penalty hearing, the prosecutor stated:
For the prosecutor to bid adieu to the defendant is more of a prediction than an expression
of opinion. We have condemned the prosecutor's expression of opinion as to guilt or to
deserved penalty because such an opinion unfairly invites undue reliance on conclusions
personally endorsed by the prosecuting attorney as representative of the power and dignity of
the state. Collier v. State, 101 Nev. 413, 705 P.2d 1126 (1985). In Collier, we condemned the
prosecutor's melodramatic apostrophe: Gregory Alan Colier, you deserve to die.
The prosecutor's farewell in the case before us falls short of being an expression of an
opinion on whether Dawson deserved the death penalty or not. Defense counsel did not
object.
If prosecuting counsel's statement, bye-bye, to a defendant who himself has used the
expression in the course of the criminal investigation is inappropriately facetious, it does not
rise to such a level of prejudice to the defendant as to move this court to set aside, on this
ground, the jury determination that the death penalty should be imposed.
[Headnote 3]
Similarly, the prosecutor's words, I say let the light go out on Henry Dawson, is merely
an invocation to the jury asking that is impose the death penalty, in the same manner that
defense counsel was beseeching the jury to spare his client.
3

Although the prosecutor did announce in his aside to the defendant that he had an opinion
about the defendant and the crime, he did not, as we see it, directly or indirectly, express to
the jury that in his opinion, as a state official, Dawson deserved the death penalty.
[Headnote 4]
The prosecutor did, however, approach one subject in his argument to the jury that resulted
in unacceptable prejudice to Dawson in a death penalty hearing.
____________________
But the light of Leslie Shepard was shattered by the cold callous brutality of Henry Dawson. And like the
shattered lamp her light went out behind Caesar's Palace on March 7, 1985. And I say let the light go out
of Henry Dawson.
Mr. Dawson, I have been waiting throughout this trial to say this, and I know it's tempting with all the
tears on your behalf, it would still to me seem strangely one-sided. It's tempting to pass it by, but I still
have my opinion about you and this crime.
When Mr. Dawson was first interviewed on March 7, 1985 at his apartment, he cooperated up to a
point. He signed a consent to search but then the questions became too probative. They were too frank. It
was too much of a third degree. And then he became uncooperative, and, according to Detective Leavitt,
he said bye-bye.
Ever since I viewed the pictures of his victim, and I've contemplated the brutality of this murder, I
have waited for this moment. Mr. Dawson, bye-bye.

3
Defense counsel's words were: Please spare Henry's life.
Dawson in a death penalty hearing. Although the prosecutor's comment had evidentiary
support from testimony admitted during the guilt phase of Dawson's trial, its reiteration
during the penalty phase of the trial unduly implicated consideration of race. The prosecutor
reminded the jury that Dawson had a preference for white women and, further, that Dawson
had had a physical relationship with a white woman.
We find great difficulty in discerning any legitimate purpose for discussing such matters in
a proceeding designed to determine only the extent of punishment to be imposed on Dawson.
One must ask the ugly question: Does a black man's supposed sexual preference have
anything at all to do with whether he deserves to die for his deeds? Counsel for the state was
asked during oral argument of this appeal why Dawson's claimed penchant for white women
made him any more culpable and more deserving of death? Counsel's answer was: It
doesn't. It doesn't. Counsel argued still that the racial allusions were justified as being
collateral to the defendant's statements regarding getting a girl in his pocket.' He happened
to say a white girl.
The state's position seems to be that it was proper to comment on this volatile subject
because, as counsel argued, it would cause the jury to reflect on the mental state of the
defendant when he committed the crime; or, putting it another way, to show that the
defendant did not act spontaneouslythat he acted through a preconceived plan.
It is a bit difficult to thread through counsel's argument. The gist of the argument seems to
be that no racially derived prejudice was intended or resulted; that the defendant's claimed
disposition toward white women legitimately tended to show in some manner that Dawson
conceived of a plan to capture, rape and murder a white victim; and, apparently, that the
presence of such a plan was related to the issue of whether Dawson should live or die.
Rather than try to parse the niceties of appellate counsel's attempt to justify the actions of
the state's trial counsel in using this kind of material in a death penalty hearing, we
unhesitantly declare such conduct to be prejudicially improper even if there were some logic
to it and even if, as claimed, no racial bias was intended to be elicited by the remarks.
In a capital sentencing proceeding before a jury, the jury is called upon to make a highly
subjective, unique, individualized judgment regarding the punishment that a particular
person deserves.' Turner v. Murray, ___ U.S. ___, 106 S.Ct. 1683, 1687 (1986); Caldwell v.
Mississippi, 472 U.S. 320, 340 n. 7 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900
(1983) (Rehnquist, J., concurring)). Under the Nevada statute, the jury or three-judge panel
weighs the mitigating circumstances to arrive at a final decision as to whether the defendant
shall live or die.
die. It follows, therefore, that a prosecutor must be alert to avoid reintroducing evidence from
the guilt phase in the penalty phase if such evidence interjects racial overtones tending to
influence unfairly the trier-of-fact's perception of the defendant.
Because of the range of discretion entrusted to a jury in a capital sentencing hearing there
is a unique opportunity for racial prejudice to operate but to remain undetected. Id. Turner
distinguishes between the prejudicial impact of racial sentiments on a jury at the guilt phase
and at the penalty phase. Because of the delicate task which the trier of fact has in weighing
the mitigating circumstances against the aggravating circumstances, the kind and level of
prejudice which might not require reversal of a conviction may be sufficient to require
reversal of a death penalty.
It was totally unnecessary and clearly contrary to the interests of the state in bringing
convicted criminals to justice for the prosecutor to introduce this kind of hatred-engendering
forensics. We cannot let the death penalty stand under these circumstances. The penalty
judgment is reversed; and, the death penalty is vacated. The matter is remanded for a new
penalty determination before a newly empaneled jury.
____________
103 Nev. 81, 81 (1987) Leavitt v. Leisure Sports Inc.
JACK K. LEAVITT, DOROTHY M. LEAVITT and JACK K. LEAVITT, as Receiver of
ASPEN INN CORPORATION, Appellants, v. LEISURE
SPORTS INCORPORATION, a Nevada Corporation; MT. HOLLY
SKI CORPORATION, a Utah Corporation; CONRAD H.
KONING and AMY J. KONING, Individuals, Respondents.
No. 15324
March 30, 1987 734 P.2d 1221
Appeal from a judgment entered pursuant to a bench trial. Eighth Judicial District Court,
Clark County; Donald M. Mosley, Judge.
Shareholders of corporation formed to build and operate hotel brought action against
directors alleging breach of fiduciary duties, wrongful exploitation of corporate opportunity,
and wrongful interference with prospective economic advantage arising out of transactions
which took place when hotel proved unsuccessful. The district court found that shareholders
failed to prove that directors were guilty of actionable conduct, and appeal was taken. The
Supreme Court, Gunderson, C. J., held that: (1) evidence supported finding that directors
breached no fiduciary duty to corporation; {2) evidence was insufficient to support claim
that directors wrongfully exploited any opportunity that belonged to corporation; and {3)
evidence was insufficient to support claim that directors wrongfully interfered with
prospective economic advantage of corporation.
duty to corporation; (2) evidence was insufficient to support claim that directors wrongfully
exploited any opportunity that belonged to corporation; and (3) evidence was insufficient to
support claim that directors wrongfully interfered with prospective economic advantage of
corporation.
Affirmed.
Steffen and Mowbray, JJ., dissented.
Gifford & Vernon and Steven Glade, Las Vegas, for Appellants.
Combs, Curtas & Smith, Richard Segerblom, Las Vegas, for Respondents.
1. Corporations.
Corporate officer or director stands as fiduciary to corporation, and owes duty of good faith, honesty, and
full disclosure.
2. Corporations.
Corporate officer or director may validly contract directly with corporation, if, at time of making,
contract is fair to corporation.
3. Corporations.
Evidence supported finding of no breach of fiduciary duty to corporation on part of directors of
corporation formed to build and operate hotel, who, upon sale of hotel, negotiated ability to foreclose on
hotel if purchaser failed to pay lease fee on hotel land, which directors held through separate corporate
entity; shareholders in hotel corporation were aware that directors had negotiated ability to foreclose
through a separate corporate entity, and hotel corporation had adopted resolution to dissolve corporation
due to failure of hotel enterprise.
4. Corporations.
Evidence was insufficient to support claim by shareholders of corporation formed to build and operate
hotel that corporate directors, through a separate corporate entity, wrongfully diverted business opportunity
which belonged to corporation, when directors' separate corporate entity cancelled hotel purchaser's
sublease and took possession of hotel and property; shareholders of hotel corporation were aware that
directors would cancel sublease if land lease fee were not paid and refused to authorize hotel corporation's
payment of fee to avoid separate corporate entity from obtaining possession of hotel and property.
5. Torts.
Plaintiff alleging wrongful interference with prospective economic advantage must establish prospective
contractual relationship between plaintiff and third party, defendant's knowledge of prospective
relationship, intent to harm plaintiff by preventing relationship, absence of privilege or justification by
defendant, and actual harm to plaintiff as result of defendant's conduct.
6. Torts.
Evidence was insufficient to support claim of wrongful interference with prospective economic advantage
brought by hotel corporation shareholders against corporate directors who, through separate corporate
entity, held interest in property upon which hotel was located, and who, at time of trustee's sale of
hotel and property, announced that any purchaser would not acquire interest in
property; there was no proof that property's sale price would have exceeded amount
due on hotel mortgage so as to provide any benefit to hotel corporation, and conduct
of corporate directors, acting pursuant to their interest in property through separate
corporate entity which shareholders were aware of, was privileged.
who, at time of trustee's sale of hotel and property, announced that any purchaser would not acquire interest
in property; there was no proof that property's sale price would have exceeded amount due on hotel
mortgage so as to provide any benefit to hotel corporation, and conduct of corporate directors, acting
pursuant to their interest in property through separate corporate entity which shareholders were aware of,
was privileged.
OPINION
By the Court, Gunderson, C. J.:
This is an appeal from a judgment whereby the district court determined appellants had
failed to prove, to the court's satisfaction, that respondents had been guilty of actionable
conduct. We cannot fault the district court's findings and, therefore, affirm the judgment.
The Facts
Conrad and Amy Koning (the Konings) determined that an area of Mount Holly, Utah, had
potential for development as a ski resort. In 1969, they formed Leisure Sports Incorporation
(LSI) and negotiated with the State of Utah for a lease of the state owned land.
Jack and Dorothy Leavitt (the Leavitts) were neighbors of the Konings. These two couples
became friends and, as a result, socialized together. In fact, the Leavitts visited the Mt. Holly
area with their friends on several occasions. After discussion, the Leavitts decided to join the
Konings in developing a hotel on the Mt. Holly land. Jack Leavitt was experienced in real
estate and felt that this would be a profitable business venture. A preliminary agreement and
memorandum of intent was drafted by Jack Leavitt. The stated purpose of the agreement was
that the parties associate in order to develop, manage, and hold the planned hotel for
investment purposes. The two couples formed Aspen Inn Corporation (AIC) in order to
pursue this joint endeavor. Each couple contributed approximately $29,000 to the corporation
and in return, received fifty percent (50%) of the corporation's stock. Each of these four
people held a position as an officer and director of AIC.
The Konings' contribution to AIC was the value of the leased land ($26,100) and $3,000 in
cash. Under this arrangement, AIC paid no rent. However, an annual fee was paid by AIC
(via LSI) to the State of Utah. This fee was paid for three years by Dorothy Leavitt as
secretary-treasurer of AIC.
We note that prior to the formation of AIC, the Leavitts were aware of LSI and that the
Konings were the officers, directors and shareholders of that corporation.
shareholders of that corporation. Also, in 1972, the Konings formed another corporate entity.
Mt. Holly Ski Corporation (MHSC) provided certain services such as snow and garbage
removal to the tenants in the Mt. Holly area. Again, the Leavitts were aware of MHSC and
that the Konings acted as the officers, directors and shareholders of this corporation.
AIC obtained a loan from United Mortgage Trust (UMT) in order to build its hotel. The
loan of $105,000 was secured by a first trust deed on the hotel. Pursuant to the loan
documents, UMT did not receive an interest in the lot, and the Leavitts and Konings were
made guarantors of the loan to AIC. The hotel was built and opened for business in 1973. By
1974, AIC was seeking a buyer for the hotel. The relationship between the Leavitts and the
Konings was deteriorating. The hotel had failed to produce a profit for any given quarter of its
operation and both couples had contributed capital beyond that of their initial contribution.
In late 1975, AIC had three offers for the purchase of the hotel. Two offers were favored
by the Konings because the buyers were willing to make a substantial down payment. The
Konings felt this would result in a greater commitment to the success of the hotel. The
Leavitts vetoed these offers and favored an offer by their personal friend, Paul Sprague, to
whom AIC sold the hotel for $230,000 with a down payment of only $1,000. Sprague
assumed the UMT first trust deed (valued at approximately $88,000) and obtained a second
trust deed from AIC. The second trust deed was secured by the hotel. Additionally, LSI and
AIC assigned the land lease to Sprague. LSI retained the right to pay the annual fee if Sprague
failed to do so. The agreement directed that if Sprague failed to pay the fee, LSI (after due
notice) could cancel the sublease and obtain possession of the property. Under such an
agreement, neither AIC nor UMT would retain a security interest in the hotel if LSI cancelled
the sublease. As an experienced real estate broker, Jack Leavitt understood such a result.
Additionally, we note that Jack Leavitt negotiated the sale to Sprague and the necessary
documents were drafted by attorney Michael Leavitt (son of Jack and Dorothy Leavitt).
After the sale of the hotel, the Leavitts and the Konings discussed dissolution of AIC. By
December 15, 1975, the corporation had adopted a resolution to dissolve.
Sprague began operating the hotel in late 1975 and, after only two months, determined that
the hotel was a losing venture. Sprague abandoned the hotel and defaulted on all the related
obligations. UMT initiated foreclosure proceedings against Sprague. Jack Leavitt and Conrad
Koning were experienced real estate brokers and were aware that foreclosure on a first trust
deed could render a second trust deed valueless. Pursuant to written agreement, LSI
provided notice to AIC that the annual lease fee of $300 was delinquent.
written agreement, LSI provided notice to AIC that the annual lease fee of $300 was
delinquent.
On March 30, 1976, there was a meeting of AIC's board of directors. The Konings wanted
to initiate foreclosure proceedings against Sprague in order to attempt to protect the interests
of AIC. The Leavitts opposed such action and wanted to contributed funds (along with the
Konings) to clear the UMT delinquency. The Konings declined to contribute funds as they
were not in a position to incur such a financial obligation at the time. The Konings reiterated
that Sprague had failed to make the annual lease payment and that LSI was prepared to
terminate the lease if the fee was not received. Although the corporate account of AIC had
dwindled to less than $500, there was enough money available at this time to pay the annual
fee.
In July, 1976, LSI filed a notice to quit in order to terminate the sublease. This was four
(4) months after AIC's board of directors meeting where the Konings expressed the intent of
LSI to pursue this particular course of events if payment was not received. LSI re-entered the
property.
By October, 1977, UMT was prepared to conduct a trustee's sale of the hotel. Prior to the
trustee's sale (and purportedly upon the advice of counsel), the Konings recorded a document
with the Beaver County (Utah) recorder claiming their interest in the land and hotel. Conrad
Koning also appeared at the sale and announced that any buyer would not acquire an interest
in the property. UMT was the sole bidder at the sale and purchased the hotel for $25,000. The
Konings, however, refused to surrender possession of the hotel. UMT filed suit in Utah in
order to gain access to the hotel. The Utah court determined that equity prohibited LSI's
possession of the hotel and reinstated the LSI-AIC sublease. In 1980, all parties involved in
the Utah litigation settled the lawsuit. UMT received possession of the hotel and, in
exchange, relinquished all rights to a deficiency judgment from AIC. UMT later sold the
hotel. LSI continues to hold the master lease on the lot. The settlement, however, filed to
resolve any claims existing between the Leavitts and the Konings. In April, 1978, the instant
lawsuit was failed by the Leavitts. The following allegations were asserted:
1. The Konings were negligent in their functioning as directors of AIC because they
acted in their own interest by seizing AIC's asset.
2. The Konings failed to fulfill their obligations as per the preliminary agreement.
3. AIC was a third-party beneficiary to the master lease.
4. The Konings conspired to obtain AIC's real property.
5. The Konings converted and disposed of personal property which was contained
in the hotel.
6. LSI took possession of the hotel and retained all rents and profits. As a result, LSI
was unjustly enriched.
7. The Konings violated fiduciary duties owed to AIC.
1

After a bench trial, the district court entered judgment against the Leavitts. The district court
determined that there could be no breach of fiduciary duties because all the acts required of
the parties pursuant to the preliminary agreement had been performed. Additionally, the court
concluded there was insufficient proof as to any breach of fiduciary loyalties. Moreover, the
district court determined that the Konings acted in good faith and attempted to preserve
corporate assets. Furthermore, the court found the Leavitts had accepted the possibility that
the Konings would have an adverse interest to that of AIC by virtue of various contractual
arrangements. In addition, the court determined that the Leavitts had failed to sustain their
burden of proof as to the existence of a civil conspiracy and failed to prove any unjust
enrichment. There had been, the court noted, no showing that the Konings profited while
operating the hotel. Lastly, the district court noted, the Leavitts were never able to prove to
the court's satisfaction that any damages existed.
After examination of the record, we believe that appellants have failed to demonstrate that
the district court erred.
Fiduciary Duties
[Headnotes 1, 2]
It is generally recognized that joint ventures owe to one another the duty of loyalty for the
duration of their venture. A corporate officer or director stands as a fiduciary to the
corporation. This fiduciary relationship requires a duty of good faith, honesty and full
disclosure. Western Indus., Inc. v. General Ins. Co., 91 Nev. 222, 228, 533 P.2d 473, 476
(1975). Any alleged breach of such a duty is a question for the trier of fact after examination
of all the evidence. Id. We also note that a corporate officer or director may contract directly
with the corporation. Such contract are valid, if at the time of their making, they are fair to the
corporation. See NRS 78.140; Pederson v. Owen, 92 Nev. 648, 650, 556 P.2d 542, 543
(1976).
[Headnote 3]
Here, Conrad Koning and Jack Leavitt were both experienced in real estate transactions
and the effects of same. The Leavitts were guided by the advice of competent counsel during
all of the agreements entered into between the parties. The Konings were always open in
their dealings with the Leavitts.
____________________

1
The third and fifth allegations were dismissed at the time of trial pursuant to stipulation of the parties.

always open in their dealings with the Leavitts. When LSI negotiated the ability to foreclose
on the hotel if Sprague failed to pay the lease fee, there was no objection by the Leavitts. It
was not until the Konings pursued these contractual rights that the Leavitts chose to
complain.
We noted that the purposes for which AIC was formed had been fulfilled. AIC had
intended to develop and manage a hote. The corporate purpose ended when the hotel was sold
to Sprague. In fact, the Konings and the Leavitts had adopted a resolution to dissolve the
corporation. When Sprague defaulted on his obligations related to the hotel, the Konings (as
LSI) exercised their rights pursuant to prior negotiated agreements. In light of all the facts
existing at the time, we cannot say that the Konings breached any fiduciary duties owing to
what remained of the corporate status. The record does not impel findings contrary to those of
the district court.
Corporate Opportunity Doctrine
It is also generally recognized that a corporate fiduciary cannot exploit an opportunity that
belongs to the corporation. The difficulty arises, however, when attempting to ascertain if a
particular opportunity belongs to the corporation.
We first note that the usual factual situation which evokes consideration of the corporate
opportunity doctrine is not present here. Typically, the fiduciary is accused of diverting a
business opportunity which the corporation has an expectancy interest or property right.
Scrutiny generally reveals that the opportunity, in all fairness, should belong to the
corporation. E.g., Klinicki v. Lundgren, 695 P.2d 906, 910 (Or. 1985). This is not the
scenario involved here. An agreement was reached between the parties whereby LSI could
cancel the Sprague sublease. The Leavitts agreed to such an arrangement and when
confronted with the reality of it, they failed to pay the $300 fee in order to protect the
corporate interests about which they now express such concern. We again must point out that
the Leavitts were experienced in such transactions and were always represented by able
counsel. In these circumstances, it is not difficult to perceive why the trial court was
unpersuaded by arguments of the Leavitts.
[Headnote 4]
We agree with commentators who argue that the stricter rules related to the corporate
opportunity doctrine are necessary when dealing with a public corporation. A more flexible
approach, however, is dictated when dealing with a small corporation which is generally
contractual in nature. Brudney and Clark, A New Look at Corporate Opportunities, 94 Harv.
L. Rev. 997 (1981).
The small number of players in a private venture result in better communication between the
members. Additionally, agreements are entered into which are tailored to particular situations
and objectives. We cannot say that the Leavitts proved a deprivation of any corporate
opportunity owing to AIC. The record supports the trial court's determination that they failed
to do so.
Wrongful Interference With Prospective Economic Advantage
The Leavitts also argue that the Konings wrongfully interfered with a prospective
economic advantage of AIC arising from the trustee's sale. The Leavitts claim that the
Konings' conduct in announcing that any buyer of the hotel would not obtain a lease-hold
interest in the property resulted in the low sale price of the hotel.
[Headnotes 5, 6]
We note that this particular tort possesses the following elements: (1) a prospective
contractual relationship between the plaintiff and a third party; (2) the defendant's knowledge
of this prospective relationship; (3) the intent to harm the plaintiff by preventing the
relationship; (4) the absence of privilege or justification by the defendant; and (5) actual harm
to the plaintiff as a result of the defendant's conduct. Buckaloo v. Johnson, 537 P.2d 865, 872
(Cal. 1975). From a review of the record, it appears the trial court could properly decide that
the Leavitts failed to meet their burden of proof.
First of all, prospective contractual advantage in this situation would mean that the
trustee's sale would have produced more than the approximate $88,000 owed to UMT. This
would allow AIC to begin to collect on the obligation owed to it. Other than opinions
rendered by the parties that they believed that the hotel's fair market value exceeded
$230,000, there was no proof that the property's sale price would have exceeded the $88,000
owed to UMT. In 1979, the completely furnished hotel was advertised for sale at
$165,000.00. The trial court specifically inquired as to whether an appraisal had been
obtained and was informed that this had not been accomplished. We note that the hotel was
built for less than $160,000 (the initial investment of the parties and the construction loan).
Additionally, the hotel never produced a quarterly profit from the time of its inception. Thus,
the value of the hotel could actually have been less than what was owed to UMT.
Next, and perhaps more important, we note that the Konings' conduct at the trustee's sale
was privileged. Privilege can exist when the defendant acts to protect his own interest. See
Zoby v. American Fidelity Company, 242 F.2d 76, 79-80 (4th Cir. 1957); Bendix Corp. v.
Adams, 610 P.2d 24, 31 (Alaska 1980) (these cases dealt with wrongful interference of
contract which is a species of the broader tort of interference with prospective economic
advantage.
cases dealt with wrongful interference of contract which is a species of the broader tort of
interference with prospective economic advantage. Buckaloo at 869). Here, the Konings acted
to protect the interests they had acquired via a valid contract. Such action was motivated by a
desire to protect these interests and is privileged.
The Leavitts direct this court to IAMA Corp. v. Wham, 99 Nev. 730, 669 P.2d 1076
(1983), whereby respondent was found to have engaged in actions which had a detrimental
effect on the sale of some commercial property. The Leavitts contend that the district court
should have permitted recovery pursuant to our holding in that case. We note that in the
Wham case, the respondent was able to purchase the property at a greatly reduced price. This
is not the factual situation presently before this court. The Konings were not engaging in
conduct whereby they could purchase the hotel for a reduced value. They were merely
informing any interested parties of a property interest they had acquired by contract.
Additionally, in IAMA Corp., the trial court was satisfied as to a fair market value of the
involved property. Here, the trial court was not provided sufficient evidence to accomplish
this task. For these reasons, IAMA Corp., is distinguishable.
Conclusion
The attempt by four friends to engage in a profitable business venture failed. Once the
hotel was sold, the corporate purpose was finished. All that remained was dissolution of the
corporate status. However, problems continued to haunt the parties. In response, the Konings
attempted to exercise their contractual rights. The district court was required to scrutinize the
Konings' conduct. As a result, the court determined that there had been no violation of
fiduciary duties or any wrongful interference with prospective economic advantage. There is
substantial evidence to support these determinations, and constraints of the appellate process
preclude us from disturbing the judgment. Udevco v. Wagner, 100 Nev. 185, 189, 678 P.2d
679, 681 (1984). We need not consider the Leavitts' other contentions challenging various
findings by the district court. We have determined these findings are also supported by
substantial evidence. Accordingly, we affirm the decision rendered below.
Young and Springer, JJ., concur.
Steffen, J., with whom Mowbray, J., agrees, dissenting:
I respectfully dissent. In this appeal the Leavitts contend, among other things, that since
the Konings were at all pertinent times officers and directors of Aspen Inn Corporation
(Aspen), their conduct constituted a breach of their fiduciary duties to Aspen and the lower
court erred in not so finding.
Aspen and the lower court erred in not so finding. This Court has repeatedly held that reversal
of a lower court's decision is appropriate where there is no substantial conflict in the evidence
on any material point and the decision is manifestly contrary to the evidence. Avery v.
Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981). My review of the record revealed error
warranting reversal.
At all relevant times, Conrad and Amy Koning were the sole officers, directors and
shareholders of Leisure Sports Incorporation (Leisure). The State of Utah leased land to
Leisure to develop a ski resort. Leisure subleased parcels of the land to third persons. Services
at the ski resort are provided by Mt. Holly Ski Corporation (Mt. Holly). The Konings
organized and were officers, directors and majority shareholders of Mt. Holly.
On July 5, 1972, the Konings and Jack and Dorothy Leavitt organized Aspen for the
purpose of building a hotel at the ski resort. The Leavitts and Konings were each fifty percent
shareholders. All four were directors. The officers were: Conrad Koning, President; Amy
Koning, Vice-President, Jack Leavitt, Vice-President; and Dorothy Leavitt, Treasurer. As part
of the capital contribution to Aspen, the Konings, through Leisure, contributed a
forty-six-year sublease on one of the lots at the resort. The sublease was fully prepaid and was
contributed to Aspen free and clear.
Aspen then obtained a $105,000 construction loan from United Mortgage Company
(United), and built a twenty-one-room hotel on the lot. This loan was secured by a first trust
deed on the hotel in favor of United. The hotel was completed in the summer of 1973.
In November, 1975, Aspen sold the hotel to Paul and Alma Sprague for $230,000. The
Spragues agreed to assume the unpaid balance of the construction loan. A promissory note for
$112,829.92 (the Sprague note) was also executed in favor of Aspen, secured by a second
trust deed on the hotel. The sublease on the hotel land was assigned by Aspen to the
Spragues. The assignment additionally provided that the Spragues would pay Leisure $300.00
per year as an annual lease fee on the hotel lot. The assignment also gave Aspen the right to
cure any default under the sublease. The Spragues subsequently defaulted on their obligations
to United, Aspen and Leisure.
In a letter dated March 19, 1976, addressed to Jack Leavitt, Conrad Koning called for
discussion of Leisure's intention to terminate the sublease on the hotel lot for nonpayment of
the $300.00 annual fee owed by the Spragues. At a directors' meeting shortly thereafter, Mr.
Koning announced his intention to terminate the sublease and take over the hotel on behalf of
Leisure if the $300.00 was not paid. Jack Leavitt informed Koning that his willingness to
destroy their mutual investments in Aspen to protect Leisure on a mere $300.00 debt
evidenced a conflict of interest.
willingness to destroy their mutual investments in Aspen to protect Leisure on a mere
$300.00 debt evidenced a conflict of interest.
The Leavitts did not cure the nonpayment of the $300.00 lease fee on behalf of Aspen
because it wasn't their obligation to pay for it and, faced with the overwhelming financial
burden involved in preventing a foreclosure by United, payment of the $300.00 would have
been money down the drain.
1
In late March, 1976, the Spragues abandoned the hotel.
On July, 26, 1976, the Konings entered the hotel, changed the locks and posted a sign on
the door declaring the hotel to be the sole property of Leisure. On August 3, 1976, the
Konings filed a Statement of Facts and Notice of Cancellation of Leasehold with the
Beaver County Recorder in Beaver, Utah, stating that the underlying subleasehold interest
was thereby cancelled and that the property, appurtenances and improvements were the sole
property of Leisure.
2
The single reason for seizure of the hotel was nonpayment of the
$300.00 debt owed to Leisure.
In a letter dated November 10, 1976, addressed to the Leavitts, Mr. Koning wrote:
As you know, Leisure Sports Inc. has canceled the underlying leasehold interest on the
Aspen Inn for nonpayment of the annual lease, and taken possession of the property and
is now paying it's [sic] cost of operation and maintenance.
. . . The Aspen Inn Corporation's security interest in the property are [sic] just as surely
gone as if the hotel while in the hands of Sprague, being uninsured had burned down.
On February 18, 1977, Leisure transferred the hotel and leasehold to Mt. Holly in return
for stock.
In October, 1977, the Konings received notice that United had elected to sell the hotel
pursuant to its rights under its first trust deed. A trustee's sale was noticed for October 27,
1977, on the steps of the Beaver County courthouse. Two days before the trustee's sale, the
Konings filed a Notice of Beneficial Interest with the Beaver County Recorder informing
any potential bidders that they would not be acquiring any interest in the property whatsoever.
This warning was repeated by Conrad Koning on the Beaver County courthouse steps
immediately preceding the trustee's sale.
____________________

1
The record indicates Aspen had only $532.27 in its account at that time.

2
Under Utah Code. Ann. 57-3-2 (1953), a presumption arises that a recorded writing affecting real estate
gives notice to all persons of its contents.
United purchased the hotel at the trustee's sale for $25,000. The Konings refused to honor
the trustee's deed for the hotel and would not surrender possession of the hotel. United then
filed an action to quiet title, to obtain possession and to recover a deficiency judgment. The
Konings, Mt. Holly, Leisure, Paul Sprague and the Leavitts were named as defendants. The
Utah action eventually was settled by the parties and dismissed with prejudice.
Subsequently, a shareholders' derivative action was brought on behalf of Aspen by the
Leavitts against the Konings, Leisure and Mt. Holly. The Leavitts also sued for damages
suffered individually. The trial court found that the Konings acted in good faith and did not
breach any fiduciary duty owed to Aspen. Whether the Konings were acting on behalf of
Leisure, Mt. Holly, or individually, I disagree with the lower court's decision.
It is well established that corporate officers and directors have a fiduciary relationship with
their corporation. Among those duties which officers and directors owe their corporation are
undivided loyalty, good faith, honesty and full disclosure. Western Indus., Inc. v. General Ins.
Co., 91 Nev. 222, 533 P.2d 473 (1975); Nicholson v. Evans, 642 P.2d 727 (Utah 1982).
These duties extend to all the corporation's assets. Officers and directors are obligated to
use their ingenuity, influence, and energy, and to employ all the resources of the corporation,
to preserve and enhance the property and earning power of the corporation, even if the
interests of the corporation are in conflict with their own personal interests. Nicholson, 642
P.2d at 730.
Moreover, as Justice Oakes stated in Nicholson:
The duty of the directors of a corporation is to further the interests and business of the
association and to conserve its property. Any action on the part of directors looking to
the impairment of corporate rights, the sacrifice of corporate interests, the retardation of
the objects of the corporation, and more especially the destruction of the corporation
itself, will be regarded as a flagrant breach of trust on the part of the directors engaged
therein [citation omitted].
Id.
In the present case, it is the Konings' conduct with respect to the major asset of Aspen, the
hotel, which gives rise to a breach of their fiduciary duty. The Konings allege that Leisure's
termination of the sublease was consistent with its express terms and therefore no fiduciary
duty was breached. Nevertheless, the relevant inquiry is not whether Leisure acted properly,
but whether the Konings acted improperly as directors and officers of Aspen. An officer may
be subject to liability when his acts or omissions constitute a breach under the general
principles applicable to the performance of his trust.
constitute a breach under the general principles applicable to the performance of his trust.
Bancroft-Whitney v. Glen, 411 P.2d 921, 936 (Cal. 1966).
Assuming Leisure had a legally enforceable claim upon the hotel's title as a result of the
nonpayment of the $300 debt, good faith required Leisure, and necessarily the Konings, being
officers and directors of both Leisure and Aspen, to take the hotel subject to the existing
security interests of United and Aspen. The record discloses, of course, that the Konings had
actual notice of both security interests. However, the Konings, through Leisure, recorded a
document that gave notice to all persons that the underlying subleasehold interest in Lot 16C
is hereby cancelled . . . and the leasehold property, appurtenances and improvements are the
sole property of the Lessor, LSI [Leisure]. . . . Moreover, Mr. Koning wrote the Leavitts,
informing them that Aspen had no security interest in the hotel. Finally, after transferring the
hotel to Mt. Holly in exchange for stock, Mr. Koning, as president of Mt. Holly, recorded a
document warning any bidders that they would be acquiring no interest in the property
whatsoever and repeated this warning at the trustee's sale on the Beaver County courthouse
steps.
While Aspen's treasurer, Dorothy Leavitt, did not pay the annual lease for reasons
specified in the statement of facts, supra, Mr. Koning, president of Aspen, made no effort
himself to pay the $300 allegedly owed to Leisure although he had authority to write checks
on the corporation's account.
3
Despite the fact that the Konings were officers and directors of
Leisure and Mt. Holly, they were likewise officers and directors of Aspen and therefore
bound by fiduciary duties to the latter corporation. Compliance with such duties is critical
when the corporation is in financial difficulty, as was Aspen. See Nicholson, supra, 642 P.2d
at 730. As corporate fiduciaries, the Konings were charged with the responsibility of
protecting Aspen's interests. The Konings' conduct surrounding the hotel's seizure and its
subsequent sale was performed in a manner hostile to Aspen's interest and brazenly
inconsistent with the undivided loyalty to which Aspen was entitled.
____________________

3
The sublease was initially conveyed to Aspen fully prepaid in exchange for Aspen stock. It is unclear on the
record why the $300 annual fee established in the assignment of the sublease to the Spragues should not have
inured to the benefit of Aspen. It is also unclear why any default in the payment of such an annual fee by the
Spragues would operate as a default against Aspen since the latter party presumably had paid full consideration
for the fully prepaid sublease. There was clearly no obligation under the terms of the sublease for Aspen to pay
Leisure the $300 annual fee which apparently was remitted each year to the State of Utah.
Moreover, where a foreclosure sale of property securing a debt has been tainted with fraud,
misconduct or unfairness, the debtor will have either a complete defense to an action to
collect the debt, or a setoff against the debt for impairment of security. 59 C.J.S. Mortgage
599 (1949). It would thus appear that Aspen's claim against the Spragues on the underlying
debt may be vulnerable to the challenge that the debt was discharged when Aspen's president
breached his fiduciary duty and impaired the security for the debt at the trustee's sale.
As a result of the Konings' conduct, it is difficult to determine what amount the trustee
might have secured beyond the balance due on United's priority debt if the sale had been free
of burdens attributable to the Konings' actions. Concerning the question of ascertaining
imprecise damages, this Court held in Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980), that:
The rule against the recovery of uncertain damages generally is directed against
uncertainty as to the existence or cause of damage rather than to measure or extent
[citations omitted]. However, if there is evidence that damage resulted from the
defendant's wrongful act and a reasonable method for ascertaining the extent of damage
is offered through testimony, the fact that some uncertainty exists as to the actual
amount of damage sustained, does not preclude recovery. Brown v. Lindsay, 68 Nev.
196, 228 P.2d 262 (1951). It is sufficient if the evidence adduced will permit the jury to
make a fair and reasonable approximation.
In addition, the United States Supreme Court in Story Parchment Co. v. Patterson Parchment
Paper Co., 282 U.S. 555 (1931), held that:
[t]he wrongdoer is not entitled to complain that they [damages] cannot be measured
with the exactness and precision that would be possible if the case, which he alone is
responsible for making, were otherwise [citation omitted]. As the Supreme Court of
Michigan has forcefully declared, the risk of uncertainty should be thrown upon the
wrongdoer instead of upon the injured party.
Given the great discrepancy between the fair market value of the hotel property, being
approximately $230,000, and the bid price of $25,000, it can be said with reasonable certainty
that damage did occur. Koning willfully sabotaged the trustee's sale and should therefore bear
the risk of any uncertainty in the amount of damages.
I am therefore satisfied that judgment should have been entered against the Konings for
one-half the balance of the Sprague note, plus costs and interest.4 Moreover, to insure that
the Konings could not profit from their wrongdoing, they should not be allowed to share
in or enjoy any portion of such a judgment.
plus costs and interest.
4
Moreover, to insure that the Konings could not profit from their
wrongdoing, they should not be allowed to share in or enjoy any portion of such a judgment.
In my view, judgment should therefore be entered in favor of Jack and Dorothy Leavitt
individually. See Pearlman v. Feldman, 219 F.2d 173 (2d Cir. 1955); Atkinson v. Marquart,
541 P.2d 556 (Ariz. 1975). In addition to the amount of one-half of the Sprague note, the
Leavitts and Aspen were forced to incur attorney's fees for having to defend themselves in the
Utah action because of the Konings' and Leisure's wrongful refusal to honor the trustee's sale
deed. These damages may be precisely established and should likewise be recovered.
Accordingly, I would direct that judgment be entered against the Konings reflecting such an
amount.
As a final point, since in my view the Konings should be obligated to pay one-half of the
note secured by the second trust deed, it would follow that the Konings, upon making such
payment, would succeed to Aspen's position vis-a-vis the Spragues. Then, if the Spragues
were determined to be liable for any portion of the Sprague note, despite the Konings'
conduct, the Konings necessarily would be entitled to that sum.
Since my review of the record reveals unwarranted overreaching amounting to a clear
breach of fiduciary duty by the Konings, I would reverse the judgment of the trial court as
noted above. I therefore respectfully dissent from the opinion of my brethren in the majority.
____________________

4
Since the Leavitts owned fifty percent of the Aspen stock, their share of the recovery on the Sprague
indebtedness would have been one-half of the balance collected on the note.
____________
103 Nev. 95, 95 (1987) Pendleton v. State
DANIEL THOMAS PENDLETON, Appellant, v. THE
No. 16771
March 31, 1987 734 P.2d 693
Appeal from judgment of conviction; Second Judicial District Court, Washoe County;
Robert Schouweiler, Judge.
Defendant was convicted of felony driving while under the influence before district court
and defendant appealed. The Supreme Court held that: (1) statements given to police officer
investigating battery upon defendant were not product of custodial interrogation, and thus
were admissible in prosecution of defendant for felony driving while under the influence,
and {2) actions of juror in visiting accident scene and relating to other jurors that
defendant's theory of causation of accident was unbelievable constituted juror
misconduct warranting new trial.
defendant for felony driving while under the influence, and (2) actions of juror in visiting
accident scene and relating to other jurors that defendant's theory of causation of accident was
unbelievable constituted juror misconduct warranting new trial.
Martin H. Wiener, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Reno; Robert
E. Wieland, Deputy, Reno; Timothy G. Randolph, Deputy, Reno, for Respondent.
1. Criminal Law.
In absence of evidence that United States had exclusive jurisdiction over land owned by United States
Bureau of Land Management, either through retention of jurisdiction under Nevada Admissions Acts, or by
obtaining exclusive jurisdiction through affirmative cessation of jurisdiction by state and affirmative
acceptance of jurisdiction of United States, district court had jurisdiction to try defendant for felony driving
while under influence arising out of defendant's actions on land owned by United States Bureau of Land
Management. NRS 171.010.
2. Criminal Law.
Defendant has burden of showing applicability of negative exceptions in jurisdictional statutes, and thus,
once state produces evidence that crime took place in county, it is incumbent upon defendant to prove that
incident took place on lands over which United States has exclusive jurisdiction.
3. Criminal Law.
For the purpose of determining whether defendant was required to be advised of his right to remain silent,
interrogation consists of express questioning and other acts designed to elicit incriminating statements.
4. Criminal Law.
For the purpose of determining whether police questioning amounted to interrogation within the meaning
of Miranda, questions must be such that they are designed to elicit statements to be used against a person
being questioned, not someone suspected of battering that person.
5. Criminal Law.
Statements made by defendant to police officer, investigating battery upon defendant by husband of
motorcyclist whom defendant had run over, admitting that he had been drinking prior to accident were
admissible in prosecution of defendant for felony driving while under influence, in view of the fact that
police officer was not aware that defendant was a potential defendant, and police officer could not have
anticipated using statements against defendant at time of questioning.
6. Criminal Law.
Juror's act of visiting accident scene some 17 months after accident, and relating her observations that
defendant's theory, that rough road and poor conditions of truck would have resulted in accident regardless
of whether defendant was drinking, was unbelievable, constituted juror misconduct, inasmuch as juror
essentially became witness for prosecution not subject to cross-examination regarding weather and road
conditions, and thus new trial for defendant convicted of felony driving while under
influence was warranted.
tions, and thus new trial for defendant convicted of felony driving while under influence was warranted.
7. Criminal Law.
Although procedure for alleging juror misconduct on motion for new trial usually involved submission of
affidavits of jurors, detailing misconduct of other jurors, so that district judge could then call hearing to
question affiant about matter, under circumstances of case, there was not infirmity in procedure utilized by
defense counsel of submitting his own affidavit alleging juror misconduct.
OPINION
Per Curiam:
This is an appeal from the judgment of conviction of one count of felony driving while
under the influence, NRS 484.3795.
1
The appellant was convicted of driving while having a
prohibited blood alcohol content and breaching a duty imposed by law, proximately causing
substantial bodily harm to one Valerie Osborne. He was sentenced to one year in the Nevada
State Prison. This appeal followed.
Pendleton alleges three errors on appeal. Each will be discussed in turn. Because we agree
that the facts show sufficient juror misconduct to warrant a new trial, we reverse and remand
for a new trial.
Pendleton was driving his employer's somewhat decrepit pickup truck along a dirt road in
the hills of Sun Valley, Washoe County. He was in search of a place to dump a load of refuse.
He passed a motorcycle and continued to the top of the hill. There he turned and headed back
down the hill, driving in the center of the road. As he approached the motorcycle, the truck
veered to the left and grazed the motorcyclist. The motorcycle slid along the side of the truck
as the truck went up an embankment at the side of the road. The motorcyclist, Valerie
Osborne, lost control and slid under the truck.
____________________

1
NRS 484.3795 provides in pertinent part:
1. Any person who, while under the influence of intoxicating liquor or with 0.10 percent or more by
weight of alcohol in his blood, or while under the influence of a controlled substance, or under the
combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests,
applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of
any of these, to a degree which renders him incapable of safely driving or exercising actual physical
control of a vehicle, does any act or neglects any duty imposed by law while driving or in actual physical
control of any vehicle on or off the highways of this state, if the act or neglect of duty proximately causes
the death of, or substantial bodily harm to, any person other than himself, shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 20 years and must be further
punished by a fine of not less than $2,000 nor more than $5,000.
slid under the truck. The truck then rolled back down the embankment and over Mrs.
Osborne, injuring her severely.
Pendleton stopped and helped Mrs. Osborne into the cab of the truck. As she sat there, her
husband, Mike Osborne, arrived with another man. A fight ensued wherein Pendleton was
severely beaten by Mr. Osborne. The beating stopped when a passerby fired a shotgun into
the air.
Police and ambulance crews arrived near the end of the fight. Pendleton and the Osbornes
were transported to a hospital. At the hospital, Pendleton was questioned by officer Straits.
After observing signs of intoxication, officer Straits determined to arrest Pendleton but did
not act on his decision or inform Pendleton of the decision because he was waiting to see if
Mrs. Osborne was sufficiently injured to warrant felony charges.
Officer Blakeslee was dispatched to the hospital to investigate the battery upon Pendleton.
Blakeslee asked Pendleton to describe the incident. During the conversation, describing the
circumstances leading up to the battery, Pendleton admitted having some alcohol to drink
prior to the accident. This statement later became the subject of a suppression motion.
At trial, Pendleton's theory of defense was that it was not his driving behavior that was the
cause of the injury to Mrs. Osborne. Instead, according to the defense theory, even had he
been driving slower and to the right of the center, the rough road and poor condition of the
truck would have resulted in the accident.
During the trial, some seventeen months after the accident, and when the road conditions
were different from the conditions of the day of the accident, one of the jurors visited the
scene with another person. As a result of her investigation, she determined that Pendleton's
theory of causation was unbelievable. She related the results of her investigation to the other
jurors.
[Headnote 1]
The parties concede that the incident took place on land owned by the United States
Bureau of Land Management. Pendleton argues that the courts of this state have no
jurisdiction to try such a case. We disagree. The district court has jurisdiction over crimes
committed in the county except for crimes committed where the United States has exclusive
jurisdiction. NRS 171.010. We find no evidence in the record to support the conclusion that
the United States has exclusive jurisdiction over the land in question.
A review of the Nevada Admission Acts reveals no retention of jurisdiction by the United
States over the land in question. Therefore, the only way in which the United States could
attain exclusive jurisdiction involves an affirmative cession of jurisdiction by the State of
Nevada and an affirmative acceptance of jurisdiction by the United States.
by the United States. Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885). See also,
United States v. Cliatta, 580 F.2d 156 (5th Cir. 1978). Furthermore, in Nevada, no cession of
jurisdiction is effective until it is recorded in the County Recorder's office. NRS 328.110.
[Headnote 2]
Because there is no evidence that Nevada has ever ceded exclusive jurisdiction over the
lands in question to the United States, Pendleton's argument must fail. The defendant has the
burden of showing the applicability of negative exceptions in jurisdictional statutes. State v.
Buckaroo Jack, 30 Nev. 325 (1908); State v. Mendez, 57 Nev. 192, 209, 61 P.2d 300, 305
(1963). Once the state produces evidence that the crime took place in the county, it is
incumbent upon the defendant to prove that the incident took place on lands over which the
United States has exclusive jurisdiction. Id. There being no such evidence in the record, we
conclude that the courts of this state had jurisdiction to try Pendleton.
Pendleton next contends that the district court erred in denying his motion to suppress the
statements made to officer Blakeslee. Specifically, he argues that the statements should have
been suppressed because they were obtained as a result of custodial interrogation before he
was advised of his right to remain silent. See Miranda v. Arizona, 384 U.S. 436 (1966).
It is undisputed that Pendleton was not advised of his right to remain silent prior to
speaking with Blakeslee. The question we are presented with, then, is whether the statements
were the product of custodial interrogation. We agree with the district judge that the
statements were not the product of custodial interrogation.
[Headnotes 3-5]
We note first that there is substantial evidence in the record of the hearing on the motion to
support the conclusion of the district judge that the questioning did not amount to
interrogation within the meaning of Miranda. Interrogation consists of express
questioning and other acts designed to elicit incriminating statements. Rhode Island v. Innis,
446 U.S. 291 (1980). Here, Blakeslee testified that his design was to investigate a battery
upon the appellant. He was not informed that Pendleton was a DUI suspect. As far as
Blakeslee was concerned, at the time of the questioning, he was interviewing a victim, not a
suspect. Cf. Brewer v. Williams, 430 U.S. 387 (1977) (where the officers making the
christian burial speech were attempting to elicit admissions). Blakeslee was attempting to
determine if another, Pendleton's attacker, was guilty of a crime. We think that where there is
no intent or design to elicit incriminating responses, there is no interrogation within the
meaning of Miranda.
responses, there is no interrogation within the meaning of Miranda. As the Supreme Court
noted in Innis, at 301, fn. 5, incriminating responses are those that the prosecution may wish
to use at trial. A fortiori, the questions must be such as are designed to elicit statements to be
used against the person being questioned, not someone suspected of battering that person.
Since Blakeslee was not aware that Pendleton was a potential defendant, he could not have
anticipated using the statements against him. We find no error in admitting the statements.
Pendleton also argues that the district court erred in denying his motion for a new trial. We
agree.
[Headnotes 6, 7]
The motion was made upon the grounds of alleged juror misconduct. Counsel for the
defense submitted his affidavit to the effect that two jurors had told him that another juror had
visited the accident scene and rejected Pendleton's causal argument. The juror related her
findings to the other jurors and essentially became a witness for the prosecutiona witness
who was not subject to cross-examination regarding the weather and road conditions. In
Russell v. State, 99 Nev. 265, 661 P.2d 1293 (1983), this court reversed a conviction where a
juror investigated the driving time between Reno and Carson City. The facts investigated by
the juror were crucial to the defense theory of the case and the juror was not subject to
cross-examination about traffic conditions, road conditions, weather and other variables. We
find the instant case remarkably similar to Russell. There was sufficient misconduct to
mandate a new trial. We note that the procedure for alleging juror misconduct usually
involves submission of affidavits of jurors, detailing the misconduct of other jurors. Under
such circumstances, the district judge then may call a hearing to question the affiant about the
matter. DCR 13. In the instant case, however, defense counsel submitted his own affidavit.
Questioning of the affiant would not adduce firsthand information that would warrant a new
trial. However, under the circumstances of this case we see no infirmity in the procedure
employed by defense counsel.
The prosecutor opposed the motion for the new trial and in the opposition related the
results of his own investigation. The prosecutor's investigation revealed that juror misconduct
was even more egregious than that presented by the defense counsel.
We think that where the prosecutor admits all the pertinent facts, he ought not to be heard
to complain that the form of the evidence of misconduct was not reliable. Since all the facts
establishing juror misconduct were admitted by the prosecutor, we hold that the district court
erred in denying the motion for a new trial. We therefore reverse and remand for a new trial.
____________
103 Nev. 101, 101 (1987) McCourt v. J. C. Penney Co.
HENRIETTA PETRONELLA McCOURT, Individually and as Guardian ad Litem for
SJOERA McCOURT, Appellants, v. J. C. PENNEY CO., INC., a New York
Corporation, Respondent.
No. 16102
March 31, 1987 734 P.2d 696
Appeal from the judgment upon jury verdict of the Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Three and one-half year old child, through her mother, brought products liability action for
injuries she sustained when her shirt caught on fire and she was burned over 50% of her body.
The district court entered judgment for defendant and plaintiff appealed. The Supreme Court
held that trial court abused its discretion in refusing to allow into evidence certain articles of
clothing manufactured of alternative safer fabrics, and pages from catalog, to impeach
opinion of defendant's experts that alternative fabrics were not commercially feasible, in
products liability action.
Galatz, Earl & Catalano and Daniel F. Polsenberg, Las Vegas, for Appellants.
David Goldwater and Gary E. Schnitzer, Las Vegas, for Respondent.
1. Evidence.
Trial court abused its discretion in refusing to allow into evidence, in products liability action involving
injury to three and one-half year old child burned over 50% of her body when her shirt caught fire, certain
articles of clothing manufactured of alternative safer, less flammable fabrics that were available at the time
child's jersey was sold, to impeach opinion of defendant's expert that fabric was not commercially feasible
as it was uncomfortable to wear, after plaintiff's expert had testified fabrics were commercially feasible and
were comfortable.
2. Evidence.
Ordinarily, questions of probative value of evidence are addressed to sound discretion of trial court and
will not be disturbed on appeal absent a showing of abuse, but where facts are sharply disputed and matter
is tried to jury, and there is proper foundation shown, court should allow evidence.
Erroneous exclusion from evidence of certain articles of clothing manufactured of alternative safer
fabrics, to rebut opinion testimony of defendant's expert that fabrics were not commercially feasible, in
products liability action stemming from injury to three and one-half year old child who received burns over
50% of her body when her shirt caught on fire, was not harmless error and required reversal.
4. Products Liability.
Trial court abused its discretion in excluding pages from defendant's catalog from appropriate years,
which stated that particular fabric was wash and wear fabric, to rebut defendant's expert opinion testimony
that fabric was not commercially feasible because it was not wash and wear, in products liability action
arising from injury to three and one-half year old burned over 50% of her body when her shirt caught on
fire.
Alternative design is one factor for jury to consider when evaluating whether a product is unreasonably
dangerous.
OPINION
Per Curiam:
Sjoera McCourt was three and a half years old when she was injured. She was wearing a
hand-me-down football jersey while playing with matches. Her shirt caught fire and she
was burned over 50% of her body. She suffered severe physical and psychological pain as
well as some neurological impairment.
Through her mother, Henrietta McCourt, she brought suit claiming that the jersey was
unreasonably dangerous because of its highly flammable nature. See, Cinnis v. Mapes Hotel
Corp., 86 Nev. 408, 470 P.2d 135 (1970). Henrietta also sued claiming negligent infliction of
emotional distress. The jury returned a verdict for the respondent, J. C. Penney Co. This
appeal followed.
[Headnote 1]
The McCourts assert that the trial judge erred in refusing to admit into evidence certain
articles of clothing manufactured of alternative safer fabrics that were available at the time
Sjoera's jersey was sold. We agree.
At trial, two experts testified, one for the McCourts and one for J. C. Penney Co. Each
agreed that alternative safer fabrics were available at the time Sjoera's jersey was sold.
Penney's expert, however, asserted that those fabrics were not commercially feasible. Some of
the fabrics, according to the expert, were not wash and wear. Others were uncomfortable to
the touch. Still others would not take certain dyes well. The expert for the McCourts testified
to the contrary. He testified that the alternative fabrics were commercially feasible. Thus the
issue of commercial feasibility was placed squarely at issue. In particular, the question of
comfort was disputed. Penney Co. claimed that it could not sell jerseys made of certain
fabrics because the fabrics were not comfortable. The McCourts' expert disagreed, testifying
that the alternative fabrics were sufficiently comfortable to be commercially feasible.
The McCourts sought to introduce a number of shirts made of the disputed fabrics. The
McCourts wanted the jury to feel the fabrics and decide for themselves whether or not the
fabrics were comfortable. Penney Co. objected on the grounds that the garments were not
children's football jerseys and thus were not admissible to show that the fabrics were
commercially feasible as children's football jerseys. The objection was sustained. The jury
was left to decide which expert they believed.
In Way v. Hayes, 89 Nev. 375, 513 P.2d 1222 (1973), we held that the district judge did
not abuse his discretion in refusing to allow a courtroom demonstration where the proponent
failed to present a foundation that the demonstration was substantially similar to the actual
conditions sought to be demonstrated. At issue in Way was the question of how the plaintiff's
hand came to be injured. The plaintiff claimed that she was hit when a repairman jerked open
the door of a nearby slot machine in such a manner as to strike the plaintiff. The defendant
disputed that claim. The plaintiff sought to demonstrate that her version of the events was
possible, but despite a continuance for the purpose, was not able to show a foundation that
her proposed placement of slot machines was similar to the actual placement of the machines.
We find the instant case quite different from Way. The evidence was to be introduced to
impeach the claim that the fabrics were not comfortable. The garments were made of the
same fabric that the expert for the Penney Co. claimed was not comfortable. The jury should
have been afforded the opportunity to decide for themselves whether or not the fabrics could
be used to manufacture comfortable clothing.
[Headnote 2]
Ordinarily, questions of the probative value of evidence are addressed to the sound
discretion of the trial court. We will not disturb that discretion absent a showing of abuse.
Way v. Hayes, supra. However, where the facts are sharply disputed and the matter is tried to
the jury, and there is a proper foundation shown, the court should allow the evidence. On the
facts of this case, wherein one expert claimed that the fabrics were not commercially feasible,
and another expert testified that the fabrics were commercially feasible, we think it was an
abuse of discretion to refuse to allow impeachment of the opinion of the experts.
[Headnote 3]
We cannot say that the error was harmless. Where there is a sharp conflict in the evidence
upon essential issues, as in this case, the error is more likely to be found prejudicial. Boyd v.
Pernicano, 79 Nev. 356, 385 P.2d 342 (1963). The proposed evidence was not the type of
evidence that would but marginally and partially rebut overwhelming evidence to the
contrary.
evidence was not the type of evidence that would but marginally and partially rebut
overwhelming evidence to the contrary. It was instead, directly relevant to the impeachment
of the expert's opinion.
[Headnotes 4, 5]
We find similar error in the exclusion of pages from the J. C. Penney catalogue from the
appropriate years. The Penney Co.'s expert testified that modacrylic, a safer fabric, was not
commercially feasible because it was not wash and wear. The proposed advertising
admitted that modacrylic is a wash and wear fabric. Had the jury been presented with this
evidence they might well have found that there was safer, alternative fabric available that was
commercially feasible. Alternative design is one factor for the jury to consider when
evaluating whether a product is unreasonably dangerous. Connor v. Skagit Corp., 664 P.2d
1208, 1212 (Wash. 1983). See also, Siruta v. Hesston Corp., 659 P.2d 799 (Kan. 1983).
We find it unnecessary to reach the other issues presented. Because we find prejudicial
error in excluding the proffered evidence, we reverse and remand for a new trial.
____________
103 Nev. 104, 104 (1987) Zobrist v. Farmers Ins. Exchange
RAY V. ZOBRIST, Appellant, v. FARMERS
INSURANCE EXCHANGE, Respondent.
No. 16931
March 31, 1987 734 P.2d 699
Appeal from summary judgment. Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Insured brought action to recover under automobile policy. The district court granted
summary judgment to insurer and insured appealed. The Supreme Court held that exclusion
in automobile policy for owned but uninsured cars was void to prevent payment of statutory
minimum $15,000 under uninsured motorist statutes, but valid to restrict payment of any
amount in excess of $15,000 minimum.
Affirmed.
Leavitt & Leavitt, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Respondent.
1. Insurance.
Person insured within meaning of uninsured motorist statute cannot be excluded from coverage by
provisions in policy. NRS 687B.145, subd. 2, 690B.020, subd. 2.
2. Insurance.
Exclusionary clause in automobile policy is void under uninsured motorist statute only to extent that it
would defeat minimum security required by statute, but valid to prevent recovery in excess of the
minimum. NRS 687B.145, subd. 2, 690B.020, subd. 2.
3. Insurance.
Exclusion in automobile policy for owned but uninsured cars was void to prevent payment of statutory
minimum $15,000 under uninsured motorist statutes, but valid to restrict payment of any amount in excess
of $15,000 minimum. NRS 687B.145, subd. 2, 690B.020, subd. 2.
OPINION
Per Curiam:
Farmers Insurance Exchange (Farmers) insured several cars owned by Zobrist under a
single policy with an underinsured motorist limit of $500,000. The policy also included an
uninsured motorist exclusion for owned but uninsured cars. Zobrist collided with another car
while driving his dune buggy, which was not insured under the policy. He received $15,000,
the policy limit, from the other driver. Farmers and Zobrist stipulated that the total amount of
damages exceeded this amount by $35,000.
The parties dispute the amount of underinsured motorist coverage available to Zobrist
under Farmers' policy. Zobrist claims that the applicable policy limits for underinsured
motorist coverage is equal to or exceeds $35,000. Farmers, on the other hand, contends that
the underinsured motorist coverage is limited to $15,000, the minimum required by statute.
Accordingly, Farmers paid $20,000 ($5,000 for interest and costs). On these stipulated facts,
the district court granted summary judgment in favor of Farmers and held that under the
insurance policy and NRS 690B.020, Farmers had not further obligation to Zobrist.
Nevada statutes required every motor vehicle liability policy to also provide coverage for
accidents with uninsured vehicles. NRS 690B.020. The amount of coverage to be provided
cannot be less than the $15,000 per person or $30,000 per accident required for liability
insurance, but may be equal to the limits of liability coverage purchased by the policy holder.
NRS 690B.020(2). Uninsured motorist provisions must also allow an insured to recover up to
the limits of his policy any amount which exceeds the policy limits of the other driver. NRS
687B.145(2) (underinsured motorist coverage).
Zobrist contends that these statutes require Farmers to provide coverage up to his
$500,000 policy limit regardless of whether he was driving a vehicle which was specifically
excluded in his policy. Farmers, on the other hand, contends that the statutes only require
Farmers to pay $15,000, and that the coverage exclusion is valid beyond the statutory
minimum.
[Headnotes 1-3]
A person insured within the meaning of the uninsured motorist statutes cannot be
excluded from coverage by provisions in the policy. State Farm Mut. Auto. Ins. v. Hinkel, 87
Nev. 478, 488 P.2d 1151 (1971). Nevertheless, an exclusionary clause is void only to the
extent that it would defeat the minimum security required by statute but valid to prevent
recovery in excess of the minimum. See Estate of Neal v. Farmers Ins. Exch., 93 Nev. 348,
566 P.2d 81 (1977); Transamerica Ins. v. State Farm Mut. Auto Ins., 492 F.Supp. 283
(D.Nevada 1980). We conclude that Farmers' exclusion of vehicles not insured under the
policy is void to prevent payment of the statutory minimum ($15,000) but valid to restrict
payment of any amount in excess thereof.
This conclusion balances state policy to provide minimum coverage to all persons with the
reality of the need to pay a premium for insurance coverage. We affirm the decision of the
district court.
____________
103 Nev. 106, 106 (1987) Williams v. State
OSCAR WILLIAMS, JR., Appellant, v. THE STATE
No. 16921
March 31, 1987 734 P.2d 700
Appeal from conviction of first-degree murder with use of a deadly weapon. Eighth
Defendant was convicted of murder before the district court and defendant appealed. The
Supreme Court held that: (1) prosecutor's statements during closing arguments, together with
his statements to media representatives constituted prosecutorial misconduct; (2) even if
defendant had preserved issue of prosecutorial misconduct for review, evidence of
defendant's guilt of murder was so overwhelming that misconduct was harmless; and (3) trial
court did not err in allowing testimony that defendant attempted to hire assassin to murder his
wife, in prosecution of defendant for murder.
Affirmed.
Beury & Schubel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
1. Criminal Law.
Prosecutor's closing argument that what defendant had in mind was not a date for dinner but a date for
death and his reference to Happy Valentine's Day from [defendant] to [victim] with malice constituted
an inappropriate holiday argument which had no purpose other than to arouse the jurors' emotions in
prosecution for murder that occurred on Valentine's Day.
2. Criminal Law.
Prosecutor's closing argument asking jurors to imagine what victim must have felt when she turned back
around to where she was shot and saw that it was the defendant and he had a gun improperly placed the
jury in a position of the victim.
3. Criminal Law.
Prosecutor's closing argument which used testimony, twice ruled inadmissible, that a policemen thought
defendant's chief alibi witness was lying constituted misconduct.
4. Criminal Law.
Prosecutor's closing argument that defendant purchased alibi testimony, although there was no evidence
from which to draw such an inference, constituted misconduct.
5. Criminal Law.
Prosecutor may not argue facts or inferences not supported by evidence, and nor may he disparage
legitimate defense tactics.
6. Criminal Law.
Prosecutor's statements to media representatives concerning intended witnesses and proof, in violation of
direct admonition from bench, constituted misconduct.
7. Criminal Law.
Prosecutor's primary duty is not to convict, but to see that justice is done. SCR 181, subd. 3.
8. Criminal Law.
Prosecutorial zeal is both natural and commendable, but it must be confined to well-defined norms in
order to convict fairly under aegis of state authority, and while prosecutors may give no quarter in
presentation of State's case they must nevertheless steel themselves against inappropriate conduct stemming
from heat of battle, vile nature of crime, or other stimuli.
9. Criminal Law.
In order to preserve for appellate consideration allegations of prosecutorial misconduct in closing
argument, accused must make timely objection, obtain ruling, and request admonition of prosecutor and
appropriate instruction to jury.
10. Criminal Law.
Even if defendant had preserved issue of prosecutorial misconduct for appellate consideration by making
timely objection, obtaining ruling, and requesting admonition of prosecutor and appropriate instruction to
jury, evidence of defendant's guilt in murder prosecution was so overwhelming that prosecutorial
misconduct, which included inappropriate closing arguments, was harmless and did not
require reversal of defendant's conviction for murder.
closing arguments, was harmless and did not require reversal of defendant's conviction for murder. NRS
178.598.
11. Criminal Law.
If misconduct by defense counsel produces acquittal, there is no right of appeal by State, and thus, if
misconduct precipitates a basis for review and reversal, defense counsel may assess result as positive, so
that in those instances where prosecutor is convinced that such misconduct is occurring, prosecutor should
make timely objection and make specific record outside presence of jury and then on appeal State may
appropriately direct Supreme Court's attention to misconduct by defense counsel, for court's consideration,
while if no appeal is taken, and magnitude of misconduct by defense is sufficiently serious, reference
should be made to appropriate disciplinary authority of state bar with evidentiary support from record.
12. Homicide.
Trial court did not err in allowing testimony of person whom defendant attempted to hire to kill his wife
and testimony of acquaintance through whom defendant made contact with prospective killer, that
defendant attempted to hire assassin to kill his wife, in view of the fact that attempt was unsuccessful and
did not amount to allowing State to proceed on dual theories of procuring and actually committing murder.
13. Criminal Law.
Trial court did not err in admitting into evidence clandestine recordings of encounters between defendant
and person whom defendant attempted to hire as assassin and acquaintance of defendant through whom
defendant made contact with prospective killer, after acquaintance and prospective killer decided to assist
authorities, in view of the fact that defendant was not in custody at time tape recorded conversation was
made and had not requested opportunity to speak with counsel.
14. Criminal Law.
Tape recorded conversation of encounters between defendant, individual defendant attempted to hire to
kill his wife and acquaintance through whom defendant made contact with prospective killer, although
difficult to understand, clearly demonstrated that defendant and informants shared secret concerning death
of defendant's wife which defendant wanted kept confidential, and thus probative value of recordings was
not so slight and risk of jury confusion so great as to render tapes inadmissible.
15. Criminal Law.
Although trial court erred in refusing to give specific jury instruction concerning credibility of informants'
testimony, error was harmless in light of overwhelming evidence of defendant's guilt of murdering his wife,
general instruction given on credibility, and the fact that informants' character flaws were exposed through
cross-examination.
16. Criminal Law.
Specific jury instruction concerning credibility of informants' testimony is favored even though
informants' testimony was corroborated by tape recordings, by close agreement between testimony of two
informants, and by fact that details of murder matched specifications given by defendant in his attempt to
hire killer.
Although in the past, Supreme Court has been reticent to identify perpetrators of attorney misconduct by
name, primarily out of reluctance to do counsel serious lasting professional injury, in the future, attorneys
who cannot conform to proper norms of professional behavior, whether inside or outside courtroom, should
recognize they are assuming risk of formal, public censure in Supreme Court opinions.
OPINION
Per Curiam:
Appellant murdered his wife, Toy Williams, by shooting her six times with a handgun.
Prior to the shooting, he had obtained a $150,000 insurance policy on her life, in addition to
$70,000 in previously existing insurance. Appellant had also attempted to hire an assassin; in
the process, he explained precisely how he wanted his wife's murder effectuated.
1

Although there were no witnesses to the shooting itself, several people arrived at the scene
in time to see the gunman flee. One witness saw a shadowy figure standing over Toy's body
and pointing a gun at it. Another witness followed that figure down the alley where the
shooting occurred, and noted that the man was carrying a bag or purse. Then Richard
Priesing, a motorist, saw a man whom he later identified as appellant leave the alley carrying
a bag or purse. Appellant was arrested, convicted and sentenced to life imprisonment without
possibility of parole. We affirm.
[Headnotes 1-6]
The principal issue on this appeal is whether prosecutorial misconduct necessitates
reversal of appellant's conviction. Unfortunately, the prosecutor's conduct was far from ideal.
For example, his closing argument included the following:
She didn't meet him for dinner, did she? That's because Mr. Williams had something
else in mind. What he had in mind was not a date for dinner. It was a date for death.
Happy Valentine's Day from Oscar to Toy with malice. Cupid uses arrows. Mr.
Williams used bullets on February the 12th, 1982.
It is quite clear that holiday arguments are inappropriate; they have no purpose other than to
arouse the jurors' emotions. Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977); Moser v.
State, 91 Nev. 809, 544 P.2d 424 (1975). The prosecutor also improperly placed the jury in
the position of the victim, see Jacobs v. State, 101 Nev. 356, 705 P.2d 130 (1985), by stating
the following:
[S]omething caused her to turn back around to where she is shot and discovered in
the position where she is found. Perhaps her name or a voice she recognized. In any
event, she turned around. Can you imagine what she must have felt when she saw that it
was the defendant and he had a gun? The prosecutor also used testimony, twice ruled
inadmissible, that a policeman thought appellant's chief alibi witness was lying.
____________________

1
The prospective assassin declined the task because of inadequate financial inducement.
The prosecutor also used testimony, twice ruled inadmissible, that a policeman thought
appellant's chief alibi witness was lying. Worse yet, he contended that appellant purchased the
alibi testimony although there was no evidence from which to draw such an inference. A
prosecutor may not argue facts of inferences not supported by the evidence. Collier v. State,
101 Nev. 473, 705 P.2d 1126 (1985). Nor may he disparage legitimate defense tactics,
Pickworth v. State, 95 Nev. 547, 598 P.2d 626 (1979), but in this case the prosecutor derided
impeachment of witness Priesing as a poor reward for a public-spirited citizen. And in
violation of a direct admonition from the bench (as well as a rule of professional conduct, see
SCR 199 (1985)), the prosecutor made statements to media representatives concerning
intended witnesses and proof. We conclude that there was clear and repeated prosecutorial
misconduct.
2

[Headnotes 7, 8]
Conduct of this nature implicates many of the rules governing members of the Nevada bar.
3
A prosecutor's primary duty is not to convict, but to see that justice is done. SCR 181(3)
(1985). Lawyers (including prosecutors) may not state facts which are not in evidence, or use
inflammatory arguments. SCR 195(3), 198(2) (1985). Their conduct should at all times be
characterized by honesty, candor and fairness. SCR 198(1) (1985). They must not make
statements intended improperly to influence the outcome of a case. SCR 198(4) (1985). And,
as previously noted, lawyers are to try their cases in the courts, not in the media. Prosecutorial
zeal is both natural and commendable, but it must be confined to well-defined norms in order
to convict fairly under the aegis of state authority. Moreover, while prosecutors may give no
quarter in the presentation of the State's case, they must nevertheless steel themselves
against inappropriate conduct stemming from the heat of battle, the vile nature of the crime
or other stimuli. We state the obvious because allegations of prosecutorial misconduct are
becoming standard fare in criminal appeals and we are unwillingindeed, not at libertyto
see the criminal justice system unnecessarily encumbered and extended by inappropriate
behavior on behalf of the State. SCR 199 (1985). Accordingly we are constrained to again
emphasize that those who violate these rules do so at their peril. SCR 102, 163 (1985).
[Headnotes 9, 10]
It does not necessarily follow, however, that the conviction must be reversed. In order to
preserve for appellate consideration allegations of misconduct in a closing argument, the
accused must make a timely objection, obtain a ruling, and request an admonition of
counsel and an appropriate instruction to the jury.
____________________

2
Appellant alleges several other instances of misconduct, but those allegations lack merit.

3
In this opinion we shall cite to the rules in effect at the time of trial.
allegations of misconduct in a closing argument, the accused must make a timely objection,
obtain a ruling, and request an admonition of counsel and an appropriate instruction to the
jury. Moser, supra. In the case at bar, this simply was not done. Further, even if appellant had
preserved the issue for review, the evidence of his guilt was so overwhelming that the
misconduct simply cannot be considered a factor in the outcome of the case. We have noted
in the past that we will not reverse where the case is free from doubt. Id. And although cases
must be tried in the courtroom rather than in the media, the trial court ruled that in this case
the jury was not affected by the broadcast which utilized the prosecutor's remarks. Since the
misconduct was harmless, it does not justify reversal. NRS 178.598.
[Headnote 11]
Before leaving the issues of misconduct, we desire to dispel any notion that this court
views the subject exclusively as a prosecutor's problem. We are not unaware that defense
counsel may perceive some incentive for trial misbehavior. If misconduct by defense counsel
produces an acquittal, there is no right of appeal by the State; if the misconduct precipitates a
basis for review and reversal, defense counsel may still assess the result as positive. In those
instances where the prosecutor is convinced that such misconduct is occurring, we strongly
urge a timely objection and the making of a specific record outside the presence of the jury. If
an appeal is taken in the case, the State may appropriately direct this court's attention to the
misconduct by defense counsel for our consideration. Where appeals are not taken, and the
magnitude of misconduct by the defense is sufficiently serious, reference should be made to
the appropriate disciplinary authority of the state bar with evidentiary support from the
record. In brief, the objective is to free Nevada criminal trials from the taint of misconduct,
irrespective of the source.
[Headnote 12]
Appellant raises several other issues concerning two of the State's witnesses: Gary Smith,
the person whom appellant attempted to hire as an assassin, and Willie Normand, an
acquaintance through whom appellant made contact with the prospective killer. The trial
court did not err in allowing the two to testify that appellant attempted to hire Smith; since the
attempt was unsuccessful, this is not a matter of allowing the State to proceed on dual
theories of procuring and actually committing the murder.
[Headnote 13]
Nor did the court err in admitting into evidence clandestine recordings of encounters
between appellant, Normand and Smith after the latter two men had decided to assist the
authorities.
after the latter two men had decided to assist the authorities. Recording the conversations did
not violate the right to counsel, for appellant was not in custody and had not requested an
opportunity to speak with counsel. Escobedo v. Illinois, 378 U.S. 478 (1964).
4

[Headnote 14]
Further, we cannot conclude that the probative value of the recordings was so slight and
the risk of jury confusion so great as to render their admission manifestly erroneous. The
tapes were difficult to understand, but they did clearly demonstrate that appellant and the
informants shared a secret concerning Toy Williams' death, which appellant wanted Normand
and Smith to keep confidential.
[Headnotes 15, 16]
Finally, although the court erred in refusing to give a specific jury instruction concerning
the credibility of the informants' testimony,
5
the error must be deemed harmless under
Buckley v. State, 95 Nev. 602, 600 P.2d 227 (1979). The evidence of guilt was
overwhelming, there was a general instruction on credibility, and the informants' character
flaws were exposed through cross-examination.
[Headnote 17]
We have examined appellant's many other assignments of error and conclude that they are
meritless. Accordingly, we affirm.
6

____________________

4
Appellant also claims the body-bugging of these police informants violated Nevada statutes. He is
mistaken. Summers v. State, 102 Nev. 195, 718 P.2d 676 (1986).

5
Such an instruction is favored, Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968), even though, as in this
case, the informants' testimony was corroborated by the tape recordings, by close agreement between the
testimony of the two informants, and by the fact that the details of the murder matched specifications given by
appellant in his attempt to hire a killer.

6
This court has previously declared that, as one approach to curbing the problem of attorney misconduct, in
appropriate cases we will impose monetary sanctions upon offending counsel. See, e.g., McGuire v. State, 100
Nev. 153, 677 P.2d 1060 (1984); Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). We now wish to advise all
attorneys of another expedient that may be invoked more frequently hereafter in our efforts to curb offensive
professional behavior. In the past, we have been reticent to identify the perpetrators of misconduct by name,
primarily out of reluctance to do counsel serious lasting professional injury, e.g., by diminishing their prospects
when they may later be considered for judgeships or other public offices. In the future, however, attorneys who
cannot conform to the proper norms of professional behavior, whether inside or outside the courtroom, should
recognize they are assuming the risk of formal, public censure in our opinions.
____________
103 Nev. 113, 113 (1987) Townsend v. State
JOHN MICHAEL TOWNSEND, Appellant, v. THE
No. 16645
March 31, 1987 734 P.2d 705
Appeal from a conviction for two counts of lewdness with a minor under the age of
fourteen and two counts of sexual assault. Seventh Judicial District Court, White Pine
County; Merlyn H. Hoyt, Judge.
Defendant was convicted in the district court of two counts of lewdness with minor under
age of fourteen years and two counts of sexual assault, and he appealed. The Supreme Court
held that: (1) expert was properly permitted to testify concerning post-traumatic stress
disorder patterns in sexually abused children and express opinion on issue of whether child
had, in fact, been sexually assaulted or abused; (2) expert was improperly permitted to
identify defendant-father as perpetrator of sexual assault and to detail her reasons for forming
conclusion regarding alleged victim's truthfulness; and (3) defendant's conduct, in
masturbating in front of child and encouraging her to participate in that exercise, and two
weeks later fondling and stimulating child's breasts, rubbing lubricant over, in, and around
victim's vaginal opening, and penetrating child's vagina with little finger, supported
convictions for two counts of lewdness and one count of sexual assault only.
Affirmed; judgment of conviction modified.
[Rehearing denied June 25, 1987]
Conner & Steinheimer, Reno, for Appellant.
Brian McKay, Attorney General, William E. Cooper, Deputy, and David Sarnowski,
Deputy, Carson City, for Respondent.
1. Jury.
It was acceptable voir dire for prosecutor to question prospective juror about ability of trained person to
identify mental scars that might result form sexual assault, in prosecution for lewdness with minor under
age of fourteen years and sexual assault, where prosecutor sought to determine attitude of venireman
concerning expert testimony and questioning did not rise to level of emotional appeal.
2. Jury.
Trial court is accorded broad discretion in latitude afforded counsel during voir dire.
3. Criminal Law.
Threshold test for admissibility of testimony by qualified experts is whether expert's specialized
knowledge will assist trier of fact to understand evidence or determine fact in issue.
4. Criminal Law.
Expert testimony must withstand the challenge to all relevant evidence, i.e., whether probative value
exceeds prejudicial effect. NRS 48.035, subd. 1.
5. Criminal Law.
Expert testimony concerning post-traumatic stress disorder patterns in sexually abused children satisfied
requirement that expert's specialized knowledge assist trier of fact to understand evidence or determine fact
in issue by providing jury enlightenment on critical and relevant subject of esoteric nature, in prosecution
for lewdness with minor under the age of fourteen and sexual assault.
6. Criminal Law.
It was proper for expert to express opinion on issue of whether child had, in fact, been sexually assaulted
or abused in prosecution for lewdness with minor under age of fourteen years and sexual assault, even
though opinion embraced ultimate issue.
7. Criminal Law.
Expert testimony concerning post-traumatic stress disorder patterns in sexually abused children and
expert opinion on issued of whether child had, in fact, been sexually assaulted or abused had highly
probative value that outweighed prospect of unfair prejudice, in prosecution for lewdness with minor under
age of fourteen years and sexual assault.
8. Criminal Law.
Expert was improperly permitted to opine in prosecution for lewdness with minor under age of fourteen
years and sexual assault that defendant-father was perpetrator of sexual assault.
9. Criminal Law.
Erroneous admission of expert opinion that defendant-father was perpetrator of sexual assault on child
was harmless error in prosecution for lewdness with minor under age of fourteen years and sexual assault,
where evidence against defendant, including his confession of guilt to arresting officer, was overwhelming.
10. Criminal Law.
It is appropriate for qualified experts to characterize their findings, observations, and conclusions within
framework of their field of expertise, irrespective of corroborative or refutative effect their testimony may
have on testimony of complaining witness.
11. Witnesses.
It is generally inappropriate for prosecution or defense expert to directly characterize putative victim's
testimony as being truthful or false.
12. Witnesses.
Expert's detailing her reasons for reaching a conclusion regarding putative victim's truthfulness was
improper, even though expert never indicated what her conclusion with respect to alleged victim's
truthfulness was, where question and response left no doubt as to expert's answer.
13. Criminal Law.
Erroneously permitting expert to detail reasons for conclusion she reached regarding alleged victim's
truthfulness was harmless error in prosecution for lewdness with minor under the age of fourteen years and
sexual assault, given overwhelming evidence of guilt.
14. Criminal Law.
Propriety of prosecutor's question to experts as to whether expert had formed conclusion as to alleged
victim's truthfulness and expert's detailing her reasons for conclusion she had reached had been properly
preserved for appeal, although defense counsel failed to object to question and response, where there had
been detailed objection by defense when expert's testimony was first tested by offer of proof.
15. Criminal Law.
Use of hypothetical question directed to State's expert that allegedly introduced facts into evidence which
were never proved by State did not constitute prosecutorial misconduct amounting to prejudicial error,
where hypothetical by State was substantially invited by defense counsel who resorted to similarly
objectionable hypothetical lines of questioning, court cautioned jury, during hypotheticals of both attorneys
and subsequent to their completion, that counsel's comments were hypotheticals and that jury should look
only to answers for guidance, and defense attorney did not object to hypothetical offered by State at time it
was offered, but only objected to fact that hypothetical called for legal conclusion.
16. Criminal Law.
Defendant could not object to contents of State's hypothetical question to expert for first time on appeal.
17. Criminal Law.
Even if prosecutor improperly commented on defendant's invocation of Miranda rights, such impropriety
would have been harmless beyond reasonable doubt.
18. Assault and Battery; Infants.
Defendant's conduct, in masturbating in front of child and encouraging her to participate in that exercise,
and two weeks later fondling and stimulating child's breasts, rubbing lubricant over, in, and around victim's
vaginal opening, and penetrating child's vagina with little finger supported convictions for two counts of
lewdness with minor under age of fourteen years and one court of sexual assault; fondling of breasts was
separate act of lewdness from sexual assault, but only one sexual assault occurred, with respect to
lubrication of vaginal area and subsequent penetration of vagina.
OPINION
Per Curiam:
Townsend was charged and convicted of two counts of lewdness with a minor under the
age of fourteen years and two counts of sexual assault. He was sentenced to serve two
concurrent ten-year terms for the lewdness counts and two concurrent life terms for the
counts of sexual assault. The sentences imposed for sexual assault were to run consecutively
to the sentences imposed for lewdness.
The victim was nine years old at the time the offenses occurred. She lived in a trailer
house occupied by her family, including her father, appellant John Michael Townsend. The
first act occurred in the middle of September, 19S4.
act occurred in the middle of September, 1984. The victim was watching television in her
room; Townsend entered with an anatomy book and asked her if she wanted to learn about
the facts of life. Thereafter, Townsend proceeded to masturbate in front of the child to the
point of ejaculation. Later, Townsend invited the victim to take a bath with him. Afterwards,
Townsend dressed the child in adult clothing and makeup.
The second incident occurred two weeks later. The victim was asleep alone in her
bedroom. Townsend entered her room and woke her up. While the child was changing into an
adult's nightgown provided by Townsend, appellant went into the bathroom and returned with
a tube of lubricant. Townsend slipped his hands down the vee neck of the nightgown and
massaged the victim's nipples. Shortly thereafter, he placed some lubricant on his finger,
placed his hand inside the victim's underpants and poked down on the labial folds of her
vagina. Townsend removed his hand, put more lubricant on this little finger and then
inserted it into the child's vagina until she began to cry because of the pain. Townsend then
removed his finger and showed the victim how far he had forced his finger into her. He then
cautioned her to keep what had happened a secret. The child-victim told her mother the
secret during the early part of November, 1984 as she and her mother were watching a
movie on television entitled How to Teach Your Child About Sex. Townsend was arrested
soon thereafter.
Townsend directs us to five assignments of error on appeal.
1. Prejudicial Voir Dire
[Headnotes 1, 2]
Townsend contends that the trial court erred in rejecting his motion for a mistrial after the
prosecutor questioned a prospective juror about the ability of a trained person to identify
mental scars that may result from sexual assault. We disagree. The State sought to determine
that attitude of the venireman concerning expert testimony; the attempt did not rise to the
level of an emotional appeal. It was acceptable voir dire to explore possible areas of bias in
critical aspects of the State's case. Moreover, a trial court is accorded broad discretion in the
latitude afforded counsel during voir dire, Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968).
There was no abuse of discretion by the trial court on this issue.
2. The Testimony of the State's Expert Witness
Townsend next argues that no expert witness should be allowed to testify as to whether a
complaining witness, in this case Townsend's daughter, is telling the truth, or whether a
crime has been committed.1 Here, the State's expert testified that the child was a victim
of post-trauma stress disorder as a result of a sexual assault by her father.
Townsend's daughter, is telling the truth, or whether a crime has been committed.
1
Here, the
State's expert testified that the child was a victim of post-trauma stress disorder as a result of
a sexual assault by her father. Additionally, the expert testified, in effect, that the child's
testimony was true.
[Headnotes 3, 4]
Although limitations attributable to age may impair the capacity of a child-victim to
articulate details indicative of a defendant's guilt, and thereby enhance the need for expert
testimony, such testimony nevertheless must be in conformity with criteria specified by
Nevada's evidence code. The threshold test for the admissibility of testimony by a qualified
expert is whether the expert's specialized knowledge will assist the trier of fact to understand
the evidence or determine a fact in issue. The goal, of course, is to provide the trier of fact a
resource for ascertaining truth in relevant areas outside the ken of ordinary laity. Moreover,
expert testimony must also withstand the challenge to all relevant evidence, i.e., whether
probative value exceeds prejudicial effect.
____________________

1
The pertinent trial testimony proceeds as follows:
Q. As a result of working with Sheila, what was your diagnosis of her?
A. Post-traumatic stress disorder as a result of sexual abuse.
Q. Now, I am sure this jury is like I am, do not understand the post-traumatic stress disorder [sic].
A. Very simply stated, it is a disorder which is a function of being exposed to a traumatic or series of
traumatic series of incidents.
Q. What are the characterizations of that disorder that you observed in Sheila?
A. Okay. In Sheila the observation of the anxiety, the fearfulness that was going to be the outcome.
She's talked about the fearfulness of other kids hearing abut what happened and how they are going to
react to her. There are episodes when thingsone of the things you see in post-trauma, there could be
brushes with violence which are precipitated with minimal precipitation. There were also indications of
that.
Q. Is this post-trauma stress disorder something that you have observed in other children in the
hundred and twenty some cases that you worked on other children that have been sexually assaulted as
Sheila had?
A. Yes, that is.
Q. Based upon that, did you form a conclusion as to whether or not she had been sexually assaulted
by her father?
A. Yes, I did.
Q. What is that conclusion?
A. My conclusion was that she had.
Q. After utilizing the techniques that you did with Sheila and prior to formulating this conclusion, did
you form another conclusion as to her truthfulness?
A. Yes, I did.
Q. What were the factors that went into you forming an opinion of whether or not she was being
truthful?
A. There were several. . . . [Lippert then went on to testify to the factors that she found present in
Sheila which caused her to determine that she had post-traumatic stress disorder brought upon by sexual
abuse.]
relevant evidence, i.e., whether probative value exceeds prejudicial effect. NRS 48.035(1).
[Headnotes 5-7]
In the instant case, it is apparent that expert testimony concerning post-traumatic stress
disorder patterns in sexually abused children satisfied the requirement of the evidence code in
providing jury enlightenment on a critical and relevant subject of an esoteric nature.
Similarly, it was proper for the State's expert to express an opinion on the issue of whether
the child had, in fact, been sexually assaulted or abused. Such an opinion, although embracing
an ultimate issue, represents both the peculiar expertise and consummate purpose of an
expert's analysis. In both instances, the testimony was highly probative in this type of
secretive crime where ordinarily the only percipient witness is the child-victim; the prospect
of unfair prejudice thus paled in comparison.
Other jurisdictions have also held expert testimony admissible on the issue of whether a
child-victim has been sexually abused and whether the victim has reacted in ways that are
consistent with the behavior of other sexually abused children. See, e.g., State v. Myers, 359
N.W.2d 604 (Minn. 1984); State v. Middleton, 657 P.2d 1215 (Or. 1983).
[Headnotes 8, 9]
Our ruling on the admissibility of expert testimony in child sex abuse cases does not
dispose of the issue before us. Here, the expert not only opined that the child had been
sexually assaulted, but proceeded to identify Townsend as the perpetrator. This was improper
testimony as it transcended the test of jury enlightenment and entered the realm of
fact-finding that was well within the capacity of a lay jury. While it may have been
appropriate for the expert to provide clinical testimony concerning familial sex abuse in
general, it was improper to identify the victim's father as the specific source of the assault. In
any cases, such testimony would mandate reversal; however, the instant case requires no such
result since the error is harmless beyond a reasonable doubt. Pasgove v. State, 98 Nev. 434,
651 P.2d 100 (1982); Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980). The evidence
against Townsend, including his confession of guilt to the arresting officer, was
overwhelming.
[Headnotes 10-14]
As noted above, Townsend also claims error in permitting the State's expert to validate the
truthfulness of the victim's testimony. There is a measure of validity in Townsend's position.
First, however, it is essential to recognize that expert testimony, by its very nature, often tends
to confirm or refute the truthfulness of another witness, State v. Myers, 359 N.W.2d at 609. It
is, therefore, appropriate for qualified experts to characterize their findings, observations
and conclusions within the framework of their field of expertise, irrespective of the
corroborative or refutative effect it may have on the testimony of a complaining witness.
therefore, appropriate for qualified experts to characterize their findings, observations and
conclusions within the framework of their field of expertise, irrespective of the corroborative
or refutative effect it may have on the testimony of a complaining witness. However, it is
generally inappropriate for either a prosecution or defense expert to directly characterize a
putative victim's testimony as being truthful of false. Id. at 611. Here, the prosecutor asked
the State's expert if she had formed a conclusion as to the victim's truthfulness. After
responding affirmatively, the expert detailed her reasons for the conclusion she reached
without ever indicating what her conclusion was. However, the question and the expert's
response left no doubt as to her answer. This was improper since it invaded the prerogative of
the jury to make unassisted factual determinations where expert testimony is unnecessary.
The jury was certainly equipped to weigh and sift the evidence and reach its own conclusion
concerning the child's veracity. Although the admissibility of expert testimony is a matter for
the sound discretion of the trial judge, State v. Smith, 100 Nev. 570, 572, 688 P.2d 326, 327
(1984), both the prosecutor's question, and hence, the detailed response, should have been
excluded.
2
Again, however, we conclude that in the face of overwhelming evidence of guilt,
the error was harmless beyond a reasonable doubt and reversal is not warranted.
3. The Inflammatory Hypothetical
[Headnote 15]
Townsend argues that the use of a hypothetical question, directed to the State's expert,
introduced facts into evidence which were never proved by the State and that this constituted
prosecutorial misconduct amounting to prejudicial error.
[Headnote 16]
We disagree with Townsend on three grounds. First, the hypothetical by the State was
substantially invited by Townsend's counsel in resorting to similarly objectionable
hypothetical lines of questioning. Second, the lower court cautioned the jury, during the
hypotheticals of both attorneys and subsequent to their completion, that counsel's comments
were hypotheticals and that the jury should look only to the answers for guidance and not to
the hypotheticals themselves. Finally, at the time the State's hypothetical was given, the
attorney for Townsend did not object to the hypothetical as offered, only that it called for a
legal conclusion.
____________________

2
Although defense counsel failed to object to the prosecutor's question and the expert's response, we have
elected to consider the point properly preserved on appeal since there were detailed objections by the defense
when the expert's testimony was first tested via an offer of proof. We caution counsel, however, that the better
and safer course is to renew in specific detail objections contemporaneous with trial events.
to the hypothetical as offered, only that it called for a legal conclusion. It is clear that
Townsend cannot object to the content of the State's hypothetical for the first time on appeal.
Porter v. State, 94 Nev. 142, 149, 576 P.2d 275, 279 (1978). This issue is without merit.
4. Comment by the Prosecutor on Townsend's
Election to Remain Silent
[Headnote 17]
In reviewing the record, we are not persuaded that the prosecutor improperly commented
on Townsend's invocation of his Miranda rights. However, even if such an infraction had
occurred, it would have been harmless beyond a reasonable doubt. Chapman v. California,
386 U.S. 18 (1967).
5. Multiple Counts Charged Against Townsend
[Headnote 18]
In reviewing the record, it appears that Townsend's convictions were based upon the
following actions. First, Townsend was convicted of lewdness with a child under the age of
fourteen years, this conviction stemming from Townsend masturbating in front of the child
and encouraging her to participate in that exercise. Then, two weeks later, Townsend fondled
and stimulated the child's breasts. This was the basis for the second conviction of lewdness
with a child under the age of fourteen. The third conviction, this time for sexual assault,
consisted of rubbing lubricant over, in and around the victim's vaginal opening (labial folds).
The fourth conviction against Townsend was also for sexual assault and consisted of the
penetration of the child's vagina by Townsend's little finger. Townsend argues that the second
set of acts, the fondling of the breasts, the spreading of the lubricant and the digital
penetration, should be merged into a single, punishable incident. He concludes, therefore, that
his convictions should be limited to one act of lewdness with a child under fourteen years of
age, the initial masturbation, and a single act of sexual assault for the fondling, lubrication
and digital penetration.
It must first be noted that this court has determined that the crimes of lewdness with a
child under the age of fourteen and sexual assault are mutually exclusive. Martin v. Sheriff,
88 Nev. 303, 496 P.2d 754 (1972). Likewise, it is clear that lewdness with a child under the
age of fourteen cannot be deemed an included offense of the crime of sexual assault. The
express language of the lewdness statute precludes this. See NRS 201.230. The State argues
that the ruling of the lower court is consistent with Wicker v. State, 95 Nev. 804, 603 P.2d
265 (1974), and Deeds v. State, 97 Nev. 216
97 Nev. 216, 626 P.2d 271 (1981), in which this court stated that separate and distinct acts of
sexual assault committed as part of a single criminal encounter may be charged as separate
counts, and convictions may be entered thereon.
It is clear that the first charge of lewdness should stand. Although less clear, we
nevertheless conclude that the act of fondling the child's breasts was a separate act of
lewdness, particularly in light of the fact that Townsend stopped that activity before
proceeding further. We conclude, however, that two sexual assaults did not occur. Townsend
simply began lubricating the victim's vaginal area, took his hand away, put more lubricating
substance on his finger and then penetrated the child's vagina. Such a hypertechnical division
of what was essentially a single act is not sustainable. The instant case is not analogous to
Wicker or Deeds.
Conclusion
We affirm the trial court's judgment with the exception of the first count of sexual assault,
which is hereby vacated.
3

____________________

3
We note that appellant's present counsel of record did not represent appellant in the lower court.
____________
103 Nev. 121, 121 (1987) Dumaine v. State
RICHARD K. DUMAINE, Appellant, v. THE
No. 16654
March 31, 1987 734 P.2d 1230
Appeal from a judgment. Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
Defendant was convicted in the district court of battery by prisoner in lawful custody or
confinement, and he appealed. The Supreme Court held that defendant, who allegedly hit
highway patrol corporal after he was told he was under arrest, but before he was handcuffed,
was not prisoner at time of alleged incident, and thus, could not be found guilty of battery
by prisoner in lawful custody or confinement.
Reversed.
Michael R. Specchio, Reno, for Appellant.
Brian McKay, Attorney General, William G. Rogers, District Attorney, and Archie E.
Blake, Deputy District Attorney, Lyon County, for Respondent.
1. Convicts.
Battery by prisoner can only be committed by prisoner in lawful custody or confinement. NRS 200.481
2. Convicts.
Defendant could not be found guilty of battery by prisoner in lawful custody or confinement based on his
allegedly having hit highway patrol corporal upon being told he was under arrest but before he was
handcuffed; at time defendant allegedly struck corporal, he was not prisoner, not having been physically
controlled or contained by corporal. NRS 200.481.
3. Convicts.
One becomes prisoner when one is held in custody under process of law or under lawful arrest, for
purposes of statute proscribing battery by prisoner in lawful custody or confinement; there must be actual
restraint of liberty in order to imprison suspect. NRS 193.022, 200.481, 208.085.
4. Convicts.
Once one becomes prisoner, one remains prisoner, even though actual physical control is lessened, but
there must at some point be established actual physical control of person, for individual to be found guilty
of battery by prisoner in lawful custody or confinement. NRS 200.481.
5. Statutes.
When construing statute, words will be given their ordinary meaning if possible.
6. Statutes.
Where person is charged with violation of provisions of penal statute, and reasonable doubt exists as to
whether conduct comes within statute, doubt must be resolved in favor of accused.
OPINION
Per Curiam:
This is an appeal from a verdict and judgment of conviction for one count of battery by a
prisoner in lawful custody or confinement. See NRS 200.481(2)(e).
The appellant has been sentenced to eighteen months in the Nevada State Prison. Because
we find that the facts proved are insufficient to establish the crime charged, we reverse.
Richard K. Dumaine, a forty-one-year-old carpenter, was driving his pickup truck on
Highway 50 in Lyon County, Nevada, at approximately 10:30 p.m. Charles S. Neville, a
Nevada Highway Patrol corporal, thought he perceived the truck weaving.
Corporal Neville followed Dumaine's truck and signaled the driver to stop. Neville
confronted Dumaine and demanded a driver's license, registration and proof of insurance.
Dumaine cooperated. Dumaine remained in the truck as Neville examined the documents.
While looking at the documents, Neville thought he perceived that Dumaine's eyes were
watery and bloodshot, that his face was flushed, and that he had a moderate odor of
alcohol about him.
that his face was flushed, and that he had a moderate odor of alcohol about him.
Upon Neville's request, Dumaine exited the truck and walked back to the highway patrol
vehicle where he submitted to field sobriety tests. Based on the results of these tests, Neville
determined to arrest Dumaine. He ordered the suspect to turn around and place his hands
behind his back. Dumaine complied. Neville testified he then told Dumaine that he was under
arrest, and attempted to handcuff Dumaine, but before he could do so, Neville claims
Dumaine turned and hit Neville in the right side of the head with his fist. According to
Neville, Dumaine than chased Neville around the patrol car several times until Neville was
able to side-step and hit Dumaine once with his nightstick, rendering Dumaine unconscious.
Neville then handcuffed Dumaine, transported him to jail, and caused him to be charged with
battery while a prisoner in lawful custody or confinement, a felony.
At trial, Dumaine disputed Neville's version of the events. He denied hitting Neville at all.
He claimed Neville inexplicably appeared to become excited and frightened after the field
sobriety tests and locked himself in the car. Dumaine contended that he waited, leaning
against the patrol car, until Neville exited the other side of the car, approached Dumaine from
the rear, and beat him about the head with his nightstick.
Dumaine introduced evidence that he received multiple injuries to the head. He was
bleeding from the rear of the head. He had a large lump on the side of his head. He had
another lump on the right side of his head, toward the front. His skull was fractured. His right
cheek was bruised. These injuries appear far in excess of what could be explained by
Neville's testimony.
Dumaine sought to introduce expert testimony that his injuries were caused by a beating
with a club (the nightstick), but the trial court would not allow him to do so. The court would
only allow Dumaine's expert witness to describe the injuries, but not to give his opinion as to
the nature of their cause. This evidence was offered to impeach Neville's claim that he struck
Dumaine only once.
Ordinarily we might well remand the case for a new trial because highly relevant expert
opinion evidence was excluded.
Furthermore, although we need not reach the question, it is of some concern to us also that
the trial court excluded certain official Highway Patrol personnel records which evaluated
Corporal Neville, and which would have tended to establish Neville's inclination for
excitability when making arrests. However, we find that a remand is not necessary in the
instant case. This is so because the evidence presented by the state simply does not establish
the charged crime.
[Headnotes 1, 2]
Battery by a prisoner can only be committed by a prisoner in lawful custody or
confinement. NRS 200.481. If Dumaine struck Neville under the circumstances described by
Neville, this might well constitute resisting arrest, NRS 199.280, but it would not constitute
the felony of battery by a prisoner in lawful custody. At the time Dumaine is alleged to have
struck Neville, he was not a prisoner.
[Headnote 3]
The state argues that, when Neville told dumaine that he was under arrest, Dumaine then
became a prisoner. We disagree. If Dumaine had been running down the street, attempting
to evade capture, with Neville in hot pursuit, repeatedly warning Dumaine that he was under
arrest, would Dumaine have been a prisoner? We think not. One becomes a prisoner when
one is held in custody under process of law or under lawful arrest. NRS 193.022; NRS
208.085. (Emphasis added.) The clear implication is that one cannot become a prisoner until
one either submits to the control of the arresting officer or is captured, i.e., is taken and held
in control. There must be an actual restraint of liberty in order to imprison a suspect.
The difference between an arrest and an attempted arrest is made clear by NRS 171.122.
This statute, concerning the execution of arrest warrants, authorizes an officer to use
necessary force to effect an arrest in the event that the defendant resists or flees. If one
became a prisoner upon the talismanic recitation that one is under arrest, no force would be
necessary. Thus, in contemplation of Nevada law, it seems one becomes a prisoner by
becoming imprisoned.
The Ohio Supreme Court, when faced with an analogous problem, held that for purposes
of an escape statute, detention occurs when the arresting officer has established control
over the defendant's person. State v. Reed, 418 N.E.2d 1359 (Ohio 1981). A lower court in
Ohio reached the same conclusion. State v. Magnuson, 440 N.E.2d 581 (OhioCt.App. 1981).
In Magnuson, the defendant fled from a police officer and broke into an apartment. The
officer had blocked the suspect's car and displayed his weapon in an attempt to detain the
suspect. The court held the defendant was not guilty of burglary because his intent was to
commit a misdemeanor, resisting arrest, not a felony, escape from detention.
The battery in the instant case occurred before Neville physically controlled or contained
the appellant. Therefore, the appellant had not yet attained the status of prisoner when and
if he battered the officer. One who forcefully resists being taken into custody may be guilty
of resisting arrest, but he also retains a status other than prisoner.
custody may be guilty of resisting arrest, but he also retains a status other than prisoner. He
may be a fugitive; he is not a prisoner.
[Headnote 4]
Once one becomes a prisoner, one remains a prisoner even though the actual physical
control is lessened. See State v. Brill, 83 N.W.2d 721 (Wisc. 1957). But there must at some
point be established actual physical control of the person.
[Headnote 5]
A prisoner is defined as a person deprived of his liberty and kept under involuntary
restraint, confinement or custody. Webster's Ninth New Collegiate Dictionary 936 (1983). In
accord is Black's Law Dictionary 1075 (5th ed. 1979). When construing a statute, words will
be given their ordinary meaning if possible. Cf. Scott v. Justice's Court, 84 Nev. 9, 534 P.2d
747 (1968). We have no difficulty determining the ordinary meaning of the word prisoner
in the instant case. Dumaine was not a prisoner, because he was not confined at the time of
the alleged battery. According to Neville's version of events, Neville was preparing or
attempting to take Dumaine prisoner, but he had not yet executed his chore.
[Headnote 6]
Penal statutes, especially, must be strictly construed. Where a person is charged with a
violation of the provisions of a penal statute, and a reasonable doubt exists as to whether that
person's conduct comes within the statute, such doubt must be resolved in favor of the
accused. Sheriff v. Hanks, 91 Nev. 57, 530 P.2d 1191 (1975). A strict construction of the
statute in the instant case mandates reversal, and we do not believe such a construction does
an injustice to the intent of the legislature. The legislature has made two different acts
criminal. One who forcefully resists an arrest is guilty of a misdemeanor. One who uses force
after being taken into custody commits a felony.
We therefore hold that appellant, who had not yet either submitted to arrest or been
physically confined or controlled, as the inception of the altercation with Corporal Neville,
was not a prisoner within the meaning of NRS 200.481(2)(e). We therefore reverse.
____________
103 Nev. 126, 126 (1987) Overhead Door Co. v. Overhead Door Corp.
OVERHEAD DOOR COMPANY OF RENO, INC., a Nevada Corporation, Appellant, v.
OVERHEAD DOOR CORPORATION, an Indiana Corporation, Respondent.
No. 16230
March 31, 1987 734 P.2d 1233
Appeal from judgment and order granting a permanent injunction. Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
National organization brought action against former distributor, seeking damages and
injunctive relief. The district court granted permanent injunction, and former distributor
appealed. The Supreme Court held that: (1) permanently enjoining former distributor from
using trade name, using former telephone number in connection with any use of trade name,
and using any of national organization's signs, literature, logos, or other trademark materials
for advertising purposes, without first requiring national organization to repurchase inventory
which former distributor possessed on date of termination of distributor's agreement, was
improper, and (2) national organization's conduct in terminating distributorship agreement,
coupled with national organization's refusal to repurchase any of former distributor's unsold
inventory, breached national organization's obligation of good faith and fair dealing.
Affirmed in part; reversed and remanded in part.
Paul A Richards, Reno, for Appellant.
Beasley, Hamilton and Holden, Reno, for Respondent.
1. Trade Regulation.
Permanently enjoining former distributor from using trade name, using former telephone number in
connection with any use of trade name, or using signs, literature, logos, or other trademark materials for
advertising purposes, without first requiring national organization to repurchase inventory which distributor
possessed on date of termination of distributor's agreement, was improper; it would be inequitable to grant
national organization injunctive relief it sought while leaving distributor with $30,000 worth of doors and
door parts, and under distributor's agreement any exercise of inventory repurchase option was restricted by
national organization's obligation of good faith.
2. Equity.
In seeking equity, party is required to do equity.
3. Contracts.
National organization's conduct in terminating distributorship agreement, coupled with refusal to
repurchase any of former distributor's unsold inventory, constituted breach of obligation of good faith and
fair dealing.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court awarding damages to respondent,
granting a permanent injunction against appellant and denying appellant's counterclaim. In
1963, appellant Overhead Door Company of Reno, Inc., signed a Distributor's Agreement
with Overhead Door Company of Oregon, respondent's predecessor in interest. The
Distributor's Agreement was a standard form contract supplied by the national organization.
Appellant was the local distributor for respondent from 1963 to 1979. In 1979, respondent
informed appellant that it wished to terminate the distributorship agreement. Pursuant to the
distributorship agreement, respondent insisted that appellant return all trademark and
identifying materials, price lists, signs, and technical data. Respondent further demanded that
appellant discontinue the use of any trade name containing the word Overhead and that
appellant discontinue the use of its telephone number in connection with the trade name
Overhead Door Company. Although appellant was thus left with an inventory of
approximately $30,000 worth of doors and parts which it allegedly could not market,
respondent refused to repurchase appellant's inventory.
When appellant failed to return the trademark and identifying materials, signs and
technical data, and continued to use its previous telephone number and the word Overhead
as part of its name, respondent filed a complaint in the district court. In addition to damages,
respondent requested that appellant be enjoined from using the trade name Overhead and
the telephone number in question, and that appellant be required to return all signs, technical
data and trademark materials. Appellant filed a counterclaim seeking reimbursement for the
unsold inventory and other business losses, plus punitive damages.
The district court permanently enjoined appellant from using the name Overhead Door
or Overhead in its business, from using its former telephone number in connection with any
use of the name Overhead Door or Overhead, and from using any of respondent's signs,
literature, logos, or other trademark materials for advertising purposes. The court awarded
damages in respondent's favor. Finally, the court determined that appellant was not entitled to
relief on the counterclaim.
[Headnotes 1, 2]
Appellant contends that the district court erred by issuing the permanent injunction
without first requiring respondent to repurchase the inventory which appellant possessed on
the date of the termination of the Distributor's Agreement. We agree. In seeking equity, a
party is required to do equity.
[A]ny person asking the aid of equity . . . will be compelled to accord, to the other party
all equitable rights to which the other is entitled in respect to the subject matter. Relief
inconsistent with the equities of the adverse party will be denied, and where the
granting of the relief raises equitable rights in favor of defendant, the according of such
rights will be imposed as a condition of granting the relief.
Jones v. McGonigle, 37 S.W.2d 892, 895 (Mo. 1931). In the present case, it would be
inequitable to grant respondent the injunctive relief it sought, i.e., requiring appellant to
discontinue the use of any of respondent's identifying materials, name, and telephone number,
while at the same time leaving appellant with some $30,000 worth of Overhead doors and
Overhead door parts.
[Headnote 3]
Moreover, although pursuant to standard provision 17(e) of the Distributor's Agreement
respondent had the option to repurchase all, part, or none of the distributor's inventory, any
exercise of the repurchase option was restricted by its obligation of good faith. See W.L. May
Co., Inc. v. Philco-Ford Corporation, 543 P.2d 283 (Or. 1975). We have previously state that:
[A]n implied covenant of good faith and fair dealing has . . . been implied in
contractual relations which involve a special element of reliance such as that found in
partnership, insurance and franchise agreements.
Aluevich v. Harrah's, 99 Nev. 215, 217, 660 P.2d 986, 987 (1983), cert. denied, 465 U.S.
1006 (1984). [A]n implied covenant of good faith forbids arbitrary action by one party that
disadvantages the other. Resource Management Co. v. Weston Ranch, 706 P.2d 1028, 1037
(Utah 1985). See also Kendall v. Ernest Pestana, Inc., 709 P.2d 837 (Cal. 1985). We have
determined, under the circumstances of the present case, that respondent's conduct in
terminating the distributorship agreement, coupled with respondent's refusal to repurchase
any of appellant's unsold inventory, constituted a breach of the obligation of good faith and
fair dealing.
Accordingly, we conclude that the district court should have ordered respondent to
repurchase the inventory which appellant possessed on the date of the termination of the
Distributor's Agreement. We remand this matter to the district court for further proceedings
consistent with this opinion. The judgment of the district court is affirmed in all other
respects.
1

____________________

1
In light of this disposition, we deny respondent's request for sanctions pursuant to NRAP 38.
____________
103 Nev. 129, 129 (1987) Pandelis Constr. Co. v. Jones-Viking Assoc.
PANDELIS CONSTRUCTION CO., INC., Appellant/Cross-Respondent, v. JONES-VIKING
ASSOCIATES, a Nevada Partnership; JOHN BOWERS, Respondents/Cross-Appellants.
No. 17210
March 31, 1987 734 P.2d 1236
Appeal from judgment after bench trial. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Contractor brought action against property owner seeking to recover half of any savings
below guaranteed maximum cost. The district court entered judgment in favor of owner, but
refused to award attorney fees. All parties appealed. The Supreme Court held that: (1)
testimony supported finding that there were no savings below maximum guaranteed costs in
which contractors could share, and (2) court's failure to give any reason for its refusal to
award attorney fees to property owner in contractor's action was abuse of discretion, requiring
remand.
Affirmed but remanded with instructions.
Deaner & Deaner, Las Vegas for Appellant/Cross-Respondent.
Hardy & Hardy, Las Vegas, for Respondents/Cross-Appellants.
Finding of fact will not be reversed where testimony in support of finding constitutes substantial
evidence. NRCP 52(a).
2. Contracts.
Testimony to effect that building, as to which guaranteed maximum cost was $1.2 million, cost over $1.5
million, supported trial court's finding that there had been no savings below guaranteed maximum cost, so
that there were no savings in which contractor could share pursuant to alleged agreement.
3. Evidence.
Lay witness could not testify as to types of expenditures that would constitute extras under construction
contract. NRS 50.265.
Contractor was not prejudiced by admission of certain summaries of financial documents, not as
evidence, but only as statements of builder's position, in that court allowed builder's witness to present
testimony to same effect as contents of summary. NRCP 61.
5. Damages.
Property owner was not entitled to attorney fees under contract providing that if owner had to utilize legal
proceeding to enforce provision of agreement, owner was entitled to attorney fees, upon prevailing;
contractor, not property owner, sued.
6. Appeal and Error; Costs.
Court's failure to give any reason for its refusal to award attorney fees to property owner in contractor's
action was abuse of discretion, requiring remand.
OPINION
Per Curiam:
In mid-1980, appellant Pandelis Construction Company (Pandelis) agreed to construct a
medical building for respondents Jones-Viking Associates, et al. (Jones-Viking). Pandelis
was to receive, in addition to a fee, half of any savings below a guaranteed maximum cost of
1.2 million dollars. After completion of the project, the parties disagreed as to whether there
had been savings. Pandelis sued to recover what it claimed was due. The trial court found that
there had been no savings, and entered judgment in favor of Jones-Viking. However, the
court refused to award Jones-Viking attorney's fees. All parties appeal.
[Headnotes 1, 2]
Pandelis first asserts that the trial court erred in finding there had been no savings.
Findings of fact are reversible only if clearly erroneous, NRCP 52(a); they must be upheld if
supported by any substantial evidence, Morris v. Imperial Mortgage Co., 101 Nev. 266,
267-68, 701 P.2d 741, 742 (1985). There was testimony to the effect that the building cost
over 1.5 million dollars. There was further testimony that, even disregarding certain expenses
in excess of the amount of the construction loan,
1
the cost of the building exceeded the
contractual maximum. Pandelis argues that this testimony did not consider extras; the
record reads to the contrary, and in any event there was no evidence of extras which would, if
deducted, reduce the cost of the building to under 1.2 million dollars. Pandelis also claims the
trial court should have believed its witness rather than the testimony presented on behalf of
Jones-Viking. However, Nevada law does not provide for reversal of a finding of fact on that
basis where the testimony in support of the finding constitutes substantial evidence.
[Headnote 3]
We also perceive no error by the court in refusing to allow a lay witness to testify as to the
types of expenditures that would constitute extras under the contract. See NRS 50.265.
2
[Headnote 4]
[Headnote 4]
____________________

1
The excess was paid by Jones-Viking; there is no indication why the witness who gave these figures
disregarded that excess.

2
The trial court made its ruling on the correct basis despite the fact that the parties' arguments centered on an
inapplicable doctrine. Jones-Viking insisted the contract provided unambiguously that there could no extras, so
that the parol evidence rule barred testimony to the contrary. That
[Headnote 4]
As a final assignment of error, Pandelis notes that the court admitted certain summaries of
financial documents but said they were admitted not as evidence, but only as statements of
the builder's position. Under NRS 52.275, the contents of voluminous writings may be
presented in the form of a chart, summary or calculation if the writings themselves cannot
conveniently be examined in court. We are at a loss to explain how something properly
admitted under a rule of evidence could not be evidence. See United States v. Smyth, 556
F.2d 1179, reh'g denied, 557 F.2d 823 (5th Cir.), cert. denied, 434 U.S. 862 (1977). However,
any technical distinction is of no practical importance in this instance. The court allowed the
builder's witness to present testimony to the same effect as the contents of the summaries, and
he weighed that testimony as evidence in reaching his decision. There was no prejudice; it
follows that there can be no reversal. NRCP 61. Accordingly, we affirm the judgment.
[Headnotes 5, 6]
Under its cross-appeal, Jones-Viking contends that the trial court erred in denying its
request, pursuant to NRS 18.010,
3
for
____________________
argument was utterly meritless, for two reasons. First, the contract provided for extras or changes in the
work in several locations. Second, any changes necessarily would postdate the agreement, and so would fall
outside the scope of the parol evidence rule. Silver Dollar Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923
(1964).

3
The statute was amended between the initiation of this lawsuit and entry of judgment. We note that the
version in effect at entry of judgment is controlling. Farmers Home Mutual Ins. v. Fiscus, 102 Nev. 371, 725
P.2d 234 (1986)
Jones-Viking also asserts that the contract created an entitlement to attorney's fees. That is incorrect. The
contract contained the following provision:
In the event that Owner must utilize any legal proceeding or arbitration proceeding to enforce any
provision of this Agreement, upon prevailing in such action, Owner shall be entitled, in addition to such
other relief as may be available, to a reasonable sum as and for his attorney's fees and costs therein.
By its terms, this provision applied only if Jones-Viking was forced to sue to enforce the contract. In this
case it was Pandelis, the contractor, who sued. Jones-Viking argues, citing no authority, that it would be unfair to
apply the terms of this provision literally, and thus unilaterally. However, Jones-Viking undoubtedly is
responsible for this clause, and we are not unaccustomed to holding draftsmen to the consequences of their
choice of words. Caldwell v. Consolidated Realty, 99 Nev. 635, 638, 668 P.2d 284, 286 (1983). Further, this
court has ruled that a provision for attorney's fees which by its terms applies to only one of the parties does not
supersede NRS 18.010. Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 747, 710 P.2d 1379, 1382
(1985). Thus the statute, not the contract, governs any award of fees in attorney's fees.the case at bar.
attorney's fees. The court entered its denial without comment. In Lyon v. Walker Boudwin
Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972), we held that it constitutes an abuse of
discretion for a court to give no reason for its refusal to award fees. The result in Lyon must
obtain here; although the judgment is affirmed, the cause is remanded with directions either
to award attorney's fees or to state reasons for refusing to do so.
____________
103 Nev. 132, 132 (1987) Bernard v. Rockhill Dev. Co.
DONALD BERNARD and CAROLYN BERNARD, Appellants, v. ROCKHILL
DEVELOPMENT COMPANY and MICHAEL E. ABBASSI, Respondents.
No. 17123
March 31, 1987 734 P.2d 1238
Appeal from order granting partial judgment on the pleadings. Second Judicial District
Court, Washoe County; Robert L. Schouweiler, Judge.
Property owners filed complaint against contractor alleging breach and repudiation of
agreement and false misrepresentation, and seeking punitive damages. The district court
dismissed the action for false misrepresentation and found that property owners were
precluded from recovering punitive damages since their action was only for breach of
obligation arising from contract. Property owners appealed. The Supreme Court held that: (1)
contractor had separate duty, independent of that imposed by contract, not to make false
promises or fraudulently misrepresent its intent to perform, so that whether contractor
intentionally induced property owners to sign release of any lien or encumbrance on title to
property in order to wrongfully obtain something for nothing or maliciously made its promise
with intention not to perform, was question of fact on which property owners were entitled to
hearing, and (2) substantive dispute involving contractor's tort liability for allegedly
fraudulently misrepresenting its intention to perform when it induced property owners to sign
release and agreement, precluded judgment on pleadings.
Reversed.
Gene R. Barbagelata, Reno, for Appellants.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, and Donald A. Lattin, Reno, for
Respondents.
Order partially adjudicating complaint which asserts only one claim for relief is not amenable to
certification as final judgment. NRCP 54(b).
While allegations of fraudulent misrepresentation arose out of circumstances surrounding 1981 contract,
tort claim was sufficiently separate and distinct to warrant certification as final judgment for purpose of
appeal; decision of appellate court either affirming or reversing order of district court would not decide law
of case on contract claim still pending in district court. NRCP 54(b).
3. Fraud.
Contractor had separate duty, independent of that imposed by contract, not to make false promises or
fraudulently misrepresent its intent to perform, so that whether contractor intentionally induced property
owners to sign release of any lien or encumbrance on title to property in order to wrongfully obtain
something for nothing or maliciously made its promise with intention not to perform, was question of fact
on which property owners were entitled to hearing.
4. Pleading.
Motion for judgment on the pleadings is designed to provide means of disposing of cases when material
facts are not in dispute and judgment or merits can be achieved by focusing on content of pleadings;
motion for judgment on pleadings has utility only when material allegations of fact are admitted in
pleadings and only questions of law remain, and defendant will not succeed on motion or judgment on the
pleadings if there are allegations in pleadings that, if proved, would permit recovery. NRCP 12(c).
5. Pleading.
Substantive dispute involving whether contractor was liable in tort for allegedly fraudulently
misrepresenting its intention to perform when it induced property owners to sign release and agreement,
precluded judgment on pleadings. NRCP 12(c).
OPINION
Per Curiam:
On August 24, 1981, appellants Donald and Carolyn Bernard (the Bernards) entered into
an agreement with Rockhill Development Company and Michael E. Abbassi (Rockhill).
Pursuant to this agreement and an addendum dated September 1, 1981, the Bernards agreed to
purchase and Rockhill agreed to build a residence on Lot 8, Lakeridge Shores in Washoe
County, Nevada.
On July, 18, 1983, the Bernards recorded their 1981 contract of sale entitled Deposit
Receipt, Sales Agreement and Escrow Instructions with the Washoe County Recorder.
Approximately nine months later, in an effort to obtain construction money to build the
residence on Lot 8, Rockhill asked the Bernards to release any lien or encumbrance on the
title to Lot 8 which their previous recordation had created. On April 19, 1984, the Bernards
executed a release to Rockhill and agreed not to file, record, or cause to be recorded any
document which would have the effect of creating a lien or encumbrance on the title to Lot 8.
Additionally, the release provided that the agreement would be binding upon the Bernards as
long as Rockhill "complies with the unrecorded Sales Agreement and Escrow Instructions
dated August 24, 19S1."
binding upon the Bernards as long as Rockhill complies with the unrecorded Sales
Agreement and Escrow Instructions dated August 24, 1981.
Maintaining that Rockhill had failed to build their residence according to the August 24,
1981 agreement, the Bernards filed a three-count complaint in which they alleged the
following:
Count I Rockhill breached and repudiated the agreement by failing to build the residence
in accordance with plans, specifications, covenants, and agreements.
Count II Rockhill falsely represented to the Bernards that they would honor and perform
their August 24, 1981 contract if the Bernards would execute a release and agreement.
Count III Rockhill's misrepresentations were malicious and the Bernards should be
awarded punitive damages.
[Headnotes 1, 2]
Contending that the Bernards' allegations amounted to no more than a claim for breach of
contract, Rockhill filed a motion for partial judgment on the pleadings pursuant to NRCP
12(c) and moved to dismiss Count III, the Bernards' request for punitive damages. The district
court found that the Bernards had attempted to create an additional claim for relief sounding
in tort by cloaking their breach of contract claim with language which suggested the tort of
misrepresentation. The court further found that since the Bernards' action against Rockhill
was only for breach of an obligation arising from contract, the Bernards were precluded from
recovering punitive damages under NRS 42.010.
1
The district court also dismissed Count II,
the Bernards' action for fraudulent misrepresentation, and certified its judgment as final
pursuant to NRCP 54(b).
2
We have determined that not only did the district court
erroneously conclude that as a matter of law the Bernards' claim was in contract and not in
tort but that a judgment on the pleadings pursuant to Rule 12{c) was inappropriate in this
case.
____________________

1
NRS 42.010 provides in pertinent part that punitive damages may be awarded [i]n an action for the breach
of an obligation not arising from contract.

2
On July 9, 1986, this court filed an order directing appellants to show cause why this appeal should not be
dismissed. Our preliminary review of the record on appeal indicated that the order appealed from might not have
been amenable to certification pursuant to NRCP 54(b). It initially appeared that the claims resolved in the order
appealed from arose out of the same transaction or series of transactions as the remaining unresolved breach of
contract claim. An order partially adjudicating a complaint which asserts only one claim for relief is not
amenable to a Rule 54(b) certification. See Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068
(1979). We conclude, however, that while the allegations of fraudulent misrepresentation arose out of
circumstances surrounding the 1981 contract, appellants' tort claim was sufficiently separate and distinct as to
warrant a Rule 54(b) certification. A decision of this court either affirming or reversing the order of the district
court would not decide the law of the case on the contract claim still pending in the district court. See
Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986).
but that a judgment on the pleadings pursuant to Rule 12(c) was inappropriate in this case.
[Headnote 3]
Rockhill contends that the Bernards' only cause of action was for a breach of an obligation
arising from the 1981 contractual relationship between the parties. We disagree. The Kansas
Supreme Court provides helpful guidelines for determining whether a claim sounds in tort or
in contract. In Malone v. University of Kansas Medical Center, 552 P.2d 885, 888 (Kan.
1976) the court stated:
A breach of contract may be said to be a material failure of performance of a duty
arising under or imposed by agreement. A tort, on the other hand, is a violation of a
duty imposed by law, a wrong independent of contract. Torts can, of course, be
committed by parties to a contract. The question to be determined here is whether the
actions or omissions complained of constitute a violation of duties imposed by law, or
of duties arising by virtue of the alleged express agreement between the parties.
There is no question that a contractual relationship existed between Rockhill and the Bernards
as a result of their agreement to build and purchase a residence constructed on Lot 8 at
Lakeridge Shores. However, when Rockhill asked the Bernards to unrecord the contract of
sale and thereby release any lien or encumbrance on the title to Lot 8, the Bernards
surrendered a valuable legal right: notice to the public of their contractual rights to Lot 8. In
contrast, Rockhill gave up nothing because it was already under a legal duty by virtue of the
1981 contract. Rockhill had a separate duty, independent of that imposed by the 1981
contract, not to make false promises or fraudulently misrepresent its intention to perform.
Whether Rockhill intentionally induced the Bernards to sign the release in order to
wrongfully obtain something for nothing or maliciously made its promise with the intention
not to perform, is a question of fact. The Bernards are entitled to a hearing on the merits of
their tort claim.
[Headnotes 4, 5]
We further note that a resolution of this case on a Rule 12(c) motion was inappropriate. A
Rule 12(c) motion is designed to provide a means of disposing of cases when material facts
are not in dispute and a judgment on the merits can be achieved by focusing on the content of
the pleadings.
3
5 C. Wright & A.
____________________

3
NRCP 12(c) provides:
After the pleadings are closed but within such time as not to delay the trial, any party may move for
judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion shall be treated as
Miller, Federal Practice and Procedure 1367 (1969). The motion for a judgment on the
pleadings has utility only when all material allegations of fact are admitted in the pleadings
and only questions of law remain. Id. See also Duhame v. United States, 119 F.Supp. 192
(Ct.Cl.1954). Moreover, a defendant will not succeed on a motion under Rule 12(c) if there
are allegations in the plaintiff's pleadings that, if proved, would permit recovery. 5 C. Wright
& A. Miller, Federal Practice and Procedure 1368 (1969). In Count II of their complaint,
the Bernards alleged that Rockhill fraudulently misrepresented its intention to perform when
it induced them to execute the release and agreement. Rockhill's denial of the allegations
precluded the district court from granting Rockhill's motion for judgment on the pleadings.
The pleadings did not resolve all the material issues of fact in this case; there was a
substantive dispute involving Rockhill's tort liability that would justify a trial of the issue.
Rockhill was not entitled to judgment as a matter of law. We therefore reverse the order of
the district court granting Rockhill's motion for a partial judgment on the pleadings and
reinstate Count II and Count III of the Bernards' complaint.
____________________
one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
____________
103 Nev. 136, 136 (1987) Hughes Properties Inc. v. Plaza Investments
HUGHES PROPERTIES INC., a Nevada Corporation, dba HAROLD'S
CLUB, Appellant, v. PLAZA INVESTMENTS, a Nevada
General Partnership, Respondent.
No. 16989
March 31, 1987 734 P.2d 710
Appeal from summary judgment. Second Judicial District Court, Washoe County; Jerry C.
Whitehead, Judge.
Negligence action was filed naming sublessor and sublessee as defendants. Sublessee filed
cross-claim seeking indemnification from any judgment and attorney fees incurred in defense
of claim. The district court granted sublessee's motion for summary judgment on cross-claim.
Sublessor appealed. The Supreme Court held that sublessor had no obligation to defend
sublessee in negligence action, where it was clear from face of complaint that alleged injuries
did not occur in, on, about or in any way connected with subleased property.
Reversed.
[Rehearing denied August 28, 1987]
Barker, Gillock, Perry, Koning & Spann and Mark Sturdivant, Reno, for Appellant.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, and Paul Anderson, Reno, for
Respondent.
Indemnity.
Sublessor had no obligation to defend sublessee in negligence action, where it was clear from face of
complaint that alleged injuries did not occur in, on, about or in any way connected with subleased property;
inclusion of both sublessee and sublessor in group of defendants allegedly having control over place of
injury did not, without more, trigger sublessor's obligation under indemnification agreement.
OPINION
Per Curiam:
On December 5, 1980, Plaza Investments (Plaza) and Hughes Properties Inc. (Hughes)
entered into a sublease agreement which included an indemnification provision requiring
Hughes to indemnify Plaza for all claims occurring in, upon, about or in any way connected
with the subleased property. On December 13, 1983, a third-party complaint was filed
alleging personal injuries suffered on a sidewalk and walkway adjacent to a railroad crossing
on the east side of Virginia Street north of Commercial Row. Plaza, Hughes, Southern Pacific
Land Company, the City of Reno, and the Nevada Department of Transportation were named
as defendants who allegedly owned, leased, maintained and regulated the location. Hughes
was requested to indemnify and defend Plaza pursuant to the sublease agreement. Hughes
refused, claiming that it was not required to defend or indemnify Plaza because the accident
had not occurred on the subleased property. Plaza filed a cross-claim seeking indemnification
from any judgment and attorney fees incurred in defense of the claim.
1

The district court granted Plaza's motion for summary judgment on the cross-claim in the
amount of $11,038.26 for attorney's fees and costs incurred in defense of the third-party
claim. The district court held that when the third-party plaintiff named Plaza as a defendant,
contending she was injured on property subject to the sublease agreement, Hughes' duty to
defend Plaza arose under the sublease agreement. The court also said that even if the injuries
did, in fact, occur off the property leased by Plaza, a claim was brought against Plaza which
necessarily required Hughes to defend Plaza.
Upon review, however, we agree with Hughes' contention that it had no obligation to
defend because the complaint did not allege that the plaintiff had been injured on the
subleased property or that her injury was in any way connected with the subleased property.
____________________

1
The personal injury claims against Plaza and Hughes were ultimately settled for $1000.
property. Paragraph II of the complaint claims: That this is an action for personal injuries
occurring on a sidewalk and walkway on the East side of Virginia Street, North of
Commercial Row, immediately adjacent to the railroad crossing, Reno, Washoe County,
Nevada. Based upon the allegations set forth in paragraph II, Plaza knew or should have
known that the alleged injury did not occur on the subleased property. There is nothing in the
record to show that Plaza offered any evidence that the alleged injury occurred on or in any
way connected with the subleased property. The mere fact that Hughes and Plaza were
included in the group of defendants allegedly having control over the place of injury does not,
without more, trigger Hughes' obligation under the indemnification agreement. It does not
require any legal ingenuity to draft a complaint charging someone with negligence. Piedmont
Equip. Co. v. Eberhard Mfg., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983). Since it is clear
from the face of the complaint that the third-party plaintiff's alleged injuries did not occur in,
on, about or in any way connected with the subleased property, we hold that Hughes had no
obligation to defend Plaza. The district court's award of defense costs and attorney fees to
Plaza is, therefore, error. Accordingly, we reverse summary judgment and remand for entry of
judgment for Hughes.
____________
103 Nev. 138, 138 (1987) Moran v. State
RICHARD ALLEN MORAN, Appellant, v. THE STATE
No. 16300
RICHARD ALLEN MORAN, Appellant, v. THE STATE
No. 16301
March 31, 1987 734 P.2d 712
Appeal from judgments of conviction and three sentences of death in two consolidated
cases; Eighth Judicial District Court, Clark County; Myron E. Leavitt, Michael E. Fondi, and
Peter I. Breen, Judges.
Defendant pleaded guilty to three counts of first degree murder, one count of first degree
arson, and one count of burglary, and received three death sentences for the three murders, in
the district court. Defendant appealed. The Supreme Court held that: (1) there were no
aggravating circumstances in murder of defendant's former wife, to support death sentence as
to that murder; (2) evidence indicating that defendant killed two victims at saloon randomly
and without motive was substantial, thus supporting finding of aggravating circumstance;
and {3) fact that defendant reached around his companion to shoot victim, who was
seated immediately to right of defendant's companion, was sufficient to support finding,
as aggravating circumstance, that defendant knowingly created risk of death to more
than one person.
103 Nev. 138, 139 (1987) Moran v. State
randomly and without motive was substantial, thus supporting finding of aggravating
circumstance; and (3) fact that defendant reached around his companion to shoot victim, who
was seated immediately to right of defendant's companion, was sufficient to support finding,
as aggravating circumstance, that defendant knowingly created risk of death to more than one
person.
Two death sentences affirmed (Appeal No. 16301); one death sentence modified to
life imprisonment without the possibility of parole (Appeal No. 16300).
Lovell, Bilbray & Potter, Las Vegas, for Appellant.
1. Homicide.
Murder of defendant's former wife did not involve circumstances such as would justify finding of
depravity of mind, as aggravating circumstance; there was no indication of torture or sadistic acts
performed by defendant and wife appeared to have died instantly with no disturbance to her body other
than gunshot wounds. NRS 200.033, subd. 8.
2. Homicide.
Evidence did not support finding of aggravating circumstance that murder of defendant's former wife was
committed by person who knowingly created risk of death to more than one person; there were no other
persons present in apartment when defendant shot his former wife and there was no evidence that any
neighbor was at immediate risk of death or that defendant was aware of any other person within close
proximity of crime scene. NRS 200.033, subd. 3.
3. Homicide.
Although death sentence for murder was not supported by aggravating circumstances, in light of
overwhelming evidence of defendant's guilt, sentence of life imprisonment without possibility of parole
would be imposed in place of death sentence. NRS 177.055, subd. 3(c), 200.030.
4. Homicide.
Evidence indicating that defendant killed two victims at saloon randomly and without motive was
substantial, thus supporting finding of aggravating circumstance; by his own admission, suicide notes, and
in videotaped confession, defendant stated that he had no idea why he killed victims at saloon. NRS
200.033, subd. 9.
5. Homicide.
Fact that defendant reached around his companion to shoot victim, who was seated immediately to right
of defendant's companion, was sufficient to support finding, as aggravating circumstance, that defendant
knowingly created risk of death to more than one person. NRS 200.033, subd. 3.
6. Homicide.
Sentences of death for two murders were properly imposed and were not disproportionate to other cases
involving similar circumstances; after killing two victims at saloon, defendant robbed and
set fire to premises.
103 Nev. 138, 140 (1987) Moran v. State
after killing two victims at saloon, defendant robbed and set fire to premises. NRS 177.055, subd. 2(d).
OPINION
Per Curiam:
After a thorough canvass in the guilt phase of the trial in these two consolidated cases,
Richard Allen Moran pleaded guilty to three counts of first degree murder, one count of first
degree arson, and one count of robbery. At the penalty hearing in the first case a three-judge
panel found that the simultaneous shooting deaths of a bartender and customer in a saloon
had been committed under two aggravating circumstances and two mitigating circumstances.
In the second case, for the separate and subsequent shooting death of Moran's former wife,
the penalty tribunal found that murder also to have been committed under two aggravating
circumstances with one mitigating circumstance. The tribunal found that the aggravating
circumstances outweighed the mitigating circumstances in both instances and returned three
separate sentences of death, one for each murder. Moran raises several assignments of error
concerning the convictions and subsequent death sentences. The only error that warrants
reversal is the penalty tribunal's finding of two aggravating circumstances in the murder of
Moran's former wife. Moran was fairly convicted and sentenced to death for the other two
murders.
On August 2, 1984, at approximately 4:30 a.m., appellant Richard Allen Moran entered
the Red Pearl Saloon with Tammy Cortez. The two took seats at the bar. The two other
persons present were the bartender, Sandra DeVere, and Russell Rhoades, a customer.
DeVere was located behind the bar immediately in front of and slightly to the left of Moran
and Cortez. Rhoades was seated at the bar immediately to Cortez' right with Moran located to
Cortez' left. Suddenly and without warning, Moran removed his eight-shot .45 caliber
automatic pistol from his belt and shot DeVere four times. Moran then immediately reached
behind Cortez and fired the remaining four rounds into Rhoades. Moran then told Cortez to
go behind the bar and pick up the change located on the back counter. Unable to open the
cash register, Moran carried it out to his vehicle. Moran then started several fires in various
locations in the saloon. Moran and Cortez then left the scene.
Nine days later, on August 11, 1984, Moran went to the apartment of Linda Vandervoort,
his former wife. Moran and Vandervoort had been divorced six to eight months before the
shootings. Without provocation, Moran suddenly fired seven shots at Vandervoort, five of
which entered her body. At least two rounds passed through a wall and entered an
adjacent apartment, one of which shattered the glass top of a coffee table.
103 Nev. 138, 141 (1987) Moran v. State
rounds passed through a wall and entered an adjacent apartment, one of which shattered the
glass top of a coffee table. The occupant of the adjacent apartment was not home at the time
of the shooting. Moran then turned the weapon on himself firing the last round into his
abdomen. Being unsuccessful at this suicide attempt, Moran attempted to slit his wrists but
could not find a knife or other object sharp enough to accomplish the task. Police found
Moran in the bedroom of Vandervoort's apartment upon their arrival. Initially, at the crime
scene, Moran claimed the carnage had been performed by intruders. Two days later, however,
while in the hospital, Moran summoned police in order to make his confession.
Moran first contends that the evidence does not support the findings by the penalty tribunal
of aggravating circumstances necessary for imposition of the sentences of death under NRS
200.030 and NRS 200.033.
1

Regarding the Vandervoort murder, the three-judge penalty tribunal found two aggravating
circumstances: (1) depravity of mind, NRS 200.033(8), and (2) the murder was committed by
a person who knowingly created a risk of death to more than one person by means of a
weapon and course of action which was hazardous to the lives of more than one person. NRS
200.033(3).
[Headnote 1]
We agree with the appellant that Vandervoort's murder did not involve circumstances
which justified a finding of depravity of mind. The facts of this case do not exhibit
depravity of mind as contemplated in NRS 200.033(8). The circumstances of this murder
were these: After talking with Vandervoort for a few minutes Moran asked her if she had
read about the Red Pearl shootings.
____________________

1
NRS 200.030(4) provides, in pertinent part: Every person convicted of murder of the first degree shall be
punished: (a) By death, only if one or more aggravating circumstances are found and any mitigating
circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.
NRS 200.033 delineates expressly nine of the aggravating circumstances which may be found in order to
impose a sentence of death under NRS 200.030. The pertinent portions of NRS 200.033 which are at issue on
this appeal read as follows:
200.033 Circumstances aggravating first degree murder. The only circumstances by which murder of
the first degree may be aggravated are:
. . . .
3. The murder was committed by a person who knowingly created a great risk of death to more than
one person by means of a weapon, device or course of action which would normally be hazardous to the
lives of more than one person.
. . . .
8. The murder involved torture, depravity of mind or the mutilation of the victim.
9. The murder was committed upon one or more persons at random and without apparent motive.
103 Nev. 138, 142 (1987) Moran v. State
murder were these: After talking with Vandervoort for a few minutes Moran asked her if she
had read about the Red Pearl shootings. As she turned to answer, Moran immediately began
firing. There is no indication of torture or sadistic acts performed by Moran. Vandervoort
appears to have died instantly with no disturbance occurring to her body other than the
gunshot wounds. As cold-blooded and malicious as the killings was, under the guidance
given to us by the United States Supreme Court, we must conclude that the record does not
support a finding of depravity of mind under NRS 200.033(8). Godfrey v. Georgia, 446 U.S.
420 (1970); Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979); see also Rogers v. State,
101 Nev. 456, 705 P.2d 644 (1985); Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985).
[Headnote 2]
We must also conclude that the evidence does not support the tribunal's finding that
Vandervoort's murder was committed by a person who knowingly created a risk of death to
more than one person. . . . NRS 200.033(3). There were no other persons present in the
apartment when Moran shot Vandervoort. See Nevius v. State, 101 Nev. 238, 669 P.2d 1053
(1985). There is also no evidence showing that any neighbor was at an immediate risk of
death nor was Moran aware that any other person was within close proximity of the crime
scene. See State v. Nash, 694 P.2d 222 (Ariz. 1985). The findings of the second aggravating
circumstance in the Vandervoort murder under NRS 200.033(3) therefore cannot stand.
[Headnote 3]
Because neither of the aggravating circumstances in the Vandervoort murder can be
sustained, the sentence of death in that case must be reversed. NRS 200.030. However, in
light of the overwhelming evidence of Moran's guilt in Vandervoort's murder, a sentence of
life imprisonment without the possibility of parole will be imposed in place of the death
sentence. NRS 177.055(3)(c).
Moran next contends that the evidence fails to support the aggravating circumstances
found by the penalty tribunal in the Red Pearl Saloon murders.
The first aggravating circumstance found by the tribunal in the Red Pearl case is that the
murders were committed upon one or more persons at random and without apparent motive.
NRS 200.033(9). By his own admission, in his suicide notes and in his video-taped
confession, Moran stated that he had no idea why he killed DeVere and Rhoades at the Red
Pearl.
[Headnote 4]
Moran points to the inconsistency of this finding with the fact that Moran was also found
guilty of robbery. This fact, Moran claims, provides a definite and apparent motive and
therefore negates a finding of an aggravating circumstance under NRS 200.033{9).
103 Nev. 138, 143 (1987) Moran v. State
claims, provides a definite and apparent motive and therefore negates a finding of an
aggravating circumstance under NRS 200.033(9). However, in viewing the taped confession,
when asked by the detective to describe the time at which he formed the intent to rob the
saloon, Moran hesitated for a moment and then stated that he probably formed the idea the
instant before the shooting. Although these facts may create some conflict, the evidence
indicting that Moran killed the two victims at the saloon randomly and without motive is
substantial; therefore, the evidence supports a finding of an aggravating circumstance under
NRS 200.033(9). See Deutscher v. State, above.
Moran also attacks the finding of the second aggravating circumstance in the Red Pearl
murders. Under NRS 200.033(3), the tribunal found that Moran knowingly created a risk of
death to more than one person by means of a weapon, device or course of action which would
normally be hazardous to the lives of more than one person. This finding was based on the
fact that Tammy Cortez was seated next to Moran along with the victim, Rhoades, when
Moran opened fire.
[Headnote 5]
In Nevius, above, this court endorsed a finding of this aggravating circumstance where the
gunman shot and killed his victim while the victim's wife lay on the bed near the line of fire.
101 Nev. at 243, 669 P.2d at 1056. The fact that Moran reached around Cortez to shoot
Rhoades, who was seated immediately to the right of Cortez, is sufficient to support a finding
that Moran knowingly created a risk of death to more than one person. Nevius v. State,
above; NRS 200.033(3).
Both aggravating circumstances found by the three-judge panel in the Red Pearl murders
are soundly supported by the evidence; and, therefore, the two sentences of death for the
killing of DeVere and Rhoades must stand.
We have carefully considered Moran's remaining assignments of error and conclude that
they are meritless.
NRS 177.055(2)(d) requires this court to review a death sentence to determine whether the
sentence is disproportionate to penalties imposed in similar cases throughout the state, taking
into consideration the nature of the crime and the defendant.
2

[Headnote 6]
The record reveals that the Red Pearl murders were a senseless and mindless act of
violence. During this same unexplained spree, Moran robbed and then set fire to the
premises.
____________________

2
Although subsection (d) of NRS 177.055(2) was eliminated as of June 6, 1985, as a requirement on appeal
of death sentences, the prohibition against ex post facto laws requires that a proportionality review be done on
this appeal since the murders occurred prior to June 6, 1985. Thompson v. State, 102 Nev. 348, 721 P.2d 1290
(1986).
103 Nev. 138, 144 (1987) Moran v. State
spree, Moran robbed and then set fire to the premises. Under these circumstances, and
considering the relative weakness of the mitigating circumstances,
3
we conclude that the
sentences of death were properly imposed and are not disproportionate to other cases
involving similar circumstances. See Miranda v. State, 101 Nev. 562, 707 P.2d 1121 (1985);
Snow v. State, 101 Nev. 439, 705 P.2d 632 (1985); Farmer v. State, 101 Nev. 419, 705 P.2d
149 (1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985).
Accordingly, we uphold the two death sentences in Appeal No. 16301, and remand the
Vandervoort case, Appeal No. 16300, for resentencing to life imprisonment without the
possibility of parole.
____________________

3
The two mitigating factors found by the tribunal in the Red Pearl case were a lack of prior significant
criminal history and Moran's remorse for the killing of DeVere and Rhoades.
____________
103 Nev. 144, 144 (1987) Summa Corp. v. DeSure Corp.
SUMMA CORPORATION, a Delaware Corporation, Appellant and Cross-Respondent, v.
THE DeSURE CORPORATION, a Nevada Corporation, Respondent and
Cross-Appellant.
No. 16207
March 31, 1987 734 P.2d 715
Appeal from judgment. Cross-appeal from judgment. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Real estate broker brought action for commission. The district court granted summary
judgment for vendor on contract claims and for broker on issue of quantum meruit liability,
and jury rejected abuse of process claim, and both parties appealed. The Supreme Court held
that: (1) giving broker information did not create employment contract, and (2) circumstances
were insufficient to give rise to quantum meruit liability.
Reversed.
Lionel Sawyer & Collins, and David N. Frederick, and Andrew S. Brignone, Las Vegas,
for Appellant and Cross-Respondent.
Rudiak & Larsen, Las Vegas, for Respondent and Cross-Appellant.
1. Brokers.
Vendor's act of supplying broker with appraisal and financial information about hotel did not create
employment contract entitling broker to a commission.
2. Brokers.
Before real estate agent is entitled to a commission, employment contract must be shown.
3. Brokers.
Circumstances that vendor knew real estate broker expected a commission, that vendor received benefit
from sale to purchaser introduced by broker, and that vendor's action before probate court in requiring that
offers be essentially on the same terms as offer from another party, which did not provide for a
commission, were insufficient to give rise to quantum meruit liability of vendor to broker, absent any
showing of fraud or collusion between vendor and purchaser, where vendor had unequivocally refused to
enter into any listing agreement and informed broker that it would pay commission only if its contract with
purchaser required it to do so.
OPINION
Per Curiam:
This action arises from a real estate broker's claim for compensation. Respondent and
cross-appellant DeSure Corporation sued appellant and cross-respondent Summa Corporation
on the theories of express contract, implied contract, quantum meruit and abuse of process.
The district court granted summary judgment for Summa Corporation on contract claims and
for DeSure Corporation on the issue of quantum meruit liability. The jury awarded DeSure
Corporation $375,000.00 on its quantum meruit claim, but rejected its abuse of process claim.
The trial court entered judgment for this amount, plus costs and $279,370.04 in prejudgment
interest. Both parties appeal.
DeSure Corporation (DeSure) introduced Lou Tickel, the Landmark Hotel's purchaser, to
Summa Corporation (Summa), the seller. From the outset, Summa informed DeSure it did
not give listings or pay real estate commissions. It was possible, however, to structure a
commission term into the buyer's offer. In accepting such an offer, Summa would be required
to pay the commission as a term of its contract with the buyer. Accordingly, DeSure prepared
and submitted four such offers on Tickel's behalf. None of these offers were accepted and
Tickel lost interest.
Summa later conditionally accepted an offer for the Landmark Hotel from the Scott
Corporation. The Scott Agreement was subject to approval by the special administrators of
Howard Hughes' estate which owned Summa's stock. William Lummis, one of the
co-administrators, was also Summa's president, chief executive officer and chairman of
the board.
one of the co-administrators, was also Summa's president, chief executive officer and
chairman of the board. Lummis decided to petition the probate court for instructions and had
it issue an order setting forth a procedure for receiving other offers before hearing on the
petition. The order required that other offers be on essentially the same terms as the Scott
offer.
Summa sent copies of the order and petition to parties who had previously expressed an
interest in purchasing the Landmark Hotel. Tickel received packets from Summa and DeSure
and decided to submit an offer. Summa's counsel informed DeSure it could not structure a
commission provision into Tickel's offer because the Scott offer contained no such provision.
Consequently, DeSure submitted for Tickel an offer which did not require Summa to pay the
real estate commission. DeSure, then, sent Summa telegrams advising it DeSure expected 3
percent commission.
The probate court rejected the Scott Agreement. Although Tickel had submitted the
highest offer, Summa initially preferred to negotiate with the Tokyu Group which had raised
its offer. Summa only negotiated with Tickel after failing to sell the Landmark Hotel to the
Tokyu Group. Summa and Tickel signed an agreement which included the representation
neither party had an agreement to pay a broker.
EXPRESS OR IMPLIED CONTRACT
The district court granted Summa summary judgment on DeSure's contract claims finding
no express or implied contract between the parties.
Rule 56 authorizes summary judgment where no genuine issue remains for trial. Short v.
Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979 (1963). In evaluating the propriety of a
summary judgment all evidence favorable to the party against whom summary judgment is
rendered will be accepted as true. Id.
[Headnote 1]
We are unable to find any facts in the record from which it could be inferred that Summa
actually agreed to pay DeSure a commission. Summa expressly informed DeSure it did not
give listings to real estate agents. Summa told DeSure it would not pay commissions unless
required to by the terms of its agreement with the buyer. While it is true Summa supplied
DeSure with appraisal and financial information about the Landmark Hotel, the act of giving
a broker information does not create an employment contract entitling the broker to a
commission. Lawry v. Devine, 82 Nev. 65, 68, 410 P.2d 761 (1966).
Accordingly, we conclude DeSure's appeal is without merit.
QUANTUM MERUIT
[Headnotes 2, 3]
Before a real estate agent is entitled to a commission, an employment contract must be
shown. Shell Oil Co. v. Hoppe, 91 Nev. 576, 580, 540 P.2d 107 (1975); Lawry v. Devine,
supra, 82 Nev. 65, 68. Despite its finding there was no contract between Summa and DeSure,
the district court found Summa was liable on a quantum meruit theory as a matter of law. The
lower court found Summa would be unjustly enriched if not required to pay DeSure because
Summa knew DeSure expected a commission, because Summa's action before the probate
court precluded DeSure from structuring commission into Tickel's offer, and because Summa
received a benefit from the sale.
We conclude these circumstances are insufficient to give rise to quantum meruit liability
absent any showing of fraud or collusion.
We have previously recognized a seller's liability to a broker is defined by the terms of the
listing agreement. Redfield v. Estate of Redfield, 101 Nev. 24, 27, 692 P.2d 1294 (1985);
Ivanhoe v. Strout Realty, 90 Nev. 380, 528 P.2d 700 (1974). Here, the seller avoided any
contractual obligation to the broker by unequivocally refusing to enter into any listing
agreement. Summa only informed DeSure it would pay commission if its contract with the
buyer required it to do so. We decline to state that a seller that has so clearly announced its
intention not to contract with a broker may be liable under a quantum meruit theory. To hold
otherwise would place property owners at a great risk in discussing the disposition of
property with any broker. A seller that studiously refuses to grant a broker a listing would
become liable for a fee only determinable by a jury in a quantum meruit action.
Quantum meruit recovery has been allowed where the buyer and seller act in bad faith to
deprive the broker of his commission. Close v. Redelius, 67 Nev. 158, 215 P.2d 659 (1950).
However, the principle has no application in this case. There is no evidence in the record of
any collusion between the buyer and the seller. DeSure contends Summa improperly invoked
the processes of the probate court to have an order issued that deprived it of the opportunity
to structure a commission provision into Tickel's offer. The jury, by rejecting DeSure's abuse
of process claim, determined the issue.
As we conclude DeSure is not entitled to compensation under a quantum meruit theory, we
need not address Summa's remaining contentions. Accordingly, we reverse the judgment of
the district court.
____________
103 Nev. 148, 148 (1987) Pryor v. Pryor
ROWENA P. PRYOR, Appellant, v.
ROY PRYOR, Respondent.
No. 17193
March 31, 1987 734 P.2d 718
Appeal from decree of divorce and property distribution, Eighth Judicial District Court,
Clark County; Stephen L. Huffaker, Judge.
Decree of divorce was entered by the district court and wife appealed. The Supreme Court
held that: (1) property could not change its nature from separate community property at the
demand of the grantor; (2) estate owned by life tenant is subject to division as community
property; and (3) husband failed to show that transfer of property to him was gift, devise or
bequest or that property was acquired with his separate property or credit, such that it would
be separate rather than community property.
W. Randall Mainor, Las Vegas, for Appellant.
Alan R. Harter, Las Vegas, Murray Posin, Las Vegas, for Respondent.
1. Husband and Wife.
Property could not change its nature from separate to community property upon demand by grantor for
payment on note.
Estate owned by life tenant is subject to division as community property.
Even deed reciting that husband owned estate as his separate property would not of itself overcome
presumption that property acquired during marriage was community property.
Husband, as party claiming that property acquired during marriage was separate, would have burden of
rebutting by clear and convincing evidence presumption that property was community property, by
showing that it was acquired by gift, devise or bequest or with his separate property or credit.
5. Divorce; Husband and Wife.
Grantor's intent to exclude wife from interest in property might be relevant to question of what
distribution was equitable, but did not create separate property where transfer to husband was not shown to
be by gift, devise or bequest or by acquisition through husband's separate property or credit.
Husband's life estate following a prior life estate was subject to division as community property unless it
was proved to be his separate property.
103 Nev. 148, 149 (1987) Pryor v. Pryor
OPINION
Per Curiam:
Appellant Rowena Pryor (Rowena) appeals from a decree of divorce. The decree included
a finding that her husband, respondent Roy Pryor (Roy) owns a life estate in certain real
property as trustee for their two adult children until the grantor (Mrs. King) demands payment
on a note. The decree stated that, when the demand is made, the property will become
community property. We disagree with the conclusion of the district court. We reverse and
remand.
Roy and Rowena married in Nevada in 1963. During marriage they resided in a
mobile-home park at Henderson, Nevada. The ownership of the trailer park, which was
originally owned in fee by Mrs. King, is the central dispute in this case.
During the latter years of the marriage, Mrs. King and Roy executed several deeds
transferring property between themselves. The various properties will be referred to herein as
parcels 3, 4 and 5. The only deed in the record before us that concerns parcel 3 is a quitclaim
deed dated November 20, 1980. This deed, executed by Mrs. King and Roy, transfers parcel 3
and 4 to Roy for life, with the remainder to the Pryors' adult children.
Parcel 4 was the subject of a rather strange series of deeds by which Roy acquired a life
estate in parcel 4. The first deed, dated August, 1972, transfers parcel 4 from Mrs. King to
Mrs. King for life, remainder to Roy, on the condition that Roy pay $33,000 to Mrs. King's
daughter. No time for payment was specified. The second deed, dated December, 1976,
executed by Mrs. King alone, purports to transfer parcel 4 to Roy for life, remainder to the
Pryor children. The final deed was the quitclaim deed mentioned above, dated November,
1980, whereby Mrs. King and Roy joined in transferring parcels 3 and 4 to Roy for life,
remainder to the Pryor children.
Simultaneous with the quitclaim deed of November, 1980, Roy executed a demand note
for $125,000 payable to Mrs. King or her daughter. He also executed and recorded a trust
deed.
[Headnote 1]
The district court found that it was the intent of Mrs. King to exclude Rowena from the
property. The court concluded that parcels 3 and 4 were owned by Roy as trustee for the
children, but that if Mrs. King ever demands payment on the note, then the property will
become community property.
There is no support for the proposition that property can change its nature from or to
community property at the whim of the grantor. This aspect of the decision below was error.
103 Nev. 148, 150 (1987) Pryor v. Pryor
[Headnote 2]
Even ignoring the portion of the decision that allows the property to change from separate
to community property at the demand of the grantor, the decision is in error. A life tenant may
be considered in some jurisdictions as a trustee for the remaindermen, but he nevertheless
owns a valuable estate in his own right. See Restatement (second) of Trusts, 16C (1959).
The courts that term the life tenant a trustee do so because of the restrictions on waste and the
like; however, the life tenant, unlike a true trustee, owns a valuable estate that is subject to
division as community property.
[Headnote 3, 4]
Having decided that Roy acquired a valuable estate, the question now becomes whether
that estate is community or separate property. We begin with the presumption that all
property acquired during the marriage is community property. Burdick v. Pope, 90 Nev. 28,
518 P.2d 146 (1974). Rebuttal of the presumption requires clear and convincing evidence. Id.
Even a deed reciting that Roy owned the estate as his separate property would not of itself
overcome the presumption. Id. Roy, as the party claiming that the property is separate, would
have the burden. Id. Roy would have the burden of showing that the estate was acquired by
gift, devise or bequest or that the property was acquired with his separate property of credit.
NRS 123.130 and NRS 123.220. See also Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
[Headnote 5]
Mrs. King's intent to exclude Rowena may be relevant to the question of what distribution
is equitable,
1
but it does not create separate property unless the transfer to Roy is by gift,
devise or bequest, or unless the property is acquired through separate property or credit. If
there is substantial evidence in the record to support a decision below, we will not disturb that
decision. Conversely, where there is not substantial evidence supporting a finding that
property is separate, we will not hesitate to disturb a finding of the district court. Avery v.
Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981).
Our review of the record reveals no evidence that the life estate was acquired by gift. Mrs.
King testified that the property had to be paid for. Roy himself considered the interest to be
community property.
____________________

1
We recognize that a detailed finding of the equities involved might well support distribution of the estates to
Roy upon remand. We will not decide in the first instance what distribution is equitable. That is a decision best
left to the district court. Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750 (1956).
103 Nev. 148, 151 (1987) Pryor v. Pryor
property. The demand note for $125,000 executed simultaneously with the deed leads us to
conclude that there was no gift. We find no evidence to the contrary in the record.
Nor do we find any evidence that the life estate was acquired with Roy's separate property
or credit. Indeed we find no evidence that Roy had any substantial separate property with
which to fund the purchase of the estate. Because Mrs. King testified at trial, we may infer
that the estate was not acquired by devise.
[Headnote 6]
As to parcel 5, we again find error. The district court found that neither Roy nor Rowena
had any interest in parcel 5that it was owned by Mrs. King in fee. Two deeds are in
evidence. By the first, Mrs. King transferred parcel 5 to Roy for life, remainder to the
children. By the second, Roy purported to transfer the property to Mrs. King for life,
remainder to Roy for his life, remainder to the Pryor children. It appears that Roy has retained
some small interest in the land.
2
The scope of that interest must be determined on remand.
His interest may never become possessory, but it is an interest nonetheless and subject to
division as community property unless it is proved to be his separate property.
In short, the property cannot be transmuted from a trust for the children to community
property at the demand of the grantor. The estate in parcels 3 and 4 is not a trust. The record
reveals that it is a valuable estate in land. There is no evidence to rebut the presumption that
the estate is community property. Similarly, with parcel 5, there is no evidence that the
interest of the parties is not a community interest.
We note that inclusion of additional community property to the marital estate may upset
the delicate balance of equities leading to the original property distribution. The district court
may therefore find it necessary to re-evaluate the entire distribution. Weeks v. Weeks, 72
Nev. 268, 302 P.2d 750 (1956).
For the reasons presented above, we reverse and remand.
____________________

2
Roy testified that he transferred parcel 5 back to Mrs. King via the second deed. Roy is in error. He
owned only a life estate. He could transfer no more than he owned.
____________
103 Nev. 152, 152 (1987) Diaz v. Golden Nugget
PASTORA DIAZ, Appellant, v. GOLDEN
NUGGET, Respondent.
No. 16942
March 31, 1987 734 P.2d 720
Appeal from a judgment. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Administrative appeals officer ordered employer to pay rehabilitative maintenance to
former employee, who had injured her elbow on the job. The district court reversed, and
claimant appealed. The Supreme Court held that: (1) claimant was aggrieved by hearing
officer's refusal to address the issue of vocational rehabilitation, and thus was entitled to
invoke jurisdiction of appeals officer; (2) failure of request for hearing before hearing officer
to specify rehabilitation as a matter for review did not warrant ignoring the issue; (3) once
jurisdiction of appeals officer was invoked on issue of permanent partial disability, appeals
officer had authority to decide the question of rehabilitation; (4) decision of appeals officer
was supported by substantial evidence; and (5) claimant did not forever forfeit all benefits
when she left work without medical authorization.
King, Clark, Gross and Sutcliffe, Ltd., Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondent.
Claimant was aggrieved by hearing officer's refusal to address issue of vocational rehabilitation, while
affirming termination of all benefits, so that claimant was entitled to invoke jurisdiction of appeals
officer. NRS 616.5412, subd. 2, 616.5414.
Failure of claimant's request for hearing before hearing officer to specify rehabilitation as a matter for
review did not render appropriate ignoring the issue, even if employer were truly surprised by the omission.
Hearing before appeals officer was akin to hearing de novo and appeals officer had authority to decide
question of rehabilitation once jurisdiction of that officer was invoked on appeal from denial of permanent
partial disability, even though issue of rehabilitation was not decided by hearing officer. NRS 616.5426,
subd. 2.
Decision of appeals officer in worker's compensation case will not be disturbed on judicial review if it is
supported by substantial evidence.
Order of appeals officer that employer pay rehabilitative maintenance was supported by substantial
evidence that claimant was unable to return to her job as a maid, in light of physician's report that claimant
was unable to perform usual and customary jobs because of significant flareup of elbow injury, though
report was subsequent to hearing before hearing officer. NRS 616.5426, subd. 2.
Claimant did not forever forfeit all benefits when she left work without medical authorization, but instead
again became eligible for benefits as of the date of medical report recommending light duty and restrictions
on lifting.
OPINION
Per Curiam:
This is an appeal from the judgment of the Eighth Judicial District Court reversing the
decision of an administrative appeals officer.
The case involves a worker's compensation claim. The appeals officer ordered respondent
Golden Nugget to pay rehabilitative maintenance to appellant Diaz. The district court
reversed that decision, finding that the appeals officer had no jurisdiction to consider the
question of rehabilitation, and that the decision of the appeals officer was not supported by
substantial evidence. We disagree and we reverse the decision of the district court.
Diaz was employed as a maid for the Nugget. In July, 1983, she slipped, fell, and injured
her elbow. In February, 1984, the Golden Nugget notified Diaz that her file would be closed.
She appealed to the hearing officer who directed further medical evaluation. Dr. Mackey
treated Diaz for a period and released her to full duty in July, 1984. She worked for less than
two days, then, due to swelling and discomfort in her arm, she stopped working.
Diaz was examined by Dr. Ganhem who detected problems with her right median nerve.
Diaz was then seen by Dr. Boulware who reported no evidence of neuropathy and
recommended no limits on her activities. This report led to another closure letter from the
Nugget. Diaz once again appealed to the hearing officer. Before the hearing she was
examined by Dr. Kudrewicz. This latest report, however, is dated two days after the hearing
by the hearing officer. It notes a loss of range of motion in the wrist and elbow, tenderness in
the area and some indentation deformity which Dr. Kudrewicz opined was due to muscular
atrophy.
The hearing officer, not having the benefit of the Kudrewicz report, affirmed the
termination of all benefits. At the hearing, Diaz raised the question of vocational
rehabilitation. The hearing officer found that he was unable to address the question
because it had not been the subject of a determination by the insurer.
officer found that he was unable to address the question because it had not been the subject of
a determination by the insurer.
Diaz appealed to the appeals officer. The appeals officer reversed the decision of the
hearing officer and ordered the Golden Nugget to pay rehabilitative maintenance. The
decision was based on the Kudrewicz report.
The Nugget petitioned for judicial review. The district court found that the appeals officer
had exceeded his jurisdiction because Diaz was not a party aggrieved by a decision of the
hearing officer and because the appeals officer has no jurisdiction to consider a matter not
heard and ruled upon by the hearing officer. The district court also found that the decision
was not supported by the evidence.
1
Our analysis begins with the jurisdictional issue. The Golden Nugget sent Diaz a letter
terminating all benefits. Diaz appealed to the hearing officer, designating temporary total
disability as the sole issue being appealed. However, she also requested an evaluation for
permanent partial disability. At the hearing, Diaz contended that she was entitled to
vocational rehabilitation.
The hearing officer declined to address the question of vocational rehabilitation. He stated
instead that:
The hearing officer is unable to address the subject of rehabilitation services or
maintenance as there has been no determination made by the insurer as to those
benefits.
Diaz then filed two requests for hearing at the appeals officer level. One notice designated
rehab as the issue being appealed. The other designated permanent partial disability as
the sole issue on appeal. The appeals officer reversed the decision of the hearing officer and
ordered rehabilitative services and maintenance.
[Headnote 1]
We hold that Diaz was aggrieved by the hearing officer's refusal to address the issue. She
requested a ruling on an issue and no decision was forthcoming. By refusing to decide the
issue, the hearing officer affirmed the termination of all benefits. Diaz was thus aggrieved
by the hearing officer's refusal to address the issue and was entitled to invoke the
jurisdiction of the appeals officer.
____________________

1
The decision of the district court recites that it was based on the briefs, points and authorities and oral
arguments of the parties. It makes no mention of the record of proceedings before the appeals officer. If, in fact,
there was no review of the record by the district court, then reversal and remand would be necessary. SIIS v.
Thomas, 101 Nev. 293, 701 P.2d 1012 (1985). We refrain from ruling on this basis because the record is not
clear as to whether the district court actually reviewed the record and because other errors are clear.
address the issue and was entitled to invoke the jurisdiction of the appeals officer. See SIIS v.
Partlow-Hursh, 101 Nev. 122, 696 P.2d 462 (1985).
Concluding that the appeals officer had the authority to review the hearing officer's
decision does not resolve the issue. The question now becomes whether that decision was
correct. A decision by the insurer to terminate all benefits necessarily includes a denial of
rehabilitative benefits. Diaz was thus a party aggrieved by a decision of the insurer within the
meaning of NRS 616.5412(2). We note parenthetically that an employee of a self-insured
employer need only be dissatisfied with a decision of the employer. NRS 616.5414.
[Headnote 2]
The essence of the Golden Nugget's contention, as we see it, is that the Request for
Hearing before the hearing officer did not specify rehabilitation as a matter for review. This
argument is without merit. We have consistently held that the worker's compensation law,
including matters of procedure, is liberally construed, having due regard to remedial and
salutary purposes of the act. Nevada Industrial Commission v. Peck, 69 Nev. 1, 11, 239 P.2d
244, 248 (1952). Requiring a claimant to list every possible issue on the request form would
not be consistent with a liberal construction of the act. If the Nugget were truly surprised,
some remedy other than ignoring the issue would be appropriate.
[Headnote 3]
There is a further reason to uphold the decision of the appeals officer. The issue of
permanent partial disability was properly before the hearing officer. The benefits were denied.
Diaz appealed. Once the jurisdiction of the appeals officer is invoked, the appeals officer
must hear nay matter raised before him on its merits, including new evidence bearing on the
matter. NRS 616.5426(2). Thus, the hearing before the appeals officer is more akin to a
hearing de novo than to an appeal as we know it. Therefore, the appeals officer had the
authority to decide the question of rehabilitation.
The district court held that the appeals officer may not hear a matter not previously heard
and ruled upon by the hearing officer. The court cited our decision in Liggett v. SIIS, 99 Nev.
262, 661 P.2d 882 (1983), in support of that proposition. The district court's reliance on
Liggett is misplaced. In that case, we held only that an appeals officer can make an
independent review of the record and the evidence and determine that a claimant has
abandoned the claim. It does not limit the appeals officer to a review of matters presented to
and decided by the hearing officer. Such a construction in the instant case would effectively
allow the hearing officer to deny benefits and then preclude appeal by refusing to rule.
refusing to rule. Refusing to hear a matter is a decision that may be reviewed by the appeals
officer.
[Headnote 4]
Having decided that the question of rehabilitative benefits was properly before the appeals
officer, the rest of our analysis is limited. Judicial review of the decision of the appeals officer
is limited to a review of the record before the appeals officer. Neither the district court nor
this court is to substitute its judgment for that of the appeals officer regarding the weight of
evidence. If the record includes substantial evidence supporting the appeals officer's decision,
that decision will not be disturbed upon judicial review. Nevada Indus. Comm'n v.
Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).
[Headnote 5]
In the instant case, the decision of the appeals officer is supported by the Kudrewicz
report. The appeals officer was specifically authorized to receive the Kudrewicz report even
though it was not before the hearing officer. NRS 616.5426(2). Dr. Kudrewicz stated: It
appears clear that (Diaz) is unable to perform her usual and customary jobs because of
significant flare-up of her elbow area. There was, therefore, substantial evidence that Diaz
was unable to return to her old job. The appeals officer is the ultimate trier of fact. We will
not disturb the factual findings that Diaz was unable to return to her job as a maid.
[Headnote 6]
The Golden Nugget argues that Diaz forever forfeited all benefits when she left work
without medical authorization. The Golden Nugget mistakenly relies on Nevada Industrial
Comm'n v. Taylor, 98 Nev. 131, 642 P.2d 598 (1982). The Taylor decision merely states that
an injured worker cannot receive temporary total disability benefits between the time he is
returned to work and the time competent medical authority determines to the contrary. Id. at
132, 133, 642 P.2d at 599. In the instant case there was a later determination that Diaz was
not capable of full duty. The Kudrewicz report recommends light duty and restrictions on
lifting. Diaz became eligible for benefits as of the date of the Kudrewicz report. We will not
require an injured worker to stay on the job, possibly aggravating an injury, until another
medical evaluation can be arranged.
In summary, we hold that the question of rehabilitative benefits was properly before the
appeals officer and his decision awarding benefits is supported by substantial evidence in the
record. We therefore reverse the decision of the district court and reinstate the decision of the
appeals officer.
____________
103 Nev. 157, 157 (1987) Carrillo v. Valley Bank
FRED W. CARRILLO, Appellant, v. VALLEY BANK OF NEVADA,
a Nevada Banking Corporation, Respondent.
No. 17394
March 31, 1987 734 P.2d 724
Appeal from summary judgment. Fifth Judicial District Court, Nye County; William P.
Beko, Judge.
Bank brought action for balance due on promissory note, after it purchased property
subject to its second deed of trust at trustee's sale, for amount one dollar in excess of amount
due under first deed of trust. The district court entered summary judgment in favor of bank,
and maker of note appealed. The Supreme Court held that bank was permitted to resort to
deficiency judgment only to extent that combined debts represented by first and second deeds
of trust exceeded fair market value of property.
Lionel Sawyer & Collins and Todd M. Touton, Las Vegas, for Appellant.
Jones, Jones, Close & Brown, John E. Leach and Michael E. Buckley, Las Vegas, for
Respondent.
Mortgages.
Bank, which held second deed of trust on property, was entitled to resort to deficiency judgment only to
extent that combined debts represented by first and second deeds of trust exceeded fair market value of
property, where bank purchased property at trustee's sale for amount one dollar in excess of amount owed
in note secured by first deed of trust. NRS 40.457, 40.459.
OPINION
Per Curiam:
Valley Bank of Nevada (Valley Bank or the Bank) sued Carrillo for the balance due on a
promissory note. The lower court entered summary judgment in favor of the Bank. For
reasons hereafter specified, we reverse.
In February 1981, Carrillo, a joint venturer with Tonopah Enterprises, executed a one-year
lease with an option to purchase the OK Corral Inn (the property) in Tonopah. Thereafter,
Carrillo obtained a construction loan for approximately $350,000 from Valley Bank. The loan
was secured by a trust deed on Carrillo's leasehold interest in the property, and the loan
proceeds were used to make improvements on the property.
used to make improvements on the property. Eventually, the joint venture exercised its option
to purchase and acquired the property. The sellers demanded and received a first deed of trust
on the property securing a debt of $400,000. Valley Bank agreed to subordinate its deed of
trust to the purchase money deed of trust. Shortly thereafter, the joint venture defaulted on
both the first and second deeds of trust.
A trustee's sale was scheduled pursuant to the beneficiary's rights under the first deed of
trust. At the sale, the beneficiary bid in the amount owing on its note; Valley Bank submitted
a bid for an additional dollar, thereby acquiring the property for $466,093.67.
Valley Bank contends that the net effect of the trustee's sale was nullification of its second
trust deed and a corresponding right to recover the full remaining balance of the Carrillo
promissory note irrespective of the fair market value of the secured property it acquired. The
district court agreed and entered summary judgment in favor of Valley Bank and against
Carrillo in the amount of $283,688.18, together with interest, cost and attorney's fees.
The property was appraised in August, 1981, at approximately $2,050,000. In February
1984, Valley Bank obtained a second appraisal of $1,170,000. Carrillo maintains that
Nevada's deficiency statutes, NRS 40.457 and 40.459, ought to apply to Valley Bank in the
instant case because of the potential for a double recovery. See Crowell v. Hancock, 102 Nev.
640, 731 P.2d 346 (1986); First Interstate Bank v. Shields, 102 Nev. 616, 730 P.2d 429
(1986). Of course, a double recovery would occur if Valley Bank realized the full balance of
the Carrillo note in addition to property valued in excess of the combined indebtedness
represented by the first and second trust deeds.
Valley Bank insists that the trustee's sale extinguished its security interest in the property
and left the Bank in the position of a sold-out junior lienor. Endorsement of such a view
would truly exalt form over substance in disregard of reality. The Bank, in fact, preserved its
security by acquiring the property at the sale. It could have elected not to participate in the
sale, thereby losing its security interest. Thereafter, it could have pursued its remedy against
Carrillo on the promissory note. In so doing, the Bank could have enjoyed the status it now
claims. The Bank could not restructure the equation to produce a return greater than its full
entitlement by treating the property and Carrillo's promissory note as unrelated factors. It is
the policy of Nevada law, under First Interstate Bank and Crowell, not to countenance such
an approach. Valley Bank nevertheless contends that McMillan v. United Mortgage Co., 84
Nev. 99, 101, 437 P.2d 878, 879 (1968), is dispositive in exempting sold-out junior lienors
from Nevada's deficiency statutes.
Nevada's deficiency statutes. First, as previously observed, we do not consider Valley Bank to
be a sold-out junior lienor in spite of the legal effect of the trustee's sale in extinguishing the
Bank's second trust deed. The Bank as a purchaser did not lose its expectations concerning
the property as a source of debt satisfaction. Second, to the extend McMillan is inconsistent
with our instant holding, it is disapproved.
Today's ruling is not without support in other jurisdictions, Walter E. Heller Western, Inc.
v. Bloxham, 221 Cal.Rptr. 425 (Ct.App. 1985); Bank of Hemet v. United States, 643 F.2d
661 (9th Cir. 1981). Both decisions differentiated between a sold-out junior lienor and a
junior lienor who purchases the property at a trustee's sale initiated by a senior lienholder. In
the latter situation, the creditor is permitted resort to a deficiency judgment only to the extent
the combined debts exceed the fair market value of the property. We adopt the same rule for
Nevada, as it fully comports with the public policy of this State.
The California statutes concerning deficiency judgments parallel our own. As the Heller
court observed:
[O]nce a junior chooses to purchase, it is equitable to apply the fair value limitations to
him. Any loss to him as creditor by his own underbidding is gained by him as a
purchaser for a bargain price. . . . To so limit the deficiency judgment right is . . . to
protect against a lienor buying in the property at a deflated price, obtaining a deficiency
judgment, and achieving a recovery in excess of the debt by reselling the property at a
profit. . . . []. . . The unmistakable policy of California is to prevent excess recoveries
by secured creditors. Id. at 429-30.
The policy affirmations of Heller and Bank of Hemet coincide with the expressions of this
court in First Interstate Bank and Crowell. All are consistent with our holding in the instant
case.
The trial court, having agreed that the Bank was a sold-out junior lienor, entered summary
judgment against Carrillo on his note. There has been no judicial determination of the fair
market value of the property as of the date of the trustee's sale. Moreover, the statutory period
for seeking a deficiency judgment has long since expired. Nevertheless, it would be unfair to
reverse the Bank's judgment and leave it without a remedy, a predicament that clairvoyance
alone could have avoided. Similarly, it would be inequitable to penalize Carrillo's foresight
and diligence with a vindication made hollow by an ongoing interest meter. Clearly, if the
Bank had assumed the more equitable stance reflected by this opinion, the extent of Carrillo's
liability would have been determined at a much earlier date as contemplated by our deficiency
statutes. Accordingly, we reinstate the Bank's remedy but disallow interest on the
promissory note from the date of entry of the erroneous summary judgment.
disallow interest on the promissory note from the date of entry of the erroneous summary
judgment. Of course, if the fair market value of the property on the date of the trustee's sale is
determined to be greater than the combined debts represented by the first and second trust
deeds, the issue will be moot as there could be no deficiency judgment.
The summary judgment is reversed and remanded for further proceedings consistent with
this opinion.
1

____________________

1
The proper procedure for a purchasing junior lienor to follow in seeking a deficiency judgment is set forth
in NRS 40.455. The purchasing junior has three months from the date of the trustee's sale within which to file an
action for such a judgment. The provisions of NRS 40.457 and NRS 40.459 apply to purchasing juniors seeking
to establish and reduce a deficiency to judgment. However, the three-month application period will be tolled in
the instant action until this court's remittitur is issued.
____________
103 Nev. 160, 160 (1987) Sheriff v. Frank
SHERIFF, CLARK COUNTY, Appellant, v.
SETH FRANK, Respondent.
No. 17671
March 31, 1987 734 P.2d 1241
Appeal from order granting respondent's petition for a writ of habeas corpus. Eighth
Defendant, charged by indictment with one count of lewdness with minor and one count of
sexual assault on child, petitioned for writ of habeas corpus, seeking dismissal of indictment
with leave for state to proceed anew in proper fashion. The district court granted petition, and
state appealed. The Supreme Court held that: (1) deputy district attorney improperly withheld
exculpatory evidence from grand jury, and (2) actions of deputy district attorney, coupled
with admission of hearsay evidence, irreparably impaired proper performance of grand jury's
mission to pursue its investigation independently of prosecuting attorney, warranting
requested relief.
Affirmed.
Rex Bell, District Attorney, Clark County, for Appellant.
Jeffrey D. Sobel, Las Vegas, for Respondent.
1. Grand Jury.
Deputy district attorney violated statutory duty to submit any evidence which would explain away
lewdness with minor and sexual assault on child charges by failing to present to grand jury
evidence that victim made false accusations of sexual misconduct against other
individuals and by actively discouraging grand jury from receiving and exploring
evidence of prior false accusations.
on child charges by failing to present to grand jury evidence that victim made false accusations of sexual
misconduct against other individuals and by actively discouraging grand jury from receiving and exploring
evidence of prior false accusations. NRS 172.145(2), 200.366(2)(c), 201.230.
2. Habeas Corpus.
Deputy district attorney's failure to submit exploratory evidence, coupled with substantial body of
inadmissible evidence received by grand jury, clearly destroyed existence of independent and informed
grand jury and irreparably impaired its function, warranting district court to issue writ of habeas corpus
with leave for state to proceed anew in proper fashion, with respect to charges of lewdness with minor and
sexual assault on child. NRS 172.135(2), 172.145(2), 200.366, 201.230.
OPINION
Per Curiam:
Respondent, Seth Frank, was charged by an indictment filed March 21, 1986, with one
count of lewdness with a minor and one count of sexual assault on a child under the age of
fourteen. See NRS 201.230; NRS 200.366 (2)(c). Prior to trial, respondent challenged the
indictment by way of a petition for a writ of habeas corpus. Among other contentions, he
argued that the indictment was invalid because the district attorney (1) improperly withheld
exculpatory evidence from the grand jury; and (2) allowed inadmissible testimony to be
presented to the grand jury. The district court agreed and granted respondent's petition which
sought dismissal of the indictment with leave for the state to proceed anew in a proper
fashion. The state appeals. For the reasons set forth below, we affirm the order of the district
court.
THE FACTS
In 1985, the alleged victim, respondent's eleven-year-old daughter, attended a
counseling-oriented special education program operated by the Clark County School District.
The program is designed for children whose learning abilities are impeded by social or
emotional problems. As a result of certain allegations made by the daughter in a homework
assignment, the school authorities requested the police to investigate the child's accusations
that she had been the victim of sexual abuse. Thereafter, in interviews with Detective
Crawford, the daughter alleged that her father, her thirteen-year-old brother, and an adult
male neighbor had sexually abused her. As a result of these statements, the child was placed
in protective custody in a foster home, and grand jury proceedings were instituted.
Prior to the grand jury proceedings, a custody hearing was held in juvenile court in which
the daughter recanted her accusations against her brother and the neighbor.
against her brother and the neighbor. She specifically testified that she had not told the truth
regarding those accusations. She later testified before the grand jury, however, that her father
had touched her on her chest and genitals and had subjected her to fellatio. During her
testimony before the grand jury, the deputy district attorney, Mr. Jeffers, did not question her
regarding her prior accusations against her brother and the neighbor. In essence, in her brief
appearance before the grand jury, she merely related her allegations against her father.
The grand jury, however, received a substantial amount of testimony from numerous other
witnesses. In addition to his claims regarding the deputy district attorney's failure to submit
exculpatory evidence to the grand jury, respondent also argued in his petition below that
much of the testimony that was presented was inadmissible and highly inflammatory hearsay
evidence. For example, Detective Crawford testified that during her initial interviews with
respondent's daughter, the child indicated to [her] that she was having some problems at
home, that she was very frightened of her father and that the reason for that is because he
sometimes hit her and hit her brother, but mostly because he touched her in private places and
that made her very sad. . . . Crawford also stated her opinion that the daughter was telling
her the truth.
At another point during Crawford's testimony, a juror asked if the daughter had ever made
any accusations against her brother. When Crawford answered Yes, the deputy district
attorney interrupted the testimony, stated that he did not believe this evidence was relevant,
and asked the grand jury to disregard it. Further, the deputy stated, We're getting into an
offense even if it did occur, it is something that is held in juvenile court and we have
absolutely no jurisdiction to get into it.
The grand jury, however, did receive some evidence of the false accusation against the
brother, primarily from respondent during his testimony. Specifically, respondent testified
that he and his son both passed polygraph examinations concerning the accusations.
Respondent stated that polygraph tests were done on my 13-year-old son and myself and
that he and his son were accused of the same identical charges, sexual assault and lewdness
with a minor. The deputy district attorney responded to this statement by inquiring, How
did your son get in here? We haven't presented any evidence. Did he do something, too?
Respondent then indicated that he was simply trying to explain that his daughter had initially
accused them both. Later, respondent testified that his daughter had recanted the charges
against his son.
Additionally, the deputy district attorney discouraged the grand jury from accepting
evidence of the son's polygraph exam. Specifically, the deputy stated, "[t]hese two
polygraph examinations, if the foreman wants them in, I would say that whatever the
young boy did or didn't do is not a matter of concern to this Grand Jury.
cifically, the deputy stated, [t]hese two polygraph examinations, if the foreman wants them
in, I would say that whatever the young boy did or didn't do is not a matter of concern to this
Grand Jury. That's something handled by Juvenile Court and nothing this Grand Jury could
entertain there, if they wanted to, so I don't think it's material. The deputy went on to
explain, however, that the jury could consider the tests for something that would tend to
explain away guilt. Nonetheless, at the conclusion of respondent's testimony, the grand jury
accepted only the polygraph test of respondent. Specifically, the foreman stated I would
think that any evidence, . . . with regard to the son, would not necessarily be relevant to
anything we are discussing. . . .
We further note that counsel for respondent offered to produce respondent's son as a
witness who could relate exculpatory testimony to the grand jury. The deputy district
attorney, however, indicated to the grand jury that he felt it would be improper to bring the
young boy in to testify in here when it possibly might involve juvenile matters pending
against him. Instead, the deputy told the grand jury that respondent's counsel had indicated to
him in the presence of the grand jury foreman that the essence of the boy's testimony would
be to corroborate respondent's contention that the daughter had threatened to get even with
respondent and his son for laughing at her. The deputy, however, did not inform the jury
that the girl had recanted her accusations against the son in sworn testimony during the prior
custody proceedings, and that this might be evidence which could explain away respondent's
guilt. Additionally, our review of the record reveals no indication that the deputy district
attorney ever informed the grand jury that the daughter had made and later recanted
accusations against a neighbor.
Respondent also testified extensively before the grand jury that he suspected that his
daughter's teacher was actually the one who had abused his daughter. In this regard, the
deputy district attorney called attorney John Lukens, ostensibly to present evidence which
would tend to explain away respondent's guilt. Lukens was appointed by the juvenile court to
act as an investigator on behalf of the court and as counsel for the daughter during the
juvenile proceedings. As such, he investigated the allegations that the daughter's teacher may
have actually molested the child. Lukens' testimony recounted statements made by a parent
and grandparent of one of the daughter's classmates to the effect that the teacher was just
absolutely tremendous and that they wished that the girl could still be in the teacher's class
because she was the best. Lukens further stated that there was simply nothing to any of
those allegations that had been made. Despite the deputy district attorney's admonishment to
the grand jury that this hearsay testimony was being presented only as evidence that could
be considered to explain away respondent's guilt, it appears that the testimony, in reality,
was directed at destroying respondent's credibility and building the state's case.
say testimony was being presented only as evidence that could be considered to explain away
respondent's guilt, it appears that the testimony, in reality, was directed at destroying
respondent's credibility and building the state's case.
Further, we note that the grand jury spent a substantial amount of time exploring some
disturbing facts surrounding Mike Barbutti's tangential involvement in this matter. Barbutti is
a Las Vegas radio personality. He testified that respondent's daughter frequently called him at
the radio station to request songs and talk. According to Barbutti, after the child was removed
from her parents' custody, the family requested that he look into the matter. Thereafter,
Barbutti received a list of names and a note from an anonymous source indicating that the
people on the list would have information on the case. Apparently, Barbutti's investigation
focused on the teacher's involvement in the matter. Barbutti stated that after he had contacted
some of the people on the list, an unknown individual delivered an envelope to him.
Apparently, this individual told Barbutti that there was $5,000 in the envelope and that
Barbutti would receive $45,000 more if he dropped the investigation. Barbutti told the grand
jury that the envelope actually contained only $3,900 and that he had spent the money, and
misplaced the list.
At the conclusion of the grand jury proceedings, the deputy district attorney informed the
jurors that he had tried to present to you all the evidence that I thought even might be
described as something that would explain away guilt. He further attempted to admonish the
jurors that some of Detective Crawford's testimony was not for the truth of the matter, but
merely to explain how she got into the mainstream of the investigation, and that he felt that
Crawford was qualified, based upon her experience and background, to offer her opinion as to
the truthfulness and credibility of the daughter. Thereafter, on March 20, 1986, the grand jury
returned its indictment against respondent.
THE LAW
[Headnote 1]
NRS 172.145(2) provides that [i]f the district attorney is aware of any evidence which
will explain away the charge, he shall submit it to the grand jury. (Emphasis added.) As
noted above, respondent argued that he deputy district attorney violated his duty under NRS
172.145(2) by failing to present to the grand jury conclusive proof that [the daughter] made
deliberately false accusations of sexual misconduct against other individuals at the same
time that she was making similar accusations against her father. We agree. In our view, the
evidence regarding the daughter's prior false accusations, made at the same time she also
accused her father, has a tendency to explain away the charge against respondent.
the same time she also accused her father, has a tendency to explain away the charge against
respondent. By failing to submit this evidence to the grand jury, the district attorney violated
his duty dictated by the plain, unambiguous language of NRS 172.145(2).
Moreover, we conclude that the deputy district attorney not only failed to present the
exculpatory evidence, but he also actively discouraged the grand jury from receiving and
exploring evidence of the prior false accusations, particularly in regard to the accusation
against respondent's son. The grand jury's mission is to clear the innocent, no less than to
bring to trial those who may be guilty. See United States v. Dionisio, 410 U.S. 1, 16-17
(1973). Of course, we express no opinion as to the guilt or innocence of respondent in this
matter. We observe, however, that accusations of this nature tend to inflame persons of
normal sensibilities. See Sheriff v. Miley, 99 Nev. 377, 385, 663 P.2d 343, 348 (1983)
(Gunderson, J., dissenting). Where, as here, a prosecutor refuses to present exculpatory
evidence, he, in effect, destroys the existence of an independent and informed grand jury.
See United States v. Gold, 470 F.Supp. 1336, 1353 (N.D.Ill. 1979); see also Johnson v.
Superior Court of San Joaquin County, 539 P.2d 792 (Cal. 1975). We conclude, therefore,
that in this particular instance the actions of the deputy district attorney, coupled with the
admission of hearsay evidence as discussed below, irreparably impaired the proper
performance of the grand jury's mission to pursue its investigation independently of the
prosecuting attorney. See United States v. Dionisio, 410 U.S. at 16-17.
[Headnote 2]
As noted, respondent also argued below that the indictment was tainted by the fact that the
deputy district attorney allowed numerous witnesses to present inadmissible and highly
inflammatory hearsay evidence. Specifically, respondent objected to the testimony referred to
above of Detective Crawford and attorney Lukens. NRS 172.135(2) provides that [t]he
grand jury can receive none but legal evidence, and the best evidence in degree, to the
exclusion of hearsay or secondary evidence. The state did not contradict respondent's
allegation that inadmissible evidence was presented to the grand jury. Instead, it argued that a
sufficient amount of admissible evidence was presented to sustain the indictment. See, e.g.,
Robertson v. State, 84 Nev. 559, 561-562, 445 P.2d 352, 353 (1968) (regardless of
presentation of inadmissible testimony, if there is the slightest sufficient legal evidence and
best in degree, the indictment will be sustained). While we continue to adhere to the general
rule announced in Robertson, under the circumstances of this case, we conclude that the
district attorney's failure to submit exculpatory evidence, coupled with the substantial
body of inadmissible evidence received by the grand jury, clearly destroyed the existence
of an independent and informed grand jury and irreparably impaired its function.
attorney's failure to submit exculpatory evidence, coupled with the substantial body of
inadmissible evidence received by the grand jury, clearly destroyed the existence of an
independent and informed grand jury and irreparably impaired its function. See United States
v. Gold, 470 F.Supp. at 1353; see generally Gibbons v. State, 97 Nev. 299, 629 P.2d 1196
(1981) (judgment of conviction reversed where jury's deliberations at trial were unduly
prejudiced and influenced by admission of improper evidence).
Finally, we note that respondent's petition specifically requested the district court to issue a
writ of habeas corpus with leave for the state to proceed anew in a proper fashion. Under
these circumstances, we conclude that the district court properly granted respondent's
petition. In light of our conclusion in this regard, our consideration of the additional ground
which respondent asserted in support of his petition below is unnecessary. Accordingly, we
affirm the order of the district court granting respondent's petition.
____________
103 Nev. 166, 166 (1987) Sanchez v. State
ALFONSON INFANTE SANCHEZ, Appellant, v.
No. 17332
March 31, 1987 734 P.2d 726
Appeal from conviction of trafficking in a controlled substance, possession of a controlled
substance for the purpose of sale, unlawful sale of a controlled substance and possession of a
short-barrelled shotgun. Second Judicial District Court, Washoe County; Deborah Agosti,
Judge.
Defendant was convicted in the district court of trafficking in controlled substance,
possession of controlled substance for purpose of sale, unlawful sale of controlled substance,
and possession of short-barrelled shotgun, and he appealed. The Supreme Court held that: (1)
search warrant procured over telephone was valid; (2) search warrant was not rendered
defective because it recited incorrect time of issuance; (3) permitting night-time service of
search warrant was not abuse of discretion; and (4) defendant was not coerced into making
incriminating statement by police officer's indicating judge could reduce his sentence if he
cooperated.
Affirmed.
Carl F. Martillaro and Paul Sherman, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Timothy
G. Randolph, Deputy District Attorney, Clark County, for Respondent.
1. Searches and Seizures.
Magistrate's presence was extended electronically by telephone when magistrate was convinced that
authority requesting search warrant was police officer and knew that deputy district attorney was recording
statement and, thus, recording was properly made in the presence of the magistrate for purposes of search
warrant statute, though recording was made outside physical presence of magistrate. NRS 179.045.
Incorrect time of issuance recited in search warrant did not render warrant invalid. U.S.C.A.Const.
Amend. 4.
3. Drugs and Narcotics.
Magistrate did not abuse his discretion in issuing night-time service of search warrant, given concern that
narcotics located in apartment could dissipate and informant's purchase money be spent if warrant was not
executed that night and testimony that controlled substances were sold at all hours of day or night.
4. Criminal Law.
Explanation by police officers that judge could reduce sentence if defendant rendered substantial
assistance in narcotics investigation did not improperly coerce defendant into making incriminating
statement; police specifically stated that they could not grant defendant leniency but that determination
rested with judge. NRS 453.3405, subd. 2.
OPINION
Per Curiam:
In January 1986, Sanchez was convicted of trafficking in a controlled substance,
possession of a controlled substance for purpose of sale, unlawful sale of a controlled
substance and possession of a short-barrelled shotgun. Our review of the record convinces us
that Sanchez received a fair trial, free of prejudicial error; we therefore affirm.
On July 31, 1985, a police informant purchased slightly less than a quarter gram of heroin
from Sanchez. Subsequently, another informant purchased heroin from an individual living
with Sanchez. She had arranged to meet Sanchez in the laundry room at his apartment
complex to purchase the heroin. The informant was met by a juvenile who completed the sale
and was then followed from the laundry room directly to Sanchez' apartment.
As other officers continued to watch Sanchez' residence, a detective with Reno Police
Department, while on the telephone with a deputy district attorney, applied for a warrant to
search the suspect's Virginia Street apartment. An oral statement was telephonically given
under oath to a justice of the peace at 6:46 p.m. on August 23, 19S5.
6:46 p.m. on August 23, 1985. The statement was electronically recorded by the deputy
district attorney in her office. The initial address to be searched was erroneously stated as
3275 Virginia Street, apartment No. 76, Reno, Nevada. After the officers discovered their
mistakethe address was actually 3125 South Virginia Streetthe justice of the peace was
recontacted, at 7:36 p.m., and a supplemental oral statement was completed over the
telephone, correcting Sanchez' address. Sometime during the amendment procedure, the time
on the original search warrant was inadvertently left at 6:46 p.m., as opposed to 7:36 p.m., the
time of the supplemental oral statement.
The police searched Sanchez' apartment pursuant to the corrected search warrant; the
warrant also contained a nighttime search authorization. Upon entering the apartment, the
police found unpackaged heroin in excess of 20 grams, other quantities of packaged heroin,
packaging materials and a sawed-off shotgun. The officers also found the money used by the
informant in the wallet of one of the apartment's occupants.
Sanchez was interviewed after his arrest, with the assistance of a Spanish-speaking police
officer. He received and waived his Miranda rights. A police officer then explained the
provisions of NRS 453.3405 in Spanish to Sanchez, who admitted that he sold heroin, that he
was selling heroin for another person, and that he knew such sales were illegal.
The trial court, after a hearing on the issue, determined that Sanchez' Miranda rights were
knowingly and intelligently waived, and that his statements were voluntary and admissible.
[Headnote 1]
Sanchez first asserts that a search warrant procured over the telephone is not valid. The
search warrant statute, NRS 179.045, specifies the requirements for a search warrant.
1
The
specific requirement that the oral statement be recorded in the presence of the magistrate is
read broadly by this court. The telephone and the ability to arrange conference calls greatly
expands the presence of a magistrate.
____________________

1
NRS 179.045 states in pertinent part:
1. A search warrant may issue only on affidavit or affidavits sworn to before the magistrate and
establishing the grounds for issuing the warrant or as provided in subsection 2. If the magistrate is
satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he
shall issue a warrant identifying the property and naming or describing the person or place to be searched.
2. In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement given
under oath, which must be recorded in the presence of the magistrate or in his immediate vicinity by a
certified shorthand reporter or by electronic means, transcribed, certified by the reporter if he recorded it,
and certified by the magistrate. The statement must be filed with the clerk of the court.
the ability to arrange conference calls greatly expands the presence of a magistrate. When, as
here, the magistrate is convinced that the requesting authority is a police officer and knows
that the deputy district attorney is recording the statement, the magistrate's presence is
extended electronically by telephone. Such a recording, albeit outside the physical presence of
the magistrate, is nevertheless in the presence of the magistrate for purposes of NRS
179.045(2).
2
We conclude that there was no violation of the statute in the instance case.
[Headnote 2]
Sanchez also claims that the warrant was facially defective because it recited an incorrect
time of issuance.
In Lucas v. State, 96 Nev. 428, 432, 610 P.2d 727, 730 (1980), this court stated that a
search warrant is not invalid simply because it specifies the wrong address. The time of
issuance, although incorrect, was no more significant than the defect in Lucas. Therefore, this
assignment of error is without merit.
[Headnote 3]
Sanchez next claims that since an on-going investigation occurred from the time of the
initial sale, twenty-three days earlier, good cause was not shown for the warrant to be served
after 7:00 p.m. This reasoning lacks merit. The telephonic statement included expressions of
concern that the narcotics located in Sanchez' apartment could dissipate and the informant's
purchase money be spent if the warrant was not executed that night. A police officer also
testified, based on his experience as a narcotics officer, that controlled substances, especially
heroin, are sold at all hours of the day or night. Absent an abuse of discretion, a magistrate's
finding of a reasonable necessity for night-time service should not be disturbed. People v.
Lopez, 218 Cal.Rptr. 799 (Ct.App. 1985); People v. Cletcher, 183 Cal.Rptr. 480 (Ct.App.
1982). There is no indication that the magistrate abused his discretion based upon the
information provided him by the Reno City Police Department.
[Headnote 4]
Sanchez contends that he was coerced into making an incriminating statement by the Reno
City Police Department, through the reading of NRS 453.3405(2), which states:
The judge, upon an appropriate motion, may reduce or suspend the sentence of any
person convicted of violating any of the provisions of NRS 453.33S5, 453.339 or
453.3395 if he finds that the convicted person rendered substantial assistance in
the identification, arrest or conviction of any of his accomplices, accessories,
coconspirators or principals or of any other person involved in trafficking in a
controlled substance in violation of NRS 453.33S5, 453.339 or 453.3395.
____________________

2
We encourage magistrates to record oral statements with recording machines which are in their actual
physical presence. This is the safest and most appropriate method. However, as stated above, we hold that a
recording made in the same manner as outlined in this case is not violative of the statute.
any of the provisions of NRS 453.3385, 453.339 or 453.3395 if he finds that the
convicted person rendered substantial assistance in the identification, arrest or
conviction of any of his accomplices, accessories, coconspirators or principals or of any
other person involved in trafficking in a controlled substance in violation of NRS
453.3385, 453.339 or 453.3395. The arresting agency must be given an opportunity to
be heard before the motion is granted. Upon good cause shown, the motion may be
heard in camera.
The record, however, indicates that a police officer read Sanchez his rights in Spanish and
made certain he understood them. The officer then read the statute to Sanchez and
emphasized that only the judge could reduce his sentence if he cooperated. The police
specifically stated that they could not grant Sanchez leniency.
The State must prove the voluntariness of a confession by a preponderance of the
evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972); Scott v. State, 92 Nev. 552, 554, 554
P.2d 735, 736-37 (1976). The lower court found that the State had met that burden, and we
agree. There was no promise of a lighter sentence by police officers, but simply an
explanation that this possibility existed if the judge, not the officers, made the appropriate
determination of substantial assistance.
Sanchez' assignments of error are without merit. Accordingly, we affirm the decision of
the lower court.
____________
103 Nev. 170, 170 (1987) SIIS v. Porter
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. KELLEEN PORTER
(FERGUSON) and WAYNE NEWTON'S ARAMUS ARABIANS, Respondents.
No. 16923
March 31, 1987 734 P.2d 729
Appeal from judgment of the Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
Claimant sought worker's compensation benefits as result of being kicked by horse during
course of her employment, which led to two-month premature delivery of her child. The
district court affirmed appeals officer's order that State Industrial Insurance System pay
short-term neonatal medical expenses, and appeal was taken. The Supreme Court held that
claimant was entitled to benefits for short-term neonatal care of child directly attributable to
premature nature of birth.
Affirmed.
103 Nev. 170, 171 (1987) SIIS v. Porter
Robert G. Giunta, Assoc. General Counsel, Darla R. Anderson, General Counsel, Las
Vegas; Pamela Bugge, General Counsel, Carson City, for Appellant.
King, Clark, Gross & Sutcliff, Las Vegas; Gordon C. Richards, Las Vegas; James M.
Nave, Appeals Officer, Las Vegas, for Respondents.
Workers' Compensation.
Working mother was entitled to benefits under worker's compensation statutes for short-term neonatal
care of child directly attributable to premature nature of birth, where industrial accident was found to have
resulted in premature birth, and there were medical expenses directly relating to premature birth. NRS
616.010 et seq.
OPINION
Per Curiam:
The respondent Porter was employed by Wayne Newton's Aramus Arabians. During the
course of Porter's employment, a horse kicked her and the trauma led to a two-month
premature delivery of Porter's child, Christopher. Both mother and child incurred medical
expenses directly attributable to the industrial accident. In ensuing proceedings pursuant to
Nevada's Worker's Compensation Statutes, an appeals officer ordered the SIIS to pay the
short-term neonatal medical expenses resulting from the accident. The district court affirmed;
this appeal followed. We agree with the district court.
We think it evident that where, as here, an industrial accident is found to have resulted in a
premature birth, and there are medical expenses directly relating to the premature birth, the
working mother is entitled to benefits for the short-term neonatal care of the child that are
directly attributable to the premature nature of the birth.
Work places present hazards, and a pregnant woman is compelled by the laws of nature to
expose her fetus to those hazards. If she is to benefit her employer, both she and her fetus
must risk the dangers of the work place. We therefore conclude that the purposes of the
Nevada Worker's compensation scheme are in accord with the appeals officer's determination.
We find it unnecessary to reach other questions that have been tendered by appellant.
Porter has not attempted to claim that the appeals officer's ruling established a right to recover
for further care which may hereafter become necessary and which may arguably be related to
the accident.
Affirmed.
____________
103 Nev. 172, 172 (1987) Brooks v. Nevada First Thrift
H. WILLIAM BROOKS, Appellant, v. NEVADA
FIRST THRIFT, Respondent.
No. 17400
March 31, 1987 734 P.2d 730
Appeal from findings of fact, conclusions of law and judgment; Ninth Judicial District
Court, Douglas County; Lester H. Berkson, Judge.
Bank filed interpleader action seeking declaration as to ownership of savings certificate
between depositor, who was subsequently represented by executor of her estate, and her
nephew. The district court awarded subject amount to depositor's estate, and nephew
appealed. The Supreme Court held that there was substantial evidence to support
determination that depositor effectuated elimination of nephew's name from certificate.
Affirmed.
Wayne Chimarusti, Carson City, for Appellant.
Paul Freitag, Sparks, for Respondent.
Building and Loan Associations.
Substantial evidence supported trial court's determination that depositor effectuated elimination of her
nephew's name from savings certificate, though depositor did not endorse old certificate or sign signature
cards, where depositor surrendered old certificate to bank and expressed to bank her intention to change
certificate to only her own name.
OPINION
Per Curiam:
This case is a controversy over the ownership of a Nevada First Thrift (NFT) savings
certificate. NFT filed an interpleader action seeking a declaration as to ownership between
two claimants, appellant Brooks and his aunt, Maria Meyer-Kassel, who is now represented
by Rodlin Goff, executor of Maria's estate.
Brooks counterclaimed in the interpleader action claiming that he was the owner of the
certificate. Later Brooks filed an independent action in which he claimed: first, that Maria's
removing Plaintiff's [Brooks'] name from the First Federal Savings certificate was the result
of coercion; second, that Maria's transferring of the certificate to an account held in her
name created a co-tenancy to which Brooks was entitled to one-half; third, that Brooks was a
surviving joint tenant in the certificate; fourth, that coercion by a third party negated any
effort on the part of Maria to change the certificate to her name; and, fifth, that even if the
joint tenancy were terminated, Brooks was a tenant in common.
the part of Maria to change the certificate to her name; and, fifth, that even if the joint tenancy
were terminated, Brooks was a tenant in common.
The trial court concluded that no coercion or undue influence was involved, that Maria
intended to keep the account (comprised of money entirely derived from her own resources),
and that therefore the court could effectuate this intent notwithstanding NFT's failure to
complete the paperwork required by its internal procedures to effectuate the transfer and
elimination of Brooks from the account.
It is necessary for an understanding of this opinion to review the factual backdrop of this
controversy.
Brooks, Maria's nephew, was raised by Maria from shortly after his birth. The two had
lived together in Maria's home in Genoa for most of Brooks' life up until the time of Maria's
death.
In January of 1981, Maria sold two paintings by her late husband for $20,000.00 and
$15,000.00 respectively. She invested the proceeds into two certificates of deposit with First
Federal Savings and Loan (FFSL). In December 1982, Maria transferred those two
certificates of deposit into two joint tenancy certificates of deposit wherein she and Brooks
were joint tenants with rights of survivorship. These certificates of deposit, which were rolled
over every six months, comprised a source of interest income upon which Maria and Brooks
lived. This interest income plus Maria's social security check were supplemented by Brooks'
earnings to cover the monthly living expenses of Maria and Brooks.
In February 1984, FFSL informed Maria and Brooks that they were discontinuing that
particular class of certificates of deposit. Brooks reinvested the proceeds of the $20,000.00
certificate of deposit into a joint tenancy savings certificate at Nevada First Thrift. The
savings certificate and signature card at NFT list the title holders as Meyer-Kassel, Maria or
Brooks, H. Wm. The joint tenancy box on the signature card was checked by Brooks at the
time he opened the account. The language with right of survivorship does not appear
anywhere on the savings certificate or the signature card.
In March 1984, upon learning that the $20,000.00 savings certificate at NFT was not
federally insured, Maria became upset. She wanted Brooks to transfer the $20,000.00 savings
certificate to a federally insured institution, and she refused to allow Brooks to move the
proceeds from the $15,000.00 certificate of deposit at FFSL to NFT.
On April 3, 1984, Brooks suggested implementing formal guardianship proceedings for
Maria with her sister, Hannah. Hannah strongly opposed such an idea. In response, Brooks set
a deadline that Hannah must take over Maria's physical and financial needs by April 13, or
he would notify the Nevada Division of Welfare.
deadline that Hannah must take over Maria's physical and financial needs by April 13, or he
would notify the Nevada Division of Welfare. At that point in time, Hannah, age eighty, was
recuperating from a double knee operation, needed a walker to get around, and could not
drive a car.
On April 11, Maria went to NFT and requested that the savings certificate be transferred
into her name alone. Maria surrendered her certificate without signing the back of the
certificate and without signing the associated signature cards.
Contrary to Brooks' claim, there is substantial evidence to support the trial court's
declaration that Maria effectuated elimination of Brooks' name from the certificate, even
though she did not endorse the old certificate and sign the signature cards. Maria did
surrender the certificate to NFT. Maria did express to NFT her intention to change the
certificate to her own name, something she clearly had the right to do. The money was
Maria's. The bank actually transferred the funds to Maria's name alone.
The certificate surrendered by Maria, Certificate No. 34082 was accepted by NFT and
cancelled with a stamp, Replaced with 34090. A new certificate, No. 34090, was issued in
the name of Maria only. We note that the surrendered certificate is described on its face as a
non-negotiable savings certificate and that no endorsement requirement for transfer appears
on the face of the document. Normal bank procedures involve signing these kinds of
certificates on their reverse side together with execution of signature cards, but this does not
mean that a transfer and reissuance should be invalidated merely because these formalities are
not completed, after the fact. After this was done NFT wrote a letter to Maria asking that she
come in and sign necessary documents. When Maria left the bank, she left with the
understanding that her intent had been accomplished; and it was in fact accomplished by the
issuance of the new certificate. A signature is a mere indication of assent. The trial judge was
certainly justified in accepting the bank's transfer and issuance of a new certificate as being
viable, notwithstanding its request for the additional formality of a signature.
There is substantial evidence to support the trial court's conclusion and decision that the
amount in deposit represented by Certificate No. 34090 should be awarded to Maria's estate.
The judgment of the trial court is affirmed.
____________
103 Nev. 175, 175 (1987) Bidart v. American Title
LEONARD BIDART and BIDART BROTHERS, Individually and as Co-Partners,
dba EL TEJON CATTLE CO., Appellants and Cross-Respondents, v.
AMERICAN TITLE INSURANCE COMPANY, a Florida
Corporation, Respondent and Cross-Appellant.
No. 16982
March 31, 1987 734 P.2d 732
An appeal from a judgment dismissing the claim with prejudice, Second Judicial District
Court, Washoe County; William N. Forman, Judge.
Insured brought action against title company for alleged breach of its duty to defend. The
district court entered judgment dismissing claim with prejudice and insured appealed. The
Supreme Court held that: (1) clause in title policy by which title company obligated itself to
provide for defense of insured in all litigation consisting of actions or proceedings
commenced against insured or such actions as might be appropriate to establish title could not
be construed as obligating insurer to defend against any attack on title, even if nature of attack
was not one against which title company had insured, and could only be construed as
obligating title company to defend when attack was one against which it had insured, and (2)
claim that deed absolute on its face was to operate as a mortgage was a claim that parties
intended to create mortgage and, hence, was a claim which did not fall within provision of
title policy calling for coverage against defects in title existing as of date of policy, that were
not created, suffered or agreed to by insured.
Affirmed.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellants and Cross-Respondents.
McAuliffe, White, Long & Guinan, Reno, for Respondent and Cross-Appellant.
1. Insurance.
Clause in title policy by which title company obligated itself to provide for defense of insured in all
litigation consisting of actions or proceedings commenced against insured or such actions as might be
appropriate to establish title could not be construed as obligating insurer to defend against any attack on
title, even if nature of attack was not one against which title company had insured, and could only be
construed as obligating title company to defend when attack was one against which it had insured.
2. Insurance.
Provision of title policy, calling for coverage against defects in title existing as of date of policy, that
were not creative, suffered or agreed to by insured, did not provide coverage for claims which
were either grounded in facts occurring after effective date of policy or amounting to
alleged tortious acts of insured.
by insured, did not provide coverage for claims which were either grounded in facts occurring after
effective date of policy or amounting to alleged tortious acts of insured.
3. Insurance.
Claim for rescission based on tortious misconduct was not a claim that title was defective, but was in fact
upon manner in which buyers acquired valid title and, hence, did not fall within provision of title policy
calling for coverage against defects in title existing as of date of policy, that were not created, suffered or
agreed to by insured.
4. Insurance.
Claim that deed absolute on its face was to operate as a mortgage was a claim that parties intended to
create mortgage and, hence, was a claim which did not fall within provision of title policy calling for
coverage against defects in title existing as of date of policy, that were not created, suffered or agreed to by
insured.
5. Insurance.
Denial of title company's motion for attorney fees in action for alleged breach of duty to defend was not
an abuse of discretion where offer to settle was low in light of damages sought and insured was not
unreasonable in rejecting offer. NRCP 68.
OPINION
Per Curiam:
Appellant, El Tejon, brought this action against respondent, American Title, seeking
damages for an alleged breach of the insurer's duty to defend. The district court found that El
Tejon had not properly notified American Title of the action against it; that American Title
was prejudiced by the lack of notice; and, that the action against El Tejon was not insured
against in any event. El Tejon appeals the dismissal of its claim. Because we find that there is
substantial evidence in the record in support of the decision below, we affirm.
Swallow Ranches (not a party to this case) owned some 12,000 acres in White Pine
County. On December 6, 1966, Swallow and El Tejon executed an agreement whereby El
Tejon paid Swallow $550,000 and Swallow executed a grant bargain and sale deed. The
parties also executed a sales agreement reciting that El Tejon was to take legal title to the
land; that the sales price was $550,000; and that the value of the property was $1,912,700.
On that same date, the parties executed an option to repurchase agreement specifying the
time and price of repurchase. The deed was recorded but the agreement and repurchase
agreement were not.
First Commercial Title (not a party to this case) caused a title insurance policy to be issued
on behalf of American Title, with an effective date of December 13, 1967. The option
agreement was recorded on January 9, 1968, after the title insurance policy was issued.
Within the month, El Tejon sought to refinance the lands through Connecticut General
Life. This resulted in a new title search by First Commercial. The option agreement was
discovered. On February 17, 1968, Swallow quitclaimed to El Tejon any interest it had in the
option, thus removing the option of record.
At the same time, El Tejon and Swallow executed a new repurchase option, but did not
record it until after the new deed of trust to Connecticut General was recorded.
In 1971, after the expiration of the option period, Swallow sued El Tejon in the district
court in White Pine County, seeking rescission or, in the alternative, to have the deed
declared to be a mortgage.
The complaint alleged economic coercion, fraud, coercion by slandering Swallow's credit
rating to Swallow's creditors and the like. Later in 1971, Swallow filed a new complaint in
the federal district court in Nevada. The matter was tried before Judge Thompson who ruled
for El Tejon. Swallow appealed to the 9th Circuit but again El Tejon prevailed.
In December 1971, after the White Pine court action had been commenced and after the
action in the federal court had commenced, but before the trial in the federal court, El Tejon's
attorney wrote to Mr. O'Brien of First Commercial Title, informing him of the action,
requesting a copy of the policy, and enclosing copies of all pleadings. O'Brien did not forward
the information to American Title.
After the judgment from Judge Thompson but before the appeal, El Tejon's attorney wrote
to O'Brien demanding reimbursement for the costs of the defense. This letter was forwarded
to American Title. American Title, on the advice of counsel, did not respond. Following the
successful defense of Swallow's appeal, El Tejon sued American Title for breach of its duty
to defend. American Title answered generally. It alleged affirmative defenses including lack
of notice and generally that the Swallow litigation was excluded from coverage. All motions
for summary judgment on these issues were denied. The case proceeded to trial; the district
court found for American Title. El Tejon appealed.
El Tejon first argues that a proper construction of the contract leads to the conclusion that
American Title must defend any action concerning title to the land. The pertinent paragraph
reads:
The company, at its own cost and without undue delay shall provide (1) for the defense
of the insured in all litigation consisting of actions or proceedings commenced against
the in . . . ; or (2) for such action as may be appropriate to establish the title of the estate
. . . as insured, which litigation or action in any of such events is founded upon an
alleged defect, lien or encumbrance insured against by this policy, and may pursue
any litigation to final determination in the court of last resort.
litigation or action in any of such events is founded upon an alleged defect, lien or
encumbrance insured against by this policy, and may pursue any litigation to final
determination in the court of last resort.
El Tejon contends that, because of the placement of the semicolon, American Title must
defend against any attack on the insured title, even if the nature of the attack in not one
against which the title company has insured. American Title contends that it need only defend
when it has insured against the alleged defect. We think that the district judge properly
construed the contract.
[Headnote 1]
Generally, if a clause is ambiguous, it will be construed against the drafter, in this case
American Title. Harvey's Wagon Wheel v. Macsween, 96 Nev. 215, 606 P.2d 1095 (1980).
An insurer can restrict coverage but it must do so clearly. Id. However, the general rule of
construction comes into play only if the clause is ambiguous. We think that the clause is
sufficiently clear to justify affirming the decision of the district court. The question of
whether a document is ambiguous turns on whether the clause as drafted will create
reasonable expectations of coverage. Sullivan v. Dairyland Insurance Co., 98 Nev. 364, 649
P.2d 1357 (1982). The district court was justified in determining that El Tejon could not
reasonably have expected American to defend attacks against which it had not insured. Cf.
Snow v. Pioneer Title Ins. Co., 84 Nev. 480, 485, 444 P.2d 125, 128 (1968) (no duty to
defend where there is no coverage).
Having determined that American Title's duty to defend did not arise unless the attack was
one against which it had insured, we must now determine whether the policy covered the
action by Swallow against El Tejon. The policy called for coverage against defects in the
title existing as of the date of the policy, that were not created, suffered or agreed to by El
Tejon.
The Swallow litigation was quite complex. Swallow sought to rescind the transaction on a
number of different grounds. In addition, Swallow sought to have the deed declared to be an
equitable mortgage.
[Headnotes 2, 3]
Swallow sought rescission on various grounds, including fraud, economic coercion and
similar misconduct on the part of El Tejon. Some of these claims were grounded in facts
occurring after the effective date of the policy and are thus excluded from coverage. Others
are grounded in alleged tortious acts of El Tejon. We think that a claim for rescission based
on tortious misconduct is not a claim that the title is defective. Such claims, rather, attack
the manner in which the buyers acquired valid title.
rather, attack the manner in which the buyers acquired valid title. Safeco Title Insurance Co.
v. Moskopoulos, 172 Cal.Rptr. 248 (Ct.App. 1981). We think further that the exclusion for
defects created by the insured would apply to attacks based on the type of tortious conduct
complained of by Swallow. Id.
[Headnote 4]
As to the claim seeking to have the deed declared to be an equitable mortgage, we need not
decide whether there is a claimed defect in the title. In order to prevail, Swallow would
have had to prove that El Tejon intended the deed to operate as a mortgage. Robinson v.
Durston, 83 Nev. 338, 432 P.2d 75 (1967). The intent would have to be evidenced by a
number of objective factors. Id. We think that the district judge was justified in concluding
that the equitable mortgage theory was excluded from coverage as created by El Tejon.
Although an equitable mortgage action depends on several objective factors, the court is
ultimately called upon to determine the subjective intent of the parties. The objective factors
are simply evidence of the elusive subjective intent of the parties. Therefore, a claim that a
deed absolute on its face is to operate as a mortgage is a claim that the parties intended to
create the mortgage.
[Headnote 5]
American Title has clearly and unambiguously excluded such attacks from its coverage.
Where there is no potential for coverage, there is no duty to defend. Snow v. Pioneer Title
Ins. Co., supra.
Based on our conclusion that the Swallow litigation did not give rise to a duty to defend,
we affirm the judgment of the district court.
American Title has appealed from the decision of the district court denying its motion for
attorneys fees. Pursuant to NRCP 68, American Title made a pre-trial offer to settle the case
for $50,000. The offer was rejected. The district court found that the offer was low in light of
the damages sought by El Tejon. The court also found the El Tejon was not unreasonable in
rejecting the offer. The court found further that El Tejon brought the action in good faith.
The trial court properly considered the factors laid out by this court in Beattie v. Thomas,
99 Nev. 579, 668 P.2d 268 (1983). Where the court properly weighs the Beattie factors, an
award of attorneys fees based on NRCP 68 is discretionary with the court. Its discretion will
not be disturbed absent a clear abuse. Trustees, Carpenters v. Better Building Co., 101 Nev.
742, 710 P.2d 1379 (1985). We perceive no clear abuse of discretion in the instant case and
we therefore affirm the judgment of the district court.
____________
103 Nev. 180, 180 (1987) Sheriff v. Richardson
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
DONALD BRYCE RICHARDSON, Respondent.
No. 17600
March 31, 1987 734 P.2d 735
Appeal from order granting a pretrial petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Defendant was charged by information with one court of filing false claim for insurance
benefits. The district court granted defendant's pretrial petition for writ of habeas corpus, and
dismissed charge against him, and appeal was taken. The Supreme Court held that: (1)
determination that insufficient evidence was adduced at preliminary hearing to establish
probable cause to believe that defendant knowingly submitted false documentation to insurer
to support his claim for lost earnings arising from automobile accident was not substantial
error, and (2) sufficient evidence was adduced a preliminary hearing to support reasonable
inference that automobile rental receipt defendant submitted to insurer was false document
and that defendant knew it was false document when he submitted it to support his claim for
incidental expenses resulting from accident.
Brian McKay, Attorney General, Carson City, Rex Bell, District Attorney, Las Vegas, for
Appellant.
Sully, Lenhard & Raizin, Las Vegas, for Respondent.
1. Criminal Law.
Insufficient evidence was adduced at preliminary hearing to establish probable cause to believe that
defendant knowingly submitted false documentation to automobile insurer to support his claim for lost
earnings as result of automobile accident, where state presented no evidence tending to show that wage and
tax statement submitted to insurer was not copy of wage and tax statement submitted to IRS reflecting
defendant's annual earnings, but rather only presented testimony of defendant's partner concerning
defendant's earnings. NRS 686A.291, subd. 1.
2. Criminal Law.
Sufficient evidence was adduced at preliminary hearing to support reasonable inference that rental receipt
defendant submitted to automobile insurer was false document and that defendant knew it was false
document when he submitted it to insurer to support his claim for incidental expenses resulting from
automobile accident and, thus, defendant could properly be bound over for trial in connection therewith;
records from Department of Motor Vehicles tended to show that defendant's business acquired title to
vehicle described in rental receipt prior to time he allegedly rented vehicle and that check to automobile
leasing company never cleared bank. NRS 686A.291, subd. 1.
OPINION
Per Curiam:
Respondent Donald Bryce Richardson was charged by information with one count of filing
a false claim for insurance benefits, a felony in violation of NRS 686A.291(1). The district
court granted respondent's pretrial petition for a writ of habeas corpus, dismissed the charge
against him, and this appeal followed. For the reasons set forth below, we affirm the order of
the district court in part and we reverse the order of the district court in part.
At respondent's preliminary hearing, the state established that respondent was a principal
in Mercury Enterprises, Inc. Pasquale Raimundo, a claims investigator for the alleged victim
in this matter, Hartford Insurance Company (Hartford), testified that respondent filed personal
injury and property damage claims with Hartford following a traffic accident involving one of
Hartford's insureds. Respondent's car was totalled as a result of that accident, and respondent
ultimately received $6000 as a settlement for his claims.
Raimundo testified that on June 8, 1983, he called respondent's office and spoke with one
of respondent's employees. Two days later, the employee brought Raimundo some documents
to support respondent's claims. Among those documents was a copy of a draft from Mercury
Enterprises to Intercontinental Leasing Corporation in the amount of $1834, and a copy of a
rental receipt from Intercontinental Leasing to Don Richardson % [sic] Mercury Enterprises,
Inc. The rental receipt indicated that respondent had rented an automobile from
Intercontinental Leasing and incurred a bill in the amount of $1834. The receipt further
indicated a payment of $1834, and was signed by a person named Sam. Raimundo stated
that the copies of the draft and the receipt were used to substantiate respondent's claim for
expenses that he incurred when he was allegedly forced to rent a car following the accident.
Copies of the draft and the rental receipt were admitted into evidence at the preliminary
hearing.
In addition to the copies of the draft and the rental receipt, the state also presented
evidence that the draft to Intercontinental Leasing never cleared the bank. Further, the state
introduced certified copies of records from the Department of Motor Vehicles which
allegedly showed that Mercury Enterprises purchased the vehicle described in the rental
receipt almost two months prior to the time that respondent claimed to have rented that
vehicle from Intercontinental Leasing.
Finally, Raimundo testified that on September 15, 1983, he received through respondent's
former attorney a letter and a copy of respondent's W-2 wage and tax statement for the
year 19S2.
of respondent's W-2 wage and tax statement for the year 1982. The letter was apparently
signed by another principal in Mercury Enterprises, Anthony Gillespie. Those documents
were admitted into evidence at the preliminary hearing and reflected that respondent had a
gross income of $2500 per month in 1982, or a gross annual income of $30,000. Raimundo
stated that the wage and tax statement and the letter were submitted to substantiate
respondent's claim for lost earnings that allegedly resulted from the accident. Raimundo
admitted, however, that he conducted no independent investigation into the validity of the
wage and tax statement.
Gillespie, however, testified that he did not prepare the wage and tax statement or the
letter supporting respondent's claim for lost earnings. Gillespie further stated that although the
signature on the letter appeared to be his, it was either a forgery or it was affixed to the letter
through the use of a signature stamp. Finally, Gillespie testified that he was respondent's
partner in Mercury Enterprises and that he and respondent made only $15,000 each in 1982.
At the close of the preliminary hearing, the justice of the peace found that the state had
presented sufficient evidence to bind respondent over to the district court for trial.
Accordingly, on May 12, 1986, an information was filed in the district court charging
respondent with one count of filing a false claim for insurance benefits. The information
specifically alleged that respondent had submitted false documents to support his claim for
lost earnings and his claim for expenses incurred when he was allegedly forced to rent a car
as a result of the accident.
In his pretrial petition for a writ of habeas corpus, respondent contended that the evidence
adduced at the preliminary hearing was insufficient to establish that he filed a false claim for
insurance benefits. In particular, respondent pointed out that Mercury Enterprises issued a
check to Intercontinental Leasing in the amount of $1834 and received a receipt from
Intercontinental Leasing reflecting payment of $1834 in return. Respondent argued that the
state had never attacked the validity of the receipt, and asserted that the receipt was not
rendered invalid simply because Intercontinental Leasing failed to cash the check.
Respondent further argued that the state had failed to determine whether the wage and tax
statement submitted to Hartford was in fact a false document, or to connect respondent with
the wage and tax statement or the accompanying letter which bore Gillespie's signature. The
lower court agreed with respondent and granted his request for a writ of habeas corpus. This
appeal followed.
Absent a showing of substantial error on the part of the district court in granting a writ of
habeas corpus based on insufficient evidence, this court will not overturn the lower court's
determination.
evidence, this court will not overturn the lower court's determination. Sheriff v. Provenza, 97
Nev. 346, 630 P.2d 265 (1981). The finding of probable cause to support a criminal charge
May be based on slight, even marginal' evidence, . . . because it does not involve a
determination of the guilt or innocence of an accused. Sheriff v. Hodes, 96 Nev. 184, 186,
606 P.2d 178, 180 (1980) (citations omitted). To commit an accused for trial, the State is not
required to negate all inferences which might explain his conduct, but only to present enough
evidence to support a reasonable inference that the accused committed the offense. Kinsey v.
Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971).
[Headnote 1]
NRS 686A.291 provides in pertinent part:
Any person who knowingly and willfully:
1. Presents or causes to be presented to any insurer, any false, incomplete or
misleading information concerning a material fact whether written or oral, as a part of
or in support of any claim for payment, reimbursement or other benefit;
. . .
shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 6 years or by a fine of not more than $5,000, or by both fine and imprisonment.
In the present case, the information specifically alleged that respondent submitted false
documents to support his claims for lost earnings and incidental expenses. We note, however,
that respondent submitted a wage and tax statement to Hartford reflecting that he made
$30,000 in 1982 to support his claim for lost earnings resulting from the accident. Although
the state presented the testimony of respondent's partner that respondent made only $15,000
during 1982, the state did not present any other evidence regarding the validity of the wage
and tax statement. Significantly, the state did not present any evidence at the preliminary
hearing which tended to show that the wage and tax statement submitted to Hartford was not
a copy of the wage and tax statement submitted to the IRS reflecting respondent's 1982
earnings. Under these circumstances, we are not persuaded that the district court committed
substantial error when it determined that insufficient evidence was adduced at the preliminary
hearing to establish probable cause to believe that respondent knowingly submitted false
documentation to Hartford to support his claim for lost earnings. See Sheriff v. Provenza, 97
Nev. 346, 630 P.2d 265 (1981). Accordingly, we affirm the order of the district court insofar
as it determined that insufficient probable cause existed to bind respondent over for trial on
the charges relating to respondent's claim for lost earnings.
bind respondent over for trial on the charges relating to respondent's claim for lost earnings.
[Headnote 2]
Respondent's claim for incidental expenses is, however, a different matter. In particular,
we note that the rental receipt from Intercontinental Leasing indicates that respondent leased
the car described in that document from May 6, 1983, to June 2, 1983. The records of the
Department of Motor Vehicles, however, appear to indicate that respondent's business,
Mercury Enterprises, acquired title to the vehicle described in the rental receipt in March,
1983, nearly two months prior to the time that respondent allegedly rented that car from
Intercontinental Leasing. Thus, the records from the Department of Motor Vehicles tend to
show that respondent submitted a claim to Hartford for reimbursement of expenses incurred
in renting a car that his business, Mercury Enterprises, already owned. Further, bank records
admitted into evidence at the preliminary hearing established that the check to
Intercontinental Leasing never cleared the bank. Accordingly, we conclude that sufficient
evidence was adduced at the preliminary hearing to support a reasonable inference that the
rental receipt respondent submitted to Hartford was a false document and that respondent
knew it was a false document when he submitted it to Hartford to support his claim for
incidental expenses resulting from the accident.
In light of the above, we conclude that sufficient evidence was adduced at the preliminary
hearing to bind respondent over for trial on the charges relating to respondent's claim for the
expenses that he incurred when he allegedly rented an automobile from Intercontinental
Leasing. Accordingly, the district court committed substantial error when it found that there
was insufficient evidence to bind respondent over for trial on the charge stemming from the
allegedly false claim for reimbursement of the car rental expenses. See Sheriff v. Provenza,
97 Nev. 346, 630 P.2d 265 (1981). Therefore, we reverse the order of the district court
granting the pretrial petition for a writ of habeas corpus insofar as it determined that
insufficient probable cause existed to bind respondent over for trial on the allegations
concerning respondent's claim for incidental expenses resulting from the accident. We
therefore remand this matter for further proceedings consistent with this opinion.
____________
103 Nev. 185, 185 (1987) Murphy v. Murphy
ALICIA A. MURPHY, Appellant, v. CHARLES
F. MURPHY, Respondent.
No. 17631
March 31, 1987 734 P.2d 738
Appeal from dismissal of motion to set aside decree. Eighth Judicial District Court, Clark
County; Donald M. Mosley, Judge.
Former wife moved to set aside property distribution after divorce. The district court
dismissed motion. Wife appealed. The Supreme Court held that: (1) wife's allegations that
former husband had tried to kill her, if she sought any further property after divorce, and that
she was therefore afraid to litigate property distribution issue exposed fraud upon court that
was not subject to six-month limitation for obtaining relief from judgment based on
allegations of fraud, and (2) rule governing relief from judgment permitted wife to proceed by
motion to set aside property distribution.
Stanley W. Pierce, Las Vegas, for Appellant.
Marilyn V. Romanelli, Las Vegas, for Respondent.
1. Judgment.
Limitation of six months for obtaining relief from judgment based on allegations of fraud is inapplicable
to fraud upon court. NRCP 60(b).
2. Judgment.
Jurisdiction to remedy fraud upon court in inherent. NRCP 60(b).
3. Divorce.
Former wife's allegations that former husband had tried to kill her, if she sought any further property after
divorce, and that she was therefore afraid to litigate property distribution issue exposed fraud upon court
that was not subject to six-month limitation for obtaining relief from judgment based on allegations of
fraud. NRCP 60(b).
4. Divorce.
Rule governing relief from judgment permitted former wife to proceed by motion to set aside property
distribution after divorce based upon former husband's alleged fraud upon court and did not require former
wife to file independent action. NRCP 60(b).
OPINION
Per Curiam:
Charles Murphy was granted a divorce in mid-1985. He was awarded the entirety of the
parties' community property, except a twelve-year-old automobile. Nearly a year later, Alicia
Murphy moved to set aside the property distribution. She alleged that Charles had
threatened to kill her if she sought any further property, so that she was afraid to litigate
the issue.
103 Nev. 185, 186 (1987) Murphy v. Murphy
Charles had threatened to kill her if she sought any further property, so that she was afraid to
litigate the issue. She also claimed that she was not represented by counsel at the time, and
that her motion was made after her first subsequent contract with counsel. A domestic
relations referee heard the matter and concluded that the court lacked jurisdiction because
more than six months had elapsed since entry of the decree. The trial court, adopting that
conclusion, dismissed the motion. We reverse.
[Headnotes 1-3]
The six-month limitation on allegations of fraud is inapplicable to fraud upon the court.
Savage v. Salzmann, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972). Jurisdiction to remedy
fraud upon the court is inherent. Further, the court can proceed even in the absence of further
action by a party, Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1074
n. 1 (2d Cir. 1972). Alicia styled her allegations as exposing a fraud upon the court, and her
motion is cognizable on that basis. Fraud upon the court consists of, inter alia, such conduct
as prevents a real trial upon the issues involved, Savage, supra, 88 Nev. at 195, 495 P.2d at
368. In certain older decisions holding that threats of this nature were not a proper basis for
relief, we relied heavily on the fact that the aggrieved party was represented by counsel.
Mazour v. Mazour, 64 Nev. 245, 180 P.2d 103 (1947); Calvert v. Calvert, 61 Nev. 168, 122
P.2d 426 (1942). Thus, those cases are distinguishable and Alicia has stated a proper claim.
[Headnote 4]
The language of NRCP 60(b), however, is ambiguous as to whether Alicia may proceed by
motion or must bring an independent action to set aside the property division. We conclude
that the better reading allows motion practice, for two reasons. First, a contrary reading
renders unnecessary the provision dealing with fraud upon the court; NRCP 60(b) already
allows an independent action to set a decree aside on any cognizable basis. Second, if a court
can proceed sua sponte, we perceive no reason to limit the avenues by which the court's
attention may be directed to the fraud. Therefore, we hold the appellant's choice to proceed by
motion was not inappropriate. Accord Goodyear Tire & Rubber Co. v. H. K. Porter Co., 521
F.2d 699 (6th Cir. 1975); Kupferman, supra; Taft v. Donellan Jerome, Inc., 407 F.2d 807 (7th
Cir. 1969). It follows that the order of dismissal must be reversed and the cause remanded for
____________
103 Nev. 187, 187 (1987) Pub. Service Comm'n v. Sierra Pacific
THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEVADA, Appellant, v.
SIERRA PACIFIC POWER COMPANY, Respondent.
No. 17436
March 31, 1987 734 P.2d 1245
Appeal from an order requiring Public Service Commission to allow classes of expenses
denied in earlier dockets. Second Judicial District Court, Washoe County; Deborah Agosti,
Judge.
Public utility sought judicial review of decision of Public Service Commission, which
denied utility's claim for annualized operating expenses incurred during pendency of prior
litigation. The district court entered judgment in favor of utility. Commission appealed. The
Supreme Court held that: (1) statute, which permits public utility applying for rate increase to
state items of expense that have been considered and disallowed by Commission, permitted
Commission to consider public utility's request for annualized operating expenses incurred
during pendency of litigation concerning allowability of annualized operating expenses, and
(2) laches barred utility's right to recover annualized operating expenses incurred during
pendency of prior litigation.
Reversed.
[Rehearing denied August 27, 1987]
William H. Kockenmeister, Carson City, for Appellant.
Woodburn, Wedge, Blakey & Jeppson and William E. Peterson, Reno, for Respondent.
1. Electricity.
Statute, which permits public utility applying for rate increase to state items of expense that have been
considered and disallowed by Public Service Commission, permitted Commission to consider prior rulings
concerning items of expense or rate base, even though they were subject of pending litigation, if items were
clearly identified in application and new facts or considerations of policy for each item were advanced to
justify reversal of Commission's prior decision, and, therefore, permitted Commission to consider public
utility's request for annualized operating expenses incurred during pendency of litigation concerning
allowability of annualized operating expenses. NRS 704.100, subd. 4.
2. Electricity.
Laches barred public utility's right to surcharge to recover annualized operating expenses incurred during
litigation concerning allowability of annualized operating expenses, where utility filed surcharge request
six and one-half years after district court decision allowing recovery of annualized operating expenses and
20 months after Supreme Court affirmed district court, where utility did not appeal denial of expenses,
where utility gave no notice of intent to recover expenses that were never presented to
Commission for consideration and where many ratepayers, who did not benefit from
low-cost utilities, would have to pay surcharge.
were never presented to Commission for consideration and where many ratepayers, who did not benefit
from low-cost utilities, would have to pay surcharge. NRS 704.100, 704.100, subds. 3-5.
3. Constitutional Law.
Preventing public utility from attempting to recover annualized operating expenses during pendency of
litigation and at successful conclusion of judicial review would be tantamount to taking of property without
due process of law. NRS 704.100; U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
This appeal represents the aftermath of a 1975 Public Service Commission (PSC or
Commission) order which was reversed and vacated by the district court. We thereafter
affirmed the judgment of the district court on appeal. Public Serv. Comm'n v. Southwest Gas,
99 Nev. 268, 662 P.2d 624 (1983). The thrust of this appeal focuses on the asserted right of
Sierra Pacific Power Company (Sierra) to recover annualized operating expenses associated
with thirteen rate increases granted by the PSC during the period between April 30, 1976 and
December 31, 1982. In certain instances, annualized operating expense were not requested; in
all instances there were no appeals.
In December, 1975, Sierra Pacific applied to the PSC for rate increases for its water, gas
and electric departments. Included in its application for a rate increase were annualized
operating expenses for insurance, depreciation and tax incurred on a new plant which had
been dedicated to public use during the 1975 test year (September 1, 1974 through August 31,
1975) or which would be incurred within a certification period occurring within six months of
the end of the test year.
1

Sierra claimed these expenses were recoverable. The PSC disagreed. Sierra appealed and
eventually prevailed.
In August, 1976, while case No. 36626, Southwest Gas, supra, was pending in district
court, Sierra filed new rate increase applications, Docket Nos. 863, 864 and 865, with the
PSC covering electricity, gas and water for a succeeding year. The applications were filed in
the alternative. Part One of each application sought rate increases primarily attributable to the
increasing cost of providing utility services after the 1975 test year. Part Two of each
application sought rate increases for the same types or categories of expenses which had been
disallowed by PSC in its earlier opinion: annualized depreciation, insurance and taxes
which Sierra had incurred for its new plant dedicated to public service after the 1975 test
year.
____________________

1
A test year is the theoretical measuring tool the PSC uses to prognosticate revenue necessary to operate a
utility which seeks a rate increase for the upcoming year. The statute governing a test year in Nevada is found at
NRS 704.110(3).
in its earlier opinion: annualized depreciation, insurance and taxes which Sierra had incurred
for its new plant dedicated to public service after the 1975 test year.
Upon finding that the categories of expense in Part Two of each application were the
subject of pending litigation, the PSC held that it could not consider Part Two of the
respective applications and dismissed the rate applications in their entirety.
2

On April 30, 1984, approximately one year after this court effectively affirmed the district
court's decision granting the challenged annualized operating expenses, Southwest Gas,
supra, Sierra filed Advice Letters with the PSC petitioning for the annualized operating
expenses which had been improperly disallowed by the PSC for Dockets 574, 575 and 576,
which were the subject of the initial litigation. The Commission responded on September 27,
1984, with an order permitting Sierra to impose a one year surcharge on its gas and electric
tariffs of $1,342,000, plus interest, to recoup the disallowed operating expenses. Later, on
November 13, 1984, Sierra filed a petition for an Advisory Opinion and Declaratory Order
with the PSC requesting approval of a surcharge of $14,119,855, plus carrying charges over
three years. The combination of the surcharge and carrying charges totaled $17,000,000 for
the annualized operating expenses assertedly incurred during the pendency of judicial review
of the first challenged dockets. In its plea for relief, Sierra specified that:
Petitioner now seeks recovery of certain expenses and related interest for the
post-Docket period Nos. 574, 575 and 576 [sic] April 30, 1976, through December 31,
1982. Such expenses and calculated interest are identical in character to those covered
by the Judgment in Case No. 36626 and for which recovery has now been allowed by
the Commission in Docket Nos.
____________________

2
The pertinent finding of the Commission is as follows:
The initial issue to be determined is whether Applicant's separation of each of its applications into two
parts (each having separate rate schedules) requires the Commission to consider each part separately as
suggested by Applicant. We are of the opinion that each application must be considered as one
inseparable application, consisting of two parts only for the purpose of attempting to satisfy the
requirements of NRS 704.100 subsections 3 and 4.
If Applicant did not have pending litigation in this case and the items of expense in dispute had only
been considered and disallowed by the Commission, then the procedure followed by Applicant would
have clearly been appropriate and within the exception set forth in NRS 704.100(3). However, in this
case Applicant has elected to exercise its right of judicial review related to the Commission's
disallowance of certain items of expense in Docket No. 574 et al., and thereby has clearly filed the instant
applications, including the same items of expense previously disallowed, in violation of NRS 704.100(3).
Under the provisions of NRS 704.100(5) the Commission must dismiss the applications designated as
Docket Nos. 863, 864 and 865 in their entirety.
for which recovery has now been allowed by the Commission in Docket Nos. 84-517
and 84-518. The revenue requirements including mill tax and uncollectibles and interest
related to these expenses are as follows for each of Applicant's Nevada jurisdictional
operations:
PRINCIPAL INTEREST TOTAL
Electric.................... $7,700,189 $2,475,762 $10,245,951
Gas............................ 991,200 301,767 1,292,967
Water........................ 1,960,918 620,019 2,580,937
Total........................ $10,722,307 $3,397,548 $14,119,855
Sierra contends, and the district court agreed, that the PSC must now entertain Sierra's
claim for its annualized operating expenses incurred during the pendency of the original
litigation. Unconvinced, the Commission seeks reversal on appeal. We have determined,
despite certain misgivings, that reversal is warranted.
We turn first to the source of our misgivings, Sierra's foundation for the relief accorded it
by the trial court. First, as noted above, the PSC dismissed Dockets 863, 864 and 865 since
those dockets contained requests for annualized operating expenses, the same type of
expenses rejected by the Commission under contested Dockets 574, 575 and 576. The PSC
concluded that since the allowability of annualized operating expenses was the subject of
pending litigation involving the latter dockets, NRS 704.100(3) and (5) precluded the
Commission from considering any Sierra rate application that incorporated such expenses.
Sierra maintained that it detrimentally relied on the PSC's ruling and thereafter omitted
requests for annualized operating expenses until this court finally resolved the issue in its
favor in Southwest Gas. Facially, Sierra's contention is compelling. The Commission, having
reasonably construed the statute as prohibiting its consideration of any applications for rate
increases that include items of expense generically questioned in pending litigation,
ostensibly left Sierra with no alternative other than to proceed with rate increase requests that
omitted expense categories under challenge in the courts. Impliedly, recovery of such
expenses would be deferred until a final adjudication of their allowability. If determined to be
allowable, the expenses would be recoverable; if not, Sierra would have to absorb the loss.
Any contrary view would appear to subject Sierra to a manipulated loss of property without a
remedy, in short, a denial of due process. The trial court so held and ordered the Commission
to evaluate, calculate and allow recovery of the annualized operating expense categories that
were validated in the original litigation. Moreover, the trial judge observed that since the
legislature provided no right of appeal from an application dismissal by the PSC under the
circumstances here present, it was apparent that eventual recovery would be allowed if
the utility company prevailed it its challenge to an expense-category denial by the
Commission.
no right of appeal from an application dismissal by the PSC under the circumstances here
present, it was apparent that eventual recovery would be allowed if the utility company
prevailed it its challenge to an expense-category denial by the Commission. The court viewed
any other interpretation of NRS 704.100 as a deprivation of meaningful judicial review.
As previously noted, the legal symmetry of Sierra's position is difficult to resist. There are,
however, a number of additional factors that must be considered in the resolution of this
appeal.
The Statute
[Headnote 1]
The trial court joined with Sierra in concluding that NRS 704.100(3) and (5) operated to
prevent Sierra from even requesting annualized operating expenses during the pendency of
litigation embracing their allowability as an issue. The district court held:
As long as the disputed items of expense or rate base are the subject of pending
litigation, a utility is absolutely forbidden by statute from applying to the Commission
to obtain any relief for such items and the Commission is forbidden by statute from
even considering any such application. This prohibition continues until litigation is
concluded.
The Commission, in dismissing Dockets 863, 864 and 865, reasoned at length that the statute
deprived it of recurring jurisdiction to consider items of expense that previously had been
disallowed by the Commission and were the subject of pending litigation. The Commission
maintained that NRS 704.100(4) would not permit consideration of previously rejected items
as long as they were under litigation. Indeed, the Commission concluded that it would
undermine the process of judicial review if the PSC had jurisdiction to reconsider the status
of previously denied expenses while the same issue was under submission to the judiciary for
adjudication.
In pertinent part, NRS 704.100 read as follows:
3. Except as provided in subsection 4 or in NRS 707.350, the commission shall not
consider an application by a public utility if the justification for the new schedule
includes any items of expense or rate base which are set forth as justification in a
pending application, are the subject of pending litigation, or have been considered and
disallowed by the commission or a district court.
4. A public utility may set forth as justification for a rate increase items of expense
or rate base which have been considered and disallowed by the commission, only if
those items are clearly identified in the application and new facts or considerations of
policy for each item are advanced in the application to justify a reversal of the
commission's prior decision.
or considerations of policy for each item are advanced in the application to justify a
reversal of the commission's prior decision.
5. If the commission receives an application that is within the prohibition of
subsection 3, it shall, within 30 days, notify the public utility that the application is
dismissed.
We have not had occasion to interpret the referenced provisions of NRS 704.100 within
the context of the instant proceeding. In Southwest Gas Corp. v. Public Serv. Comm'n, 92
Nev. 48, 546 P.2d 219 (1976), we did conclude that NRS 704.100(3) did not prevent the
Commission from considering expense issues which were not specifically under pending
litigation. Id. at 58-59, 546 P.2d at 226. We now conclude, contrary to the position of the
parties and the trial court, that subsection 4 of NRS 704.100 will permit the Commission to
reconsider its prior rulings concerning items of expense or rate base even though they are the
subject of pending litigation if the involved items are clearly identified in the application and
new facts or considerations of policy for each item are advanced in the application to justify
a reversal of the Commission's prior decision. Such an interpretation supplies meaning to the
phrase [e]xcept as provided in subsection 4 contained in subsection 3, and actually
promotes, rather than frustrates, the prospects for an expeditious resolution of pending
litigation. The PSC should be able to consider new facts and policy variations that could
resolve pending litigation. Moreover, in reconsidering prior determinations, litigation may be
avoided when new facts and policy considerations make it apparent that a change of PSC
policy is in order. Absent such an interpretation of the statute, ratepayers could be burdened
with unanticipated surcharges many years down the road.
Notwithstanding the Commission's interpretation of the statute and Sierra's apparent
acquiescence therein, both parties deviated therefrom in their future conduct. Subsequent to
the dismissal of Dockets 863, 864 and 865 and during the pendency of the litigation, 1976-82,
Sierra submitted several applications that included annualized operating expense as
justification for the requested rate increase.
3
Moreover, in selected instances the PSC
granted such requests;4 in no instance was the entire application dismissed.
____________________

3
a. Docket Nos. 2856, 2857 and 2858, decided October 29, 1980, wherein Sierra requested certain
annualized expenses.
b. Docket No. 81-660, decided May 3, 1982, wherein Sierra requested, and received, annualized operating
expenses.
c. General Order No. 3, Rule 16, effective January 1, 1979, wherein annualized operating expenses were
considered in a rulemaking proceeding in which Sierra was a party.
d. Docket Nos. 82-266 and 82-369, decided September 27, 1982, a rulemaking proceeding in which Sierra
was a party and which, by Commission regulation, allowed annualized operating expenses and revenues.
granted such requests;
4
in no instance was the entire application dismissed. Furthermore,
Sierra attended rulemaking proceedings before the Commission. These culminated in a
Commission regulation, promulgated September 27, 1982, allowing annualized operating
expenses and revenues.
5

Properly or improperly, the only time that the PSC adhered to its position that NRS
704.100(3) and (5) was a jurisdictional bar to consideration of items at issue in pending
litigation was in connection with the dismissed dockets. It thus appears that, in fact, both
Sierra and the PSC tacitly disregarded the rigid position taken by the Commission in its order
dismissing Dockets 863, 864 and 865. Nevertheless, since Sierra's recovery of annualized
operating expenses, omitted or deleted from the thirteen dockets at issue, was undoubtedly
prejudiced by the Commission's formal position concerning the dictates of NRS 704.100(3)
and (5), we would have little difficulty affirming the judgment of the trial court if our ruling
impacted solely on the PSC. Unfortunately, as will be shown, the ultimate burden of such a
decision would be borne in large measure by innocent third parties who never benefited from
Sierra's services.
Equitable Considerations
[Headnote 2]
The uncompensated annualized expenses at issue in this appeal were accrued from 1976 to
1982. It this court affirmed the decision below, many ratepayers who would pay the resulting
surcharge would not have been consumers of Sierra's power during the relevant time period.
6
Thus, many non-users would be forced to subsidize the loss which would otherwise fall upon
Sierra. Of course, the Commission must have realized the potential for such an eventuality
when it, in effect, told Sierra it would have to delay attempts to recover its annualized
operating expenses until after the process of judicial review had run its course. If Sierra had
remained content to rely on the rigid PSC pronouncement, and if the Commission had
consistently adhered thereto, we would be faced with a somewhat different perspective in
equity. Unfortunately, both the PSC and Sierra vacillated on the subject to the point where
it is not difficult to weigh the equities between Sierra and the uninvolved but potentially
burdened consumers.
____________________

4
Docket No. 81-660, decided May 3, 1982.

5
Docket Nos. 82-266 and 82-369, decided September 27, 1982.

6
In 1977, Sierra Pacific Power served 109,167 customers in Nevada. Sierra Pacific Power, FERC Form #1:
Annual Report of Major Electric Utilities, Licensees and Others (1977). In 1985, Sierra Pacific served 155,010
customers in Nevada. Sierra Pacific Power, FERC Form #1: Annual Report of Major Electric Utilities,
Licensees and Others (1985). This is a 42 percent increase in the number of consumers during an eight year
period. This percentage will grow significantly by the time the proposed surcharge could have been exacted.
the subject to the point where it is not difficult to weigh the equities between Sierra and the
uninvolved but potentially burdened consumers.
Since Sierra continued to supplicate the PSC for annualized operating expenses on a
selective basis during the period of litigation, and since the PSC entertained such applications
without dismissal, it is apparent that Sierra could have applied for such expenses in each of
the contested thirteen dockets and appealed from any denial by the PSC. In so doing, Sierra
would have provided notice that it ultimately intended to recover its rejected expenses
through means of a surcharge. At least the consuming public would have been technically
apprised of Sierra's intent to impose an eventual surcharge on its customers.
We also view as significant the failure of Sierra to seek review of the Commission's
preclusive interpretation of NRS 704.100. Apparently content with the Commission's
position, Sierra waited a period of years before seeking recovery of an increasingly large
accrual of annualized expenses. In doing so, it assumed the risk that the Commission's
interpretation would not survive the scrutiny of this court.
The Commission contends that the equitable doctrine of laches applies to Sierra's belated
pursuit of the annualized expenses accruing throughout the period of litigation. We are
constrained to agree. Laches will be invoked when an actual or presumable change of
circumstances makes it inequitable to grant relief. Miller v. Walser, 42 Nev. 497, 517, 181 P.
437, 443 (1919). In Cooney v. Pedroli, 49 Nev. 55, 62-63, 235 P. 637, 640 (1925), we
declared that [w]henever the passage of time has brought in its train anything that works to
the disadvantage of a party and makes it doubtful if equity can be done, relief will be denied.
The history of the instant claim reveals significant inaction on the part of Sierra. The
surcharge for annualized expenses approved by the district court had its genesis in a 1975
Commission decision. That decision was overturned in district court on April 11, 1979 and
we affirmed the court's judgment in April, 1983. Sierra filed its new surcharge request with
the PSC in November, 1984, six and one-half years after the first district court decision and
twenty months after this court's affirmation. As previously noted, Sierra requested, and on
occasion received, annualized operating expenses during the pendency of this litigation, yet
did not appeal the denial of such expenses. Nor did it take any measures to give notice of its
intent to recover annualized expenses which were never presented to the PSC for
consideration.
Sierra opposes the imposition of laches on grounds that the doctrine may not be invoked if
there has been an impediment to prosecuting a claim.
prosecuting a claim. Lubin v. Lubin, 302 P.2d 49, 59 (Cal.Ct.App. 1956); Secret Valley Land
Co. v. Perry, 202 P. 449 (Cal. 1921). As discussed above, NRS 704.100, as interpreted by the
PSC, was initially and at least ostensibly an impediment to Sierra's claim of entitlement to
annualized operating expenses. In practical effect, however, neither the statute nor the PSC
precluded Sierra from requesting such expenses in docket submissions subsequent to Dockets
863, 864 and 865. The PSC in fact permitted Sierra to make such requests without dismissing
Sierra's rate applications.
If this court were to affirm Sierra's entitlement to the surcharge, large numbers of
consumers who never benefited from the lower-priced power would be forced to pay for it.
Moreover, many who did benefit have undoubtedly relocated outside the area affected by the
surcharge, thus avoiding their fair share of the assessment. It is apparent, therefore, that
substantial prejudice and inequity would result from an imposition of the surcharge.
If Sierra had proceeded with diligence to challenge the Commission's interpretation of the
statute or, at the least, had recognized and acted upon the Commission's relaxed approach to
its earlier pronouncement, we are confident that much of the delay and prejudice could have
been avoided or minimized. In any event, such diligence would have alerted consumers and
consumer's groups that Sierra would be seeking recovery of a known amount of expenses that
had been rejected by the PSC. Since it failed to do so, we hold that Sierra's right to recovery
by means of a surcharge is barred by laches.
Retroactive Ratemaking
[Headnote 3]
Our disposition on the issue of laches makes it unnecessary to address the issue of whether
an allowance of the surcharge would constitute unlawful retroactive ratemaking. We do note,
however, that if NRS 704.100 had prevented Sierra from seeking its annualized operating
expenses during the pendency of litigation, Sierra's entitlement to recover at the successful
conclusion of judicial review would have been clear. To conclude otherwise would be
tantamount to a taking of property without due process of law.
Conclusion
For reasons stated above, we reverse the judgment of the district court and direct the entry of
judgment on behalf of the PSC in accordance with this opinion.
____________
103 Nev. 196, 196 (1987) SIIS v. Weaver
THE STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the
State of Nevada, Appellant, v. IRMA WEAVER, Respondent.
No. 17100
March 31, 1987 734 P.2d 740
Appeal from order reversing appeals officer's denial of SIIS benefits. Eighth Judicial
District Court, Clark County; Earle W. White, Jr., Judge.
Surviving spouse filed for death benefits in connection with employee's cardiac arrest
moments after running timed mile as part of job-mandated physical fitness test. State
Industrial Insurance System denied benefits. Judicial review was sought. The district court
reversed denial of benefits. System appealed. The Supreme Court, Gunderson, C. J., held
that: (1) employee suffered injury by accident within meaning of statute that provides death
benefits, if injury by accident arising out of and in course of employment causes death of
employee, and (2) statute, which excludes coronary thrombosis, coronary occlusion, or other
ailments or disorders of heart, and any ensuing death from definition of injury by accident
arising out of and in course of employment, did not bar recovery of benefits in connection
with death of 59-year-old employee.
Affirmed.
Virginia L. Hunt, Las Vegas and Pamela Bugge, Carson City, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel Polsenberg, Las Vegas, for
Respondent.
Absence of any obvious unusual occurrence does not preclude existence of injury by accident in course
of employment, which permits award of death benefits. NRS 616.020, 616.110, subd. 1, 616.615.
Nothing exists in concept of accidents that demands accidental character of employment injury to be
cause, rather than result. NRS 616.020, 616.110, subd. 1, 616.615.
Employee, who died from cardiac arrest moments after running timed mile as part of job-mandated
physical fitness test, suffered injury by accident within meaning of statute that provides death benefits, if
injury by accident arising out of and in course of employment causes death of employee. NRS 616.615.
Statute, which excludes coronary thrombosis, coronary occlusion, or other ailments or disorders of heart,
and any ensuing death from definition of injury by accident arising out of and in course of employment,
did not require denial of compensation when exceptional and extraordinary physical
exertion demanded by employment led to immediate death and did not bar recovery
of benefits in connection with death of 59-year-old employee, who died of cardiac
arrest moments after running timed mile as part of job-mandated physical fitness
test and who suffered preexisting acute coronary artery disease. NRS 616.010 et
seq., 616.110, subd. 2.
103 Nev. 196, 197 (1987) SIIS v. Weaver
ment, did not require denial of compensation when exceptional and extraordinary physical exertion
demanded by employment led to immediate death and did not bar recovery of benefits in connection with
death of 59-year-old employee, who died of cardiac arrest moments after running timed mile as part of
job-mandated physical fitness test and who suffered preexisting acute coronary artery disease. NRS
616.010 et seq., 616.110, subd. 2.
Death occurring within short time after blow or overexertion in course of employment creates
presumption that death is caused by employment and relieves claimant of need to establish causation by
expert medical testimony.
OPINION
Russell Weaver collapsed and died of cardiac arrest moments after running a timed mile as
part of a job-mandated physical fitness test. His widow, respondent Irma Weaver, filed for
death benefits under the Nevada Industrial Accident Act (NIAA). The State Industrial
Insurance System (SIIS), the hearing officer and the appeals officer all agreed Weaver's death
was not compensable. On judicial review, the district court reversed. SIIS appeals.
Russell Weaver was a 59-year-old, privately employed security inspector at the Nevada
Test Site. In 1982, the United States Department of Energy imposed physical fitness
standards on security inspectors at its sites. For the first time in seventeen years of
employment, Weaver, whose duties did not normally require running, had to prove he could
run a mile in eight-and-a-half minutes to retain his job. In June, 1983, Weaver was examined
by a physician and medically cleared for participation in the physical fitness training and
testing program. On July 12, 1983, he completed the one-mile run in under eight minutes,
took a drink of water, walked 35 feet, collapsed and died of cardiac arrest.
Dr. Robert E. Cutler wrote it was a medically valid presumption that the stress of
running contributed to Weaver's death. However, the autopsy revealed that Weaver also
suffered acute coronary artery disease although the condition was asymptomatic in his
lifetime.
1

[Headnotes 1-3]
NRS 616.615 provides death benefits if an injury by accident arising out of and in the
course of employment causes the death of an employee."
____________________

1
Although Weaver suffered a myocardial infarction twelve years earlier, he showed no subsequent symptoms
of heart disease. Four electrocardiogram stress tests over the years yielded normal results.
103 Nev. 196, 198 (1987) SIIS v. Weaver
an employee. Russell Weaver suffered sudden unexpected internal failure and death
moments after extreme physical exertion in the course of his employment. Although Weaver
did not slip, fall, or suffer any visible mishap during his run, the absence of any obvious
unusual occurrence does not preclude the existence of an injury by accident. See SIIS v.
Swinney, 103 Nev. 17, 731 P.2d 359 (1987); American International Vacations v. MacBride,
99 Nev. 324, 661 P.2d 1301 (1983). There is nothing in the concept of accidents that
demands the accidental character of the injury be in the cause rather than the result. 1B
Larson, Workmen's Compensation Law 38.60 (1986). We further note that four other states
have the same statutory definition of accident as Nevada and that none of these require an
injury by accident be preceded by an unusual event classified as an accident. See Newman
Bros., Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App. 1977); Ferguson v. HDE, Inc., 270
So.2d 867 (La. 1972); Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo.
1983); Wolfe v. American Community Stores, 290 N.W. 195 (Neb. 1980). The statutory
requirements for injury and accident are satisfied.
2

[Headnote 4]
The central issue in this appeal is whether, despite injury by accident, NRS 616.110(2)
3
bars compensation when an employee with pre-existing coronary artery disease dies of
cardiac arrest immediately following extraordinary and unusual physical exertion in the
course of his employment. We hold it does not.
In heart cases, NRS 616.110(2) establishes and exception to the general rule that industrial
injuries are compensable even if the employment only aggravates, accelerates, or combines
with pre-existing disease to cause death or disability. Spencer v. Harrah's Inc., 98 Nev. 99,
641 P.2d 481 (1982). In Spencer, supra, we held the statute precluded compensation when
heat exhaustion and dehydration precipitated the heart attack of an employee with severe
heart disease. We noted the debilitated state that developed on the fatal day "was of a type
likely to occur at any time, anywhere."
____________________

2
NRS 616.020.
Accident means an unexpected or unforeseen event happening suddenly and violently, with or
without human fault, and producing at the time objective symptoms of an injury.
NRS 616.110(1).
Injury and personal injury means a sudden and tangible happening of a traumatic nature,
producing an immediate or prompt result, including injuries to artificial members.

3
NRS 616.110(2).
For the purposes of this chapter, coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom, shall not be deemed to be an injury
by accident sustained arising out of and in the course of the employment.
103 Nev. 196, 199 (1987) SIIS v. Weaver
on the fatal day was of a type likely to occur at any time, anywhere. 98 Nev. at 102, 641
P.2d at 483. It was clear that Mr. Spencer's death did not substantially result from his
employment. Id. Consistent with our decision in Spencer, supra, we held in SIIS v. Conner,
102 Nev. 335, 721 P.2d 384 (1986), that the statute barred compensation for permanent
partial disability where an employee's history included pre-existing disease, a coronary bypass
operation, and one work-related heart attack six years earlier. In 1978, Mr. Conner, a police
officer with pre-existing heart disease, suffered a myocardial infarction after being assaulted
by a suspect. He was compensated for this injury under the Nevada Occupational Diseases
Act. In 1979, he underwent a successful quadruple bypass operation and returned to work.
Five years later, in 1984, he was rated partially disabled. Conner then sought permanent
partial disability payments under NIAA, based on the 1979 assault. This court determined that
NRS 616.110(2) precluded such payments where disability was due to an underlying
condition that was only aggravated by an employment-related injury suffered years earlier.
By contrast, SIIS v. Buckley, 100 Nev. 376, 682 P.2d 1387 (1984), presented a clear causal
relationship between direct trauma to the heart and the ensuing injury. Ms. Buckley, a nurse
with no prior heart disorder, suffered a prolapsed mitral valve after coming into accidental
contact with a defibrillator which sent a strong electrical shock through her body. We agreed
that NRS 616.110(2), like the statutes of other states limiting recovery in heart cases, did not
apply when an injury to the heart is caused by sudden unforeseen and violent application of
force. 100 Nev. 379, 682 P.2d at 1389.
Russell Weaver was subjected to extraordinary and violent physical stress in the course of
his employment. The Department of Energy, through the employer, required a nearly
sixty-year-old man whose duties did not normally include any running to run one mile in
eight-and-a-half minutes through the southern Nevada desert, in July, in order to retain the
job he had held for seventeen years. Weaver's virtually immediate collapse and death
evidenced his body's inability to sustain the force of the extreme stress imposed by the
employer's mandate. This immediate physical response to extraordinary physical stress is
evidence of a violent causative forceone as clearly traumatic as any external force applied
to the heart.
[Headnote 5]
This court had long held that we should construe the Nevada Industrial Accident Act
broadly and liberally, to protect the interests of injured workers and their dependents. A
reasonable, liberal and practical construction is preferable to a narrow one since these acts
are enacted for the purpose of giving compensation, not for denial thereof.
103 Nev. 196, 200 (1987) SIIS v. Weaver
since these acts are enacted for the purpose of giving compensation, not for denial thereof.
SIIS v. Buckley, supra, 100 Nev. at 381, 682 P.2d at 1390; Industrial Commission v. Peck, 69
Nev. 1, 11, 239 P.2d 244, 248 (1952). We cannot imagine that NRS 616.110(2) was intended
to deny compensation when an exceptional and extraordinary physical exertion demanded by
the employment leads to immediate death. We further agree with the Colorado Supreme
Court that where death occurs within a short time after a blow or overexertion in the course of
employment, a presumption arises that it was caused by the employment and the claimant is
not required to establish causation by expert medical testimony. Industrial Commission v.
Havens, 314 P.2d 698, 701 (Colo. 1957); Matter of Death of Talbert, 694 P.2d 864
(Colo.Ct.App. 1984).
For these reasons, we accordingly affirm the order of the district court.
Steffen, Young, Springer and Mowbray, JJ., concur
____________
103 Nev. 200, 200 (1987) Yates v. State
MARY LOUISE YATES; DONOVAN CHARLES STONER and LYNN LEON
HUFFMAN, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 17288
March 31, 1987 734 P.2d 1252
Appeal from judgments of conviction, upon jury verdicts, of first degree murder with the
use of a deadly weapon; Second Judicial District Court, Washoe County; William N. Forman,
Judge.
Defendants were convicted in the district court of first degree murder with use of deadly
weapon. Defendants appealed. The Supreme Court, Springer, J., held that: (1) district
attorney's statements during jury selection, final argument, and jury argument were improper,
and (2) district attorney's misconduct did not require mistrial, where evidence of guilt was
overwhelming.
Affirmed.
David G. Parraguirre, Public Defender, Jane G. McKenna, Chief Appellate Deputy Public
Defender, Washoe County, for Appellants.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy G.
Randolph, Deputy District Attorney, Washoe County, for Respondent.
103 Nev. 200, 201 (1987) Yates v. State
1. Criminal Law.
District attorney's question during jury selection whether any prospective juror ever had feeling that
attorney would wilfully and knowingly prosecute case in which he did not believe was improper expression
of opinion on guilt of accused. ABA Model Code of Prof.Resp., DR7-106, DR7-106(C)(4).
2. Criminal Law.
Defense attorney's questions during jury selection, which asked whether jurors thought that what District
Attorney said was true and whether they could conceive of situation involving district attorney's
prosecution of innocent person, did not invite district attorney's improper question whether prospective
jurors had feeling at any time that attorney would wilfully and knowingly prosecute case in which he did
not believe. ABA Model Code of Prof.Resp., DR7-106, DR7-106(C)(4).
3. Criminal Law.
District attorney's closing argument that expert defense witness had violated oath to God and that his
testimony was melarky and outright fraud was improper verbal abuse of witness.
4. Criminal Law.
District attorney may neither heap verbal abuse on witness nor characterize witness as perjurer or a fraud.
5. Criminal Law.
District attorney's jury argument that defense attorney was acting in violation of all ethics of attorney and
that he ought to have been held in contempt was improper comment on conduct of defense attorney without
justification on record.
6. Criminal Law.
Trial court may take disciplinary action against district attorney at time of misconduct.
Supreme Court has power to discipline all attorneys, including district attorneys who violate ethical
standards.
8. Criminal Law.
District attorney's professional misconduct, which consisted of question whether prospective jurors had
ever had feeling that attorney would wilfully and knowingly prosecute case he didn't believe in, closing
argument that characterized expert defense witness as perjurer and fraud, and jury argument that defense
counsel violated all ethics of attorney, did not require mistrial in murder prosecution, where defendants
admitted complicity in crime, and where evidence of guilt was overwhelming. ABA Model Code of
Prof.Resp., DR7-106, DR7-106(C)(4). U.S.C.A.Const. Amend. 6.
9. Criminal Law.
Aggravated prosecutorial remarks will not justify reversal, if guilty verdict is free from doubt.
OPINION
This case is about prosecutorial misconduct. Appellants claim that the District Attorney of
Washoe County was guilty of misconduct of such magnitude as to deny them a fair trial.
There is no question about the presence of multiple acts of unprofessional conduct in this
case, the question is whether in the particular case justice requires us to reverse and send
the case back for retrial.
103 Nev. 200, 202 (1987) Yates v. State
no question about the presence of multiple acts of unprofessional conduct in this case, the
question is whether in the particular case justice requires us to reverse and send the case back
for retrial.
There is pervasive and admitted prosecutorial misconduct throughout this case; however,
because the defendants failed to object to the prosecutor's improper statements to the jury
and, more importantly, because of the overwhelming evidence of guilt in this case, we have
decided to affirm the conviction.
What is before us today is not a new problem. As far back as 1909 this court observed that
[i]t seems to be a peculiar trait and ambition of some prosecuting attorneys, carried
away through misguided zeal, to overprove their case when a conviction is otherwise
certain, and to exert their skill and ingenuity in seeing how far they can trespass on the
verge of error, and, generally, in doing so, trespass upon the rights of the accused, thus
causing the necessity of courts of last resort to reverse causes and order new trials, to
the expense and detriment of the commonwealth and all concerned.
State v. Rodriguez, 31 Nev. 342, 347 (1909).
Although, as said, this court of last resort is not going to reverse this case and order a new
trial to the expense and detriment of the commonwealth and all concerned, we do feel
constrained to renew the admonition given in Rodriguez almost eighty years ago:
Prosecuting attorneys, unfortunately, too often forget, in their zeal to secure
convictions, that they have a duty to perform equally as sacred to the accused as to the
state they are employed to represent, and that is to see that the accused has the fair and
impartial trial guaranteed every person by our Constitution, no matter how lowly he
may be, or degrading the character of the offense charged, and that it is equally as
reprehensible for prosecuting attorneys to violate their oath as an attorney and officer of
the court in this respect, as they are censurable if they allow the guilty to escape the trial
and punishment provided by law.
Id.
The district attorney in our criminal justice system has a special and awesome
responsibility, for he represents not just an ordinary party to a controversy; rather, he
represents a democratic government which must govern impartially and which must have as
its predominant interest in criminal cases not that it should win a case, but that justice should
be done. As a representative of the state the district attorney is in a peculiar and very definite
sense the servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigorindeed he should do so.
103 Nev. 200, 203 (1987) Yates v. State
with earnestness and vigorindeed he should do so. But while he may strike hard blows, he
is not at liberty to strike foul ones. Berger v. United States, 55 S.Ct. 629, 633 (1935).
At the beginning of trial, during jury selection, the district attorney asked a juror, in the
presence of the jury panel: In anything that I ever said when I was speaking at Reed High
School or anywhere else that you're aware of, did you ever get the feeling at any time that I
would ever wilfully and knowingly prosecute a case I didn't believe in? This question falls
short of being a blatant statement that the district attorney only prosecutes guilty people. Still,
the trial judge saw this question as being very close to expressing [the prosecutor's] personal
belief in the merits of [his] side of the case, even though he did not consider this to be
serious enough to justify granting a mistrial.
[Headnotes 1, 2]
We agree that at this stage the district attorney's suggestion that he only prosecutes cases
that he believes in, although improper, did not warrant a mistrial. The prosecutor may have
been seeing how far [he could] trespass on the verge of error, Rodriguez, above, and
although the conduct may not require reversal under the particular circumstances of this case,
it was, as admitted during oral argument by the state, an improper remark.
1

Any expression of opinion on the guilt of an accused is a violation of prosecutorial ethics.
McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984); see ABA Standards for Criminal
Justice, The Prosecution Function, Standard 3-5.8(b) (2nd ed. 1982)
2
; see also ABA Model
Code of Professional Responsibility, DR 7-106(c)(4) (1980).
3
The reason that such
expressions cannot be tolerated has been expressed recently by the United States
Supreme Court:

____________________

1
The state argues that this question was invited by defense questioning about the District Attorney asking if
the jurors thought that because Mr. Lane said something was true, it must be true and if they could conceive of a
situation in which he might prosecute a case in which the proper verdict was not guilty rather than guilty. Such
questions do not invite the improper suggestion that Mr. Lane prosecutes only when he believes in a case, that
is, he has reached a conclusion or determination that the accused is guilty. The issue here, however, is not the
prosecutor's license to make improper arguments, but whether the prosecutor's invited response,' taken in
context, unfairly prejudiced the jury. United States v. Young, 470 U.S. 1, 12 (1985), citing Lawn v. United
States, 355 U.S. 339 (1958). We hold here that unfair prejudice did not result.

2
Standard 3-5.8(b) and (c) state in pertinent part:
5.8 Argument to the jury.
. . . .
(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the
truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the
jury.

3
The Model Code states in pertinent part:
103 Nev. 200, 204 (1987) Yates v. State
The reason that such expressions cannot be tolerated has been expressed recently by the
United States Supreme Court:
The prosecutor's vouching for the credibility of witnesses and expressing his personal
opinion concerning the guilt of the accused pose two dangers: such comments can
convey the impression that evidence not presented to the jury, but known to the
prosecutor, supports the charges against the defendant and can thus jeopardize the
defendant's right to be tried solely on the basis of the evidence presented to the jury;
and the prosecutor's opinion carries with it the imprimatur of the Government and may
induce the jury to trust the Government's judgment rather than its own view of the
evidence.
4

[Headnote 3]
The second item of professional misconduct appearing in the record is the District
Attorney's expression, during final argument, of his own disbelief of the testimony of expert
defense witness John A. Monagin, M.D. He told the jury that the medical doctor had violated
his oath to God. See note 2, above.
[Headnote 4]
The third item of unprofessional conduct is the District Attorney's continued abuse of Dr.
Monagin
5
during final argument in which he characterized the doctor's testimony as
melarky, saying that he crawl[ed] up on the witness stand and that his testimony was
outright fraud.
6
The District Attorney may argue the evidence and inferences before the
jury.
____________________
DR 7-106 Trial Conduct.
. . . .
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
. . . .
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the
culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his
analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(Footnote omitted).

4
United States v. Young, 470 U.S. at 18-19.

5
Dr. Monagin's qualifications include the following: He is a medical doctor, with a specialty in psychiatry,
attended Duke University, Baylor College of Medicine, did a medical internship at Saint Joseph's Hospital in
Houston, was a psychiatrist with the Reno VA Medical Center from 1980 to 1982, and was appointed to the
adjunct section of the medical school, where he lectured on mood disorders, stress disorders and
psychopharmacology.

6
[I]t does not follow that an attorney may so conduct himself without fear of discipline. Indeed the oath taken
by an attorney licensed to practice in Nevada states in part that I will abstain from all offensive personalities
and advance no fact prejudicial to the honor or reputation
103 Nev. 200, 205 (1987) Yates v. State
argue the evidence and inferences before the jury. He may not heap verbal abuse on a witness
nor characterize a witness as a perjurer or a fraud.
Such characterizations transform the prosecutor into an unsworn witness on the issue of
the witnesses credibility and are clearly improper. McGuire v. State, 100 Nev. 153, 677 P.2d
1060 (1984); see Commonwealth v. Potter, 285 A.2d 492 (Pa. 1971); United States v.
Drummond, 481 F.2d 62, 64 (2d Cir. 1973).
[Headnote 5]
The next item coming to our attention is the District Attorney's degrading of defense
counsel in front of the jury by saying that defense counsel was acting in violation of all the
ethics of any attorney and that he ought to be held in contempt. Insofar as we can determine
from an examination of the record, these remarks by the prosecutor were totally without
justification.
The use of these kinds of remarks, these kinds of foul blows and this kind of behavior on
the part of a prosecuting office is in all respects a no-win approach to trial advocacy. If the
state has a strong case, it is not necessary, and if it was a close one, such misconduct is gross
injustice to the defendant. State v. Cyty, 50 Nev. 256, 259, 256 P. 793, 794 (1927). We
earnestly hope that a stop can be put to these antics.
[Headnotes 6, 7]
We do not despair of finding an effective remedy for prosecutorial misconduct merely
because we decline to reverse cases of this nature. We do not intend this opinion to go as an
unheeded condemnation. This kind of activity can be stopped in other ways. Trial judges can
take disciplinary action on the spot, and this court has the power to discipline all attorneys
who violate ethical standards.
The following measures are suggested in United States v. Modica, 663 F.2d 1173, 1184-85
(2d Cir. 1981), cert. denied, 456 U.S. 989 (1982):
The district judge is in an especially well-suited position to control the overall tenor of
the trial. He can order the offending statements to cease and can instruct the jury in
such a manner as to erase the taint of improper remarks that are made. The ABA
Standards for Criminal Justice recognize that [i]t is the responsibility of the [trial]
court to ensure that final argument to the jury is kept within proper, accepted bounds.
____________________
of a party or witness, unless required by the justice of the cause with which I am charged . . .
Bull v. McCuskey, 96 Nev. 706, 712, 615 P.2d 957, 962 (1980) (emphasis added).
103 Nev. 200, 206 (1987) Yates v. State
bounds. ABA Standard 3-5.8. The trial judge can interrupt to anticipate and cut off an
improper line of argument. Once the offending remarks are made, the judge can strike
them and forcefully instruct the jury as to their inappropriateness. If persuaded in a rare
case that irreparable prejudice has occurred, the court retains the option of granting a
motion for a mistrial.
Beyond these traditional trial-conduct remedies, the court has a range of remedies
that may, in appropriate circumstances, be directed specifically at the attorney. Initially,
the court may consider a reprimand, delivered on the spot or deferred until the jury has
been excused from the courtroom. Flagrant conduct, in violation of a court order to
desist, may warrant contempt penalties. If the conduct has occurred on prior occasions,
the court may wish to give serious consideration to a formal reference to the appropriate
local grievance committee to assess the need for disciplinary proceedings.
Alternatively, persistent misconduct may warrant action by the court itself to initiate
proceedings to determine the appropriateness of a suspension from practice before the
District Court. We suspect that the message of a single 30-day suspension from practice
would be far clearer than the disapproving remarks in a score of appellate opinions.
[Headnotes 8, 9]
Despite the regrettable incidents of prosecutorial misconduct during this trial, in view of
the overwhelming evidence that the defendants were guilty as perpetrators or principals in
this brutal murder, reversal is not justified. All three defendants admitted their complicity in
the crime. The jury was presented with overwhelming evidence of the defendants'
involvement in the planning, execution and cover-up of the murder. Evidence of Donovan
Stoner's premeditation was sufficient to sustain his, and thereby Mary Yates' and Lynn
Huffman's, conviction of first degree murder. When a guilty verdict is free from doubt, even
aggravated prosecutorial remarks will not justify reversal. Dearman v. State, 93 Nev. 364,
566 P.2d 407 (1977); Jackson v. State, 93 Nev. 28, 559 P.2d 825 (1977).
7
We have
considered the other issues raised on appeal and find them to be without merit.S The
judgments of the district court are affirmed.

____________________

7
This court is being increasingly faced with claims of prosecutorial misconduct which are clearly contrary to
expressed precedent. Incidents of abuses are too frequent to catalogue; and, notwithstanding reiteration of
existing guidelines, this court's decrying the increasing number of cases appealed on these grounds and our
threatening to impose sanctions if the practice continues, we still see these cases in increasing numbers. It is time
that this kind of conduct be stopped.
We do not see reversal of convictions as an appropriate or useful way to adjudicate prosecutorial
misconduct. Reversal may prejudice society more than it does the prosecutor.
We hear prosecutors complain that they are being singled out among other
103 Nev. 200, 207 (1987) Yates v. State
We have considered the other issues raised on appeal and find them to be without merit.
8
The judgments of the district court are affirmed.
Gunderson, C. J., and Steffen, Young, and Mowbray, JJ., concur.
____________________
advocates for undeserved chastisement. It is apparent, however, that it is inherent in the criminal justice process
that the conduct of prosecutors come to judicial attention more frequently than, say, that of defense attorneys.
Instead of being dealt with by conventional grievance processes, prosecutors' unethical conduct ordinarily
becomes part of the law of the case when a defendant appeals conviction. Unethical conduct on the part of
defense lawyers would ordinarily be dealt with as a grievance, involving administration fact-finding and
imposition of sanctions carried out privately and rarely becoming a matter of appellate cognizance. Unethical
actions by prosecutors, on the other hand, become the subject of briefing and argument by both sides in the
appellate courts and become a part of the record on appeal.
Ordinarily, the state does not appeal an issue of defense misconduct so that defense conduct rarely becomes a
part of the appellate record. We do note, however, that adjudication on our part that prosecutors have engaged in
unethical conduct has had very little, if any, deterrent effect on prosecutors' actions.
We have reached the point where we can no longer look at this problem in terms of isolated examples of
understandable, if inexcusable overzealousness in the heat of trial. See Jackson v. State, 421 So.2d 15, 16
(Fla.Dist.Ct.App. 1982). It is obvious that this conduct should not be tolerated. It is just as obvious, and just as
distressing, that our prior efforts to reduce this practice have proven to be inadequate. United States v. Modica,
663 F.2d 1173 at 1182 (2d Cir. N.Y. 1981).

8
Appellant Huffman contends that the district court unduly prejudiced his defense by limiting his
cross-examination to one of two extra-judicial statements given to detectives between May 27 and May 28. We
find sufficient evidence on the record from which the district court could have determined the statements were
separate.
Although not raised on appeal, we find any possible limitation of appellant Huffman's right to cross-examine
Detective Wiskerchen regarding the May 27 statement not prejudicial to Huffman's own substantial rights. The
defendant's May 27 statement appears cumulative to that which he offered over seven hours later on May 28.
Further, the unadmitted statement would not have served to exculpate Huffman from overwhelming evidence of
his participation as a principal in the felony murder of Jeanne Yates. The district court allowed sufficient
opportunity for Huffman to explain any inconsistency between the two statements and to impeach the testimony
of Detective Wiskerchen. Miranda v. State, 101 Nev. 562, 707 P.2d 1121 (1985).
____________
103 Nev. 208, 208 (1987) Dep't Human Res. v. UHS of The Colony
DEPARTMENT OF HUMAN RESOURCES, State of Nevada, and JERRY
GRIEPENTROG in His Official Capacity as Director of the Nevada
Department of Human Resources, Appellants, v. UHS OF
THE COLONY, INC., dba UNI-SCAN, Respondent.
No. 17140
April 9, 1987 735 P.2d 319
Appeal from an order granting respondent's petition for review. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Health care provider filed petition for review of administrative decision that its acquisition
of magnetic resonance imaging machine was subject to certificate of need approval. The
district court granted petition and entered judgment favoring provider. Department of Human
Resources appealed. The Supreme Court held that: (1) provider had no adequate remedy of
law and was entitled to judicial review of administrative decision, but (2) provider's mobile
facility for providing diagnostic services using magnetic resonance imaging machine was
health facility subject to certificate of need approval.
[Rehearing denied May 29, 1987]
Brian McKay, Attorney General, and Bryan M. Nelson, Deputy Attorney General, Carson
City, for Appellants.
Memel, Jacobs, Pierno, Gersh & Ellsworth and Donald Goldman, Los Angeles; Jones,
Jones, Close & Brown and Kirk R. Harrison, Las Vegas, for Respondent.
Lionel, Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for Amicus Curiae National
Care Services of Nevada, Inc.
1. Administrative Law and Procedure; Hospitals.
Health care provider had no adequate remedy at law and was entitled to judicial review of administrative
decision that its acquisition of magnetic resonance imaging machine was subject to certificate of need
approval, as there is no statutory provision for determination that party is not subject to such approval.
NRS 439A.010 et seq.
2. Hospitals.
Health care provider's mobile facility for providing diagnostic services using magnetic resonance imaging
machine was health facility subject to certificate of need approval under statute. NRS 439A.010 et
seq., 439A.015.
OPINION
Per Curiam:
On May 7, 1985, UHS of the Colony, Inc. (hereinafter Uni-Scan) notified the Department
of Human Resources (hereinafter Department) of its intent to acquire a magnetic resonance
imaging (MRI) machine at a cost of approximately 2.1 million dollars. MRI is a recent
diagnostic innovation utilizing current technological advances which produces cross-sectional
anatomical pictures and noninvasive imaging of soft tissues. The device was to be located in
a parking lot adjacent to Valley Hospital in a mobile facility and available for outpatient use.
On June 12, 1985, the Department determined that the project was subject to certificate of
need (CON) approval pursuant to NRS 439A because (1) the mobile facility was a health
facility under NRS 439A.015 (1983); (2) Uni-Scan and Valley Hospital were both
subsidiaries of Universal Health Services (UHS), and therefore the close proximity of the
MRI would be an expenditure by or on behalf of an existing health facility; and (3) the
legislature had recently adopted SB 136, effective July 1, 1985, amending NRS 439A.100 to
require CON approval of any acquisition of major medical equipment costing more than
$400,000. Since acquisition would occur after July 1, 1985, Uni-Scan was subject to review.
Rather than apply for a certificate of need, Uni-Scan filed a petition for judicial review of the
administrative agency decision.
The district court granted the petition and held that CON approval was not required
because the proposed project was not a health facility nor was it acquired by or on behalf of a
health facility. It also found the Department's prospective application of SB 136 to be
erroneous.
1

The Department contends that Uni-Scan's petition for judicial review was improperly
granted because Uni-Scan failed to exhaust its administrative remedies. The Department
argues that Uni-Scan must exhaust the CON application process before it can seek a
determination that it is exempt from CON review. Uni-Scan, on the other hand, argues that if
it is required to apply for a certificate of need, its claim that it is not subject to CON review
becomes moot because it has already applied. Therefore, because it has no other remedy at
law, judicial review was proper.
[Headnote 1]
The district court asserted jurisdiction based on several NRS statutes, among them NRS
233B.130(1) which provides, in relevant part, "[a]ny preliminary, procedural or
intermediate act or ruling by an agency is immediately reviewable in any case in which
review of the agency's final decision would not provide an adequate remedy."
____________________

1
The Department does not argue this finding on appeal. Therefore, we do not consider it. Williams v.
Zellhoefer, 89 Nev. 579, 517 P.2d 789 (1973).
vant part, [a]ny preliminary, procedural or intermediate act or ruling by an agency is
immediately reviewable in any case in which review of the agency's final decision would not
provide an adequate remedy. NRS 439A.105 (1983) provided for a hearing officer to hear
and determine all appeals from decisions rendered pursuant to Chapter 439A.
2
There is no
provision, however, for a determination that a party is not subject to NRS 439A. We agree
that Uni-Scan had no adequate remedy at law and hold that the district court properly granted
Uni-Scan's petition for judicial review.
The Department also contends that the district court erroneously concluded that Uni-Scan's
MRI facility was not a health facility. Under the statutes in effect prior to July 1, 1985, a
certificate of need was required for any proposed acquisition of medical equipment which
would cost more than $400,000 and which would be owned by or located at a health facility.
NRS 439A.100(2)(d) (1983) (emphasis added).
3

NRS 439A.015 (1983) provided:
Health facility means a facility in which health services are provided. The term
includes a:
1. Facility for rehabilitation of inpatients;
2. Facility for treatment of end-stage renal disease;
3. Freestanding unit for hemodialysis;
4. Home health agency; 5.
____________________

2
NRS 439A.105 (1983) was repealed by Acts 1985, ch. 454 28, p. 1367.

3
NRS 439A.100 (1983) provided, in pertinent part:
1. No person may undertake any project described in subsection 2 without first applying for and
obtaining the written approval of the director. The health division of the department of human resources
shall not issue a new license or alter an existing license for any project described in subsection 2 unless
the director has issued such an approval.
2. The projects for which this approval is required are as follows:
. . .
(d) The proposed acquisition of any medical equipment which would cost more than $400,000, or
such an amount as the department may specify by regulation, and which would be owned by or located at
a health facility;
. . .
3. Upon receiving an application for approval, the director or office shall consider any
recommendation of a health systems agency. A decision to approve or disapprove the application must
generally be based on the need for services, utilizing criteria, established by the department by regulation,
which are consistent with the purposes set forth in NRS 439A.020 and with the goals and priorities of the
health plans developed pursuant to the Federal Act. The director may base his decision upon the
recommendation of his staff concerning the need for services.
5. Hospital;
6. Institution for treatment of tuberculosis;
7. Intermediate care facility;
8. Psychiatric hospital;
9. Skilled nursing facility; or
10. Surgical center for ambulatory patients.
Health services means the care and observation of patients, the diagnosis of
human diseases, the treatment and rehabilitation of patients, or related services. The
term includes treatment of patients for alcohol and drug abuse, services related to
mental health and diagnostic services.
Read together, the language of these statutes would appear to include Uni-Scan's MRI
facility since it provides a diagnostic service. However, the Department has also stated that
physicians' offices and medical office buildings are not health facilities subject to review
under Nevada's certificate of need laws even when they contain advanced diagnostic
equipment. Uni-Scan argued, and the district court agreed, that its diagnostic facility fell
under the physician's office exemption.
[Headnote 2]
The real issue is whether NRS 439A.015 (1983) should be construed narrowly or broadly.
Uni-Scan's mobile facility falls somewhere in between a physician's office and the facilities
enumerated in NRS 439A.015 (1983). We hold that the failure to specifically enumerate
Uni-Scan's mobile facility in NRS 439A.015 (1983) does not prevent its inclusion as a health
facility. The Department determined that the creation of a diagnostic center for the exclusive
purpose of providing specialized health services is a health facility within the meaning and
intent of NRS 439A.015 (1983). An administrative construction that is within the language of
the statute will not readily be disturbed by the courts. Public Emp. Ret. v. Washoe Co., 96
Nev. 718, 722, 615 P.2d 972, 975 (1980). We hold that Uni-Scan's MRI facility providing
diagnostic health services is properly within the definition of a health facility and therefore
subject to the certificate of need provision of NRS chapter 439A (1983).
It is not necessary to reach the other issues raised on this appeal. We therefore reverse the
district court's determination that Uni-Scan's mobile MRI facility is not a health facility
subject to certificate of need approval and remand for proceedings consistent with this
decision.
____________
103 Nev. 212, 212 (1987) Passama v. State
EDWARD GEORGE PASSAMA, Appellant, v.
No. 17315
April 9, 1987 735 P.2d 321
Appeal from judgment of conviction. Fourth Judicial District Court, Elko County; Joseph
O. McDaniel, Judge.
Defendant was convicted before the district court of three counts of lewdness with a child
under 14 years of age, and he appealed. The Supreme Court held that defendant's confession
was coerced and involuntary, and it was a violation of due process to admit it at trial.
Barbara Byrne, Elko County Public Defender, for Appellant.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, and
John S. McGimsey, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
A confession is admissible only if it is made freely and voluntarily, without compulsion or inducement.
A criminal defendant is deprived of due process of law if his conviction is based, in whole or in part,
upon an involuntary confession, even if there is ample evidence aside from the confession to support the
conviction. U.S.C.A.Const. Amend. 14.
3. Criminal Law.
A confession is involuntary whether coerced by physical intimidation or psychological pressure.
4. Criminal Law.
To determine voluntariness of a confession, court must consider effect of totality of circumstances on will
of defendant, including: youth of accused; his lack of education or his low intelligence; lack of any advice
of constitutional rights; length of detention; repeated and prolonged nature of questioning; and use of
physical punishment such as deprivation of food or sleep.
5. Criminal Law.
Although it is permissible to promise a defendant that prosecutor will be told if defendant cooperates, it is
not permissible to tell defendant that his failure to cooperate will be communicated to prosecutor.
6. Criminal Law.
Defendant's confession was coerced and involuntary, considering that although defendant was not young
or uneducated, his intelligence was below average, that defendant was subjected to repeated and prolonged
questioning over a five hour period, and that interrogator used impermissively coercive methods to extract
a confession, such as telling defendant that he would go to the D.A. and see that defendant went to prison if
he was not entirely truthful.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction following a trial to the court. Edward
Passama was convicted of three counts of lewdness with a child under fourteen years of age
in violation of NRS 201.230. In this appeal, Passama contends his confession was coerced
and therefore involuntary, so that it was a violation of due process to admit it at trial. We
agree.
FACTS
Passama, a resident of Jackpot, frequently permitted neighbor children to play in his home.
One of these children reported some questionable behavior on Passama's part to her parents,
and the police began to investigate whether he had been molesting the children. Passama
voluntarily went to the sheriff's office in Elko to take a polygraph examination. The
interrogation that followed was approximately five hours long and was recorded on video
tape. Near the end of the five hour period, Passama confessed and signed two statements
containing admissions.
Passama was initially charged with five counts of sexual assault, but only bound over to
district court on three counts of lewdness with a minor. In district court he moved to suppress
his statements and the video tape of the confession on the ground that the confession was
involuntary as a result of psychological coercion. The motion was denied. During a bench
trial, the video tape and Passama's statements were introduced into evidence.
Passama testified and stated that the girls' accusations were not true. He admitted he
played with the girls and tickled them, but denied anything improper had occurred. He said he
wrote the statements because he was pressured to do so by Sheriff Miller. He said Detective
Ciszewski, who was also present during part of the interrogation, told him what to write.
DISCUSSION
[Headnotes 1-3]
A confession is admissible only if it is made freely and voluntarily, without compulsion or
inducement. Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732, 734-735 (1980); see also
Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984). A criminal defendant is deprived of due
process of law if his conviction is based, in whole or in part, upon an involuntary confession,
and even if there is ample evidence aside from the confession to support the conviction.
Jackson v. Denno, 378 U.S. 368, 376 (1964). In order to be voluntary, a confession must be
the product of a "rational intellect and a free will."
rational intellect and a free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960). A
confession is involuntary whether coerced by physical intimidation or psychological pressure.
Townsend v. Sain, 372 U.S. 293, 307 (1963).
In recent cases, the United States Supreme Court has reiterated its view that certain
interrogation techniques, either in isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of justice that they must be
condemned under the Due Process Clause of the Fourteenth Amendment. Miller v. Fenton,
474 U.S. 104, 106 S.Ct. 445, 449 (1985); Colorado v. Connelly, ___ U.S. ___, 107 S.Ct. 515
(1986). The court has retained this due process focus even after developing extensive law on
the Fifth Amendment privilege against self-incrimination and applying it to the states. See
Colorado v. Connelly, ___ U.S. ___, 107 S.Ct. at 520; see also Miranda v. Arizona, 384 U.S.
436 (1966); Malloy v. Hogan, 378 U.S. 1 (1964). The due process requirement that a
confession must be voluntary to be admissible is independent of the Fifth Amendment
concerns set out in Miranda and its progeny. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. at
449. The Miller court stated:
. . .[T]he admissibility of a confession turns as much on whether the techniques for
extracting the statements, as applied to this suspect, are compatible with a system that
presumes innocence and assures that a conviction will not be secured by inquisitorial
means as on whether the defendant's will was in fact overborne.
Id. 474 U.S. 104, 106 S.Ct. at 453, emphasis in original.
[Headnote 4]
To determine the voluntariness of a confession, the court must consider the effect of the
totality of the circumstances on the will of the defendant. See Schneckloth v. Bustamonte,
412 U.S. 218, 226-227 (1973). The question in each case is whether the defendant's will was
overborne when he confessed. Id. at 225-226. Factors to be considered include: the youth of
the accused; his lack of education or his low intelligence; the lack of any advice of
constitutional rights; the length of detention; the repeated and prolonged nature of
questioning; and the use of physical punishment such as the deprivation of food or sleep. Id.
at 226.
Applying the totality of the circumstances test to the instant case, we conclude the
confession was involuntary because Sheriff Miller had succeeded in overbearing Passama's
will. Although Passama is not young or uneducated, his intelligence is low average. Passama
was advised of his constitutional rights at the beginning of the interrogation and waived them.
The five hour length of the detention and the repeated and prolonged questioning that
occurred during that time are far more important factors.
length of the detention and the repeated and prolonged questioning that occurred during that
time are far more important factors. The sheriff did not provide Passama with any food or
drink other than coffee, and did not allow him to speak to this fiancee. See Haynes v.
Washington, 373 U.S. 503 (1963) (detainee not allowed to call his wife). Passama stated
repeatedly he trusted Miller, and Miller was initially very friendly.
[Headnote 5]
The promises Miller made to Passama are the crucial aspect of the interrogation. If these
promises, implicit and explicit, tricked Passama into confessing, his confession was
involuntary. See Franklin v. State, supra, 96 Nev. at 421. Miller told Passama that he would
tell the prosecutor if Passama cooperated. This can be a permissible tactic. United States v.
Tingle, 658 F.2d 1332, 1336, n. 4 (9th Cir. 1981). Miller also told Passama he would go to
the D.A. and see Passama went to prison if he was not entirely truthful. It is not permissible
to tell a defendant that his failure to cooperate will be communicated to the prosecutor.
Tingle, 658 F.2d at 1336, n. 5.
The following excerpts from a partial transcript of a portion of the video tape are
illustrative of Sheriff Miller's interrogation technique:
If you did expose yourself purposely, and you keep saying no you didn't, no you didn't,
and the test shows you did, I won't help you one bit, I won't, but if you want to stand up
and be a man and be counted now like you were counted when you went to
Vietnambut you've got to help yourself, Ed, don't sit there and lie to me, cause if
you're lying to
me I'll push it and I'll see that you go to prison. . . . Now you sit there and you think
about wanting to touch, did touch, accidentally touched. Don't answer me, yet! I want
you to think about that, cause I'm gonna look at this chart some more, the ball is in
your court right now, don't let it get away from you. Go into court not lying and we'll
help you. . . . I want you to think about every time you've touched them, where you
touched them, how it happened, if you've exposed yourself to any other girls, and don't
lie to me, if you don't lie to me I'll help you, but if you lie I'll tell the D.A. to go all the
way. You tell me when you're ready to talk.
Sheriff Miller's carrot and stick approach began to yield results. He continued to urge
Passama to talk, and finally Passama said, If I need help, I need help. Where do I need
help? The sheriff answered, You tell me. You were there. When Passama did not respond,
the sheriff told him, I believe you touched those girls out of affection. Lots of people do
that.
Passama asked, Okay, where did I touch them? Sheriff Miller replied, The vagina. The
sheriff continued to suggest how the improper fondling had occurred until he secured the
written confessions.
[Headnote 6]
The United States Supreme Court has emphasized that police overreaching is the crucial
element in cases involving due process challenges to confessions. Colorado v. Connelly,
supra, ___ U.S. ___, 107 S.Ct. at 520. The short excerpts from Passama's interrogation
quoted above demonstrate that Sheriff Miller used impermissibly coercive methods to extract
Passama's confession. As Justice Frankfurter aptly remarked: Law triumphs when the natural
impulses aroused by a shocking crime yield to the safeguards which our civilization has
evolved for an administration of criminal justice at once rational and effective. Watts v.
Indiana, 338 U.S. 49, 55 (1949), citation omitted.
We adhere to the safeguards of civilization and hold that Passama's confession was the
product of police coercion, and therefore involuntary. It was a violation of Passama's due
process rights to admit it into evidence at trial. Thus, the conviction cannot stand and
Passama must be afforded a new trial, with no evidence taken from the five hour
interrogation. In light of this holding, we need not reach Passama's other contentions.
Accordingly, the judgment is reversed, the sentence vacated, and the cause remanded for a
new trial.
____________
103 Nev. 216, 216 (1987) Farmers Ins. Exchange v. Warney
FARMERS INSURANCE EXCHANGE, Appellant, v.
ANNE FRANCIS WARNEY, Respondent.
No. 17049
May 27, 1987 737 P.2d 501
Appeal from partial summary judgment. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Woman injured in one-car accident involving her husband's vehicle, driven by person who
had no applicable insurance of his own, sought determination that the vehicle was
uninsured so she could collect under uninsured motorist coverage. The district court
granted partial summary judgment in favor of woman, and insurer appealed. The Supreme
Court held that vehicle, covered by policy in which woman was named insured, was not
uninsured by reason of exclusion precluding liability coverage as to injuries suffered by the
named insured.
[Rehearing denied September 23, 1987] Beckley, Singleton, DeLanoy, Jemison & List, C.
103 Nev. 216, 217 (1987) Farmers Ins. Exchange v. Warney
Beckley, Singleton, DeLanoy, Jemison & List, C. Eric Funston and Daniel F. Polsenberg,
Las Vegas, for Appellant.
Gene T. Porter and William R. Brenske, Las Vegas, for Respondent.
Insurance.
Husband's vehicle was not uninsured and wife who was named insured in policy issued on that vehicle
could not look to uninsured motorist coverage for recovery, in one-car accident while vehicle was driven
by person who had no applicable insurance of his own, despite exclusion in policy on the vehicle
precluding liability coverage as to injuries suffered by the named insured. NRS 485.3091.
OPINION
Per Curiam:
Respondent Anne Warney was injured in a one-car accident involving her then-husband's
1976 Granada. Farmers Insurance Exchange (Farmers) had issued policies on that vehicle and
the husband's 1973 Datsun, and Anne and her husband were named insureds.
1
However, an
exclusion clause in the policies precluded liability coverage as to injuries suffered by the
named insured. Therefore, Anne sought summary judgment to the effect that the accident
vehicle was uninsured under applicable law, so that she could collect under the uninsured
motorist coverage of both vehicles. Her motion was granted. We reverse.
This court held in Estate of Neal v. Farmers Ins. Exch., 93 Nev. 348, 566 P.2d 81 (1977),
that exclusion clauses such as the one here at issue cannot eliminate the statutorily mandated
minimum liability coverage. Anne argues that Estate of Neal is no longer law because it
relied on former NRS 698.200(3), now repealed. However, NRS 485.3091 perpetuates the
same provision as the former statute, although in different words: minimum liability coverage
is required in every automobile liability policy. Accordingly, Estate of Neal continues to be a
correct statement of Nevada law.
2

It follows that the accident vehicle was not uninsured; Anne could not look to uninsured
motorist coverage for recovery. Therefore, the order granting summary judgment is reversed
and the cause is remanded for further proceedings.
____________________

1
The driver at the time of the accident had no applicable insurance of his own.

2
We reject Anne's contention that Farmers invited a ruling to the contrary, and that Farmers denied liability
coverage.
____________
103 Nev. 218, 218 (1987) Boulware v. State, Dep't Human Resources
FREDERICK T. BOULWARE, JR., M.D., and BOULWARE NEUROLOGY
CONSULTANTS, LTD., Appellants, v. STATE OF NEVADA, DEPARTMENT OF
HUMAN RESOURCES; NATIONAL CARE SERVICES CORPORATION OF
NEVADA, a Nevada Corporation dba Sunrise Diagnostic Center, Respondents.
No. 17422
May 27, 1987 737 P.2d 502
Appeal from summary judgment and permanent injunction. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Department of Human Resources filed complaint to enjoin physician from acquiring
magnetic resonance imaging machine or constructing facility to house it without obtaining
certificate of need. The district court entered injunction, and physician appealed. The
Supreme Court held that private physician was not required to submit to certificate of need to
review.
Wm. Patterson Cashill, Reno, for Appellants.
Brian McKay, Attorney General, and Brian M. Nelson, Deputy Attorney General, Carson
City; Lionel, Sawyer & Collins and Dennis Kennedy, Las Vegas, for Respondents.
Physicians and Surgeons.
Statute was not intended to require private physicians to submit to certificate of need review with respect
to acquisition of medical equipment for use in physician's office. NRS 439A.010 et seq., 439A.015,
439A.017, 439A.100, 439A.100, subd. 2(d).
OPINION
Per Curiam:
Frederick T. Boulware, Jr. is a board-certified physician specializing in neurology. He
provides medical treatment and diagnoses his patients' neurological disorders at his office in
Las Vegas. On May 30, 1985, the Department of Human Resources (hereinafter Department)
filed a complaint to enjoin Dr. Boulware from acquiring a magnetic resonance imaging (MRI)
machine or constructing a facility to house an MRI without obtaining a certificate of need
letter of approval from the Department as required by NRS 439A.100 (1983).
On June 28, 1985, National Health Care Services Corporation of Nevada (hereinafter
NHCS) was allowed to intervene as a plaintiff in the action. NHCS had received Department
CON approval to operate the only MRI device in southern Nevada.
approval to operate the only MRI device in southern Nevada. On March 17, 1986, the district
court issued an amended order granting summary judgment in favor of the Department and
NHCS, and enjoined Boulware from using his MRI. The district court held that the
Department's determinationthat Boulware's MRI project was a health facility subject to
reviewwas not arbitrary or capricious, or in violation of NRS Chapter 439A. It also held
that Boulware had not exhausted his administrative remedies. However, after the parties' oral
argument before this court, we stayed the district court's injunction pending this decision.
We previously held that a party is not required to exhaust the certificate of need
application process before it can seek a judicial determination that it is exempt from CON
review. See Dep't Human Res. v. UHS Of The Colony, 103 Nev. 208, 735 P.2d 319 (1987).
Furthermore, we hold that NRS Chapter 439A (1983) was not intended to require private
physicians to submit to CON review. The purpose of NRS Chapter 439A (1983) is to help
limit unnecessary expenditures that result in increased health care costs. The Department of
Human Resources has been given the responsibility of reviewing CON applications. NRS
439A.100 (1983). However, the Department may not act outside the meaning and intent of
the enabling statute. See Andrews v. Nev. St. Bd. Cosmetology, 86 Nev. 207, 467 P.2d 96
(1970).
Under the statutes in effect at the time this suit was filed, a certificate of need was required
for any proposed acquisition of medical equipment which would cost more than $400,000
and which would be owned by or located at a health facility. NRS 439A.100(2)(d) (1983)
(emphasis added). The legislature never intended that private physicians' offices would come
under the definition of a health facility.
1
This was clarified in 1985, when the legislature
amended NRS Chapter 439A and specifically exempted the "office of a practitioner used
solely to provide routine services for health to his patients.
____________________

1
Health facility means a facility in which health services are provided. The term includes a:
1. Facility for rehabilitation of inpatients;
2. Facility for treatment of end-stage renal disease;
3. Freestanding unit for hemodialysis;
4. Home health agency;
5. Hospital;
6. Institution for treatment of tuberculosis.
7. Intermediate care facility;
8. Psychiatric hospital;
9. Skilled nursing facility; or
10. Surgical center for ambulatory patients.
Health services means the care and observation of patients, the diagnosis of human diseases, the
treatment and rehabilitation of patients, or related services. The term includes treatment of patients for
alcohol or drug abuse, services related to mental health and diagnostic services.
the legislature amended NRS Chapter 439A and specifically exempted the office of a
practitioner used solely to provide routine services for health to his patients.
2
NRS
439A.015 (1985). An administrative agency may not under the guise of interpretation extend
a statute to include persons not intended to be included, nor may it give the statute any greater
effect than its language allows. Marsh v. Finley, 389 A.2d 490, 492 (N.J.Super.Ct.App.Div.
1978).
We have considered the other issues raised in this appeal and find them to be without
merit. We conclude, therefore, that Boulware is entitled to judgment as a matter of law.
Accordingly, we reverse the district court's judgment against Boulware and order the
permanent injunction dissolved. We remand this matter to the district court for entry of
judgment in favor of Boulware.
____________________

2
Under amended NRS 439A.100(2)(7) (1985), any proposed acquisition of medical equipment exceeding
$400,000 is subject to CON review. The legislative history indicates that the intent of the amendment was to
continue the doctor's office exemption but close a loophole and make them subject to CON review if they
purchased expensive medical equipment.
____________
103 Nev. 220, 220 (1987) Davis v. Nevada National Bank
CLAUDE and RUBY DAVIS, Appellants, v. NEVADA
NATIONAL BANK, Respondent.
No. 16611
May 27, 1987 737 P.2d 503
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Borrowers brought action against bank which made construction loan to recover for bank's
failure to adhere to borrowers' instructions to cease making payments after substantial
construction deficiencies were discovered. The district court granted bank's motion for
summary judgment, and borrowers appealed. The Supreme Court held that lender may not
with impunity disregard borrower's complaint of substantial construction deficiencies
affecting the structural integrity of the project when the construction lender has granted a loan
but retained the funds pending its distribution to the contractor itself.
Frank Cremen, Las Vegas, for Appellants.
Lovell, Bilbray & Potter, Las Vegas, for Respondent.
1. Mortgages.
Construction lender which grants loan but distributes the proceeds itself is not totally free to
disregard interests of its borrower and, while it normally has no duty to exercise care
to identify unworkmanlike and deficient construction or to accede to request to
withhold payment from contractor, it may not, with impunity, simply disregard
borrower's complaint of substantial construction deficiencies affecting the structural
integrity of the project.
itself is not totally free to disregard interests of its borrower and, while it normally has no duty to exercise
care to identify unworkmanlike and deficient construction or to accede to request to withhold payment
from contractor, it may not, with impunity, simply disregard borrower's complaint of substantial
construction deficiencies affecting the structural integrity of the project.
2. Mortgages.
Immunity statute which precludes holding lender liable for defects in construction does not preclude
holding lender liable for failing to investigate borrower's complaints of substantial construction
deficiencies. NRS 41.590.
3. Contracts.
Provision of loan agreement disavowing bank's duty to inspect was not intended by the parties to disavow
a duty implied by law to respond to borrower's complaints of substantial defects in construction.
4. Contracts.
Statement that parties do not agree to additional terms does not bear on duties implied by law in the
absence of specific agreement.
5. Mortgages.
Bank which had made construction loan and was retaining the funds pending disbursement by the bank to
the contractor had a duty to conduct reasonable investigation and reach bona fide conclusion as to validity
of borrowers' complaints of significant structural defects in the project.
6. Mortgages.
Lender is not at risk if it elects not to generally inspect progress of construction project financed by the
lender and it is not a risk if it volitionally elects to inspect and does so negligently or ineffectively, and it
also has no duty either to withhold payment at borrower's request or to inspect upon request for the type of
deficiencies or omissions which will inevitably occur in all projects.
7. Mortgages.
Lender's liability for disbursement of funds may arise under construction loan when lender assumes
responsibility or the right to distribute loan proceeds to party other than its borrower during the course of
construction, lender is apprised by its borrower of substantial deficiencies in construction that affect the
structural integrity of the building, borrower requests that the lender withhold further distributions pending
satisfactory resolution of the deficiency, lender continues to distribute loan proceeds in complete disregard
of borrower's complaints and without bona fide attempt to ascertain the truth of the complaints, and
borrower is ultimately damaged because the substance of borrower's complaints was accurate and borrower
is unable to recover damages against contractor or other party directly responsible for the deficiencies.
OPINION
Per Curiam:
In April, 1970, appellants and one Paul Bennett (the Contractor) entered into an
agreement with respondent (the Bank) whereby the Bank agreed to loan appellants funds
for the construction of a home in Las Vegas.
During the course of construction, appellants noted serious defects in the foundation of the
home. Appellants asked the Bank's loan officer to withhold payments until the problems were
corrected; the Bank refused, apparently without any investigation of the truth of
appellant's assertions.
corrected; the Bank refused, apparently without any investigation of the truth of appellant's
assertions.
Although appellants eventually obtained a judgment against the Contractor for his
deficient construction, the Contractor's bankruptcy prevented collection of damages.
Appellants then sued the Bank, which contended that it simply could not be held liable for
construction deficiencies. The district court agreed and granted summary judgment in favor of
the Bank. For reasons stated herein, we reverse and remand for further proceedings.
[Headnotes 1, 2]
When a construction lender grants a loan to a borrower but retains the funds pending
distribution, and in fact distributes the loan proceeds itself, that lender is not totally free to
disregard the interest of its borrower. We agree that such a lender normally has no duty to
exercise care to identify unworkmanlike or deficient construction, or to accede to requests to
withhold payment from contractors. And it would be legally sound and commercially
appropriate to uphold a lender's decision to continue paying a contractor if, after reasonable
investigation, the lender concluded in good faith, albeit erroneously, that its borrower's
request to withhold payment was unwarranted. However, it would be unjust to permit a
lender, with impunity, to simply disregard a borrower's complaint of substantial construction
deficiencies affecting the structural integrity of a project, thereby placing a borrower in the
potentially untenable position of having to fully repay the lender for loan funds expended,
contrary to a borrower's particularized entreaties, for a substantially defective residence or
structure. A lender must pursue such a course at its own risk. Nevada's immunity statute,
NRS 41.590,
1
does not dictate a contrary holding. Its protection does not extend to liabilities
incurred as a result of a lender's activities other than the loan transaction. In the instant
case, the Bank's liability would arise not from the loan transaction, but from the Bank's later
breach of a nonconsensual duty of care in the disbursement of construction loan proceeds.
In rendering summary judgment, the trial court noted that appellants' action was solely for
breach of contract. However, the contract between the parties does not conflict with or
otherwise preclude the application of the principles set forth above.
____________________

1
NRS 41.590 reads as follows:
A lender who makes a loan of money, the proceeds of which are used or may be used by the borrower
to finance the design, manufacture, construction, repair, modification or improvement of real or personal
property, shall not be held liable to the borrower or to third persons for any loss or damage occasioned by
any defect in the real or personal property so designed, manufactured, constructed, repaired, modified or
improved or for any loss or damage resulting from the failure of the borrower to use due care in the
design, manufacture, construction, repair, modification or improvement of such real or personal property,
unless the loss or damage is the result of some other action or activity of the lender than the loan
transaction.
contract between the parties does not conflict with or otherwise preclude the application of
the principles set forth above. The loan agreement provided, in relevant part, that the Bank
had no obligation to inspect the home under construction and was not responsible for proper
disbursement of the loan, and that no terms other than those in the writing had been agreed
to. Each of these provisions, however, is subject to established doctrines of contractual
interpretation, including: (1) the court shall effectuate the intent of the parties, which may be
determined in light of the surrounding circumstances if not clear from the contract itself,
Barringer v. Gunderson, 81 Nev. 288, 302-03, 402 P.2d 407, 477-78 (1965); and (2)
ambiguities are to be construed against the party (in the case, the Bank) who drafted the
agreement or selected the language used, Caldwell v. Consolidated Realty, 99 Nev. 635, 638,
668 P.2d 284, 286 (1983).
[Headnotes 3-5]
The provision that the Bank was not responsible for proper disbursement of the loan
proceeds could, if taken literally, relieve the Bank of substantially all its contractual duties.
Such a result obviously was not intended. It is apparent that this provision relates in
substantial part to the Bank's express contractual right to do of its own volition what it failed
to do at appellants' request: suspend payment if the work is faulty. The disavowal of a duty to
inspect, in turn, was written with an eye to prevent implication of such a duty from the fact
that the Bank reserved a contractual right of inspection. It was not intended to disavow a duty
implied by law independently of the parties' agreement. Finally, a statement that the parties
did not agree to additional terms does not bear on duties implied by law even in the absence
of specific agreement. Thus, we hold that under the circumstances present here, the Bank had
a duty to conduct a reasonable investigation and reach a bona fide conclusion as to the
validity of appellants' request, at the risk of incurring liability for wrongful disbursement of
funds.
2

[Headnotes 6, 7]
Nothing we have said should be interpreted beyond the comparatively narrow confines of
the instant case. Specifically, under usual construction loan terms and conditions, no lender
should consider itself at risk if it elects not to generally inspect the progress of the
construction of a project financed by the lender. Nor is a lender to consider itself at risk if it
volitionally elects to inspect and does so negligently or ineffectively. A lender also has no
duty, under our instant holding, either to withhold payment at borrowers' requests or to
inspect upon such requests, for construction deficiencies or omissions of a type that
inevitably will occur in all projects and that commonly are remedied by a contractor as
part of a "punch list" prior to project completion and the release of retained funds.
____________________

2
We express no opinion as to the legal effect of a lender's attempt to circumvent today's holding by resort to
emphatic contract language notifying its borrower that alternative methods of protection, such as a contractor's
completion bond, must be secured.
no duty, under our instant holding, either to withhold payment at borrowers' requests or to
inspect upon such requests, for construction deficiencies or omissions of a type that inevitably
will occur in all projects and that commonly are remedied by a contractor as part of a punch
list prior to project completion and the release of retained funds. Stated otherwise, lender
liability may arise under a construction loan when: (1) the lender assumes the responsibility
or the right to distribute loan proceeds to parties other than its borrower during the course of
construction; (2) the lender is apprised by its borrower of substantial deficiencies in
construction that affect the structural integrity of the building; (3) the borrower requests that
the lender withhold further distributions of loan proceeds pending the satisfactory resolution
of the construction deficiency; (4) the lender continues to distribute loan proceeds in
complete disregard of its borrower's complaints and without any bona fide attempt to
ascertain the truth of said complaints; and (5) the borrower ultimately is damaged because the
substance of the borrower's complaints was accurate and the borrower is unable to recover
damages against the contractor or other party directly responsible for the construction
deficiencies.
In accordance with the above analysis, we have concluded that summary judgment for the
Bank was inappropriate. We reverse and remand for a trial on the merits with the Bank's
liability, if any, to be determined according to the principles expressed in this opinion.
____________
103 Nev. 224, 224 (1987) Tschabold v. Orlando
STEVEN TSCHABOLD, Appellant, v. MICHAEL ORLANDO, FRANK W.
ORLANDO, SR., HORSESHOE CLUB OPERATING COMPANY,
a Nevada Corporation, Respondents.
No. 17449
May 27, 1987 737 P.2d 506
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
Person who was injured in lounge at which he was employed brought personal injury
action against fellow employee and employer. The district court granted employer's motion
for summary judgment and employee appealed. The Supreme Court held that genuine issue of
material fact existed as to whether employee was on the premises as part of his employment
or for social purposes after the end of his workday.
Jack Pursel and Charles Burnett, Las Vegas, for Appellant.
Moran & Weinstock and Frances-Ann Fine, Las Vegas, for Respondents.
In evaluating propriety of summary judgment, the Supreme Court reviews the evidence in the light most
favorable to the party against whom judgment was rendered.
2. Judgment.
Genuine issue of material fact precluding grant of summary judgment in favor of employer on the basis of
the exclusive remedy provision of the Industrial Insurance Act was presented by employer's evidence that
the employee was injured in a fight with a fellow employee while injured employee was on the premises to
learn the employer's operations and testimony by the injured employee that he was on the premises solely
for social purposes after the conclusion of his workshift. NRS 616.270, subds. 1, 3.
OPINION
Per Curiam:
Appellant Steven Tschabold filed an action alleging personal injury against co-defendants
Michael Orlando, Frank Orlando, Sr., and Binion's Horseshoe Hotel and Casino (the
Horseshoe Club). The district court awarded summary judgment in favor of the Horseshoe
Club. We believe the state of the record before the district court made summary judgment
improper. Accordingly, we reverse and remand for trial.
[Headnote 1]
In evaluating the propriety of a summary judgment, we review the evidence in the light
most favorable to the party against whom judgment was rendered. Epperson v. Roloff, 102
Nev. 206, 719 P.2d 799 (1986). See Servaites v. Lowden, 99 Nev. 240, 660 P.2d 1008 (1983).
So viewed, the record in this case reveals the following facts.
[Headnote 2]
On Saturday, July 7, 1984, Tschabold began his shift as bartender at the Horseshoe Club.
His Horseshoe Club timecard verifies the time Tschabold finished his shift at 2:45 a.m.
Sunday, July 8, 1984. Thereafter, Tschabold and a friend went downstairs and had a drink in
the Horseshoe Club's Lounge Bar. Frank Orlando, Sr., an employee and bartender of the
Horseshoe Club, started an argument with Tschabold and challenged him to a fight. At this
point, Michael Orlando, Frank Orlando, Sr.'s seventeen-year-old son, allegedly struck
Tschabold in the face with a beer bottle.
Tschabold filed a personal injury claim naming Michael Orlando, Frank Orlando, Sr., and
the Horseshoe Club as codefendants.
Orlando, Frank Orlando, Sr., and the Horseshoe Club as codefendants.
The Horseshoe Club filed a Motion for Summary Judgment and included its employees'
affidavits and depositions. Their evidence indicates that Tschabold was in the Lounge Bar on
July 8th to learn the operation and closing procedure of the bar.
Tschabold filed his Opposition to the Horseshoe Club's Motion for Summary Judgment
and included his sworn affidavit. Tschabold's evidence indicates that his presence in the
Lounge Bar on July 8th was not motivated by or a part of his employment with the Horseshoe
Club.
The district court granted summary judgment in favor of the Horseshoe Club. The court
apparently concluded that no question of material fact remained at issue because the Nevada
Industrial Insurance Act (NRS 616) precluded Tschabold's claim against his employer.
1
This
appeal followed.
A court should exercise great care in granting summary judgment. Nehls v. Leonard, 97
Nev. 325, 630 P.2d 258 (1981). See Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979
(1963). We have repeatedly held that summary judgment is proper only if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Epperson v. Roloff, 102 Nev. at 206. See Cladianas v. Coldwell Banker, 100 Nev. 138, 676
P.2d 804 (1984); see also NRCP 56(c).
2
Our review of the record reveals that several issues
of fact remain to be resolved on both the issue of whether Tschabold was in the Lounge Bar
as a Horseshoe Club employee and whether Tschabold's injury arose from the normal scope
of his employment. A litigant has the right to trial where doubt as to the facts exists. Nehls v.
Leonard, 97 Nev. at 328.
Accordingly, we conclude that the district court erred by granting summary judgment. We
reverse the district court's judgment and remand this matter for full trial on the merits.
____________________

1
NRS 616.270(1) and (3) prescribe in part:
(1) Every employer . . . shall provide and secure compensation . . . for any and all personal injuries by
accident sustained by an employee arising out of and in the course of the employment.
(3) In such cases the employer shall be relieved from other liability or recovery of damages or other
compensation for such personal injury.
. . .

2
NRCP 56(c) prescribes:
[T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
____________
CARY WALLACE WILLIAMS, Appellant, v.
No. 14614
May 29, 1987 737 P.2d 508
Appeal from a judgment of conviction, sentence of death and order denying
post-conviction relief. Second Judicial District Court, Washoe County; Robert L.
Schouweiler, Judge.
Defendant pleaded guilty in the district court to murder, manslaughter, and burglary.
Defendant petitioned for post-conviction relief which was denied. Appeals were consolidated.
The Supreme Court held that: (1) defendant was not denied effective assistance of counsel;
(2) trial judge sufficiently canvassed defendant to determine if he knowingly and voluntarily
entered plea of guilty; and (3) death sentence was neither excessive nor disproportionate.
Affirmed.
Robert Bruce Lindsay, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and Gary
1. Criminal Law.
Defendant failed to offer any evidence, either at evidentiary hearing or in his briefs, demonstrating that
counsel's failure to request independent hearing on voluntariness of defendant's confession and counsel's
permitting him to plead guilty to murder without first securing waiver of death penalty, fell below objective
standard of reasonable performance, and even assuming counsel's assistance was unreasonable, defendant
failed to demonstrate prejudice and thus was not denied effective assistance of counsel. U.S.C.A.Const.
Amend. 6.
2. Criminal Law.
To properly accept a guilty plea, court must sufficiently canvass defendant to determine if defendant
knowingly and intelligently entered into plea.
3. Criminal Law.
Trial judge sufficiently canvassed defendant to determine if defendant knowingly and voluntarily entered
plea of guilty where trial judge questioned defendant about his state of mind, possible influence of drugs or
alcohol, effective assistance of counsel, elements of charges of murder and manslaughter, evidence against
defendant, voluntariness of his plea, and consequences of his plea.
4. Criminal Law.
Where defendant had adequate counsel and entered guilty plea, he could not raise independent claims
charging deprivation of rights that occurred prior to plea relating to his confession and motion to change
venue. U.S.C.A.Const. Amend. 6; NRS 177.375, subd. 1.
5. Criminal Law.
By entering guilty plea, defendant waived right to assert issue that death qualification of jury produced
conviction prone jury which denied him right to fair and impartial trial in violation of Sixth
Amendment.
him right to fair and impartial trial in violation of Sixth Amendment. U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Defendant failed to present evidence that death penalty was unconstitutionally biased on the basis that
sentence was inflicted prejudicially upon state's indigents and minorities.
7. Criminal Law.
Defendant was precluded from raising on appeal issue that death penalty was unconstitutionally biased
where defendant failed to raise the issue in trial court.
8. Homicide.
Death sentence was neither excessive nor disproportionate given that victim's murder occurred during
commission of felony and murder involved torturing victim. NRS 177.055, subds. 2, 2(d); Art. 1, 10,
cl. 1.
OPINION
Per Curiam:
Appellant Cary Wallace Williams was convicted of first degree murder. Following a
penalty hearing, a three-judge panel sentenced Williams to death. Williams was also
sentenced to two consecutive ten-year terms for manslaughter and burglary. Williams
appealed and then petitioned the district court for post-conviction relief, which was denied.
We have consolidated the appeals from the judgment of conviction and death sentence and
from the denial of the petition for post-conviction relief.
THE FACTS
On June 27, 1982, Williams broke into the home of Allen and Katherine Carlson. Once
inside, Williams obtained an 8 to 10 knife from the Carlson kitchen and proceeded through
the house. He discovered Mrs. Carlson asleep in the master bedroom. Mrs. Carlson, who was
approximately eight months pregnant, was home alone. Williams approached her and stabbed
her to death. The fetus died from a lack of oxygen as a result of her mother's death.
An autopsy revealed that Mrs. Carlson had thirty-eight identifiable knife wounds. There
were three categories of wounds: fatal wounds, defensive wounds and small puncture
wounds. The medical examiner concluded from the puncture wounds that Mrs. Carlson had
been tortured before the fatal wounds were inflicted.
Williams was arrested in Los Angeles after attempting to pawn part of the jewelry stolen
from the Carlson home. Subsequently, when questioned by Washoe County sheriffs Williams
confessed to the murder of Mrs. Carlson and her unborn child and the burglary of the
Carlsons' home.
At arraignment, Williams pleaded not guilty to the charges of murder, manslaughter and
burglary. Prior to trial, Williams changed his burglary plea to guilty.
changed his burglary plea to guilty. After the jury was impanelled and on the first day of trial,
Williams changed his murder and manslaughter pleas to guilty. The court then canvassed
Williams and accepted his guilty pleas. Williams was tried before a three-judge panel. At the
penalty hearing, the three-judge panel reviewed Williams' guilt and sentenced him to death.
He also received two consecutive ten-year terms for manslaughter and burglary.
Williams petitioned the court for post-conviction relief in order to withdraw his pleas of
guilty to murder and manslaughter. He claimed that (i) he had been denied effective
assistance of counsel at trial; (ii) the district court erred in accepting his guilty pleas; (iii) the
district court erred in refusing to suppress his confession and (iv) in denying his motion to
change venue; (v) the death qualification of the jury violated his Sixth Amendment rights;
and (vi) the Nevada death penalty is racially and economically biased.
The district court denied Williams' petition for post-conviction relief. For the reasons set
forth below, we affirm the judgment of the district court.
EFFECTIVE ASSISTANCE OF COUNSEL
Williams first contends that he has been denied effective assistance of counsel at trial
because counsel failed to request an independent hearing to assess the voluntariness of his
confession
1
and because counsel permitted him to plead guilty to murder without first
securing the prosecutor's promise not to seek the death penalty.
We will evaluate Williams' claim of ineffective assistance of counsel under the
reasonably effective assistance test announced in Strickland v. Washington, 466 U.S. 668
(1984), which we adopted in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). In order
for a defendant to claim he was denied effective counsel in violation of the Sixth
Amendment, a defendant must first demonstrate that [h]is counsel fell below an objective
standard of reasonableness.
. . . Second, a defendant must show that [counsel's] deficient performance prejudiced the
defense. This requires a showing that counsel's errors were so serious as to deprive a
defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687.
[Headnote 1]
Williams offered no evidence, either at the evidentiary hearing or in his briefs,
demonstrating that counsel's failure to request an independent hearing and counsel's
permitting him to plead guilty to murder without first securing a waiver of the death
penalty, fell below an objective standard of reasonable performance.
____________________

1
Williams refers to the type of hearing set forth in Jackson v. Denno, 378 U.S. 368 (1963), which held that a
defendant is entitled to a state court hearing on the voluntariness of his confession by a body other than the one
trying his guilt or innocence.
independent hearing and counsel's permitting him to plead guilty to murder without first
securing a waiver of the death penalty, fell below an objective standard of reasonable
performance. Consequently, no facts are before us to show whether counsel's performance
was [w]ithin the range of competence demanded of attorneys in criminal cases. 466 U.S. at
687.
Even assuming counsel's assistance was unreasonable, Williams has not demonstrated
prejudice, the second prong of the Strickland test. The record indicates that the three-judge
panel found four aggravating circumstances and one mitigating circumstance.
2
The panel
concluded that the aggravating circumstances outweighed the mitigating circumstance and,
therefore, set the penalty at death for murder in the first degree. There was no error.
WILLIAMS' GUILTY PLEAS
[Headnote 2]
Williams next contends that he was never informed, either by counsel or the trial judge, of
the consequences of his guilty pleas. Therefore, he asserts that the district court erred by
accepting a guilty plea which was entered unknowingly and involuntarily. NRS 177.375(1)
allows this issue to be raised on appeal after a defendant enters a plea of guilty: [A]ll claims
for post-conviction relief are waived except the claim that the plea was involuntarily entered.
To properly accept a guilty plea, a court must sufficiently canvass a defendant to determine if
the defendant knowingly and intelligently entered into the plea. Bryant v. State, 102 Nev.
268, 721 P.2d 364 (1986).
[Headnote 3]
The record indicates that the trial judge questioned Williams about his state of mind; the
possible influence of drugs or alcohol; effective assistance of counsel; the elements of murder
and manslaughter; the evidence against Williams; the voluntariness of his plea; and the
consequences of his plea of guilty. As previously stated, Williams received effective
assistance of counsel throughout these proceedings. We conclude that the trial judge
sufficiently canvassed Williams to determine if Williams knowingly and voluntarily entered
the plea of guilty and thus, the district court did not err in accepting Williams' pleas of guilty
of murder and manslaughter.
____________________

2
The three-judge panel found the following aggravating circumstances: the murder was committed while
Williams was engaged in the commission of a burglary (NRS 200.033(4)); the murder was committed while
Williams was engaged in the commission of a robbery (NRS 200.033(4)); the murder was committed to avoid
arrest for burglary (NRS 200.033(6)); and the murder involved torture and depravity of mind (NRS 200.033(8)).
The three-judge panel found one mitigating circumstance: Williams was nineteen years old at the time he
committed the crime. NRS 200.035(6).
WILLIAMS' CONFESSION AND MOTION
TO CHANGE VENUE
Williams contends that his confession was taken in violation of his Fifth Amendment
Miranda rights and his Sixth Amendment right to counsel. Therefore, the district court erred
by refusing to suppress evidence of his confession. Williams further contends that the district
court erred in denying his pretrial motion to change venue. He argues that unfavorable
newspaper and television publicity and the prejudicial attitude of the citizens within Washoe
County made it impossible for Williams to receive a fair and impartial trial.
[Headnote 4]
When a defendant has adequate counsel and enters a guilty plea, he cannot raise
independent claims charging the deprivation of his rights that occurred prior to the plea.
Webb v. State, 91 Nev. 469, 470, 538 P.2d 164, 166 (1975); Tollett v. Henderson, 411 U.S.
258, 266 (1972). Further, NRS 177.375(1) prevents Williams from raising any issue, other
than the voluntariness of his plea, on appeal after a properly accepted plea of guilty.
THE DEATH QUALIFICATION OF THE JURY
Williams contends that the death qualification of the jury produced a conviction-prone
jury which denied him the right to a fair and impartial trial in violation of the Sixth
Amendment. The jury, which was impaneled but dismissed after the first day of trial, was
questioned on voir dire regarding each juror's individual propensity to administer the sentence
of death.
[Headnote 5]
As indicated above, by entering a plea of guilty, appellant waived his right to assert this
issue, as he was sentenced by a three-judge panel rather than the jury. In any event, we
rejected a similar claim in McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985). Applying
McKenna, we reject Williams' claim because no showing has been made that death-qualified
juries are not impartial. Williams offered no evidence, either at the evidentiary hearing or in
his briefs, to support his contention. Further, the United States Supreme Court recently held
that the death qualification of a jury does not violate the Sixth Amendment because the
Constitution does not prohibit the removal of jurors on voir dire whose opposition to the
death penalty is so strong as to impair the performance of their duties as jurors at the
sentencing phase of the trial. Lockhart v. McCree, 106 S.Ct. 1758 (1986).
THE RACIAL AND ECONOMIC BIAS OF THE
NEVADA DEATH PENALTY
[Headnote 6]
Williams finally contends that the Nevada death penalty is unconstitutionally biased
because the sentence is inflicted prejudicially upon this state's indigents and minorities.
unconstitutionally biased because the sentence is inflicted prejudicially upon this state's
indigents and minorities.
[Headnote 7]
Williams offered no evidence, either at the evidentiary hearing or in his briefs,
demonstrating that the Nevada death penalty is inflicted with bias or unconstitutionally, upon
indigents and minorities. We have recently considered the argument that the death penalty is
unconstitutional and found it to have no merit. Nevius v. State, 101 Nev. 238, 699 P.2d 1053
(1985). Further, Williams is precluded from raising this issue on appeal because he failed to
raise the issue in the district court. Only those improprieties objected to at trial may be
considered on appeal. Krueger v. State, 92 Nev. 749, 557 P.2d 717 (1976).
MANDATORY REVIEW OF THE SENTENCE OF DEATH
[Headnote 8]
NRS 177.055(2) requires that we automatically review the circumstances surrounding any
imposition of the death penalty. Specifically, NRS 177.055(2)(d)
3
requires a proportionality
review to determine, considering both the crime and the defendant, whether the sentence of
death is disproportionate to the penalties imposed in similar cases throughout this state. Given
that Mrs. Carlson's murder occurred during the commission of a felony and that the murder
involved torturing the victim, we conclude that Williams' death sentence is neither excessive
nor disproportionate. See Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979); Sechrest v.
State, 101 Nev. 360, 705 P.2d 626 (1985); Miranda v. State, 101 Nev. 562, 707 P.2d 1121
(1985). Further, we conclude that he record supports the three-judge panel's finding of four
aggravating circumstances and the record indicates that he sentence of death was not imposed
under the influence of passion, prejudice or any arbitrary factor. See Gallego v. State, 101
Nev. 782, 711 P.2d 856 (1985).
We find no merit to any of Williams' contentions. Accordingly, we affirm the judgment of
conviction and the sentence of death and the order denying post-conviction relief.
____________________

3
The United States Supreme Court recently held that state courts are not constitutionally required to conduct
proportionality reviews of death sentences. Pulley v. Harris, 465 U.S. 37 (1984). NRS 177.055(2) was amended
to abolish the proportionality review requirement; this amendment became effective June 6, 1985. However, the
prohibition against ex post facto laws requires that we apply the law as it existed when this crime was committed
in 1982.
____________
103 Nev. 233, 233 (1987) Young v. State
HARVEY YOUNG, Appellant, v. THE STATE
No. 15119
May 29, 1987 737 P.2d 512
Appeal from a judgment of conviction for murder, fetal manslaughter and burglary.
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Defendant was convicted in the district court of murder, fetal manslaughter, and burglary,
and he appealed. The Supreme Court held that: (1) defendant's waiver of his right against
self-incrimination was not involuntary due to his low intelligence quotient; (2) denial of
defendant's motion for new trial based upon claim of newly discovered evidence about
alleged accomplice in murder was not abuse of discretion, where defendant knew of
accomplice's alleged involvement prior to trial; but (3) hearsay evidence of defendant's
membership in gang which tortured victims of its crimes was inadmissible in penalty hearing.
Affirmed, judgment of conviction modified.
Martin H. Wiener, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
1. Jury.
Delimiting peremptory challenges by number that would otherwise be accorded single defendant is
permissible in trial of multiple defendants who must join in challenges.
2. Criminal Law.
State's failure to preserve murder victim's body for sample of tissues surrounding wounds did not warrant
reversal of murder conviction, where there was no indication that loss of evidence was product of bad faith
or connivance on part of state, or that defendant was prejudiced as result.
3. Criminal Law.
Defendant's waiver of his right against compulsory self-incrimination was not involuntary due to
defendant's low intelligence quotient, where defendant had 11 years of education as average student,
repeatedly indicated to police officers that he understood his rights, and had been informed of his Miranda
rights many times in his past. U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Admission of defendant's blood-stained basketball shoe into evidence in murder prosecution was not
abuse of discretion, where defendant admitted wearing shoe on night of murder.
5. Criminal Law.
Denial of defendant's motion for new trial based on claim of newly discovered evidence about
alleged accomplice in murder was not abuse of discretion, where defendant knew of
accomplice's alleged involvement prior to trial, and evidence was not likely to
produce different results upon retrial.
103 Nev. 233, 234 (1987) Young v. State
discovered evidence about alleged accomplice in murder was not abuse of discretion, where defendant
knew of accomplice's alleged involvement prior to trial, and evidence was not likely to produce different
results upon retrial.
6. Homicide.
Hearsay evidence of murder defendant's membership in gang which tortured victims of its crimes was
inadmissible in penalty hearing following his conviction for murder.
7. Homicide.
Letter written by defendant's cellmate stating that defendant had confessed that he had suggested that
each participant in murder should stab victim once so none would snitch on others, that defendant had
received money and jewelry for his part in crime, and that he expressed no remorse for murder was
inadmissible in penalty hearing following defendant's conviction for murder, where prisoner who drafted
letter wanted to be released on his own recognizance in return for his testimony, and he refused to testify
after his request was denied.
OPINION
Per Curiam:
On June 27, 1982, Katherine Carlson was murdered in her home in Reno. Her lifeless
body revealed that she had been brutally stabbed over thirty-eight times in her thorax,
abdomen and extremities. At the time of her death, Katherine carried a viable fetus of
approximately eight months; the fetus died of anoxia as a result of its mother's demise.
Jewelry, a camera, approximately $500 in cash and weapons were taken from the home.
During the course of the investigation, suspicion ultimately focused on the trio of Cary
Williams, Charles Wilkinson and appellant Harvey Young. Williams eventually confessed
and was convicted of first-degree murder and sentenced to death in a separate proceeding.
Young's knowledge of the items removed from the Carlson home led detectives to
question him about the source of his information. As a result, Young confessed that the trio
met in Williams' house on the night of the murder, then walked to the victim's home, where
Wilkinson pried open the rear door and the two of them followed Williams inside the house.
Young also said that he ran from the house when he saw Williams stabbing Carlson. In
discussing the extent of his involvement, Young first indicated that he went to the Carlson
home intent on committing a burglary. Later, he denied any criminal intent, stating that his
purpose in going to the Carlsons' was to attend a party.
Trial evidence revealed that Young was mildly retarded, functioning at the level of a
nine-year-old child; his score on the Wechsler Adult Intelligence test placed him in the
bottom two percent of society.
Young was convicted of murder, fetal manslaughter and burglary. He received a sentence
of life without the possibility of parole and two consecutive ten-year prison terms for the
fetal manslaughter and burglary.
103 Nev. 233, 235 (1987) Young v. State
parole and two consecutive ten-year prison terms for the fetal manslaughter and burglary.
Young raises numerous allegations of error in both the guilt and penalty phases of his trial.
As to the former, all issues are without merit; prejudicial error occurred in the penalty phase,
however, which mandates modification of Young's sentence.
Young contends that the lower court ruling that it was permissible for the State to seek the
death penalty tainted the jury selection because the death penalty was not an available option.
The posture of the case when trial commenced provided ample basis for such a ruling. The
court did not err in death-qualifying the jury based upon the facts available.
[Headnote 1]
Young argues that denial of his motion to server resulted in an improper reduction of his
total peremptory challenges. However, Young has failed to show that he was prejudiced in
any judicially cognizable manner by the court's refusal to allow him a separate trial.
Delimiting peremptory challenges by the number that would otherwise be accorded a single
defendant is permissible in a trial of multiple defendants who must join in the challenges. The
district court did not err. White v. State, 83 Nev. 293, 429 P.2d 55 (1967).
[Headnote 2]
Young also asserts that the State's failure to preserve the victim's body or samples of
tissues surrounding the wounds requires reversal. The argument is without merit. There is no
indication that the loss of evidence was the product of bad faith or connivance on the part of
the State, or that Young was prejudiced as a result. Thus, reversal is not warranted. Wood v.
State, 97 Nev. 363, 632 P.2d 339 (1981).
[Headnote 3]
Reversal is urged because of the allegedly erroneous admission of extrajudicial statements.
First, Young invites us to disavow the State's burden to show the waiver of a defendant's Fifth
Amendment right against compulsory self-incrimination by mere preponderance of the
evidence. We elect to retain our current standard. Moreover, we conclude that Young's
confession was voluntary; the determination by the lower court was not erroneous. Young
also contends that because of his low intelligent quotient, his statements must be deemed
involuntary. We rejected a similar argument in Ogden v. State, 96 Nev. 258, 607 P.2d 576
(1980). Young had eleven years of education as an average student; and he repeatedly
indicated to police officers that he understood his rights. He even read a copy of the Miranda
rights out loud to police officers. He had been informed of those right many times in his past.
There was no error.
103 Nev. 233, 236 (1987) Young v. State
[Headnote 4]
Young next claims that the lower court abused its discretion in admitting his blood-stained
basketball shoe into evidence. Young had admitted wearing the shoe on the night of the
murder. We conclude that the court did not abuse its discretion in ruling that the probative
value of the shoe outweighed its prejudicial effect. See Seim v. State, 95 Nev. 89, 590 P.2d
1152 (1979).
[Headnote 5]
Young contends that the lower court erred in refusing to instruct the jury to consider
whether Young suffered from a mental condition which prevented him from forming specific
intent. There is no merit to Young's position. See Geary v. State, 91 Nev. 784, 544 P.2d 417
(1975), and Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957).
Young contends that the lower court erred in denying his motion for new trial. The motion
was primarily based upon a claim of newly discovered evidence about an alleged accomplice
in the murder of Katherine Carlson. Young's affidavit states that he failed to testify at trial
about the involvement of and individual named Terrance Magic Black out of fear that
Black would seek reprisals against his family. According to Young, his knowledge of the
stolen items stemmed from Black's description of property that Young could not share in
because of running from the house before the completion of the crime. The evidence indicates
that Young knew of Black's alleged involvement prior to trial; this is not newly discovered
evidence for purposes of granting a new trial. Porter v. State, 94 Nev. 142, 576 P.2d 275
(1978). Furthermore, Young has not presented evidence which would make a different result
probable upon retrial. The trial court did not abuse its discretion in refusing to grant Young a
new trial. Lightford v. State, 91 Nev. 482, 538 P.2d 585 (1975).
Contrary to Young's next argument, the lower court correctly instructed the jury on the
intent necessary to impose the death penalty. The instruction was consistent with both NRS
200.033 and Enmund v. Florida, 458 U.S. 782 (1980).
Young also contends that the lower court erred by instructing on the possibility of
clemency. The instruction given in the instant case is identical to the instruction that this
court addressed in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). In Petrocelli, this
court stated: We hold that the instruction regarding the possibility of pardon or parole is
relevant to the defendant's sentence. Id. at 55, 692 P.2d at 508. The court did not err in
giving the instruction in the instant case.
Young's primary contention is that he was prejudiced by the admission of inadmissible
hearsay evidence during the penalty phase. He asserts that NRS 175.552 denies due process
of law because it permits the admission of hearsay and other inadmissible evidence in the
penalty phase.1 We recently rejected a similar attack on the constitutionality of NRS
175.552 in Rogers v. State, 101 Nev. 457, 705 P.2d 664 {19S5), cert. denied, 106 S.Ct.
103 Nev. 233, 237 (1987) Young v. State
ble evidence in the penalty phase.
1
We recently rejected a similar attack on the
constitutionality of NRS 175.552 in Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985), cert.
denied, 106 S.Ct. 1099 (1986). However, we note that such information may not be supported
solely by impalpable or highly suspect evidence. Silks v. State, 92 Nev. 91, 545 P.2d 1159
(1976).
[Headnote 6]
We conclude that Young's penalty hearing was infected by evidence which must be viewed
as impalpable or highly suspect. First, testimony was elicited from an expert witness on gangs
in the Los Angeles area. The witness testified that he had seen Young in the company of gang
members and wearing a baseball cap associated with a gang. He reported that several other
gang members told him Young was a member of a gang. He also indicated that these gang
members would do anything, including torture and killing, to exact information about the
hiding place of a victim's valuables. This is clearly the type of hearsay that the Silks case
addressed. The police expert from Los Angeles testified to hearsay evidence that was of a
highly dubious and inflammatory nature: that Young was a member of a gang which tortured
the victims of its crimes.
[Headnote 7]
Equally suspect was a letter written by Young's cellmate, saying Young had confessed that
he himself suggested that each of the three participants in the murder should stab the victim
once, so none could snitch on the others. The letter also indicated that Young had received
money and jewelry for his part in the crime, and that he expressed no remorse for the killing.
The prisoner who drafted this letter wanted to be released on his own recognizance in return
for his testimony about Young; when his request was denied, he refused to testify. Thus,
under Silks, this evidence should not have been utilized at the penalty hearing.
____________________

1
NRS 175.552 states:
Upon a finding that a defendant is guilty of murder of the first degree, the court shall conduct a
separate penalty hearing to determine whether the defendant shall be sentenced to death or to life
imprisonment with or without possibility of parole. The hearing shall be conducted in the trial court
before the trial jury, or before a panel of three district judges if the trial was without a jury, as soon as
practicable. In the hearing, evidence may be presented concerning aggravating and mitigating
circumstances relative to the offense, defendant or victim and on any other matter which the court deems
relevant to sentence, whether or not the evidence is ordinarily admissible. Evidence may be offered to
refute hearsay matters. No evidence which was secured in violation of the Constitution of the United
States or the constitution of the State of Nevada may be introduced. The state may introduce evidence of
additional aggravating circumstances as set forth in NRS 200.033, other than the aggravated nature of the
offense itself, only if it has been disclosed to the defendant before the commencement of the penalty
hearing.
103 Nev. 233, 238 (1987) Young v. State
CONCLUSION
We affirm Young's conviction but modify his sentence because highly suspect and
prejudicial evidence was admitted in the penalty phase of his trial. Accordingly, Young's
sentence is reduced from life without possibility of parole to life with possibility of parole.
We conclude that the rest of Young's contentions are without merit.
____________
103 Nev. 238, 238 (1987) Commercial Cabinet Co. v. Wallin
COMMERCIAL CABINET CO., INC., a Nevada Corporation, Appellant and
Cross-Respondent, v. MORT WALLIN OF LAKE TAHOE, INC., a Nevada
Corporation, Respondent and Cross-Appellant.
No. 16944
May 29, 1987 737 P.2d 515
Appeal and cross-appeal from judgment. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Construction contractor brought action against store owner for monies due, and store
owner filed complaint for compensatory and punitive damages for defective work and
materials. The district court awarded $116,714 to contractor and $110,000 to owner. Appeals
were taken. The Supreme Court held that: (1) district court was required to make specific
findings of fact and conclusions of law so that Supreme Court had sufficient basis for review
of award of damages to owner, and (2) substantial evidence supported award of $116,714 to
compensate contractor.
Affirmed in part; remanded in part.
Lang & Leeds, Las Vegas, for Appellant and Cross-Respondent.
George E. Graziadei and Scott Michael Cantor, Las Vegas, for Respondent and
Cross-Appellant.
1. Damages.
Plaintiff proving right to damages without proving amount is only entitled to nominal damages.
2. Damages.
District Court was required to make specific findings of fact and conclusions of law so that Supreme
Court had sufficient basis for review of award of damages to store owner. NRCP 52(a).
3. Interest.
Substantial evidence supported trial court's conclusion that it was not possible to tell how store contractor
applied monies by store owner to various accounts, due to informal dealings, and supported trial court's
determination as to a day when money became due and when prejudgment interest
began.
determination as to a day when money became due and when prejudgment interest began. NRS 99.040.
4. Damages.
Substantial evidence supported awarded of $116,714 to construction contractor as money that was owed
by store owner and that was not paid upon owner's conclusion that paneling was defective.
OPINION
Per Curiam:
Commercial Cabinet Co., Inc. (CC) constructed a number of men's stores in various
casinos in Reno and Las Vegas for Mort Wallin of Lake Tahoe, Inc. (MW). All of the stores
were paneled with Philippine mahogany veneer. After the fire at the MGM hotel in Las
Vegas, MW asked CC to rebuild the men's store that had been destroyed in the fire, and also
to build a western store in the hotel. CC began the reconstruction work in the spring of 1981.
There was no written contract, and MW just told CC to rebuild the store as it had been before
the fire, using the same type of materials.
The western store and the men's store were completed in July 1981. The total cost of the
men's store was $158,058.00. Herbert Kaiser, president of CC, testified that he did not receive
any complaints about the quality of the work in the men's store until sometime in late October
or November 1981. At that time, Mort Wallin, president of MW, told him there were some
defects in the mahogany paneling. Wallin then refused to pay for the balance due on the store
until the panels were refinished.
In May 1982, CC filed a complaint for monies due on various MW projects in the amount
of $193,293.61. The next day MW filed a complaint asking for compensatory and punitive
damages for defective work and materials in the Las Vegas MGM men's store. MW also filed
an answer and counterclaim in CC's suit that was identical to the complaint. The two matters
were consolidated by stipulation in August 1982.
CC won a motion for partial summary judgment pretrial, and the remaining claims of both
parties were tried to the court. The court found in favor of CC in the amount $116,714.00,
and awarded MW $110,000.00 on its counterclaim for damages to the MGM Las Vegas store.
Both parties appeal.
CC contends that MW failed to offer a reasonable basis for computing the amount of
damage it sustained, and is therefore entitled to an award of nominal damages only. See Alper
v. Stillings, 80 Nev. 84, 86-87, 389 P.2d 239, 240 (1964); Kelly Broadcasting v. Sovereign
Broadcast, 96 Nev. 188, 193-194, 606 P.2d 1089, 1093 (1980). MW claims it is entitled to
either $344,000.00 or $356,000.00, the amount MW's experts stated it would cost to replace
the paneling in the store.
[Headnote 1]
CC argues that an award of $344,000.00 or $356,000.00, which MW contends is the only
proper award, would constitute economic waste since the cost of rebuilding the entire store
after the MGM fire was only about $158,000.00. See, e.g., Alaska State Housing Auth. v.
Walsh & Co., Inc., 625 P.2d 831, 837 (Alaska 1980). CC also correctly notes that a money
damage award must be supported by substantial evidence to be sustained because the law
does not permit arriving at a figure by conjecture. A plaintiff who proves a right to damages
without proving the amount as well is only entitled to nominal damages. See Alper, supra;
Kelly, supra. The true problem here is that it is impossible to discern how the district court
arrived at the $110,000.00 figure.
Nothing in the record supports the $110,000.00 figure. Neither the court's letter regarding
its decision nor the findings reflect how the court arrived at this amount. MW's counsel asked
for a clarification of the factual basis for the damage award, but apparently the district court
did not grant his request. It appears the court found a figure it thought was fair, based on its
assessment of the appearance of the blemished panels.
[Headnote 2]
Rule 52(a)
1
of the NRCP states that, in actions tried without a jury, the district court must
make specific findings of fact and conclusions of law. We have refused to review lump sum
damage awards where the basis for the award is not clear. Bing Constr. v. Vasey-Scott Eng'r,
100 Nev. 72, 73, 674 P.2d 1107 (1984); see also Luciano v. Diercks, 97 Nev. 637, 637 P.2d
1219 (1981); Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970); Lagrange Constr. v. Del E.
Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967). This is because the court will not imply
findings to support the judgment where the record is not clear. Pease, 86 Nev. at 197, 467
P.2d at 110. Our usual practice in cases such as this is to remand the matter to the district
court to set forth the basis for its award. Bing Constr., 100 Nev. at 73, 674 P.2d at 1107
(detailed itemization of damage award unnecessary, but district court should at least set forth
categories of damages and amount designated to each category). Therefore, this matter is
remanded to the district court so the court may provide us with a basis for the award to MW
sufficient for review.
____________________

1
NRCP 52(a) provides as follows:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law thereon and direct the entry of the appropriate
judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the
findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings
are not necessary for purposes of review. Findings of fact shall not be set aside
CC next contends the district court used the wrong date in its calculation of prejudgment
interest. CC notes that the applicable versions of NRS 99.040 require interest upon all
money from the time it becomes due. NRS 99.040, emphasis supplied. CC claims the district
court erred in determining that interest became due on September 30, 1981 (30 days after
completion of the MGM Las Vegas men's store), and argues that the money became due on
the balance owing from the Reno MGM men's store at an earlier date. MW claims that,
assuming any interest at all is due, it should run from the date of the commencement of the
action.
CC relies on Brandon v. Travitsky, 86 Nev. 631, 472 P.2d 353 (1970) to support its
contention. In Brandon we held that the district court erred by deciding that money became
due within the meaning of NRS 99.040 by picking a fair and equitable time for the
beginning of the running of interest. Id. at 616, 472 P.2d at 355. We stated that the trial court
should have awarded interest from the dates the various obligations became due. We also
noted that it was undisputed that all obligations became due after a certain date and ordered
the interest to run from that date. Id.
[Headnote 3]
Here, in contrast, the parties dispute the date the money became due. The district court
expressly found that, due to the parties' informal dealings, it was not possible to tell how CC
applied monies paid by MW to its various accounts. Generally, where substantial evidence
supports the trial court's decision, it will not be disturbed on appeal, particularly where the
evidence is conflicting. Brandon, 86 Nev. at 615, 472 P.2d at 355. Since substantial evidence
supports the trial court's ruling on this issue, we will not disturb it.
MW contends on its appeal that the trial court erroneously determined both damage
awards, and argues that it should be awarded the cost of replacing the defective panels. It
claims the proper measure of damages would be to put MW in the position it would have
been in had the contract for rebuilding the MGM Las Vegas store been properly performed,
i.e. the money required to remove and replace the defective panels, which is either
$344,000.00 or $356,000.00. See Shell v. Schmidt, 330 P.2d 817 (Cal.Ct.App.), cert. denied,
359 U.S. 959 (1958). MW contends the economic waste rule has no application here, as CC
claims, because the breach in this case was willful.
____________________
unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the
credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be
considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact and conclusions of law specifically appear as such therein. Findings of
fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other
motion. (Emphasis supplied.)
because the breach in this case was willful. MW further argues that CC failed in its proof so it
is entitled to nothing. MW also claims that, assuming CC is entitled to the $116,714.00
awarded by the district court, it (MW) is entitled to a net judgment for the difference between
this amount and the $344,000.00 or $356,000.00 MW should have received.
[Headnote 4]
There is substantial evidence to support the award of $116,714.00 to CC. Because this
award has reasonable support in the record, and does not appear to be manifestly against the
weight of the evidence, it must be affirmed. See Brandon, 86 Nev. at 615, 472 P.2d at 355.
However, since there is no similar support for the award to MW, the case must be remanded
for a clarification of the factual basis of that award. When the district court clarifies the basis
for the award to MW, we will be able to determine whether it is proper.
The case is remanded to the district court for clarification of the factual basis for the
damage award to Mort Wallin of Lake Tahoe, Inc. We find all other claims to be without
merit, and otherwise affirm the judgment of the district court.
____________
103 Nev. 242, 242 (1987) Fleischer v. August
FREIDA JEAN FLEISCHER, M.D., Appellant, v. CHARLES AUGUST, Executor
of the Estate of RUTH L. ZWEIFLER, Respondent.
No. 17342
May 29, 1987 737 P.2d 518
Appeal from judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Patient brought medical malpractice action against physician for failure to diagnose a form
of cancer. The district court entered judgment of $54,958.24, which was based upon offer of
$50,000, including costs, and denied motion to amend judgment. Physician appealed. The
Supreme Court held that: (1) offer of judgment of $50,000, including costs, did not need to
recite amount of costs separately and was valid offer for lump sum of $50,000, which
included costs in that amount, and (2) motion to amend judgment, rather than motion to retax
and to settle costs, was proper method for amending judgment of $54,958.24, where costs
were never disputed, but amount of total judgment was disputed.
Reversed with directions.
Harold P. Gewerter & Michael F. Bohn, Las Vegas, for Appellant.
Gregory Hafen & Robert Jensen, Las Vegas, for Respondent.
1. Judgment.
Valid offer of judgment did not need to recite amount of costs separately from amount of award. NRCP
68.
2. Judgment.
Offer of judgment of $50,000, including costs incurred, was valid offer for lump sum of $50,000, which
included costs in that amount. NRCP 68.
3. Judgment.
Motion to amend judgment, rather than motion to retax and to settle costs, was proper method for
amending judgment of $54,958.24, which was based upon offer of judgment of $50,000, including cots of
$4,958.24, where costs were never disputed, but amount of total judgment was disputed. NRCP 59(e);
NRS 18.110, subd. 4.
4. Judgment.
Rule governing motion to amend judgment did not necessarily relate to same subject as and was not in
conflict with statute governing motion to retax and to settle costs, and, thus, allegedly more specific statute
governing motion to retax costs did not control physician's challenge to judgment of $54,958.24, which
was entered upon offer of judgment of $50,000, including costs in amount of $4,958.24. NRCP 59(e);
NRS 18.110, subd. 4.
OPINION
Per Curiam:
Plaintiff Ruth Zweifler
1
sued defendant Dr. Freida Fleischer for medical malpractice for
failure to diagnose endometrial adenocarcinoma, a form of cancer. The complaint was filed
October 29, 1985.
On March 27, 1986, Fleischer's attorney, harold Gewerter, served Zweifler's attorney,
Gregory Hafen, with an offer of judgment pursuant to NRCP 68. The offer stated:
PLEASE TAKE NOTICE that pursuant to the provisions of N.R.C.P. 68, the
Defendant, FREIDA JEAN FLEISCHER, M.D., hereby offers to allow judgment to be
taken against her ins the sum of Fifty Thousand Dollars ($50,000.00), including costs
herein incurred. This offer is in no way an admission of liability and the Defendant
waives no defenses by virtue of this offer. The offer is to include attorney's fees and is
voided by an award of same.
(Emphasis added.) Around April 2, 1986, Hafen telephoned Gewerter to discuss the offer.
Hafen told Gewerter he believed the offer, as worded, was for $50,000.00 plus costs.
Gewerter told Hafen his client was offering a flat sum of $50,000.00 which included costs.
No one disputes this part of the conversation.
____________________

1
Zweifler died during the pendency of this appeal and is therefore represented in this action by Charles
August, her executor.
Hafen contends that Gewerter then said he would get back to plaintiff's counsel, or file an
amended offer. Gewerter disputes this.
On April 4, 1986, Hafen filed and served on opposing counsel a notice of acceptance of
the March 27 offer, a memorandum of costs in the amount of $4,958.24, and judgment in the
amount of $54,958.24. On April 8, 1986, defense counsel sent Hafen a letter stating that the
judgment was faulty in that it added costs in addition to the $50,000.00. Hafen replied by
letter April 10 that he interpreted NRCP 68 and the offer to provide for costs in addition to
$50,000.00. He suggested defense counsel file a motion to amend the judgment to settle the
issue of costs.
On April 11, defense counsel filed a motion to amend the judgment, based on the facts
outlined above. Hafen opposed the motion, arguing that the offer must include costs in
addition to the amount of settlement to be valid under Rule 68, and that the motion to amend
was the improper method to attack the judgment. He claimed Fleischer should have filed a
motion to retax costs pursuant to NRS 18.110(4), and, since she failed to do this in a timely
fashion, she was barred from disputing the award of costs. The district court agreed and
Fleischer appeals.
Fleischer first argues that the district court improperly allowed the judgment of $54,958.24
(offer plus costs) to stand. She contends that her offer was for a flat sum of $50,000.00, and
that plaintiff's counsel knew this because he was told during a telephone conversation.
Therefore, it was improper for plaintiff's counsel to cause judgment to be entered for more
than $50,000.00 since counsel knew the defense only intended to pay $50,000.00. August
contends the language of the offer itself, together with NRCP 68, necessarily means that the
offer had to be for $50,000.00, with costs in addition to this sum.
NRCP 68 provides, as relevant here:
At any time more than 10 days before the trial begins, a party defending against a
claim may serve upon the adverse party an offer to allow judgment to be taken against
him for the money or property or to the effect specified in his offer, with costs then
accrued. . . .
(Emphasis added.)
August insists the emphasized language in the rule, when read together with the
ambiguous wording of the offer, mandates an award of costs separate from the offer of
$50,000.00. Fleischer contends that the wording of the offer was clear, and that, assuming it
was not, it was clarified through the telephone conversation where defense counsel told
plaintiff's counsel that the offer included costs. Further, Fleischer argues that Rule 68 does
not require an offer specify an amount of costs separate from the offer itself.
Both sides rely on the recent case of Marek v. Chesny, 473 U.S. 1 (1985). In Marek the
high court addressed the issue of whether attorney's fees incurred by a plaintiff in a civil
rights action subsequent to an offer of judgment under FRCP 68
2
are included as costs
within the meaning of the rule. The court first noted that the plain purpose of Rule 68 is to
encourage settlement and avoid litigation. 473 U.S. at 5; accord Beattie v. Thomas, 99 Nev.
579, 668 P.2d 268 (1983). The court then addressed the plaintiff's contention that Rule 68
requires that an offer must separately recite the amount that the defendant is offering in
settlement of the substantive claim and the amount he is offering to cover accrued costs. The
court rejected this contention and adopted a construction of the rule which best furthers the
objective of the rule, which is to encourage settlements. Marek, 473 U.S. at 6. If defendants
are not allowed to make lump-sum offers that would, if accepted, represent their total
liability, they would understandably be reluctant to make settlement offers. Id. at 6-7.
If an offer recites that costs are included or specifies an amount for costs, and the
plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does
not state that costs are included and an amount for costs is not specified, the court will
be obliged by the terms of the Rule to include in its judgment an additional amount
which in its discretion, [citation] it determines to be sufficient to cover the costs. . . .
Accordingly it is immaterial whether the offer recites that costs are included, whether it
specifies the amount the defendant is allowing for costs, or, for that matter, whether it
refers to costs at all. As long as the offer does not implicitly or explicitly provide that
the judgment not include costs, a timely offer will be valid.
(Emphasis in original.) Marek, 473 U.S. at 6.
[Headnotes 1, 2]
This language supports Fleischer's contention that a valid offer of judgment need not
separately recite the amount of costs. Marek also squarely supports Fleischer's proposal that
the offer of judgment here was a valid offer for a lump sum of $50,000.00, an amount which
included costs.
3
We agree with the high court that defendants would be reluctant to make
settlement offers if they were not allowed to make lump-sum offers which represented their
total liability.
____________________

2
NRCP 68 and FRCP 68 are identical as relevant to this appeal.

3
We note that the offer at issue in Marek was not materially different from the offer at issue here. The Marek
offer was for a sum, including costs now accrued and attorney's fees, of ONE HUNDRED THOUSAND
($100,000) DOLLARS. Marek, 473 U.S. at 3-4.
The instant case is similar to the recent federal case of Boorstein v. City of New York, 107
F.R.D. 31 (S.D.N.Y. 1985). Boorstein involved a poorly worded offer which did not clearly
state whether the amount offered included fees and costs. Defense counsel had discussed the
offer over the telephone with plaintiff's counsel and clarified that the offer did not include
costs. The court held that [b]ecause plaintiff does not refute that these clarifying
conversations transpired, the court can only conclude that the poorly worded offer was
clarified orally by defendants and that plaintiff understood the terms he was rejecting . . . Id.
at 35.
Similarly here, to the extent the offer can be considered ambiguous, it was clarified during
the telephone conversation when defense counsel told plaintiff's counsel that the $50,000.00
offer was for a lump sum, which included costs. Rule 68 offers have been likened to contract
offers in that there must be a meeting of the minds' and a clear understanding of the terms in
order to have a [sic] acceptance of the offer. Boorstein, 107 F.R.D. at 34. When attorney
Hafen accepted the offer on behalf of his client, he had a clear understanding from speaking
with defense counsel on the telephone, that the offer of judgment was for $50,000.00, a sum
which included costs and fees. Consequently, it was improper for him to have entered
judgment in excess of that amount.
[Headnote 3]
Fleischer contends that a motion to amend the judgment was the proper method to correct
the error that occurred here. She notes that none of the costs were questioned. The offer was
intended to cover all costs, and attorney's fees, as it plainly stated. Therefore, contrary to
August's contentions, there was no need for a motion to retax and settle costs under NRS
18.110(4).
4
Fleischer argues that NRS 18.110(4) is intended to remedy situations where
costs are disputed. See Reno Electrical Works, Inc. v. Ward, 53 Nev. 1, 290 P. 1024 (1930)
(proper method of attack on disputed item of costs). Here, costs were never disputedthe
amount of the total judgment was disputed so that the correct attack was a motion to amend
the judgment under NRCP 59(e).
5
[Headnote 4]
[Headnote 4]
____________________

4
Within 3 days after service of a copy of the memorandum, the adverse party may move the court,
upon 2 days' notice, to retax and settle the costs, notice of which motion shall be filed and served on the
prevailing party claiming costs. Upon the hearing of the motion the court or judge shall settle the costs.

5
NRCP 59(e) provides:
A motion to alter or amend the judgment shall be served not later than 10 days after service of written
notice of entry of judgment.
[Headnote 4]
August argues that NRS 18.110(4) is a specific statute dealing with disputed costs.
Therefore, it should control and the general rule set out in NRCP 59(e) does not apply. See
Laird v. State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 639 P.2d 1171 (1982). However,
August has misread the law on this issue. Laird states that [w]here a general and a specific
statute, each relating to the same subject, are in conflict and they cannot be read together, the
special statute controls. Laird, 98 Nev. at 45, 639 P.2d at 1173, citations omitted, emphasis
supplied. Here NRCP 59(e) and NRS 18.110(4) do not necessarily relate to the same subject
and are not in conflict. Consequently, the rule August cites would not apply.
We agree with Fleischer on this point. Reno Electrical Works, cited above, states that the
only way to object to a specific item of costs is to utilize the statutory procedure. Id. at 6, 290
P. at 1025. Fleischer does not object to a specific item or items in the bill of costsshe
objects to the fact that judgment was entered for $50,000.00 plus costs when the offer of
judgment stated that the sum of $50,000.00 included costs. She does not object to any of the
costs, but to the judgment itself. Therefore, a motion under NRCP 59(e) to amend or alter the
judgment was the proper procedure to rectify the error. The district court was incorrect when
it ruled otherwise, and allowed the judgment in excess of $50,000.00 to stand.
We agree with both of Fleischer's contentions on appeal, and hold that the district court
erred in ruling against her. To remedy the incorrect judgment, the district court is directed to
vacate its former judgment and enter a new judgment in favor of Zweifler, or her
representative, in the amount of $50,000.00.
____________
103 Nev. 247, 247 (1987) Morrow v. Barger
I. CLAIRE MORROW, Appellant, v. FAY BARGER, ANNE
BARGER, JOHN C. CARPENTER, Respondents.
No. 17013
May 29, 1987 737 P.2d 1153
Appeal from order granting summary judgment; Fourth Judicial District Court, Elko
County; Mario G. Recanzone, Judge.
Real estate broker brought action claiming entitlement to commission in connection with
sale of ranch. Vendors' motion for summary judgment was granted by the district court and
broker appealed. The Supreme Court held that there were issues of fact precluding summary
judgment as to existence of employment relationship and whether broker was procuring cause
of sale.
Reversed.
Gregory C. Corn, Reno, for Appellant.
A. Grant Gerber, P. Michael Marfisi, Elko, for Respondents.
1. Brokers.
Before real estate agent is entitled to commission, agent must prove that: an employment contract existed;
and he or she is the procuring cause of the sale.
2. Judgment.
In suit to recover real estate broker's commission in connection with sale of ranch, there were issues of
fact, precluding summary judgment, as to whether original nonexclusive listing agreement was terminated
by later listing agreement, whether there was subsequently and implied openlisting agreement, and whether
agent was procuring cause of sale. NRCP 56(c).
Error in finding that there was no oral listing agreement subsequent to expiration of written listing
agreement with brokers was harmless where no significant efforts were expended by brokers pursuant to
any oral contract subsequent to expiration of written agreement.
4. Brokers.
If broker procures purchaser willing to pay a lower price than the terms of listing agreement, seller cannot
deprive broker of his or her commission by conducting final negotiations and selling at that lower figure to
the purchaser procured by the broker.
5. Brokers.
Promise to pay reasonable value of broker's services may be implied, and real estate agent may recover
under theory of quantum meruit the amount of reasonable value of services rendered, unless the parties
have executed an exclusive listing agreement which is invalid pursuant to statute. NRS 645.320
6. Brokers.
If real estate broker has been a procuring or inducing cause of a sale, he or she is entitled to agreed
commission, irrespective of who makes that actual sale or terms thereof, and broker's presence at the sale is
not required for broker to earn his or her commission.
7. Brokers.
In nonexclusive brokerage situations, merely introducing eventual purchasers is not enough for broker to
be procuring cause of sale, nor is it enough that broker contributed indirectly or incidentally to the sale
by imparting information which tended to arouse interest; broker must set in motion a chain of events,
which, without break in their continuity, caused buyer and seller to come to terms as the proximate result of
broker's particular activities.
8. Brokers.
Whether broker first approaches, or brings to the attention of purchaser that property is for sale, or brings
purchaser into the picture, has considerable weight in determining whether the broker is the procuring
cause of the sale.
OPINION
Per Curiam:
I. Claire Morrow claims she is entitled to a real estate broker's commission pursuant to a
written listing agreement, an oral listing agreement or an implied listing agreement for
the sale of the ranch of Fay and Anne Barger.
commission pursuant to a written listing agreement, an oral listing agreement or an implied
listing agreement for the sale of the ranch of Fay and Anne Barger. The district court granted
the Bargers' motion for summary judgment concluding as a matter of law that no employment
agreement existed and that Claire Morrow was not the procuring cause of the sale.
The Facts
For several years prior to 1979, Fay Barger and Anne Barger had been attempting to sell
their Nevada ranch through several different brokers. On March 7, 1979, the Bargers signed a
written listing agreement with Claire Morrow, a licensed real estate broker. The 1979
agreement, which was of indefinite duration, is signed by the Bargers and states:
We authorize Bob and Claire Morrow of Ruby Mountain Real Estate to sell the ranch at
the terms listed above and if a sale is closed to any buyer registered with us in writing,
we will pay Ruby Mountain Real Estate a brokerage fee of 5% of the sale price at close
of escrow.
Between the spring of 1979 and the spring of 1981, Robert (Bob) Morrow, salesman,
agent, and husband of Claire Morrow, contacted John Carpenter, Max Spratling, and Burke
Peterson. Bob Morrow gave Spratling some maps of the Barger ranch, explained the grazing
rights and showed him most of the ranch including the cattle. Bob Morrow informed
Carpenter of Spratling's interest and provided Carpenter with a copy of the Morrows'
investigations into water rights, deeded acres, BLM grazing rights, AUM permits, farm
machinery, irrigation and equipment relating to the Barger ranch. Claire Morrow registered
Peterson, Carpenter, and Spratling as buyers with the Bargers under the 1979 written listing
agreement. An offer, allegedly from Peterson and Spratling, was prepared by Claire Morrow
but never signed by any party nor accepted by the Bargers.
On December 5, 1980, the Morrows and the Bargers executed another listing agreement.
This listing expired on April 15, 1981; a sixty-day grace period ended on June 15, 1981. No
offers were presented to the Bargers as a result of the 1980 listing agreement.
When the 1980 listing expired, the Bargers declined to execute another written listing
agreement with the Morrows. The Morrows claim that Fay Barger orally asked them to
continue their efforts to sell the ranch. The Bargers decided to farm the property that summer
of 1981. When Bob Morrow contacted the Bargers again in October of 1981, Fay Barger
indicated that he was working on a deal to sell the ranch with Carpenter. After this point in
time, the Morrows claim that they were excluded from the deal.
On March 5, 1982, the Bargers sold their ranch in a complex series of transactions which
involved eight conveyances. The parties to the transaction involved, at different stages,
Peterson, Spratling, Carpenter, and Kennecott Copper Corporation of Utah. Kennecott traded
the interest it acquired in the Barger ranch to the Spratlings for land owned by them in Utah.
Claire Morrow asserts that the sale reflects the transaction which she and Bob Morrow helped
promote between the Bargers and Carpenter, Peterson and Spratling.
Discussion
NRCP 56(c) provides that summary judgment shall be rendered if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. On appeal, all evidence favorable to plaintiff must
be accepted as true. Crockett v. Sahara Realty Corp., 95 Nev. 197, 591 P.2d 1135 (1979).
[Headnote 1]
Before a real estate agent is entitled to a commission, the real estate agent must prove (1)
that an employment contract existed and (2) that he or she is the procuring cause of the sale.
Shell Oil Company v. Ed Hoppe Realty, Inc., 91 Nev. 576, 580, 540 P.2d 107, 109-10 (1975).
Claire Morrow makes three alternative claims that an employment agreement did exist at the
time of the sale of the Barger ranch. She claims an employment agreement existed in the form
of a written listing agreement, oral listing agreement, or implied listing agreement.
The district court found that the 1979 written listing agreement did not create a valid
exclusive listing agreement pursuant to NRS 645.320 because that contract did not contain
a termination date.
1
The district court did not address the validity of the 1979 written listing
agreement as a non-exclusive listing agreement.
2
Claire Morrow argued in her opposition
to summary judgment that the 1979 listing agreement could be an enforceable contract if
viewed as a non-exclusive listing agreement.
____________________

1
NRS 645.320 provides, in part, that [e]very exclusive listing shall . . . have set forth in its terms a definite,
specified and complete termination. (Emphasis added). NRS 645.320 is a statute of frauds limited to exclusive
listing agreements for the sale of real property. Bangle v. Holland Realty Investment Company, Inc., 80 Nev.
331, 334, 393 P.2d 138, 139 (1964).

2
There are two types of exclusive listing agreements. See D. Barlow Burke, Jr., Law of Real Estate
Brokers, 2.2.2 and 2.2.3 (1982). An exclusive agency contract arises when the seller designates a particular
broker to sell the property, to the exclusion of other brokers, for a specified period of time; the seller retains the
right to sell the property directly. See id. at 2.2.2. An exclusive right to sell is an exclusive agency contract
with one
The testimony in the depositions supports a conclusion that the 1979 listing agreement was
not intended to be an exclusive listing agreement. Fay Barger claims he only entered into
open listing agreements with the myriad of brokers who tried to sell the Barger ranch. Claire
Morrow's description of the 1979 written listing agreement reveals that she did not intend the
1979 written listing agreement to be exclusive. Claire Morrow believed that if she
registered a buyer under the 1979 listing agreement and continued to work with that buyer,
she would receive a commission for those buyers. She believed that this arrangement existed
until either she or the Bargers canceled the agreement. Claire Morrow did not state that she
believed that she was the only agent who could sell the property.
[Headnote 2]
Claire Morrow's position is that the 1980 written listing agreement did not supersede the
1979 written listing agreement. Claire Morrow asserts that the 1980 written listing agreement
was executed in order to pin down the Bargers to a lower price for any newly registered
buyers which she submitted during the period from December 5, 1980 until April 15, 1981.
She claims that the 1979 written listing agreement was not terminate by either party. Whether
the 1979 listing agreement was terminated by the 1980 listing agreement is a question of fact.
Claire asserts that the 1979 written listing agreement was enforceable in March 1982,
when the ranch was sold. When the 1980 written listing agreement ended and the Bargers
declined to enter into another written listing agreement, Claire claims that the Bargers orally
encouraged the Morrows to continue pursuing the sale of the ranch. The meaning and
significance of this alleged oral arrangement upon the 1979 listing agreement is a question of
fact.
If the evidence in favor of the Morrows is viewed as true, then a genuine issue of material
fact exists as to whether the 1979 written listing agreement was in effect at the time of the
1982 sale. Nonetheless, the 1979 written listing agreement would be binding only if the terms
of the ultimate sale of the ranch in March of 1984 fall within the terms articulated in the 1979
written listing agreement.
Claire Morrow raises an alternative claim for recovery pursuant to an oral employment
agreement. The district court found that no contract of employment existed as the result of
oral promises made to the Morrows by the Bargers after the expiration of the 1980 listing
agreement in April 1981.
3
Claire Morrow stated at her deposition and in an affidavit that
after the 19S0 written listing agreement expired, the employment relationship went to an
open oral listing agreement.
____________________
extra feature: the seller does not retain the right to sell the property directly. See id. at 2.2.3.

3
Claire Morrow does not assert that she should recover pursuant to the 1980 written listing agreement.
stated at her deposition and in an affidavit that after the 1980 written listing agreement
expired, the employment relationship went to an open oral listing agreement. Claire Morrow
asserts that Fay Barger represented to the Morrows that they should continue working on the
sale of the ranch. Claire Morrow asserts that Fay Barger assured the Morrows that their
interest would be protected.
[Headnote 3]
The district court appears to have erred by finding that there was no oral listing agreement
subsequent to April 15, 1981. This error, however, is harmless since Claire's contacts with
Peterson, Spratling, and Carpenter occurred from the spring of 1979 until March of 1981. No
significant efforts were expended by the Morrows pursuant to any oral contract subsequent to
April 15, 1981.
[Headnote 4]
Finally, Claire Morrow asserts that an employment relationship existed by virtue of an
implied open listing agreement. If the broker procures a purchaser willing to pay a lower price
than the terms of the listing agreement, the seller cannot deprive the broker of his or her
commission by conducting the final negotiations and selling at that lower figure to the
purchaser procured by the broker. Humphrey v. Knobel, 78 Nev. 137, 141, 369 P.2d 872, 874
(1962) (seller sold property fourteen days after listing agreement expired).
[Headnote 5]
A promise to pay the reasonable value of services may be implied, and a real estate agent
may recover under the theory of quantum meruit, unless the parties have executed an
exclusive listing agreement which is invalid under NRS 645.320. Bangle v. Holland Realty
Investment Company, 80 Nev. 331, 335-36, 393 P.2d 138, 140 (1964); see Shell Oil, 91 Nev.
576, 540 P.2d 107 (seller took benefits of broker's efforts and sold property directly to buyer.)
A broker who produces a ready, willing and able buyer will be entitled to a commission in the
amount of the reasonable value of services rendered on consummation of the sale even when
there is no express agreement as to amount. Campbell-Leonard Realtors v. El Matador
Apartment Company, 556 P.2d 459, 463 (Kan. 1976). The vendor cannot benefit by his own
attempt to exclude a broker. See Humphrey, 78 Nev. 137, 369 P.2d 872; Close v. Redelius, 67
Nev. 158, 215 P.2d 659 (1950).
The district court erred by concluding that, as a matter of law, Claire Morrow did not state
a claim for recovery pursuant to an implied listing agreement.
Claire Morrow presented evidence, which, if viewed as true, shows that an employment
relationship did exist at the time of the sale of the Barger ranch in March of 1982. Claire
Morrow has the further burden of establishing evidence to show that she was the
procuring cause of that sale.
further burden of establishing evidence to show that she was the procuring cause of that sale.
[Headnote 6]
If a real estate broker has been a procuring or inducing cause of a sale, he or she is
entitled to the agreed commission, irrespective of who makes the actual sale or terms thereof.
Schneider v. Biglieri, 94 Nev. 426, 427, 581 P.2d 8, 9 (1978); Bartsas Realty, Inc. v.
Leverton, 82 Nev. 6, 409 P.2d 627 (1966). The broker's presence at the sale in not required
for that broker to earn his or her commission. Horton v. Colbron, 150 P.2d 315, 319 (Wyo.
1944).
[Headnote 7]
A finding of procuring cause requires that the broker demonstrate conduct that is more
than merely trifling. Schneider, 94 Nev. at 427, 581 P.2d at 9; Bartsas, 82 Nev. at 9, 409
P.2d at 629. In non-exclusive brokerage situations, merely introducing the eventual purchaser
is not enough. Id. To constitute the predominating cause of the sale, it is not enough that the
broker contributes indirectly or incidentally to the sale by imparting information which tends
to arouse interest. Nelson v. Mayer, 265 P.2d 52, 56 (Cal.Ct.App. 1954); Sessions v. Pacific
Improvements Company, 206 Pac. 653, 660 (Cal.Ct.App. 1922). The broker must set in
motion a chain of events which, without break in their continuity, cause the buyer and seller
to come to terms as the proximate result of his or her peculiar activities. Id.
The district court concluded that, as a matter of law, Claire Morrow was not the procuring
cause of the sale of the Barger ranch. The district court relied on Nollner v. Thomas, 91 Nev.
203, 533 P.2d 478 (1975), and Bartsas, 82 Nev. 6, 409 P.2d 627.
Nollner is inappropriate authority for the case at hand since Claire Morrow's 1979 written
non-exclusive listing agreement did not have a termination date or a grace period and since
she relies upon an implied listing agreement. Nollner specifically stated that:
Here the action is based on a listing agreement. [Footnote omitted.] The right of the
respondent to compensation must be governed by that agreement. It did not make the
broker's commission dependent upon the respondent being the procuring cause but
upon the fact that he would sell the property in accordance with the terms of the
agreement.
In Bartsas, this court held that the broker must be given an opportunity to consummate a
sale with the ultimate purchaser where he or she initially introduced that purchaser and has
not abandoned negotiations. Bartsas, 82 Nev. at 10, 409 P.2d at 630. The broker must be
given such an opportunity even where the purchaser has made a separate, more attractive
offer either directly to the seller or through another broker. Id. The seller must notify the
procuring broker of the later offer and give that broker a reasonable time to protect his or
her commission or decline the sale. Id. Good faith and fair methods of trade require such
a course of conduct. Id.
The Bartsas court reversed the district court's judgment awarding the commission to the
broker who consummated the sale.
directly to the seller or through another broker. Id. The seller must notify the procuring broker
of the later offer and give that broker a reasonable time to protect his or her commission or
decline the sale. Id. Good faith and fair methods of trade require such a course of conduct. Id.
The Bartsas court reversed the district court's judgment awarding the commission to the
broker who consummated the sale. The matter was remanded for a new trial to determine
whether the broker who originally submitted the offer or the broker who consummated the
sale was the procuring cause. Bartsas is authority for denying rather than granting the motion
for summary judgment.
In addition, the district court's reliance upon Estate of Greenberg v. Skurski, 95 Nev. 736,
602 P.2d 178 (1979), is not dispositive. Greenberg states that a precondition of entitlement to
a broker's commission is that he or she produce a buyer who is ready, willing and able to
purchase the property upon terms prescribed by the sellers. In fact, Claire claims to have
produced Peterson, Carpenter, and Spratling who ended up being buyers in the complex sale
of the ranch.
The district court found that Claire's conduct with Spratling was merely trifling. The
district court cited the remoteness in time of Claire's contact with Spratling and her failure to
produce an acceptable offer. Despite the district court's interpretation of the facts, Claire has
provided evidence that but for her involvement with Peterson, Spratling, and Carpenter, the
sale may not have occurred. Whether the events were too remote so that Claire's involvement
was not a proximate cause of the sale necessarily involves questions of fact.
[Headnote 8]
Whether the broker first approaches, or brings to the attention of the buyer that the
property is for sale, or brings the buyer into the picture, has considerable weight in
determining whether the buyer is the procuring cause of the sale. Frederick May & Company
v. Dunn, 368 P.2d 266, 269 (Utah 1962). The Morrows expended efforts in negotiating a deal
with Spratling, Peterson, and Carpenter during the time frame of Spring 1979 to Spring 1981.
Fay Barger admitted the actual sale began in 1980.
The question of whether the deal which the Morrows worked on with Peterson, Spratling,
and Carpenter was abandoned or whether the continuity of the chain of events which the
Morrows set in motion was broken presents an issue of material fact to be decided by the
trier of fact. See Wilson, 171 P.2d at 649. Since Claire Morrow has presented facts upon
which a trier of fact could find that she was the procuring cause, an issue of material fact
exists for trial. Oak Grove Investor v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075,
1079 (1983).
Claire Morrow's claim that the district court erred in granting John Carpenter's motion for
summary judgment was improperly preserved for appeal. See NRAP 3(d) and 31(b).
The district court's order granting the Bargers' motion for summary judgment is reversed.
____________
103 Nev. 255, 255 (1987) Hybarger v. Hybarger
WILMA JEAN HYBARGER, Appellant, v. DAVID
CROCKET HYBARGER, Respondent.
No. 16303
May 29, 1987 737 P.2d 889
Appeal from order dividing parties' community property interests. Second Judicial District
Court, Washoe County; Robert Schouweiler, Judge.
Order dividing parties' community property interests was entered in divorce action in the
district court and wife appealed. The Supreme Court held that: (1) husband's initial separate
property capital contribution to partnership was only 80% of amount of capital contributed
from sole proprietorship owned prior to marriage; (2) amount of husband's separate property
interest in partnership had to be reduced by amount withdrawn from business as separate
property for purchase of ranch property; and (3) refusal to award attorney fees to wife in lieu
of reimbursing the community for husband's expenditures of community property income
during parties' separation was not abuse of trial court's discretion.
Affirmed in part; reversed in part; and remanded in part.
Beasley, Hamilton & Holden, Reno, for Appellant.
Ronald J. Logar and Gary L. Manson, Reno, for Respondent.
Pereira formula, providing that court should determine value of separate property contribution, plus fair
return on separate property investment, in order to ascertain total separate property interests in assets, is
preferred method for apportionment of community and separate property interests in most cases in Nevada.
Fact that husband's capital account in business owned by husband prior to marriage showed negative
value six years after marriage did not mandate finding that husband's separate property interest in business
was extinguished on such date.
Value of husband's separate property contribution to partnership created one and one-half years after
parties' marriage, was only 80% of $31,498 of separate property which he contributed to finance
partnership, where husband took only S0% interest in capital, profit and loss of
business and his son took remaining 20% interest in capital, profit and loss of
business; 20% of husband's capital contribution was allocated to son.
ship, where husband took only 80% interest in capital, profit and loss of business and his son took
remaining 20% interest in capital, profit and loss of business; 20% of husband's capital contribution was
allocated to son.
Determination of husband's separate property interest in business had to be reduced by amount withdrawn
by husband from business, as separate property, for purchase of ranch property, and to extent that amount
of separate property withdrawn from business exceeded husband's separate property interest in business on
such date, wife was entitled to seek recovery, on behalf of community, of excess amount withdrawn.
Except as provided by statute, separation of parties does not dissolve the community and does not alter
character of parties' income during period of separation. NRS 123.220.
6. Divorce.
Trial court's refusal to award attorney fees to wife in lieu of reimbursing the community for husband's
expenditures of community property income during parties' separation, based, on fact that each party held
substantial separate property, was not abuse of trial court's discretion in divorce action; monies in question
were used for housing and other living expenses of husband or for payments on parties' jointly owned
ranch.
OPINION
Per Curiam:
This appeal raises relative to the correct computation of the parties' community property
interest in a business owned by the husband prior to marriage. Although the court below used
an appropriate method of valuation, we find that the court erred in determining the amount of
the husband's initial capital investment in his business and in failing to deduct from the value
of the husband's separate property interest amounts withdrawn from the business as the
husband's separate property. We therefore reverse and remand for recalculation of the
community property interest in the business.
INTRODUCTION
David and Wilma Hybarger were married on June 16, 1972. Each party had substantial
separate property interests at the time of marriage. The parties each had children from prior
marriages. The parties commenced an action for divorce in January of 1984. The character
and value of much of the property owned by the parties was established by agreement. The
remainder was apportioned by the district court. The appellant, Wilma Hybarger, contends
that the court erred in (1) misapprehending the amount of David Hybarger's initial (separate
property) investment into Hybarger and Son Drywall; (2) failing to reduce the amount of
David's separate property interest in Hybarger and Son Drywall by the amount withdrawn by
David from the business for the purchase of certain ranch property in Fallon, Nevada; and
{3) refusing to award attorneys' fees to Wilma Hybarger in lieu of reimbursing the
community for David Hybarger's expenditures of community property income during the
parties' separation.
by the amount withdrawn by David from the business for the purchase of certain ranch
property in Fallon, Nevada; and (3) refusing to award attorneys' fees to Wilma Hybarger in
lieu of reimbursing the community for David Hybarger's expenditures of community property
income during the parties' separation.
INITIAL CAPITAL CONTRIBUTION
[Headnotes 1, 2]
The major issue in dispute concerns the extent of the community interest in Hybarger and
Son Drywall. The court determined that, since the value of the business resulted from a
combination of David's initial capital contribution of separate property and of David's efforts
during the marriage, the value of the respective separate and community property interests
was fairly determinable under the Pereira formula.
1
This method of valuation provides that
the court should determine the value of the separate property contribution, plus a fair return
on the separate property investment, in order to ascertain the total separate property interest in
the asset. The parties do not dispute the propriety of the district court's use of the Pereira
formula in this case, and do not challenge the method of calculating a fair return on David's
capital investment.
2

[Headnote 3]
The partnership in question, Hybarger and Son Drywall, was created on January 1, 1976.
Prior to that time, David Hybarger owned a sole proprietorship engaged in the drywall and
painting business. In order to finance the partnership, David contributed the capital of the sole
proprietorship, being the amount of $31,490. David took an 80% interest in the capital, profit
and loss of the business, and David's son, Gordon, took a 20% interest in the capital, profit
and loss of the business. Thus, David's initial capital contribution in the partnership was
$25,192. The district court, in calculating the amount of David's separate property interest in
the partnership, erroneously failed to take into account the undisputed fact that 20% of the
capital contribution was allocated to Gordon Hybarger. The Pereira formula should therefore
be recalculated by the trial court, using 80%, rather than 100%, of the $31,490 figure as the
amount of David's initial separate property capital contribution.
____________________

1
Pereira v. Pereira, 103 P. 488 (Cal. 1909). This method is, in most cases, the preferred method for
apportionment of community and separate property interests in Nevada. Cord v. Neuhoff, 94 Nev. 21, 573 P.2d
1170 (1978).

2
Wilma Hybarger has suggested that the fact that David's capital account in the business showed a negative
value in 1978 mandates a finding that David's separate property interest in the business was extinguished on that
date. The trial court, relying on expert testimony, rejected this contention. We find no error in this holding.
PURCHASE OF FALLON RANCH
[Headnote 4]
In 1982 the parties agreed to purchase a ranch in Fallon, Nevada. It was agreed that the
down payment of $100,452.90 would be made from equal contributions of separate property
funds by each of the parties. Wilma Hybarger withdrew $50,226.45 from an account
containing her separate property funds. David Hybarger withdrew $50,226.45 from his capital
account in Hybarger and Son Drywall. The ranch was purchased as a community property
asset. Wilma subsequently argued that, since the amount of David's contribution to the
purchase of the ranch was community property, she was entitled to a 75% interest in the
ranch. The trial court found (and David has maintained) that the money withdrawn from
Hybarger and Son Drywall for the purchase of the ranch was David's separate property, in
accordance with the agreement and understanding of the parties. The court did not err in
making this initial determination, and therefore did not err in finding Wilma's interest in the
ranch to be 50%. However, having determined that David withdrew over fifty thousand
dollars in separate property from Hybarger and Son Drywall, the court did commit error in
failing to reduce the amount of David's remaining separate property interest in the business by
the amount withdrawn as separate funds. For purposes of determining David's separate
property interest in Hybarger and Son Drywall under Pereira, it is necessary to subtract from
the value of the separate property investment the amount of separate property withdrawn.
3
Thus, the Pereira calculations should be adjusted by the trial court by subtracting from
David's separate property interest the sum of $50,226.45 in the year 1982.
4

EXPENDITURES FOLLOWING SEPARATION
[Headnotes 5, 6]
The parties separated in August of 1983. During the time the parties were separated, David
continued to withdraw monies from Hybarger and Son Drywall. Wilma contends that, since
these funds belonged to the community, she is entitled to attorneys' fees and costs in order
to offset David's post-separation expenditures.5 The testimony cited by Wilma reveals
that the monies in question were used for {1) improvements to David's place of residence,
which he did not own; {2) groceries and household expenses; and {3) payments on the
Fallon ranch, a community property asset.
____________________

3
The district court did not err in determining that the community was not entitled to reimbursement for other
sums withdrawn by David from the business during the marriage. The record supports the finding that this
money was contributed to the community. There was testimony that the proceeds of the business were used to
support the community, as well as to improve the separate property (the Penbrook residence) of Wilma and to
pay Wilma's entire federal income tax liability during the early years of the marriage.

4
To the extent that the amount of the separate property withdrawn from the business might exceed David's
separate property interest existing in the business on that date, Wilma may be entitled to seek recovery, on behalf
of the community, of the excess amount withdrawn.
neys' fees and costs in order to offset David's post-separation expenditures.
5
The testimony
cited by Wilma reveals that the monies in question were used for (1) improvements to David's
place of residence, which he did not own; (2) groceries and household expenses; and (3)
payments on the Fallon ranch, a community property asset. The district court could have
found these expenditures to be of a community nature, since they either contributed to the
housing and other living expenses of the husband (who had previously resided in the separate
property residence of the wife), or constituted contributions to a community asset. Nothing in
the record suggests an absolute entitlement on the part of the wife to any portion of those
funds. The district court apparently took into account the post-separation earnings and
expenses of both spouses in determining that neither party was entitled to reimbursement for
expenditures during that period. Further, it is well established that the decision whether to
award attorneys' fees to either party lies within the sound discretion of the trial court. See,
e.g., Levy v. Levy, 96 Nev. 902, 620 P.2d 860 (1980). The court's decision, based on the fact
that each of the parties held substantial separate property, was clearly a proper exercise of its
discretion.
CONCLUSION
For the reasons stated above, the case is remanded for recomputation of the amount of the
community interest in Hybarger and Son Drywall. In all other respects the decision of the trial
court is affirmed.
____________________

5
Except as provided by statute (see NRS 123.220), separation of the parties does not dissolve the community,
and does not alter the character of the parties' income during the period of separation. Forrest v. Forrest, 99 Nev.
602, 668 P.2d 275 (1983).
____________
103 Nev. 259, 259 (1987) Mizushima v. Sunset Ranch
NAOMI MIZUSHIMA, Appellant and Cross-Respondent, v. SUNSET RANCH, INC.,
a Nevada Corporation, Respondent and Cross-Appellant.
No. 17022
May 29, 1987 737 P.2d 1158
Appeal and cross-appeal from judgment. Ninth Judicial District Court, Douglas County;
Lester H. Berkson, Judge.
In suit by injured horseback rider against ranch, the district court entered judgment on
general defense verdicts and verdict allocating seventy percent negligence to rider and thirty
percent to ranch. On appeal, the Supreme Court, Steffen, J., held that: (1) doctrine of implied
assumption of risk was subsumed by comparative negligence statute; {2) no express
assumption of risk resulted from rider's signature of registration or sign-up sheet
containing exculpatory language; and {3) trial court's instruction on assumption of risk
was prejudicial error.
comparative negligence statute; (2) no express assumption of risk resulted from rider's
signature of registration or sign-up sheet containing exculpatory language; and (3) trial court's
instruction on assumption of risk was prejudicial error.
Reversed and remanded for new trial.
Stokes, Terry, Winter & Wessel, Carson City; Lambrose, FitzSimmons & Perkins, Carson
City, for Appellant and Cross-Respondent.
Julian C. Smith, Jr. and Pauline M. Simmons, Carson City, for Respondent and
Cross-Appellant.
Milos Terzich, Minden, and Peter Chase Neumann, Reno, for Amicus Curiae for Nevada
Trial Lawyers Association.
1. Negligence.
With single exception of express assumption of risk, assumption of risk doctrine has been subsumed by
comparative negligence statute. NRS 41.141.
2. Animals.
Invitee did not expressly assume risk of injury caused by ranch's own negligence by signing registration
or sign-up sheet containing assumption of risk language before riding horse.
3. Animals; Appeal and Error.
Trial court's erroneous failure to sustain objection to admission of registration form containing
exculpatory language, and erroneous instruction on law of assumption of risk, were prejudicial in suit by
injured horseback rider against ranch in which parties were allocated seventy percent and thirty percent of
negligence, respectively.
OPINION
By the Court, Steffen, J.:
The primary issue of this appeal is whether and to what extent the doctrine of assumption
of risk remains a viable defense to a tort action for negligence in the State of Nevada. We
conclude that the variety of assumption of risk here present is subsumed within Nevada's law
of comparative negligence. Accordingly, the judgment must be reversed and the cause
remanded for a new trial.
The factual predicate for the action filed by the injured plaintiff-appellant, Naomi
Mizushima, against defendant-respondent Sunset Ranch, Inc. (Sunset) and defendant Travel
Systems, Ltd. began when Naomi and a companion were attracted to the Zephyr Cove Riding
Stables, owned and operated by Sunset. Before receiving their mounts, Naomi and her friend
were asked to enter their names, addresses and riding ability on a sign-up sheet. Although
Naomi had been out of the saddle for a number of years, she had ridden before the
evaluated herself as a "good rider" on Sunset's registration form.
for a number of years, she had ridden before the evaluated herself as a good rider on
Sunset's registration form.
Naomi was assigned a horse with the bland-sounding named of Little Bit. Naomi
testified that she expected her animal to conform to the gentle, slow profile of a typical stable
horse. Indeed, Sunset's witnesses characterized Little Bit as a lazy beginner's horse, orphaned
and bottle-fed, who was safe for grandmothers and babies to ride. In any event, Naomi
mounted Little Bit and she and her friend rode off for an allotted hour's enjoyment on
horseback. As the riders were returning to the trailhead, Little Bit apparently sensed the
nearness of home and hay, bolted, and left Naomi aground in his wake. Naomi's witnesses
described Little Bit as a three-year-old gelding who was much too young, spirited and
unpredictable for casual riders. Unfortunately, Naomi's incident was not the first time Little
Bit decided to take leave of his rider. Trial evidence revealed that a thirteen-year-old child
had previously sustained a serious head injury when thrown by the same animal.
Naomi's experience with Little Bit and the Zephyr Cove Riding Stables was near
catastrophic. Her injuries included a fractured lumbar spine that required two surgeries and an
extended period of hospitalization and therapy.
Naomi's theory at trial was that Sunset was negligent in failing to provide safe recreation
for its business invitee.
1
In particular, the injured plaintiff focused on Little Bit as a horse
that was unsuitable for use by occasional riders. Naomi and her riding companion also
testified that Sunset extended no offer to provide them a guide during their ride.
Sunset presented evidence tending to support the premise that Naomi's injuries were
proximately caused by her own negligence. In addition, Sunset relied on the sign-up sheet as
evidence that Naomi assumed the risk of injury when she rented Little Bit, or that she waived
any claim she might have against respondent for her injuries. The following language
appeared at the top of the form Sunset referred to as a sign-up sheet:
I, the undersigned, assume all responsibility for horse and equipment, and all
liability. It is understood that the management is not liable in case of accident. I also
agree to pay for damage to horse or equipment and special charge for overridden horse.
Below this language, in large type, there was a statement which said all patrons ride at their
own risk.
____________________

1
Travel Systems, Ltd. holds a special use permit from the United States Forest Service covering the general
area and operation known as the Zephyr Cove Resort at Lake Tahoe. Sunset subleased the Zephyr Cove stable
operation from Travel Systems, Ltd. It is unnecessary to consider appellant's theory of liability against Travel
Systems, Ltd., who is not a party to this appeal.
The trial court concluded that the assumption of risk doctrine survived Nevada's enactment
of a system of comparative negligence. Accordingly, the jury was instructed on the law of
assumption of risk as a complete defense to Naomi's entitlement to damages. The jury
returned general defense verdicts along with a verdict allocating seventy percent negligence
to Naomi and thirty percent negligence to Sunset.
In analyzing the status of the assumption of risk doctrine in Nevada, it is essential to
differentiate between the species comprising the doctrinal genus. Express assumption of risk
is unaffected by our holding, since its vitality stems from a contractual undertaking that
expressly relieves a putative defendant from any duty of care to the injured party; such a party
has consented to bear the consequences of a voluntary exposure to a known risk. See O'Ferrell
v. Southern Nevada Off-Road Enthusiasts, Ltd., 195 Cal.Rptr. 90 (Ct.App. 1983); Celli v.
Sports Car Club of America, Inc., 105 Cal.Rptr. 904 (Ct.App. 1972); O'Connell v. Walt
Disney World Co., 413 So.2d 444 (Fla.Dist.Ct.App. 1982); Willard Van Dyke Prod. v.
Eastman Kodak Co., 189 N.E.2d 693 (N.Y. 1963). Hereafter we will consider the question of
an express assumption of risk as it relates to the language of Sunset's sign-up sheet.
There are three discrete types of implied assumption of risk. The first, often referred to as
primary implied assumption of risk, may be described as resulting from a relationship that a
plaintiff voluntarily accepts involving a lack of duty in the defendant and known risks which
the plaintiff impliedly assumes. A classic example is the baseball spectator who imputedly
understands that the players are under no duty to refrain from hitting the ball into areas
hazardous to the spectator's well-being. The second variety of implied assumption of risk is
characterized by the voluntary encountering of a known risk created by a defendant's
negligence. In this instance, plaintiff's decision to engage the risk may be reasonable,
cautious, or both, when assessed objectively against the degree of risk. An example of this
aspect of the doctrine may be represented by a plaintiff who continues renting a piece of
machinery known to be defective because the lower rental cost is deemed to be of greater
weight than the added risk of injury. The third variety of implied assumption of risk involves
an unreasonable encountering of a known risk, amounting to contributory negligence on the
part of the plaintiff. This type of situation would exist where a plaintiff takes an unnecessary
and inexpedient shortcut to his destination, confronting known and hazardous obstacles along
the course of the abbreviated route. In each of the species of the doctrine, including an
express assumption of risk, the plaintiff would be denied recovery.
The assumption of risk doctrine was given birth by the common law to facilitate the
perceived needs of the industrial revolution.2 Initially designed to operate in the
employment arena where employees were encountering hazards in the working place, the
doctrine gradually expanded to encompass virtually all actions sounding in negligence.3
It is characteristic of the common law tradition, however, to continue to question, probe
and refine legal doctrines.
tion.
2
Initially designed to operate in the employment arena where employees were
encountering hazards in the working place, the doctrine gradually expanded to encompass
virtually all actions sounding in negligence.
3
It is characteristic of the common law tradition,
however, to continue to question, probe and refine legal doctrines. Inexorably, the process of
repeated evaluation of the doctrine here questioned has led to mounting criticism and
eventual abrogation by common law courts and legislatures.
4

The legislative history surrounding the advent of Nevada's comparative negligence statute,
NRS 41.141, supplies no basis for divining legislative intent concerning the impact of the
statute on the assumption of risk doctrine, Moreover, the text of the statute contains no hint
on the subject.
5
We are thus left with the same task undertaken by other courts to decide the
issue according to common law principles.
We perceive as clear the purpose of the comparative negligence statute to eradicate the
harsh effect of a plaintiff's contributory negligence whenever such negligence is not greater
than that of the source against which recovery is sought. In our view, it is equally clear that
any variety of an implied assumption of risk is merely a circumlocution for the preclusive
form of contributory negligence the statute sought to eliminate. No matter how the
assumption of risk scenario is depicted, it is translatable into a degree of negligent
conduct by the plaintiff.
____________________

2
Fleming, Assumption of Risk, 61 Yale. L.J. 141, 154 (1952).

3
Salinas v. Vierstra, 695 P.2d 369, 372 (Idaho 1985)

4
See Cummins v. King & Sons, 453 P.2d 465 (Alaska 1969); Li v. Yellow Cab Co., 532 P.2d 1226 (Cal.
1975); Brown v. Kreuser, 560 P.2d 105 (Colo.Ct.App. 1977); Blackburn v. Dorta, 348 So.2d 287, 290 (Fla.
1977); Salinas, 695 P.2d 369; Smith v. Blakey, 515 P.2d 1062 (Kan. 1973); Duffy v. Midlothian Country Club,
415 N.E.2d 1099 (Ill.App.Ct. 1980); Wilson v. Gordon, 354 A.2d 398 (Me. 1976); Springrose v. Willmore, 192
N.W.2d 826 (Minn. 1971); Kopischke v. First Continental Corp., 610 P.2d 668 (Mont. 1980); Bolduc v. Crain,
181 A.2d 641 (N.H. 1962); McGrath v. American Cyanamid Co., 196 A.2d 238 (N.J. 1963); Williamson v.
Smith, 491 P.2d 1147 (N.M. 1971); Wentz v. Deseth, 221 N.W.2d 101 (N.D. 1974); Anderson v. Cecardi, 451
N.E.2d 780 (Ohio 1983); Rutter v. Northeastern Beaver County School Dist., 437 A.2d 1198 (Pa. 1981); Farely
v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975); Moore v. Burton Lumber & Hardware Co., 631 P.2d 865
(Utah 1981); Lyons v. Redding Constr., 515 P.2d 821 (Wash. 1973); Gilson v. Drees Bros., 120 N.W.2d 63
(Wis. 1963); Brittain v. Booth, 601 P.2d 532 (Wyo. 1979).

5
The statute states in pertinent part:
In any action to recover damages for death or injury to persons or for injury to property in which
contributory negligence may be asserted as a defense, the contributory negligence of the plaintiff or his
decedent does not bar a recovery if that negligence was not greater than the negligence or gross
negligence of the person or persons against whom recovery is sought, but any damages allowed must be
diminished in proportion to the amount of negligence attributable to the person seeking recovery or his
decedent.
assumption of risk scenario is depicted, it is translatable into a degree of negligent conduct by
the plaintiff. And yet, such scenarios operate as a complete bar to a plaintiff's right of
recovery.
[Headnote 1]
The defense of assumption of risk is not favored.
6
It continues to vex and confuse as a
masquerade for contributory negligence. Moreover, it focuses on a lack of duty in the
defendant rather than the more compelling issue of comparative breach of duty by the parties.
In that regard, the doctrine faces backward, emphasizing escape more than accountability and
inertia more than progress. In short, we are unable to ascertain any productive reason why any
species of implied assumption of risk should survive the beneficent purposes and effect of
Nevada's comparative negligence statute.
7
We therefore hold that, with the single exception
of an express assumption of risk, the assumption of risk doctrine has been subsumed by our
comparative negligence statute. Hereafter, any reference to an assumption of risk defense in
Nevada shall be so limited.
[Headnote 2]
Although Naomi signed Sunset's registration or sign-up sheet containing assumption of
risk language, it is clear, and we so hold, that no express assumption of risk resulted. There
was no indication on the form that Sunset's invitees were consenting to assume the risk of
injury caused by Sunset's own negligence. Further, the record reflects no discussion on the
subject of liability at the time Naomi and her friend signed the registration form, or at any
time thereafter prior to the accident. It is clear, therefore, that neither the language or the
sign-up sheet nor any discussion pertaining thereto created any basis for a defense of express
assumption of risk.
[Headnote 3]
Since the exculpatory language of Sunset's registration form provided no foundation for an
assumption of risk instruction to the jury, plaintiff's objection to the admission of the form,
or at least that portion of the form, should have been sustained.
____________________

6
Blackburn, 348 So.2d at 289.

7
Several courts have held that the doctrine of primary implied assumption of risk has survived their
comparative negligence statutes. As noted above, this species of assumption of risk refers to a relationship
voluntarily accepted with an imputed understanding that the other party has no duty to the injured plaintiff. The
classic example of this is the spectator injured by a foul ball at a baseball game, see supra.
We perceive no valid reason for leaving primary implied assumption of risk intact. In virtually every
instance, including the injured spectator, liability can be analyzed in the context of the conduct of the actor and
the injured party, weighed against a standard of care dictated by the circumstances. Thus, there is no arbitrary
bar to recovery and no sweeping exemption from duty accorded a defendant. The determination of duty is left to
the jury as a factor in the comparative negligence analysis.
the jury, plaintiff's objection to the admission of the form, or at least that portion of the form,
should have been sustained. Whether isolated or in combination with the jury instruction it
served to create, the introduction into evidence of the exculpatory language of the sign-up
sheet was prejudicial error.
We have previously held, Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855, 860 (1969),
that an erroneous instruction regarding duty or standard of care is grounds for reversal. The
effect of the offending instruction on assumption of risk in the instant case
8
was to relieve
respondent of any duty of care toward Naomi upon a finding by the jury that she voluntarily
and knowingly had exposed herself to a known danger. The instruction was prejudicial and
should not have been given, not only because it lacked both a legal and factual predicate, but
also because it cast the jury adrift in a sea of speculation concerning the nature, degree and
preclusive effect of the injured plaintiff's knowledge of the dangers she faced in riding a
Sunset horse. Was it sufficient to know that accidents occur as an infrequent but inevitable
concomitant to riding horses? Or was Naomi's knowledge that accidents can happen on
horseback sufficient under the instruction, when combined with the warning on the sign-up
sheet that all patrons ride at their own risk? Although Naomi had never ridden Little Bit
previously and knew nothing of his background or disposition, did the fact that she evaluated
herself as a good rider impute to her the knowledge that her horse might misbehave? Any
one or more of the foregoing factors, and others not mentioned, may have caused the jury to
conclude that Naomi's knowledge precluded an award of damages for her injuries.
The fact that the jury returned a finding of seventy percent negligence against Naomi and
thirty percent against Sunset in addition to a general defense verdict does not save
respondents' judgment. It is simply impossible to determine the extent to which the
comparative negligence assignment was affected by concentration on the degree of Naomi's
alleged assumption of risk, rather than Sunset's duty of care to its business invitees. We are
thus unable to accept respondent's contention that the error was harmless.
Of course, we cannot predict whether a new trial will change the result of this litigation. A
jury, properly instructed and free from the influence of the irrelevant, prejudicial language of
the sign-up sheet, may still conclude that Naomi's conduct was more culpable than that of
respondent in contributing to her injuries.
____________________

8
The relevant instruction states:
A person has assumed a risk when she freely, voluntarily and knowingly, places herself in, or remains
in, a position of danger, and voluntarily exposes herself to a danger which she knows does exist.
A person who thus assumes a risk is not entitled to recover for damages which resulted from the
danger to which she thus exposed herself.
culpable than that of respondent in contributing to her injuries. We are not concerned with
such considerations. We are persuaded, however, that Naomi is entitled to pursue her cause
unencumbered by the prejudicial rulings that infected her first trial.
Our disposition of this appeal makes it unnecessary to consider other issues raised by the
parties. Likewise, it renders moot Sunset's cross-appeal concerning the denial of attorney's
fees by the trial court.
The judgment is reversed and the cause remanded for a new trial in accordance with this
opinion.
Gunderson, C. J., and Young, Springer and Mowbray, JJ., concur.
____________
103 Nev. 266, 266 (1987) Vosburg Equipment v. Zupancic
VOSBURG EQUIPMENT, DITCH-WITCH OF NEVADA, J.G.K. LEASING COMPANY,
AMERICAN ELECTRIC CORPORATION, AND FRANKLIN AND McINNIS
PROPERTIES, AND FRANKLIN AND McINNIS MASONRY, INC., Appellants,
v. FRANK ZUPANCIC, dba F & Z CONSTRUCTION, Respondent.
No. 17425
May 29, 1987 737 P.2d 522
Appeal from judgment; Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Victims of flood damage who had joined in previous lawsuit against county brought action
against coplaintiff in former lawsuit for breach of oral agreement to share equally in attorneys'
fees and court costs, and in any recovery from their claims. The district court found that
contract was by its nature champertous and unenforceable, and plaintiffs appealed. The
Supreme Court, Springer, J., held that: (1) sufficient evidence supported existence of contract,
and (2) agreement between four claimants with bona fide claims to collectively retain services
of one attorney and pay one-fourth of costs of litigation, and equally share in total amount
recovered, was not champertous and unenforceable.
Bill C. Hammer, Las Vegas, for Appellants.
Mark Brandenburg, Las Vegas, for Respondent.
1. Contracts.
Substantial evidence supported finding that parties in lawsuit had orally agreed to share equally in total
amount recovered, rather than only those proceeds from trial judgment, and to continue to finance litigation
by each paying one-fourth of costs and attorney fees based on testimony of a witness and of three parties to
agreement, although contradicted by claim of another party to oral agreement.
2. Champerty and Maintenance.
Agreement by four claimants with legitimate bona fide claims against county, to collectively retain
services of one attorney and to each pay one-fourth of costs of litigation, was not champertous as having
tendency to encourage prosecution of doubtful claims by strangers, where parties had unliquidated claims
in different amounts, and four parties agreed that they would continue to prosecute lawsuit and share
equally in recovery after two parties complained that their share of litigation costs was exceeding their
expectation of recovery and that they wanted to withdraw.
OPINION
This action was brought by appellants Vosburg, Galliher, and McInnis,
1
to be called
Plaintiffs, against respondent Zupancic, to be called Defendant. Plaintiffs sued defendant
for breach of an oral agreement in which the four parties agreed to share equally in attorneys'
fees and court costs and to share equally in any recovery from their claims against Clark
County. Plaintiffs' and defendants' independent tort claims arose out of flood damage to the
four parties' property.
[Headnote 1]
Although defendant claimed that the agreement of the parties was too indefinite to be
enforced, the district court found that the parties had orally agreed to share equally in the
total amount recovered, and to continue to finance the litigation by each paying one-fourth
(1/4) of the costs and attorney's fees. There is substantial evidence from the testimony of
witness Lee, and of Vosburg, Galliher, and McInnis to support the district court's finding that
the parties did agree to divide equally any recovery as opposed to Zupancic's claim that the
agreement was to divide only those proceeds from a trial judgment.
A contract should be construed, if logically and legally permissible, so as to effectuate
valid contractual relations, rather than in a manner which would render the agreement invalid,
or render performance impossible. Reno Club, Inc. v. Young Investment Co.,
____________________

1
Vosburg represents Vosburg Equipment, dba Ditch-Witch of Nevada; Galliher represents J.G.K. Leasing
Company and American Electric Corporation; McInnis represents Franklin and McInnis Properties and Franklin
and McInnis Masonry, Inc.; Zupancic represents F & Z Construction.
Co., 64 Nev. 312, 182 P.2d 1011 (1947); cf. Morelli v. Morelli, 102 Nev. 326, 720 P.2d 704
(1986).
[Headnote 2]
Holding, as we do, that there was a subsisting contract among the parties, the only issue
remaining is to decide whether the trial judge erred in ruling, sua sponte, that such an
agreement was by its very nature champertous and therefore unenforceable at law. We
conclude that the contract was not champertous and that the contract is enforceable. The case
is remanded to the district court for entry of judgment in plaintiffs' favor.
In 1890 this court held that even in the absence of statute it was, under the common law of
England, unlawful to maintain the suit of another unless the person maintaining the suit
has some interest in the subject of the suit. Gruber v. Baker, 20 Nev. 453, 469 (1890). In
Lum v. Stinnett, 87 Nev. 402, 408, 488 P.2d 347, 350 (1971), we recognized the common
law offense of maintenance as existing when a person without interest in a suit officiously
intermeddles therein by assisting either party with money or otherwise to prosecute or defend
it. Champerty is maintenance with additional feature of an agreement for the payment of
compensation or personal profit from the subject of the suit. Lum, 87 Nev. at 408, 488 P.2d at
350.
The quoted language suggests the nature of the issue in this case, namely, whether all of
the parties maintaining the law suit had some interest in the subject of the suit. In the
dissent in Gruber, 20 Nev. at 484, Justice Belknap quoted Judge Story on this point:
The doctrine of common law as to champerty and maintenance is to be understood
with proper limitations and qualifications, and cannot be applied to a person having an
interest, or believing that he has an interest, in the subject in dispute, and bona fide
acting in the suit, for he may lawfully assist in the defense or maintenance of that suit.'
(2 Story Eq. Jur. Sec. 1048.)
In the case before us there is no officious intermeddling. The parties, rather, were lawfully
assisting each other in the maintenance of the suit. There is no affront to the reason for the
rule against champerty and maintenance which is to prevent litigation and the prosecution of
doubtful claims by strangers to them. Gruber, 20 Nev. at 469. These people were not
strangers; they were claimants with common claims.
What occurred in this case was that four claimants with legitimate, bona fide claims
against the county decided to pool their resources. They collectively retained the services of
one attorney and agreed each to pay one-fourth of the costs of litigation. The parties had
unliquidated claims in different amounts. As costs of litigation mounted, two of the parties
complained that their share of costs was exceeding their expectation of recovery and that
they wished to withdraw.
of costs was exceeding their expectation of recovery and that they wished to withdraw.
Acting on this indication the four parties agreed that they would continue to prosecute the law
suit and would share equally in recovery. The aggregate sum of $52,702.49 was recovered by
settlement with the county. Three parties (plaintiffs) agreed to comply with their agreement.
Zupancic (defendant) repudiated the agreement. Aside from the fact that it is inherently unfair
for Zupancic to avoid this agreement, it must be concluded that the agreement had no
tendency to encourage the prosecution of doubtful claims by strangers and that its
enforcement is in no way contrary to the public policy of this state.
This case is clearly distinguishable from the Lum case. In that case there was an agreement
between a medical malpractice claimant and an insurance company that the claimant would
not execute against one of the defendant doctors. Clearly the insurance company was not a
party to the law suit and was intermeddling in a law suit in which it had no interest.
Here no party was intermeddling or promoting a suit or defense in which he had no
interest. None of the reasons for applying the rule against maintaining the suit of another
are applicable here, and the agreement of the parties may be enforced.
This case is reversed with instructions to enter judgment for the parties in accordance with
their agreement.
____________
103 Nev. 269, 269 (1987) New Shy Clown v. Baldwin
NEW SHY CLOWN CASINO, INC., Appellant, v.
DONALD AND NOVA BALDWIN, Respondents.
No. 17360
May 29, 1987 737 P.2d 524
Appeal from judgment. Second Judicial District Court, Washoe County; Charles M.
McGee, Judge.
Former lessee filed motion to confirm arbitration award. Former lessors moved to vacate
or modify award asking court to award them attorney fees and costs. The district court
awarded former lessors attorney fees and costs. Former lessee appealed. The Supreme Court,
held that district court lacked subject matter jurisdiction under Uniform Arbitration Act to
make award of attorney fees.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, and Mark Knobel, Reno, for
Appellant.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, and William A. S. Magrath,
Reno, for Respondents.
1. Arbitration.
District court lacked jurisdiction under Uniform Arbitration Act to make award of attorney fees on the
basis that former lessors were prevailing parties in arbitration concerning lease. NRS 38.145, 38.155.
2. Arbitration.
District court's power of review of arbitration award is limited to statutory grounds provided in Uniform
Arbitration Act. NRS 38.015 et seq.
3. Arbitration.
Arbitrators were correct in awarding neither former lessee nor lessor attorney fees and costs in arbitration
concerning lease where both parties partially succeeded and partially failed on claims.
OPINION
Per Curiam:
In 1979 Donald and Nova Baldwin (Baldwins), as lessors, entered into a five year written
lease agreement with New Shy Clown Casino, Inc. (New Shy Clown), as lessees, for the Shy
Clown Casino premises in Sparks. Among various provisions, the lease provided for a
$500,000.00 security deposit and a mandatory arbitration clause. When the lease period was
up, the parties agreed that part of the security deposit would be retained by the Baldwins to
cover rental payments due and owing from New Shy Clown.
When New Shy Clown quit the premises it had leased from the Baldwins, it demanded the
return of the $221,359.00 balance of its security deposit. The Baldwins refused to return it on
the ground that damages done to the premises by New Shy Clown or its sublessees exceeded
the amount remaining in the security deposit.
Pursuant to the terms of the lease, the dispute was submitted to arbitration. The lease
provided that should a dispute be resolved by arbitration, the successful party shall be
entitled to recover all costs and expenses, including attorney's fees, incurred in resolving the
dispute.
After hearing testimony regarding the estimated costs of repairing the premises, the
arbitrators awarded the Baldwins the right to retain $137,214.00 of the deposit and directed
them to pay New Shy Clown the remaining $77,912.00 plus $6,233.00 interest. Furthermore,
the arbitrators specified that each party shall be responsible for their own costs, attorney's
fees, and expenses.
New Shy Clown filed a motion in district court to confirm the award. The Baldwins
moved to vacate or modify the award asking the court to award them attorney's fees and
costs.
the court to award them attorney's fees and costs. The district court remanded the matter to
the arbitrators for clarification of whether the lease provision controlled the award of
attorney's fees. The arbitrators responded that it did, whereupon the district court filed an
order, and ultimately a judgment, awarding attorney's fees and costs to the Baldwins as the
prevailing party in the arbitration.
[Headnotes 1, 2]
Because the Baldwins received the larger award, the district court concluded that the
Baldwins were the prevailing party and entitled to an award of attorneys' fees. The district
court did not have the subject matter jurisdiction necessary to make such an award. The
district court's power of review of an arbitration award is limited to the statutory grounds
provided in the Uniform Arbitration Act. See City of Boulder v. General Sales Drivers, 101
Nev. 117, 694 P.2d 498 (1985). NRS 38.145 of the Act prescribes when a district court shall
vacate an award, and NRS 38.155 prescribes when a district court shall modify or correct an
award.
The district court's award of attorney's fees and costs, contrary to the arbitrators' award, is
not within the scope of review provided for in either NRS 38.145 or NRS 38.155. Knowing
that the parties' arbitration agreement included a provision for the award of attorney's fees and
costs to the successful party, the arbitrators specifically stated that each party shall be
responsible for their own fees and costs. From this award, it is clear that the arbitrators
considered neither party to be the successful party. The arbitrators' award stating that each
party shall bear his own fees and expenses was not subject to vacation or modification by the
district court. The district court had no jurisdiction to award the Baldwins' attorney's fees.
[Headnote 3]
Furthermore, the arbitrators were correct in not awarding either party's attorney's fees and
costs. Both parties claimed entitlement to the entire remaining security deposit. Both parties
partially succeeded in their claims, and likewise, both parties partially failed. Each received
only a portion of the deposit they were claiming. There is no one prevailing or successful
party to this arbitration.
The portion of the district court's judgment awarding attorney's fees and costs to the
Baldwins should be reversed. The matter is reversed and remanded with instruction to
confirm the arbitrators' award.
____________
103 Nev. 272, 272 (1987) Dixon v. State
RICK RAY DIXON, Appellant, v. THE
No. 17522
June 12, 1987 737 P.2d 1162
Appeal from felony conviction for driving while intoxicated. Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
Defendant was convicted of felony driving while intoxicated before the district court and
defendant appealed. The Supreme Court held that: (1) officer's reasonable suspicion that
driver was intoxicated justified making traffic stop and administering field sobriety test; (2)
Miranda warnings were not necessary before reasonable questioning and administration of
field sobriety test at normal roadside traffic stop; and (3) third offense felony provision for
driving under influence was not ex post facto simply because defendant's earlier convictions
antedated its enactment.
Affirmed.
Robison, Lyle, Belaustegui & Robb and David C. McElhinney, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
1. Arrest.
Society's interest in preserving public safety allows officer making a stop on reasonable suspicion of
criminal behavior to make reasonable inquiry into suspicious circumstances and conduct limited search to
verify presence of danger.
2. Automobiles.
Existence of speeding and wildly weaving truck justified police officer's action in making stop of
defendant's automobile, and based on officer's reasonable suspicion that driver was intoxicated, officer was
justified in administering field sobriety tests; probable cause for arrest was not required prior to
administration of field sobriety test.
3. Automobiles.
Officer's observations of speeding and weaving truck, and upon stop of vehicle his observation that driver
had bloodshot eyes, exhibited slurred speech and odor of alcohol on breath established probable cause for
arrest of defendant for driving while intoxicated.
4. Criminal Law.
Miranda warnings are not necessary before reasonable questioning and administration of field sobriety
tests at normal roadside traffic stop.
5. Automobiles.
Defendant's two prior misdemeanor convictions on guilty pleas to driving while intoxicated were properly
used to raise defendant's offense of driving while intoxicated to felony given that waiver forms signed by
defendant adequately evidenced knowing and voluntary waiver of rights in earlier proceedings.
103 Nev. 272, 273 (1987) Dixon v. State
6. Automobiles.
Provision of statute providing that third offense of driving while intoxicated was felony was not ex post
facto law simply because defendant's earlier convictions antedated its enactment, where on day defendant
committed offense reference to statute would have indicated precisely penalty he risked.
OPINION
Per Curiam:
On September 6, 1985, a Nevada highway patrolman received a report that a green pickup
truck was being driven erratically on U.S. 395. Shortly thereafter, a green pickup truck barely
missed striking the trooper's patrol car, which was parked off the roadway with its overhead
lights on. The truck was weaving within both traffic lanes, going sixty-five miles per hour in
a fifty mile per hour zone. The trooper stopped the vehicle; its driver, appellant Dixon,
stumbled and almost fell when he got out. Dixon swayed from side to side while standing,
and walked as if he were on a tightrope. There was an odor of alcohol on his breath and
person, his speech was slurred and slow, he appeared confused, and his eyes were watery,
bloodshot and glassy. When asked if he had been drinking, Dixon said he had drunk three
beers. The trooper then administered field sobriety tests. Concluding that Dixon failed them,
he made an arrest and for the first time read Dixon his Miranda rights. A breath test showed
.21 percent blood alcohol concentration; a second test showed no result. Dixon had two prior
convictions in California for driving while intoxicated, in 1979 and 1982. Therefore, his
offense was raised to a felony. All of Dixon's challenges on appeal lack merit; accordingly,
we affirm.
[Headnotes 1-3]
First, Dixon asserts that probable cause for arrest is required before an officer may
administer field sobriety tests. We reject that contention. Society's interest in preserving the
public safety allows an officer making a stop on reasonable suspicion of criminal behavior
to make reasonable inquiry into suspicious circumstances and conduct a limited search to
verify the presence of a danger. See generally Terry v. Ohio, 392 U.S. 1 (1968). The danger
posed by a speeding, wildly weaving truck with a glassy-eyed driver certainly justified the
officer's actions in the instant case. We therefore hold that where an officer's reasonable
suspicion that a driver is intoxicated justifies making a traffic stop, field sobriety tests may be
administered. Accord Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct.App.
1985); State v. Moran, 667 P.2d 734 (Alaska Ct.App. 1983); State v. Superior Court, 718
P.2d 171 (Ariz. 1986); People v. Bennett, 189 Cal.Rptr. 77 (Ct.App. 1983); State v. Golden,
318 S.E.2d 693 {Ga.Ct.App.
103 Nev. 272, 274 (1987) Dixon v. State
(Ga.Ct.App. 1984); State v. Wyatt, 687 P.2d 544 (Hawaii 1984); State v. Niles, 703 P.2d
1030 (Or.Ct.App. 1985). Further, the facts presented in the case at bar constituted probable
cause in any event.
1

[Headnote 4]
Second, Dixon challenges the trial court's failure to suppress evidence obtained without
Miranda warnings. No such warning is necessary before reasonable questioning and
administration of field sobriety tests at a normal roadside traffic stop. See Berkemer v.
McCarty, 468 U.S. 420 (1984).
Nor were the breath tests tainted by prior violations of Dixon's constitutional rights; as has
been demonstrated, no violation occurred.
[Headnotes 5, 6]
Finally, the trial court did not err in refusing to suppress evidence of Dixon's two prior
misdemeanor convictions on guilty pleas. Waiver forms adequately evidenced a knowing and
voluntary waiver of rights, see Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), and the
third-offense felony provision is not an ex post facto law simply because Dixon's earlier
convictions antedated its enactment. On the day Dixon elected to commit the offense here
under consideration, reference to the statute would have indicated precisely the penalty he
risked.
2

There being no basis for reversal, we affirm.
____________________

1
Dixon claims the tests could not properly have been administered because, if the officer had probable cause
to arrest, he was required to do so by NRS 171.1231. However, we note that an officer may be uncertain as to
whether he had probable cause to make an arrest. The disposition of this appeal may, however, remove some
uncertainty. We do not condone intentional violation of the statute.

2
We reject out of hand the contention that Dixon was not adequately informed of the consequences of his
California guilty pleas because he did not know Nevada would later make third offenses felonies. The
consequences of which an accused must be informed do not include such collateral matters as this. United
States v. Lambros, 544 F.2d 962 (8th Cir. 1976), cert denied, 430 U.S. 930 (1977); accord Stocks v. Warden,
86 Nev. 758, 476 P.2d 469 (1970).
____________
103 Nev. 275, 275 (1987) Snyder v. State
RONNIE LEE SNYDER, Appellant, v. THE
No. 17420
June 25, 1987 738 P.2d 1303
Appeal from conviction of burglary, robbery, and grand larceny auto. Eighth Judicial
Defendant was convicted in the district court of burglary, robbery, and grand larceny auto,
and defendant appealed. The Supreme Court held that: (1) defendant's right to trial within 120
days of return to State under Interstate Agreement on Detainers was not violated, and (2)
police officers reasonably relied on apparent authority of defendant's brothers to consent to
search of defendant's apartment, and thus, evidence seized in search was admissible.
Affirmed.
Earl and Earl, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and John Ham, Deputy District Attorney, Las Vegas, for
Respondent.
1. Extradition and Detainers.
Prisoner may waive his rights under Interstate Agreement on Detainers if he affirmatively requests to be
treated in manner contrary to procedures prescribed by Agreement. NRS 178.620, Art. I et seq.
Lack of transcript of proceeding in judge's chambers, which resulted in third continuance of defendant's
trial, did not prevent delay from continuance from being charged against defendant for purposes of
determining whether Interstate Agreement on Detainers' 120 day time limit was met, where minute entries
of later proceedings indicated that continuance was for plea negotiations. NRS 178.630, Art. IV(c).
Continuance of trial because public defender representing defendant was in murder trial was for good
cause within meaning of Interstate Agreement on Detainers. NRS 178.620, Arts. IV(c), V(c), VI(a).
Continuance granted at request of public defender pending comparison of fingerprint and palmprint
exemplars from defendant with those found on robbery victim's car, although technically attributable to
defendant, was not chargeable to him under Interstate Agreement on Detainers, where state's filing, on date
of trial, to compel production of fingerprint and palm exemplars, left defense counsel with little choice.
NRS 178.620, Arts. IV(c), V(c), VI(a).
Although defendant's trial commenced 427 days after his arrival in Nevada from Iowa, 120 limit for
commencement of trial in receiving state under Interstate Agreement on Detainers was not
violated, where all but 56 days of delay were attributed to defendant's filing motion
for writ of habeas corpus, joint request for continuance to give prosecutor
opportunity to respond to motion to suppress, conduction of plea negotiations,
necessity of public defender representing defendant to try murder trial at same time,
request to locate witness, and illness of defendant's attorney.
state under Interstate Agreement on Detainers was not violated, where all but 56 days of delay were
attributed to defendant's filing motion for writ of habeas corpus, joint request for continuance to give
prosecutor opportunity to respond to motion to suppress, conduction of plea negotiations, necessity of
public defender representing defendant to try murder trial at same time, request to locate witness, and
illness of defendant's attorney. NRS 178.620, Art. IV(c).
6. Criminal Law.
Defendant waived his right to formal arraignment by proceeding to trial without objection to absence of
plea. NRS 174.015.
Valid consent to search can be obtained from third party who possesses common authority over or other
sufficient relationship to premises. U.S.C.A.Const. Amend. 4.
Police officers reasonably relied on apparent authority of defendant's brothers to consent to search of
defendant's apartment, and thus, evidence obtained in search was admissible, in defendant's prosecution for
burglary, robbery, grand larceny auto, where police officers found one brother sitting outside apartment
where he had been shot, that brother told them they could find marijuana in apartment, and second brother
let them in and consented to search. U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
In the early morning hours of March 20, 1984, Joel Walker was walking to his apartment
when he was accosted by a man with a gun. Walker identified the appellant, Ronnie Lee
Snyder, as this man. Snyder took various items of personal property, including credit cards,
cash, and car keys. He also took Walker's car.
On April 5, 1984, at 4:00 a.m., Las Vegas Metropolitan police officers were called to an
apartment located at 416 North 15th Street in Las Vegas, and found Larry Snyder, Ronnie's
brother, sitting on the curb with a self-inflicted gunshot wound in the head. At the hospital,
Larry told the police that they could find marijuana underneath the bed at the apartment. Later
that morning, the police went to the apartment. Ronnie's brother Gary, a paraplegic confined
to a wheelchair, answered the door. The police asked if they could search the house, and Gary
said, Go ahead. The police found marijuana under the bed. The police also found marijuana
in a dresser drawer. Another drawer contained a plastic wallet container with various bank
and credit cards issued to Joel Walker and a driver's license issued to Ronnie Snyder, which
matched the description of the robbery suspect. Police files listed Ronnie as an escapee from
Iowa. After further investigation, Ronnie was arrested and charged with burglary, robbery,
and grand larceny auto. He was returned to the Iowa Correctional Treatment Unit.
Iowa Correctional Treatment Unit. The State lodged a detainer against him and requested
temporary custody pursuant to the Interstate Agreement on Detainers (IAD), NRS 178.620.
Ronnie was returned to Nevada on December 3, 1984.
Ronnie was arraigned on December 27, 1984. He waived a reading of the information and
witnesses, but invoked his 60 day speedy trial rights. He was not asked to enter a plea. His
trial did not begin until February 3, 1986, 427 days after his arrival in Nevada.
Ronnie filed a motion to suppress evidence obtained from the 416 North 15th Street
apartment, alleging it was the product of an illegal search. Ronnie's brothers, Terry, Larry,
and Gary, each filed affidavits stating that the apartment belonged to Ronnie, that they did not
live there, and that they did not have authority or permission to consent to a search. However,
after a brief hearing on February 3, 1986, the motion to suppress was denied. A jury found
Ronnie guilty of burglary, robbery, and grand larceny auto.
Ronnie argues that the charges against him must be dismissed for failure to bring him to
trial within the 120 day period specified in Article IV of the IAD. NRS 178.620, Article
IV(c), provides, in relevant part, [T]rial shall be commenced within one hundred twenty
[120] days of the arrival of the prisoner in the receiving state, but for good cause shown in
open court, the prisoner or his counsel being present, the court having jurisdiction of the
matter may grant any necessary or reasonable continuance.
[Headnote 1]
Failure to comply with the 120 day trial limitation carries a stringent sanction. Article V(c)
provides that if the prisoner is not brought to trial within the time period, the court shall enter
an order dismissing the indictment with prejudice. NRS 178.620, Article V(c); Cuyler v.
Adams, 449 U.S. 433, 445 (1981). The 120 day requirement is not absolute. The court may
grant a necessary or reasonable continuance for good cause shown. NRS 178.620, Article
IV(c). The time period is tolled whenever the prisoner is unable to stand trial. NRS 178.620,
Article VI(a). It is also appropriate to exclude those periods of delay occasioned by the
defendant. See United States v. Scheer, 729 F.2d 164, 168 (2d Cir. 1984). Furthermore, a
prisoner may waive his IAD rights if he affirmatively requests to be treated in a manner
contrary to the procedures prescribed by the IAD. Brown v. Wolff, 706 F.2d 902, 907 (9th
Cir. 1983).
Ronnie's trial was continued seven times. It is necessary, therefore, to analyze the reason
for each delay in order to ascertain whether there has been a violation of the IAD requiring
dismissal. The first trial was set for January 28, 1985, 56 days after Ronnie arrived in Nevada.
The first delay occurred on January 23, 19S5.
January 23, 1985. The January 28, 1985 trial was vacated and reset for April 22, 1985, a delay
of 84 days. This delay is attributable to the defendant because he filed a petition for a writ of
habeas corpus.
Delay No. 2: On April 15, 1985, the trial was continued to May 28, 1985, a 36 day delay.
We find this continuance was granted for good cause. The record shows that David Gibson,
Ronnie's counsel, asked for a continuance because Dan Seaton, the prosecutor, was involved
in a murder case and had not had an opportunity to respond to a motion to suppress filed on
April 12, 1985. Gibson stated that Ronnie agreed with him about the continuance. Seaton
joined the request for a continuance and indicated that there might be evidence that would
benefit Ronnie. Both parties requested the continuance, which was in their mutual interest.
[Headnote 2]
Delay No. 3: The third continuance was granted on May 28, 1985, in Judge Goldman's
chambers, and resulted in the trial date being reset for August 26, 1985, a delay of 90 days.
Because the reporter's notes were lost, no transcript of the proceeding is available.
1
Ronnie
argues that because there is no transcript showing why the continuance was granted, and no
specific finding of good cause by the district court, this time should not be counted against
him. We disagree. The July 1, 1985 and July 3, 1985 minute entries clearly indicate that the
May 28, 1985 hearing was continued for plea negotiations, which ultimately failed. United
States v. Odom, 674 F.2d 228, 230 (4th Cir. 1982), cert. denied, 457 U.S. 1125 (1982), found
the defendant had undertaken a course of action inconsistent with the IAD by bargaining for a
plea. We hold the minute entries are sufficient evidence that the trial was continued for good
cause.
[Headnote 3]
Delay No. 4: Over Ronnie's objection, the August 26, 1985 trial date was continued until
September 9, 1985, a 14 day delay, because Dave Gibson, the public defender representing
Ronnie, was in a murder trial. We hold that this continuance was granted for good cause. See
United States v. Scheer, 729 F.2d 164, 168 (2d Cir. 1984) (defendant charged for seven days
to accommodate the rescheduling request of defense counsel). If the court had not granted
the continuance, Mr.
____________________

1
As a separate issue, Snyder argues that if we attribute the May 28, 1985 continuance to him, he is entitled to
a new trial because his due process rights have been violated due to the lack of the transcript. We disagree. The
lack of a transcript, without more, is not sufficient justification for a reversal. Bergendahl v. Davis, 102 Nev.
258, 260, 720 P.2d 694, 695 (1986). We hold the minute entries adequately demonstrate that a continuance was
issued for good cause.
granted the continuance, Mr. Gibson would have been forced to withdraw, causing additional
delay, or argue two cases in different departments simultaneously.
[Headnote 4]
Delay No. 5: At the September 4, 1985 calendar call for the September 9, 1985 trial, the
State said it was ready for trial. However, on the day of trial, the State filed and was granted a
motion to compel production of fingerprint and palm print exemplars, and to amend Count III
of the information and add habitual criminal language. As a result, the public defender
requested a continuance pending a comparison of the prints with those found on Walker's car.
Trial was reset for November 4, 1985, a delay of 56 days. Although this delay could
technically be attributed to Ronnie, we agree that this time should not be charged to him. The
State's late filing left counsel with little choice.
Delay No. 6: Ronnie concedes, and we agree, the continuance from November 4, 1985
until December 23, 1985 was granted for good cause. Ronnie's attorney became ill and could
not appear at trial. This delay was 49 days.
Delay No. 7: On December 20, 1985, James Smith, the newly appointed counsel for
Ronnie, requested a continuance because he could not locate witnesses. Over Ronnie's
objection, the trial was continued until February 3, 1986, a 42 day delay. We hold that this
delay is attributable to Ronnie.
[Headnote 5]
Upon thorough review of the record, we find each of the continuances of Ronnie's trial,
except for the September 9 trial continuance, was either granted by the district court for good
cause, or directly attributable to Ronnie. Accordingly, the total number of days counted
against the IAD's 120 day limitation equals 112 days. Therefore, while we express sympathy
for the lengthy delay in adjudicating the charges against Ronnie, we hold that there has been
no violation of NRS 178.620, Article IV(c).
[Headnote 6]
Ronnie argues that his conviction must be overturned because he was never asked to plead
to the charges against him. NRS 174.015 provides that [a]rraignment shall be conducted in
open court and shall consist of reading the indictment or information to the defendant or
stating to him the substance of the charge and calling him to plead thereto. . . . Ronnie
argues that a criminal case without a plea is like a civil case without an answer; there are no
issues framed for trial and nothing to try. We hold, however, that Ronnie has waived his right
to a formal arraignment by proceeding to trial without objecting to the absence of a plea. In
Garland v. Washington, 232 U.S. 642 (1914), the Supreme Court said: A waiver ought to be
conclusively implied where the parties had proceeded as if defendant had been duly
arraigned, and a formal plea of not guilty had been interposed, and where there was no
objection made on account of its absence until, as in this case, the record was brought to
this court for review.
A waiver ought to be conclusively implied where the parties had proceeded as if
defendant had been duly arraigned, and a formal plea of not guilty had been interposed,
and where there was no objection made on account of its absence until, as in this case,
the record was brought to this court for review. It would be inconsistent with the due
administration of justice to permit a defendant under such circumstances to lie by, say
nothing as to such an objection, and then for the first time urge it in this court.
Id. at 646, quoting with approval Justice Peckham's dissenting opinion in Crain v. United
States, 162 U.S. 625, 649 (1896); see also State v. Peterson, 681 P.2d 1210 (Utah 1984).
Ronnie relies on older cases reflecting an earlier system of pleading which gave greater
weight to strict adherence to procedural formalities. See Burroughs v. State, 143 N.W. 450
(Neb. 1913); State v. Walton, 91 P. 490 (Or. 1907); Hanley v. Zenoff, 81 Nev. 9, 398 P.2d
241 (1965).
2
Ronnie's failure to plead did not deprive him of any substantial rights, nor did it
change the course of his trial. Since he proceeded without objection to a trial on the merits as
if a plea of not guilty had been entered, we hold that he effectively waived his right to a
formal arraignment.
[Headnote 7]
Ronnie argues that evidence seized as a result of an illegal, warrantless search of his
apartment should have been suppressed because none of his brothers had the authority to
consent to a search of his apartment. We disagree. The Fourth Amendment prohibits searches
conducted without a warrant unless they fall within a few specifically established and
well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). One such
exception is a search conducted pursuant to proper consent voluntarily given. See United
States v. Matlock, 415 U.S. 164 (1974). Valid consent to search can be obtained from a third
party who possesses common authority over or other sufficient relationship to the premises.
Id. at 171.
[Headnote 8]
Many jurisdictions, including the 9th Circuit, hold a search is not invalidated where a
police officer in good faith relies on what reasonably, if mistakenly, appears to be a third
party's authority to consent to the search. See United States v. Hamilton, 792 F.2d 837,
841-42 (9th Cir. 1986); Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981); People v. Gorg,
291 P.2d 469 (Cal. 1955). Based upon the facts of this case, we hold that the Las Vegas
Metropolitan police officers reasonably relied on Gary and larry Snyder's apparent authority
to consent to a search of the apartment.
____________________

2
The arraignment procedure applicable in Hanley was superseded by the present procedure in 1967. See
NRS Chapter 174.
apparent authority to consent to a search of the apartment. At 4:00 a.m. the police found Larry
Snyder sitting outside the apartment where he had been shot. He told them they could find
marijuana in the apartment. When they returned to the apartment that same morning, Gary
Snyder opened the door, let them in, and consented to a search. Gary was confined to a
wheelchair. There is no indication that Gary told the police he was just a guest or
non-occupant. Under these circumstances, we hold that it was not unreasonable for the police
to assume that Larry and Gary occupied the house. Therefore, the district court did not err in
denying Ronnie's motion to exclude evidence obtained as a result of the search.
We have examined each issue raised on appeal and find it to be without merit.
Accordingly, we affirm the judgment of conviction.
Gunderson, C. J. and Steffen, Young, and Mowbray, J.J., concur.
____________
103 Nev. 281, 281 (1987) Albitre v. State
VIVIAN L. ALBITRE, Appellant, v. THE
No. 16589
June 25, 1987 738 P.2d 1307
Appeal from judgments of conviction for two counts of felony DUI, two counts of
involuntary manslaughter and two counts of felony reckless driving. Second Judicial District
Court, Washoe County; Jerry Carr Whitehead, Judge.
Defendant was convicted after jury trial in the district court of two counts of felony driving
under the influence of intoxicants, two counts of involuntary manslaughter, and two counts of
felony reckless driving, and defendant appealed. The Supreme Court, Steffen, J., held that
felony convictions involving two counts of involuntary manslaughter and two counts of
causing death of another by reckless driving were redundant to legitimate counts of causing
death of another by driving vehicle while intoxicated.
[Rehearing denied October 29, 1987]
Springer, J., and Gunderson, C. J., dissented.
Conner & Steinheimer, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary
Criminal Law.
Felony convictions involving two counts of involuntary manslaughter and two counts of causing death of
another by reckless driving were redundant to legitimate counts of causing death of another by driving
vehicle while intoxicated, where gravamen of all charges was that defendant proximately caused death of
two persons by operating vehicle in reckless and unsafe manner due to her intoxication. NRS 484.3795.
OPINION
A vehicular collision resulting in two deaths culminated in appellant Albitre's conviction
of two counts of felony driving under the influence of intoxicants, two counts of felony
reckless driving and two counts of involuntary manslaughter. Our review of the record
reveals a fair trial but redundant convictions. Accordingly, we affirm in part and reverse in
part.
Every aspect of this case contributes to an overwhelming sense of tragedy. What began as
a convivial wedding celebration, interspersed with festive drinking atypical of Albitre, ended
in the violent death of an elderly couple.
Albitre, with her grandmother and six-year-old daughter, drove to a friend's wedding
reception at the Christmas Tree Inn, a restaurant located several miles from Reno on the
mountainous Mt. Rose Highway. The trio arrived at the Inn at 1:00 p.m. on April 7, 1984, and
left approximately three and one-half hours later when the reception concluded. Albitre drove
her father's pick-up truck to and from the place of celebration. Approximately one-half mile
downhill from the Inn, Albitre sought to negotiate a sharp, 180-degree curve, but started
losing control as the pick-up skidded to the outside and lightly scraped the guard rail for
about forty feet. In apparent fear of going over the hill, Albitre overcompensated and turned
the truck across the highway and into the path of an oncoming automobile occupied by the
decedents. The elderly victims died at the scene; Albitre and her passengers suffered
relatively minor injuries.
Commencing one and one-half hours after the accident, three blood samples were taken
from Albitre at intervals of thirty minutes. The three samples reflected decreasing blood
alcohol percentages of .163, .148 and .131.
The State produced both eyewitness and expert testimony tending to prove that Albitre
either entered the curve too fast or started to turn too late, or both. Albitre called a number of
witnesses who testified that she seldom drank and that she was not intoxicated at the time she
left the reception. In addition to denying intoxication, Albitre contended that a brake defect
was the cause of the accident.
Albitre's first issue on appeal concerns allegations of prosecutorial misconduct. The State
conceded at oral argument that misconduct occurred, but maintained that it was not of a
magnitude warranting reversal. We agree.
The two most serious of the prosecutor's infractions involved announcing to the jury that
we don't try people that we believe are innocent and demeaning defendant's expert witness
as one who goes to the highest bidder. The former statement, insinuating guilt merely from
the decision to prosecute, was soundly condemned by this court in McGuire v. State, 100
Nev. 153, 677 P.2d 1060 (1984).
1
The latter, implying duplicity and corruption on the part of
both defense counsel and the expert witness, has been similarly denounced in Sipsas v. State,
102 Nev. 119, 716 P.2d 231 (1986). Neither of the referenced incidents drew an objection
from defense counsel.
We have less difficulty in determining that this misbehavior was non-prejudicial than we
do in understanding why it occurred. In both instances, the impropriety of the prosecutor's
conduct was beyond speculation. We therefore take little comfort from the fact that, in the
context of this issue, Albitre's trial, viewed in its entirety, conformed adequately to the due
process standard of fairness. See United States v. Young, 470 U.S. 1 (1985). Suffice it to say
that we are unwilling to forever encourage the perception that our admonitions are as
sounding brass or a tinkling cymbal. We expect, and are moving inexorably to assure, that
ethical trial conduct will prevail among all counsel in Nevada's courts.
The second major thrust of Albitre's appeal bears on the effectiveness of defense counsel.
We have considered this issue with care and conclude that the cold record does not warrant
deviation from this court's firm preference for having issues of ineffective assistance of trial
counsel decided initially in post-conviction proceedings before the trial court. See Lewis v.
State, 100 Nev. 456, 686 P.2d 219 (1984).
Finally, Albitre urges reversal based upon four jury instructions assertedly infected with
error. This contention is without merit. The instructions either correctly stated the law or, in
any event, formed no basis for prejudicial error.
Notwithstanding our rulings on Albitre's specified issues, we conclude that she is entitled
to relief from redundant convictions that do not comport with legislative intent.
It is clear that Albitre was properly convicted of two counts of causing the death of another
by driving a vehicle while intoxicated, a felony under NRS 4S4.3795.
____________________

1
We note, however, that the prosecutor made the statement in response to defense counsel's comment
concerning Albitre's innocence. The comments occurred during voir dire and under circumstances that
ameliorate the character of the prosecutor's conduct.
cated, a felony under NRS 484.3795. Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982). It is
equally clear to this court that the remaining four felony convictions involving two counts of
involuntary manslaughter and two counts of causing the death of another by reckless driving
are redundant to the legitimate counts and therefore must be reversed.
The gravamen of all the charges is that Albitre proximately caused the death of two
persons by operating a vehicle in a reckless and unsafe manner due to her intoxication. The
State has simply compounded the convictions by eliminating the aspect of alcohol from the
four counts under question. We are convinced that the Legislature never intended to permit
the State to proliferate charges as to one course of conduct by adorning it with chameleonic
attire. Although charging to the limit may be justified to cover developing nuances of proof,
the jury should have received an instruction limiting the number of conviction alternatives.
The failure to do so was error.
We have carefully considered all other issues raised but not discussed and conclude that
they are without merit.
The judgment of conviction for two counts of felony driving under the influence of
intoxicants is affirmed; the remaining four convictions are reversed and the cause remanded
for new sentencing.
Young and Mowbray, JJ., concur.
Springer, J., dissenting:
I dissent in this case because I do not think Mrs. Albitre got a fair trial. If she had had a fair
trial, there is a strong possibility that she would have been acquitted.
Albitre did not get a fair trial because the jury was pressed to a verdict of guilty without
having been required to find one of the essential elements of the crime, namely that, as was
charged in the information, Albitre's act of driving while under the influence of intoxicating
liquor and neglect of duty proximately caused the death of the victims. (Emphasis added.)
No doubt prompted by State v. Johnston, 93 Nev. 279, 564 P.2d 186 (1977) (state must
allege and prove at trial that, in addition to showing that defendant was driving under the
influence, it must show the acts causing the death), the prosecutor requested a proximate
cause instruction. The state's requested instruction was refused for no reason that appears in
the record. The court did instruct the jury on the definition of proximate cause, but the
definition was necessarily meaningless to a jury that was never told that in order to convict
Albitre her intoxication and driver's conduct had to be proved beyond a reasonable doubt to
have been the proximate cause of the deaths.
Failure of the trial court to advise the jury that proximate cause was an element of the
offense is just as bad as the court's not telling the jury that intoxication was an essential
element of the offense.
was an element of the offense is just as bad as the court's not telling the jury that intoxication
was an essential element of the offense.
That the court did not instruct the jury on the law relating to all of the essential elements of
the crimes is really all that need be said because in the circumstances of this case, there was
virtually no chance of acquittal absent an instruction on this essential legal element of the
crime.
1

There are additional aspects of this case that add to the fairness problem referred to by
the prosecutor. For example, since the only defense interposed by defense counsel in this case
was that Albitre's drinking was not the cause of the victims' death, it is hard to understand
why counsel did not ask the court for an instruction telling the jury that if the accident was
caused by other than Albitre's intoxication, she could be acquitted. This failure to seek legal
instruction on Albitre's only defense and counsel's decision not to call as a witness his client,
a non-drinking mother of two small children, involved in a family wedding, and with no prior
criminal record of any kind, leads one to wonder about the question of adequacy of counsel.
In dissenting here I do not find it necessary to conclude that Albitre's representation was
inadequate as a matter of law. I include it only as one in a series of considerations that lead
me to the conclusion that Albitre's trial was one in which conviction was inevitable.
In a similar category is the conduct of the prosecutor who, among other acts of
misconduct, told the jury that We [the prosecutor's office] don't try people we believe are
innocent. Countless times we have condemned the prosecutor's putting the prestige of that
office behind an expressed opinion of guilt of a defendant. As stated in the majority, the
impropriety of the prosecutor's conduct was beyond speculation. The misconduct was
conceded by the prosecutor, who himself characterized this kind of prosecution as improper
and inappropriate and acknowledged during appellate argument that there is definitely a
fairness problem here.
The majority argues that Albitre was not prejudiced by a rather extravagant and
broad-spectrum course of prosecutorial misconduct. I must allow, however, that the majority
has a point here. Albitre may not have been hurt by the prosecutor's remarks because there
was no real possibility of Albitre's being acquitted in a trial in which the jury was never
instructed on all of the necessary elements of the charged crimes.
____________________

1
Just as a side note I would observe that proximate cause is generally recognized as an element of this
offense. I call attention to California Jury Instructions: Criminal (CALJIC), Form 12.60 (rev. 1987), under which
the jury would be advised that the offense is committed when any person who, while under the influence of an
alcoholic beverage drives a vehicle and when so driving does any act forbidden by law or neglect any duty
imposed by law in the driving of such vehicle which act or neglect proximately causes injury. (Emphasis
added.)
because there was no real possibility of Albitre's being acquitted in a trial in which the jury
was never instructed on all of the necessary elements of the charged crimes. Nevertheless, I
maintain that violation of clear standards relating to prosecutorial misconduct announced by
this court necessarily had an unfair effect on this trial, particularly in light of the other
elements of unfairness which I describe in this dissent.
The fairness problem mentioned by the prosecutor arises out of this: It is not easy for a
prosecutor to get a victory in this kind of case, e.g. conviction and imprisonment of a mother
of two infants who must be separated from their mother at a critical stage of their
development. Some real pressure must be exerted, such as: We don't try people that we
believe are innocent, which is universally condemned as being prejudicial, because it
unfairly leads the jurors to conclude that the prosecution knows more about the case than they
do and that if the defendant is being prosecuted she must be guilty. Such tactics should not be
approved by this court.
A final tilt on the scales of justice comes from the jury's being instructed by the court that
with a .10 blood alcohol reading Albitre was presumed to be under the influence of alcohol,
without being adequately advised that it did not have to accept the presumption under all
circumstances. Although the court did instruct the jury, in technical legal terms, that the
presumption was rebuttable and that it could disregard the presumption if any evidence
received at this trial raises a reasonable doubt that she was intoxicated, it still seems to me
that the jury was being led into a position in which conscientiously motivated jurors simply
could not possibly acquit.
2
(Emphasis added.) Albitre did not have a chance.
As the majority so astutely observes, the gravamen of all the charges is that Albitre
proximately caused the deaths of two persons by operating a vehicle in a reckless and unsafe
manner due to her intoxication. It is too bad that the jury was not told what the gist or
gravamen of the defendant's offense was. The jury could then have dealt fairly with the
questions of whether Albitre's comparatively low blood alcohol content showed, beyond a
reasonable doubt, that it was the alcohol and not some other cause that brought about
the tragic deaths of two persons.
____________________

2
In Barnett v. State, 96 Nev. 753, 616 P.2d 1107 (1980), and Hollis v. State, 96 Nev. 207, 606 P.2d 534
(1980), we held that instructions dealing with presumptions must be framed in permissive terms. I am not
prepared to say that the instruction in this case violates NRS 47.230 or that it is contrary to our holdings in the
cited cases, but it is very close, and the mere use of the word rebuttable and the court's indicating to the jury
that evidence must raise a reasonable doubt, does not present a very clear manner of describing the non-binding
nature of the presumption. The instruction, in my mind, approaches the state of having effectively relieved the
prosecution of its burden of proof of an essential element of the crime. Barnett, 96 Nev. at 755, 616 P.2d at
1108.
beyond a reasonable doubt, that it was the alcohol and not some other cause that brought
about the tragic deaths of two persons.
I would reverse the convictions affirmed by the majority and remand for a new, fair trial.
I concur: Gunderson, C. J.
____________
103 Nev. 287, 287 (1987) Walsh v. Walsh
JAMES E. WALSH, Appellant, v.
LEE W. WALSH, Respondent.
No. 17776
June 25, 1987 738 P.2d 117
Appeal from order denying appellant James Walsh's motion for clarification of a divorce
decree. Eighth Judicial District Court; Earle W. White, Judge.
Former husband initiated motion to clarify his and his former wife's rights under divorce
decree as to wife's entitlement to husband's government pension. The district court denied
motion for clarification, and appeal was taken. The Supreme Court held that provision in
divorce decree granting to wife one-half of [husband's] pension with the United States
government did not entitle wife to receive one-half of husband's entire pension, including
that portion earned during five-year period after divorce.
Reversed.
Steward L. Bell and Steven E. Jones, Las Vegas, for Appellant.
Gang & Berkley, Las Vegas, for Respondent.
Only retirement benefits earned during marriage are community property.
2. Divorce.
Provision in divorce decree granting to wife one-half of [husband's] pension with the United States
government did not entitle wife to receive one-half of husband's entire pension, including that portion
earned during five-year period after divorce, where decree divided other community assets by giving
husband and wife each one half of assets, and decree further stated that trial court retained jurisdiction to
enforce husband's obligation to pay wife her community interest in pension.
OPINION
Per Curiam:
James and Lee Walsh were divorced in 1980. Lee's attorney drafted the divorce decree
which the trial court adopted.
103 Nev. 287, 288 (1987) Walsh v. Walsh
drafted the divorce decree which the trial court adopted. James was not represented by
counsel. The decree granted to Lee one-half of [James'] pension with the United States
Government. Five years after the divorce, James chose to retire and receive his U.S.
government pension. At that time, Lee claimed she was entitled to receive one-half of James'
entire pension, including that portion earned during the five-year period after the divorce.
James initiated a motion to clarify his and Lee's rights under the divorce decree. The
Domestic Relations Referee and the Trial Court concluded that the decree unambiguously
granted Lee one-half of James' entire pension, including that portion earned after the divorce.
They also concluded that they lacked jurisdiction to modify the decree because six months
had passed since its entry. See NRCP 60(b); Kramer v. Kramer, 96 Nev. 759, 762, 616 P.2d
395, 397 (1980) (the district court lacked jurisdiction to modify the divorce decree when the
motion was not made within six months). We disagree with the trial court's interpretation of
the divorce decree and therefore reverse.
[Headnote 1]
We note first of all that only retirement benefits earned during the marriage are community
property. Forrest v. Forrest, 99 Nev. 602, 607, 668 P.2d 275, 279 (1983); In re Marriage of
Gilmore, 629 P.2d 1, 3 (Cal. 1981). Thus, James was entitled to retain as his sole and separate
property benefits earned after the divorce. In the absence of express language specifying
otherwise, we are unwilling to conclude that the phrase one-half of [James'] pension with the
United States Government unambiguously entitles Lee to one-half of that portion of the
pension earned after the divorce. In fact when read as a whole, the decree evinces a contrary
intent.
[Headnote 2]
The decree divides other community assets by giving James and Lee each one-half of the
assets. Most importantly, the decree states that the trial court retains jurisdiction to enforce
James' obligation to pay Lee her community interest in James' pension.
In our view, the decree entitles Lee only to one-half of that portion of the pension earned
prior to the divorce. We also conclude that the decree can be interpreted based on the
language in the decree itself, without resort to extraneous evidence. Therefore, remand for an
evidentiary hearing is unnecessary.
____________
103 Nev. 289, 289 (1987) SIIS v. E G & G Special Projects
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. E G & G SPECIAL
PROJECTS and JERRY COLLIER LANE, Respondents.
No. 17599
June 25, 1987 738 P.2d 1311
Appeal from the district court's order reversing the appeals officer's decision. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Attorney, who slipped and fell in parking lot of occasional client, sought workmen's
compensation benefits. The State Industrial Insurance System denied the claim. Attorney
appealed. The hearing officer reversed and the SIIS appealed. The appeals officer reversed.
Attorney filed petition for judicial review. The district court reversed. The SIIS appealed. The
Supreme Court held that attorney, who was employed full-time by one company but who also
represented occasional client, was not the statutory employee of the occasional client, for
purposes of industrial insurance coverage.
Reversed.
Pamela Bugge, General Counsel, Carson City, and Virginia L. Hunt, Associate General
Counsel, Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondents.
Worker's Compensation.
Attorney, who was employed full-time by one company but who also represented occasional client, was
not the statutory employee of the occasional client, for purposes of industrial insurance coverage, even
though the occasional client was willing to have attorney considered as covered employee; attorney's work
for the occasional client in contesting industrial insurance claims could not be said to further occasional
client's general work relating to electronics, and the occasional client did not control the hours the attorney
worked or the attorney's performance. NRS 616.010-616.680, 616.060.
OPINION
Per Curiam:
Respondent Jerry Collier Lane is a Las Vegas attorney who specializes in workmen's
compensation matters. He was employed full-time by the Gibbons Company, but also had
time to represent about five outside clients in workmen's compensation matters on evenings
and weekends. His regular employer, Gibbons, gave him permission to make daytime court
appearances on behalf of these clients.
behalf of these clients. One of these clients was E G & G Special Projects.
On January 31, 1985, Lane was on his way to E G & G's office at about 8:30 in the
morning when he slipped and fell in the parking lot. He broke his right arm and may have
also injured his shoulder. It is not disputed that Lane was employed by E G & G when the
accident took place. The only dispute is whether Lane should be considered a statutory
employee for purposes of the Nevada Industrial Insurance Act (NIIA). NRS 616.010-616.680.
E G & G filed an industrial insurance claim form for Lane's accident, although Lane had
not previously been listed as a covered employee. The SIIS denied the claim on the ground
that no employer/employee relationship existed at the time of the accident. The hearing
officer reversed this determination, finding that there was an employer/employee relationship.
The SIIS appealed and the appeals officer reversed, concluding that E G & G was not Lane's
statutory employer at the time of the accident.
Lane then filed a petition for judicial review. The district court disagreed with the appeals
officer and reversed again, holding that Lane was a statutory employee, whether or not he was
considered an independent contractor, and that the policy of the NIIA was to provide
coverage for all workers. The SIIS now appeals. We hold that Lane cannot be considered a
statutory employee of E G & G Special Projects for industrial insurance purposes.
Consequently, we reverse the district court and reinstate the decision of the appeals officer.
Workmen's compensation statutes in Nevada are uniquely different from those in other
states in that they provide coverage for independent contractors and subcontractors. Noland v.
Westinghouse Elec. Corp., 97 Nev. 268, 628 P.2d 1123 (1981); NRS 616.085, 616.115. The
elimination of these traditional distinctions has made it difficult in certain situations to
determine when an employer/employee relationship exists for purposes of industrial
insurance coverage. This court generally employs a five part test to decide this issue. Clark
County v. SIIS, 102 Nev. 353, 724 P.2d 201 (1986). The test focuses primarily on the amount
of control exercised by the employer and whether the employee's work can be considered the
normal work of the employer. Whitley v. Jake's Crane & Rigging, Inc., 95 Nev. 819, 603
P.2d 689 (1979).
In determining whether an employer-employee relation exists, the courts will give
substantially equal weight to several different factors: (1) the degree of supervision; (2)
the source of wages; (3) the existence of a right to hire and fire; (4) the right to control
the hours and location of employment; and {5) the extent to which the workers'
activities further the general business concerns of the alleged employer.
employment; and (5) the extent to which the workers' activities further the general
business concerns of the alleged employer.
Clark County, 102 Nev. at 354, 724 P.2d at 202.
The appeals officer applied this test and concluded Lane was not an employee, primarily
because the nature of Lane's work was not within E G & G Special Projects' general business
concerns,
1
and because E G & G did not supervise Lane's work. The district court ruled
otherwise, based on Lane's technical statutory arguments.
Lane's statutory argument can be distilled to the simple premise that all employees are
covered under the NIIA, unless expressly excluded. NRS 616.060 states that certain
personsdomestic and agricultural workers, some musicians, ski patrol members and certain
religious professionalsare expressly excluded. The state also excludes [a]ny person whose
employment is both casual and not in the course of the trade, business, profession or
occupation of his employer. NRS 616.060(1). Casual is defined in NRS 616.030 as
employments where the work contemplated is to be completed in 20 working days . . . and
where the total labor costs of the work is less than $500.
Lane and the SIIS agree that he was not a casual employee within the meaning of the
statute. Lane's bills to E G & G were in excess of $500, and his employment was not
contemplated to be completed within 20 days as it was on an ongoing basis. However, it does
not necessarily follow that Lane was a covered employee just because he was not expressly
excluded by the statute.
We have stated that the coverage afforded by the legislature to independent contractors and
subcontractors is not absolute. Meers v. Haughton Elevator, 101 Nev. 283, 285, 701 P.2d
1006, 1007 (1985). We also noted there is some limit to coverage, but did not define it. We
said, outside the construction field, the determination of which independent contractors and
subcontractors are employees is of great importance. Id.
In Clark County, supra, we held court reporters are not statutory employees of the county,
using the five factor test cited above. We stated that the county cannot be the court reporters'
statutory employer because the judiciary, not the county, controls court reporters' jobs. Id.
Further, court reporters do not further the general business of the county, but of the district
court, a part of the state judiciary. We held that NRS 616.085, which provides that
subcontractors are deemed to be employees of the principal contractor, does not alter this
result where the county is not the statutory employer. Id.
Similarly, an attorney should not be considered the statutory employee of each of his
occasional clients because clients generally do not control the hours the attorney works
or the attorney's performance.
____________________

1
E G & G is an electronics firm specializing in government defense contracts.
contractor, does not alter this result where the county is not the statutory employer. Id.
Similarly, an attorney should not be considered the statutory employee of each of his
occasional clients because clients generally do not control the hours the attorney works or the
attorney's performance. In the case at bar, Lane's work cannot be said to further his employer's
general work, electronics, because Lane's work was limited to contested industrial insurance
claims. Lane contends that because E G & G's parent company had a staff of attorneys who
did some industrial insurance defense, industrial insurance defense is part of E G & G's
normal work. However, this line of reasoning would lead to the conclusion that all firms large
enough to retain attorneys are in the law business, so to speak, and all attorneys employed
by such a company must then be considered statutory employees.
Because Lane was performing professional services for one of his occasional clients, he is
not entitled to workmen's compensation coverage as an employee of that client. If he were,
then each of his moonlighting clients would become a statutory employer during whatever
time he was able to devote to them.
Traditionally, attorneys in general practice have been excluded from industrial insurance
coverage unless they elected to carry it for themselves. See Larson, Workmen's Compensation
Law, 45.32 (1986). The rule is different if the attorney is on a large retainer from a single
client.
2
Id.; see also Industrial Commission v. Moynihan, 32 P.2d 802 (Colo. 1934) (attorney
on monthly retainer not independent contractor and therefore entitled to workmen's
compensation); Egan v. N.Y.S. Joint Legislative Committee, 158 N.Y.S.2d 47 (N.Y.App.Div.
1956) (attorney employed on yearly salary by legislative commission was employee for
workmen's compensation); but see O'Connor v. New York State Employees Retirement
System, 151 N.Y.S.2d 706 (N.Y.App.Div. 1956) (attorney acting as counsel to state
departments in proceedings to liquidate certain banks and insurance companies not employee
for retirement allowance).
Lane stresses the fact that E G & G is willing to have him considered a covered employee
as support for his argument that he should be covered. He also relies on Industrial
Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1952), where this court found coverage for a
workman installing flues in a hotel despite the fact the hotel did not list the workman as an
employee. (As noted above, Lane was not listed with the SIIS as an employee of E G & G
Special Projects until after the accident.) However, this case is different in that there was no
question that the workman in Peck was an employee of the hotel. Id. at 4, 239 P.2d at 245.
____________________

2
Thus, Lane would probably be entitled to coverage had he been injured while performing services for
Gibbons Co., his principal employer.
was an employee of the hotel. Id. at 4, 239 P.2d at 245. Here, the issue of whether Lane is an
employee is central to the appeal, and is the only issue in dispute.
It would be quite advantageous for E G & G to elect coverage for Lane after the fact. The
increase in the insurance premium would apparently be small, and, of course, E G & G would
be immune from a negligence action by Lane if coverage is found. NRS 616.270. Despite E G
& G's willingness to cover Lane as an employee, coverage is not appropriate on the these
facts.
We conclude the district court erred in holding that Lane should receive industrial
insurance benefits as a statutory employee of E G & G Special Projects. Therefore, we reverse
the decision of the district court, vacate its judgment, and order the district court to reinstate
the appeals officer's decision.
____________
103 Nev. 293, 293 (1987) Kobinski v. State
JEAN ANN KOBINSKI, aka PRUDHOMME, Appellant, v. THE STATE
OF NEVADA, WELFARE DIVISION, Respondent.
No. 16732
June 25, 1987 738 P.2d 895
Appeal from order terminating parental rights. Eighth Judicial District Court, Clark
County; Norman C. Robison, Judge.
The district court terminated mother's parental rights. Mother appealed. The Supreme
Court held that: (1) evidence supported finding of abandonment as jurisdictional ground for
termination of parental rights; (2) evidence supported finding of failure of parental adjustment
as jurisdictional ground for termination of parental rights; (3) ample evidence supported
finding that termination of parental rights was in the children's best interests; and (4) although
statutes did not expressly preclude finalization of adoption during pendency of appeal of
termination of parental rights, such course seemed very ill-advised.
Affirmed.
John G. Watkins, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Daniel D. Hollingsworth, Deputy
Attorney General, Las Vegas, for Respondent.
1. Infants.
Evidence supported finding of abandonment as jurisdictional ground for termination of parental rights of
mother who left children unattended in automobile for approximately one and one-half to two hours on one
occasion and who visited her children only 11 of 58 possible times during one period of nearly two and
one-half years when children were wards of the state. NRS 128.090, subd. 2.
2. Infants.
Evidence supported finding of failure of parental adjustment as jurisdictional ground for termination of
parental rights of mother, although authorities in two states had been involved with mother for nearly one
decade and the children had been in state custody almost continuously for more than two years, at the time
of the termination hearing mother had never complied with reasonable requirements for return of the
children's custody to mother. NRS 128.090, subd. 2.
3. Infants.
Ample evidence supported finding that termination of parental rights was in the children's best interest,
even though mother was trying to improve and probably could change; after the mother's nearly ten-year
period of neglect, the trial court could not take the chance of leaving the mother's parental rights intact.
NRS 128.090, subd. 2.
4. Infants.
The trial court was not justified in accepting clearly unsupported factual findings prepared by the counsel
for the Welfare Division in proceeding to terminate mother's parental rights; the findings falsely portrayed
more abhorrent parental neglect and unfitness than the evidence at trial established.
5. Infants.
Even though statutes do not expressly preclude finalization of adoption during pendency of appeal of
termination of parental rights, such course seemed very ill-advised in view of the possibility of future
trauma to the children if the termination were reversed on appeal; natural parent is not required to seek stay
of adoption proceedings as prerequisite to consideration of the fact that appeal has been taken from order
terminating parental rights. NRS 127.150.
OPINION
Per Curiam:
Appellant Jean Ann Kobinski (Jean Ann)
1
appeals from an order terminating her parental
rights to her three children: Tina, Fawn and Timothy. Because ample evidence supported the
district court's decision, we affirm.
The evidence below showed that Jean Ann, with her then-husband Dale Prudhomme and
the children, came to Nevada in September, 1982. Authorities in Minnesota had worked with
the family for some time due to allegations of abuse and evidence of parental inadequacy.
Jean Ann had a drinking problem, and in fact young Timothy suffered multiple physical,
mental and emotional problems characteristic of fetal alcohol syndrome.
____________________

1
Jean Ann was formerly married to Dale Prudhomme, and is now married to Joe Dziubak. The resulting
changes of name are not material to this appeal.
fact young Timothy suffered multiple physical, mental and emotional problems characteristic
of fetal alcohol syndrome. Upon arriving in Las Vegas, Jean Ann left the children (the
youngest still a baby) unattended in an automobile for some one and one-half to two hours,
ostensibly to make a telephone call and use a rest room. The children apparently had not
bathed recently, and the oldest had lice. Authorities were notified and the children were taken
into temporary protective custody.
The children were to be returned when Jean Ann and her husband could provide them an
adequate residence with food, clothing and bedding. Despite the assistance of the Welfare
Division,
2
Jean Ann never met those minimal requirements. Rather, she moved into a
camping trailer on a used car lot, without water, sanitary facilities, electricity, refrigeration or
heat. When informed that the trailer was unsuitable she first disputed that determination, then
purported to move to a rented home. There was evidence, however, that no change of
residence actually took place, and in any event the home had no bedding and was furnished
with food only after repeated reminders.
Thereafter, Tina told state personnel that her mother had been gone for two weeks, that the
children were still in the trailer, that she and her sister shared a single blanket, and that Fawn
and Timothy were sick and vomiting. Upon investigation, the children were found in the
trailer, dirty and malodorous, with matted, linty hair, mucus-encrusted faces, and dirty
clothing, and eventually were made wards of the state. A number of conditions were imposed
for release of the children to Jean Ann's custody. Child support was required, but not a penny
was ever paid. Marital and family counseling were required but rejected. Jean Ann was again
required to provide a home with food and clothing; none was provided. She was told to
complete parent effectiveness training, but was unable to achieve a passing score despite
special assistance. There was testimony that Jean Ann was intellectually unable to benefit
from the training, was unable to parent, and had not improved significantly during a total of
ten years of frequent state intervention. During nearly two and one-half years, she visited her
children only eleven of fifty-eight possible times,
3
and sent money only once.
4
On her own
behalf, Jean Ann presented evidence that she had returned to Minnesota, had found
employment and a fiancee, had conquered her drinking problem, and was keeping a clean
home and caring for her fiancee's children.5 Tina, the oldest child, said she would like to
be reunited with her mother and siblings.

____________________

2
Jean Ann disputes the adequacy of that assistance. The evidence was in conflict, however, and the trial court
apparently chose to believe the State's witnesses.

3
Jean Ann claims her visitation rights were restricted. However, there was evidence to the contrary and it
does not appear that she took steps at any time to have the alleged restrictions eased or removed.

4
She also brought clothing on one occasion, but the items were dirty and did not fit.
On her own behalf, Jean Ann presented evidence that she had returned to Minnesota, had
found employment and a fiancee, had conquered her drinking problem, and was keeping a
clean home and caring for her fiancee's children.
5
Tina, the oldest child, said she would like
to be reunited with her mother and siblings. However, she also stated that she would like to
be adopted by her foster family, and two witnesses testified that termination of parental rights
was in the children's best interest. Adoptive placements were available for all the children.
The court ruled against Jean Ann, and she appeals.
Termination of parental rights is a most serious matter, and is scrutinized closely on
appeal. However, an order will be upheld if it is supported by substantial evidence, Pyborn v.
Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980), and this court will not substitute its
judgment for that of the judge who heard the witnesses and observed their demeanor, Carson
v. Lowe, 76 Nev. 446, 451-52, 357 P.2d 591, 594 (1960). We conclude that the trial court did
not err in determining that the State presented clear and convincing evidence of both
jurisdictional and dispositional grounds for termination of parental rights, as required under
Champagne v. Welfare Division, 100 Nev. 640, 646-47, 691 P.2d 849, 854 (1984); Cloninger
v. Russell, 98 Nev. 597, 655 P.2d 528 (1982); and NRS 128.090(2).
[Headnotes 1-3]
According to Pyborn, a finding of abandonment is sufficient in itself to afford
jurisdictional grounds. 96 Nev. at 146, 605 P.2d at 1148. The facts of this case justified the
trial court's finding of abandonment. Cf. Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970);
Pyborn, 96 Nev. at 147, 605 P.2d at 1148. The court likewise did not err in finding neglect,
parental unfitness, and token efforts to remedy Jean Ann's parental shortcomings. Cf.
Spencer v. Nevada State Welfare Div., 94 Nev. 627, 584 P.2d 669 (1978). Likewise, the court
was justified in finding failure of parental adjustment, a jurisdictional ground recognized in
Champagne, 100 Nev. at 649, 691 P.2d at 855. Although authorities in two states had been
involved with Jean Ann for nearly a decade and the children had been in state custody almost
continuously for more than two years, at the time of the termination hearing Jean Ann never
had complied with reasonable requirements for their return. Children's needs cannot be
postponed forever; the trial court ably noted that, although Jean Ann was trying to improve
and probably could change, after such long neglect he could not take the chance of leaving
her parental rights intact. Thus, jurisdictional grounds were present.6 There was also ample
evidence that the action taken was in the children's best interest; accordingly, we are
constrained to affirm the lower court's order.
____________________

5
The fiancee, who wanted to adopt the children, was unemployed and living on government benefits.
dictional grounds were present.
6
There was also ample evidence that the action taken was in
the children's best interest; accordingly, we are constrained to affirm the lower court's order.
[Headnote 4]
Nevertheless, this case presents certain concerns which merit further discussion. First,
counsel for the Welfare Division prepared a number of clearly unsupported factual findings,
and the trial court accepted them despite their lack of evidentiary support. The findings
falsely portrayed more abhorrent parental neglect and unfitness than the evidence at trial
established, and we cannot perceive the slightest justification for the inaccuracies.
7

[Headnote 5]
Nevertheless, the evidence was more than sufficient to justify termination of parental
rights without reference to the erroneous findings. Thus, reversal would be inappropriate. We
were also greatly disturbed to learn during oral argument that the children were all adopted
during the pendency of this appeal. Such a course seems very ill advised. Any termination of
parental rights is subject to careful scrutiny on appeal, and reversal is always a possibility.
Although our statutes do not expressly preclude the finalization of an adoption under these
circumstances, the possibility of future trauma to the child implicates public policy and
justifies refusal to enter an adoption decree under NRS 127.150. The pendency of such an
appeal is a matter which the State hereafter must disclose plainly, sua sponte, to the
prospective adoptive parents and to any court conducting adoption proceedings.
____________________

6
The court may have erred in finding that the children would be at risk of serious physical and emotional
injury if they were returned to Jean Ann's home. However, invalidation of only one jurisdictional ground does
not invalidate the decree. Carson v. Lowe, 76 Nev. at 451, 357 P.2d at 594.

7
The erroneous findings included the following:
1. That Minnesota authorities became involved because Tina had bruises on her buttocks and had
been given only crackers to eat (this was not admitted for its truthfulness, but only to show that
there had been such a report and that the report prompted investigative action);
2. That Jean Ann burned Tina's face with a cigarette (neglecting to add that the evidence was
uncontroverted that the burn was accidental);
3. That the children's home was filled with the stench of urine and feces from filthy diapers scattered
everywhere (no such evidence is of record);
4. That Fawn and Timothy became sick from drinking unrefrigerated milk (Timothy was the only
child tentatively given such a diagnosis, and spoiled milk was listed as only one possible cause);
5. That the children's faces were covered with fecal matter (no such evidence is of record); and
6. that Jean Ann had a value system in which wrong was right (testimony to that effect was not
admitted).
adoptive parents and to any court conducting adoption proceedings. We refuse to require the
natural parent to seek a stay of adoption proceedings as a prerequisite to consideration of the
fact that an appeal has been taken from an order terminating parental rights.
In short, it appears that this case was not treated in some respects as the very serious matter
that it was. However, on the specific facts here present, the defects do not warrant reversal.
Therefore, we affirm the order terminating Jean Ann's parental rights.
____________
103 Nev. 298, 298 (1987) Central Telephone Co. v. Fixtures Mfg.
CENTRAL TELEPHONE COMPANY, Appellant, v. FIXTURES MANUFACTURING
CORPORATION and SAV ON OFFICE PRODUCTS, Respondents.
No. 17591
June 25, 1987 738 P.2d 510
Appeal from order granting motion for summary judgment; Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
Owner of defective couch which gave way when someone sat on it appealed from
summary judgment order of the district court dismissing its third party complaint against
manufacturer and seller of couch. The Supreme Court held that: (1) couch owner's claims for
negligence were not barred by assumption of risk; (2) assumption of risk was no defense to
cause of action based upon strict products liability theory; and (3) whether owner of couch
was negligent was for trier of fact, and there was also fact question as to existence of special
relationship.
Reversed.
Fitzgibbons and Associates, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and Richard E. Desruisseaux; Pearson & Patton, Las Vegas,
for Respondents.
1. Negligence.
Implied assumption of risk doctrine has been subsumed by comparative negligence statute and is no
longer a bar to negligence.
Assumption of risk is a defense to strict product liability.
Assumption of risk, as defense to strict products liability, requires showing that plaintiff actually
knew and appreciated particular risk or danger created by the defect, that plaintiff
voluntarily encountered risk while realizing the danger, and that plaintiff's decision to
voluntarily encounter known risk was unreasonable.
showing that plaintiff actually knew and appreciated particular risk or danger created by the defect, that
plaintiff voluntarily encountered risk while realizing the danger, and that plaintiff's decision to voluntarily
encounter known risk was unreasonable.
4. Contribution; Indemnity.
Assumption of risk was no defense to couch owner's third party complaint for indemnity and contribution
against couch manufacturer and seller based upon strict products liability, where no employee of the couch
owner voluntarily encountered the risk created by the broken couch while realizing the danger.
5. Indemnity.
Indemnity shifts burden of entire loss from defendant tortfeasor to another who should bear it instead.
6. Indemnity.
Indemnity is not available in case involving joint or concurrent tortfeasors having no legal relation to
another and each owing a duty of care to the injured party.
7. Indemnity.
Whether owner of defective couch which gave way when someone sat on it was negligent, as required for
owner to be concurrent tortfeasor with, and bar indemnity from, manufacturer and seller of couch, was for
trier of fact, and there was also fact question as to existence of special relationship.
OPINION
Per Curiam:
Central Telephone Company appeals from a summary judgment order dismissing its third
party complaint against Fixtures Manufacturing Corporation and Sav On Office Products, Inc.
A Ms. Yasinski was injured when a defective couch gave way in the office of Central
Telephone Company. Yasinski filed a lawsuit against the Central Telephone Company.
Central Telephone filed a third party complaint for contribution and indemnity against
Fixtures which manufactured the couch and Sav On which sold and assembled the couch. The
third party complaint alleged negligence, carelessness, faulty design and faulty manufacture
by Fixtures. The third party complaint alleged negligence by Sav On. Fixtures filed a motion
for summary judgment alleging that assumption of risk is a defense as a matter of law and
that the claim for indemnity lacked merit. Sav On joined in the motion for summary
judgment. The district court granted the motion for summary judgment.
[Headnote 1]
Central Telephone's claims for negligence against Fixtures and Sav On are not barred by
assumption of risk. The implied assumption of risk doctrine has been subsumed by our
comparative negligence statute. Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 737 P.2d
1158 (1987).
[Headnotes 2, 3]
While assumption of risk is no longer a bar to negligence, it is a defense to strict products
liability. Young Machine Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984); Restatement
(Second) of Torts 402A comment a and n (1965). In the case of strict products liability, the
defendant must show (1) that the plaintiff actually knew and appreciated the particular risk or
danger created by the defect, (2) that the plaintiff voluntarily encountered the risk while
realizing the danger, and (3) that the plaintiff's decision to voluntarily encounter the known
risk was unreasonable. Johnson v. Clark Equipment Co., 547 P.2d 132 (Or. 1976).
[Headnote 4]
The deposition testimony indicates that one Central Telephone Company employee
actually knew and appreciated the risk created by the broken couch since she removed the
loose cushion from the couch and set it aside with the intent that no one would utilize the
couch without the cushion in place. Such action reveals that that employee did not voluntarily
encounter the risk while realizing the danger because she did not intend or expect anyone to
utilize the couch.
Another Central Telephone Company employee did not actually know and appreciate the
risk created by the broken couch since she was unaware that the couch was defective. She
watched an alleged non-employee replace the cushion on the couch without realizing the
danger.
No employee voluntarily encountered the risk while realizing the danger. Consequently,
assumption of risk is not a defense to Central Telephone's cause of action based upon a strict
products liability theory.
[Headnotes 5-7]
Finally, the district court erred in granting the motion for summary judgment on the
ground that there was no legal basis for a claim to indemnity. Indemnity shifts the burden of
the entire loss from the defendant tortfeasor to another who should bear it instead. Reid v.
Royal Insurance Co., 80 Nev. 137, 390 P.2d 45 (1964) (no claim for indemnity because both
contractor and subcontractor were negligent). Indemnity is not available in a case involving
joint or concurrent tortfeasors having no legal relation to one another, and each owing a duty
of care to the injured party. Id. A trier of fact must decide if Central Telephone is negligent;
Central Telephone cannot be a concurrent tortfeasor unless it is found to be negligent.
Furthermore, a material factual dispute exists as to whether a special relationship exists.
Accordingly, we reverse the district court's order granting summary judgment.
____________
103 Nev. 301, 301 (1987) Frye v. Frye
CHARLES C. FRYE, Appellant, v. CYNTHIA
M. FRYE, Respondent.
No. 17650
June 25, 1987 738 P.2d 505
Appeal from child support provisions in decree of divorce. Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
In divorce action, the district court ordered husband to pay support for wife's child by
another marriage. Husband appealed. The Supreme Court held that doctrine of equitable
adoption could be utilized to impose duty to pay support, on facts of case.
Affirmed.
Jacques H. Clemente, Las Vegas, for Appellant.
Foley & Foley, Las Vegas, for Respondent.
Adoption.
Doctrine of equitable adoption could be utilized to impose duty to pay child support, where termination
of parental rights of child's natural father had been sought and effectuated in order to make adoption
possible and petition to adopt had been signed but legal adoption was not finalized; child had been placed
in position where harm would result if repudiation were permitted, based on reasonable foreseeable
reliance on promise to adopt.
OPINION
Per Curiam:
This case presents the question whether the doctrine of equitable adoption may be utilized
to impose a duty to pay child support. We hold that, on the facts of this case, it may.
Charles and Cynthia Frye were married in 1982. Cynthia had a daughter, Amanda, by
another marriage. Amanda was less than one and one-half years old when her mother married
Charles, and was treated as Charles' own daughter throughout their marriage. She now
perceives Charles alone as her father.
Both before and after marriage, the couple discussed whether Charles should adopt
Amanda. Cynthia denies having pressured Charles, but Charles testified that he felt
impelled to adopt the child against his will. There was, however, evidence to the contrary: On
one occasion when Cynthia's mother told Charles she wanted custody of Amanda if anything
happened to Cynthia, Charlesin Cynthia's absenceraised the objection that he and his
wife had been talking about his adopting the child.
103 Nev. 301, 302 (1987) Frye v. Frye
In any event, Charles went alone to hire an attorney to handle the adoption. In order to
make adoption possible, he sought and effectuated a termination of the parental rights of
Amanda's natural father. He knew this would leave Amanda without a father. Cynthia joined
in the petition, but testified that she would not have done so had Charles not promised to
adopt the child. Under Nevada law, Charles' actions left Amanda without legal recourse
against her natural father for child support. State ex rel. Welfare Div. v. Vine, 99 Nev. 278,
662 P.2d 295 (1983).
1

Charles then signed a petition to adopt Amanda, declaring that he desired to establish a
parent-child relationship. However, the parties' marriage deteriorated and the legal adoption
was not finalized. Charles sought a divorce, denying any obligation to support Amanda. The
trial court, finding that child support was justified on a theory of equitable adoption, ordered
Charles to pay $150.00 per month. Charles appeals.
The facts of the instant case clearly would be adequate to support a finding of equitable
adoption in other contexts. Cf., e.g., Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962).
Charles' sole contention on appeal is that the doctrine should not be extended to the realm of
child support. On the peculiar facts of this case, we must disagree. Charles, with perhaps the
best of motives, left Amanda without any legal father to whom she may look for financial
support. There clearly was intent to adopt, and that intent was accompanied by a promise. If
Charles were allowed to renege with impunity, it would be to the probable detriment of an
innocent child, whose present situation is the result of justifiable reliance on the promise that
a new father would replace the old. Equity cannot allow such a result.
In Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972), this court was asked to
consider whether equitable adoption would support an order, in a divorce action, to establish
a trust fund for the benefit of a foster child. That, of course, is closely analogous to the child
support order in the case at bar. We noted in Sargeant that the child's parents were living (and
thus, by inference, could be compelled to provide support), 88 Nev. at 230, 495 P.2d at
622-23; there was only inconclusive evidence of intent to adopt, id.; and there had been no
promise to adopt, id. We held that without such a promise, the doctrine of equitable adoption
could not apply. Thus, Sargeant provided at least some indication that an order for child
support could be appropriate on facts such as those here present. At least one other court is in
agreement with that indication. See Clevenger v. Clevenger, 11 Cal.Rptr.
____________________

1
At the time of Charles' and Cynthia's divorce, the natural father had been located and was gainfully
employed. The trial court stated, and the parties do not deny, that there would have been continuing jurisdiction
to order payment of child support if there had been no termination of parental rights.
103 Nev. 301, 303 (1987) Frye v. Frye
Cal.Rptr. 707 (Dist.Ct.App. 1961). And neither party has cited, nor are we aware of, any case
refusing to utilize a theory of equitable adoption to order child support on facts similar to
those presented here.
We do not hold that every equitable adoption necessarily confers all the rights and
obligations attendant upon full legal adoption.
2
Nor do we depart from the doctrine of
Sargeant that one who places himself in loco parentis with respect to a child, without more,
may terminate that status at will. However, where there is a promise to adopt, and in
reasonable, foreseeable reliance on that promise a child is placed in a position where harm
will result if repudiation is permitted, the courts of this state stand ready to provide such
remedies as equity requires.
There has been no showing that the district court abused its discretion, either in holding
the doctrine of equitable adoption applicable or in choosing the remedies to be afforded. We
accordingly affirm.
Gunderson, C. J., and Steffen, Young, and Mowbray, J.J., concur.
____________________

2
The district court ordered that Amanda be allowed to use Charles' surname and that she have all lawful
rights as Charles' own child. Charles has chosen to challenge only the issue of child support, and we choose not
to examine the propriety of other aspects of the decree on our own motion.
____________
103 Nev. 303, 303 (1987) Cotter v. State
VICKI LYNN COTTER, aka VICKI LYNN SKELLY, Appellant, v.
No. 17280
June 25, 1987 738 P.2d 506
Appeal from conviction of driving while under the influence of a controlled substance,
causing substantial bodily harm. Eighth Judicial District Court, Clark County; Thomas A.
Foley, Judge.
Defendant was convicted by jury in the district court of two counts of felony driving under
the influence of controlled substance, and she appealed. The Supreme Court held that: (1)
phrase under the influence in applicable statute was intended to apply to each harmful act
or neglect of duty specified therein and required factual determination in light of variable
circumstances, and (2) trial court's erroneous instruction on meaning of that phrase was error
of constitutional magnitude and warranted new trial.
Reversed and remanded for new trial.
Robert Lueck, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Scott S. Mitchell, Deputy District Attorney, John
Ham, Deputy District Attorney, Clark County, for Respondent.
1. Automobiles.
Phrase under the influence in statute proscribing driving under the influence of intoxicating liquor
and/or controlled substance was intended to apply to each harmful act or neglect of duty specified therein,
and its meaning embraces only those individuals who ingest substances mentioned in statute to degree that
renders them incapable of safety [safely] driving or exercising actual physical control of vehicle; whether
driver has been so influenced will, with exception of persons who have .10% or more by weight of alcohol
in their blood, always be question of fact to be considered in light of such variable circumstances as
individual's resistance to substance, amount ingested, and type and time of ingestion. NRS 484.3795.
2. Automobiles; Criminal law.
In prosecution for felony driving under the influence of controlled substance, trial court's erroneous jury
instruction on meaning of qualifying phrase under the influence was error of constitutional magnitude
and warranted reversal and new trial. NRS 484.3795.
OPINION
Per Curiam:
Appellant Vicki Lynn Cotter was convicted of two counts of felony driving under the
influence of a controlled substance, NRS 484.3795, and sentenced to two consecutive
three-year prison terms. Since prejudicial error resulted from an incorrect instruction to the
jury, reversal and a new trial are mandated.
On January 28, 1983, Cotter was involved in an auto accident in which she and the two
occupants of the other vehicle were injured. At the hospital, Cotter's blood was tested for
alcohol and drugs. The tests revealed the presence of amobarbital, secobarbital and
desmethyl-diazapam (the active ingredients in valium and tuinal), but no alcohol.
[Headnote 1]
Cotter testified that at the time of the accident she was in a period of great distress. She
had recently given birth and prematurely returned to her employment. Shortly thereafter, she
and her husband divorced. Her doctor had prescribed tuinal, quaalude and valium to ease this
stressful period in her life. Cotter admitted taking a tuinal tablet approximately eighteen hours
before the accident.
Cotter maintains that the lower court erred by incorrectly instructing the jury on the
elements of the felony DUI offense,1 and asserts that she was prejudiced by ineffective
assistance of counsel.
instructing the jury on the elements of the felony DUI offense,
1
and asserts that she was
prejudiced by ineffective assistance of counsel. We are compelled to reverse based upon the
first assignment of error.
Cotter contends that the offending instruction did not properly place very element of the
offense before the trier of fact. We agree. The elements of felony DUI are specified in the
statute:
Any person who, while under the influence of intoxicating liquor or with 0.10
percent or more by weight of alcohol in his blood, or while under the influence of a
controlled substance, or under the combined influence of intoxicating liquor and a
controlled substance, or any person who inhales, ingests, applies or otherwise uses any
chemical, poison or organic solvent, or any compound or combination of any of these,
to a degree which renders him incapable of safely driving or exercising actual physical
control of a vehicle, does any act or neglects any duty imposed by law while driving or
in actual physical control of any vehicle on or off the highways of this state, if the act or
neglect of duty proximately causes the death of, or substantial bodily harm to, any
person other than himself, shall be punished by imprisonment in the state prison for not
less than 1 year nor more than 20 years and must be further punished by a fine of not
less than $2,000 nor more than $5,000. . . .
The statutory construction urged by the State, and given as an instruction by the lower court,
is that any person who drives a vehicle under the influence of a controlled substance, and
while doing so, commits any act which causes death or substantial bodily harm, is guilty of a
felony DUI. The plain reading and logical application of the statute suggests that more than
this is required, one must be under the influence of the controlled substance to a degree
which renders him incapable of driving safely or exercising actual physical control of the
vehicle.
The State suggests that the quoted phrase applies only to the preceding clause dealing with
the ingestion of chemicals, poisons or organic solvents. Such an interpretation creates
anomalous prospects. It would make felons of drivers on lawfully prescribed medications
irrespective of whether the medication had any causal relationship to the event leading to
the death or injury of another.
____________________

1
The instructions at issue are as follows:
Instruction Number 4: Any person who drives a vehicle while under the influence of controlled
substance, and does any act, or neglects any duty imposed by law while driving that vehicle, which act or
neglect of duty proximately causes substantial bodily harm to another person, is guilty of a felony.
Instruction Number 5: It is unlawful for any person who is under the influence of controlled substance to
drive a vehicle.
medications irrespective of whether the medication had any causal relationship to the event
leading to the death or injury of another. It is apparent that such a result would be unfair and
contrary to the intent of the Legislature in enacting the statute. The key phrase which must be
defined in order to give proper effect to the statute is under the influence. We conclude that
the Legislature intended the phrase to apply to each harmful act or neglect of duty specified in
NRS 484.3795, and that its meaning embraces only those individuals who ingest substances
mentioned in the statute to a degree that renders them incapable of safely driving or
exercising actual physical control of the vehicle. Whether a driver has been so influenced by
the ingested substance will, with one exception,
2
always be a question of fact, to be
considered in the light of such variable circumstances as the individual's resistance to the
substance, the amount ingested and the type and time of ingestion.
[Headnote 2]
The trial court erroneously instructed the jury on the meaning of the qualifying phrase,
under the influence. This is an error of constitutional magnitude pursuant to Jackson v.
Virginia, 443 U.S. 307 (1979). Therefore, we reverse the judgment of the lower court and
remand for a new trial consistent with this opinion.
____________________

2
We note that the Legislature has included a per se violation of driving under the influence of intoxicating
liquor when persons have 0.10 percent or more by weight of alcohol in their blood. Our ruling, of course, has no
effect on that provision.
____________
103 Nev. 307, 307 (1987) Public Serv. Comm'n v. S. W. Gas
PUBLIC SERVICE COMMISSION OF NEVADA, SCOTT CRAIGIE, CHAIRMAN,
FRED SCHMIDT, STEPHEN WIEL, THOMAS STEPHENS, JO ANN KELLY,
GEMSTAR CEMENT AND LIME COMPANY, TITANIUM METALS
CORPORATION OF NEVADA, KERR-McGEE CHEMICAL
CORPORATION, PACIFIC COATS BUILDING PRODUCTS, INC.,
Appellants, v. SOUTHWEST GAS CORPORATION, Respondent.
No. 17717
June 25, 1987 738 P.2d 890
Appeal from order denying motion for change of venue. Eighth Judicial District Court,
Clark County; Addeliar D. Guy, Judge.
Appeal was taken from judgment of the district court upholding decision of the Public
Service Commission holding utility in contempt of court for failure to make certain refunds.
The Supreme Court, 98 Nev. 404, 651 P.2d 95, reversed. After hearing, on petition for
enforcement, utility was ordered by Commission to issue refunds in conformity with
outstanding court order. Utility filed petition for judicial review in the district court which
denied Commission's motion for change of venue. On appeal, the Supreme Court held that
venue should have been changed to first district.
Reversed.
William H. Kockenmeister, Ana Colon Aebi; Allison, MacKenzie, Hartman, Soumbeniotis
& Russell, Carson City, for Appellants.
Lionel, Sawyer & Collins, Las Vegas, for Respondent.
Gas.
Venue in gas utility's petition for judicial review of Public Service Commission order, that utility issue
refunds in conformity with outstanding order of court in another district, should have been changed to that
district.
OPINION
Per Curiam:
On August 1, 1981, the First Judicial District Court held Southwest Gas Corporation in
contempt of court for failure to make certain refunds to consumers under 1977 orders of the
court and the PSC. Southwest Gas appealed and we reversed. Southwest Gas Corp. v.
Flintkote Co., 99 Nev. 127, 659 P.2d 861 (1983).
Thereafter, still seeking refunds, the Southern Nevada Industrial Consumers filed a
petition for Commission enforcement against Southwest Gas. Commission action on the
petition was stayed when Southwest Gas sought a dismissal of the petition, then took another
appeal to this court. In an unpublished order, we concluded that the Commission should be
allowed to hear the matter.
The Commission then held a hearing and determined that it had previously ruled that
refunds were due and owing. Southwest Gas was ordered to issue refunds in conformity with
the outstanding order. The utility thereafter filed a petition for judicial review in the Eighth
Judicial District. The Commission requested a change of venue, contending that the First
Judicial District had exclusive jurisdiction because the docket at issue had its roots in a
decision from that district. The motion was denied, leading to this appeal.
The PSC contends that the First Judicial District Court has continuing jurisdiction over
this complicated refunding process, to the exclusion of venue which might otherwise lie
elsewhere. We agree. The Commission's opinion and order in the appealed docket resulted
from an order issued by the First Judicial District Court on April 7, 1977. That order
apparently was never appealed. The decision in Pacific Gas & Elec. Co. v. Federal Power
Comm'n, 253 F.2d 536, 541 (9th Cir. 1958), illustrates the policies to be served. There the
court stated:
The object sought to be accomplished by the exclusive venue and jurisdiction
provisions of these statutes is to conserve court resources, and avoid judicial collisions
and conflicts involving the same parties and controversies. This purpose cannot be
assured unless the court of appeals which gains exclusive venue and jurisdiction to
review a particular Commission order retains it with regard to further orders issued
upon remand in the same proceedings and involving the same parties, subject matter,
and controversy (footnote omitted).
. . . .
Were we to undertake a review of the new order, it would hardly be possible to avoid
evaluation of the decision of our sister court of appeals involving these same matters.
This would be wasteful of court time and energy. It would involve the hazard of
confusing or unseemly discord between two courts of appeal concerning essentially the
same controversy. It would encourage the practice of forum shopping, which is
inimical to sound judicial administration.
Accord Jordan v. Hamada, 643 P.2d 70 (Haw. 1982). We are not persuaded by Southwest's
arguments and authorities to the contrary. Although the late Judge Gregory, who remanded
the initial order, is no longer on the bench, the other members of the First Judicial District
Court have had significant exposure to the instant litigation.
Judicial District Court have had significant exposure to the instant litigation. The contempt
action which resulted in the Flintkote case was heard before Judge Fondi. Judge Griffin has
also been involved in rulings and determinations in this litigation over the years. This action
was initiated in the First Judicial District Court, and the conservation of judicial resources
demands that it remain there.
In deference to the policy against interference by one court with matters which are under
the jurisdiction of another, we conclude that the lower court abused its discretion in refusing
to grant a change of venue. In re Union Carbide Corp., 308 N.W.2d 753 (S.D. 1981). We
therefore reverse.
____________
103 Nev. 309, 309 (1987) Haynes v. State
EDDIE LEE HAYNES, Appellant, v. THE
No. 17246
June 25, 1987 739 P.2d 497
Appeal from conviction of first degree murder with a deadly weapon and from death
penalty; Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of first degree murder, and sentenced to
death. He appealed. The Supreme Court held that: (1) attorney-client privilege does not bar
admission of opinion testimony of defense-retained psychiatrist who is called by prosecution,
on sanity and testimony of non-incriminatory observations and arriving at opinion, but (2)
imposition of death sentence on mentally disturbed defendant convicted of irrational murder
based on single aggravating circumstance of prior armed robbery committed 15 years
previously when defendant was 18 years old was inappropriate, and life sentence without
possibility of parole would be imposed.
Conviction affirmed; death penalty altered to life without possibility of parole.
Morgan D. Harris, Public Defender, Terrence M. Jackson, Deputy Public Defender, Clark
County, for Appellant.
1. Homicide.
Defendant failed to establish that he was insane at time of murder; evidence indicated that defendant had
a schizophrenic disorder, but defendant failed to call expert or lay witnesses to give opinion that defendant
did not, at time of murder, know nature and quality of act and that defendant did not know that what he was
doing was wrong.
2. Criminal Law.
Trial court acted within its discretion denying defendant's motion for continuance on morning of trial to
allow discovery of medical records and witnesses to assist in establishing insanity defense. DCR 14, 14
subd. 2(c).
3. Criminal Law.
Absent showing that trial court abused its discretion and that defendant was prejudiced, Supreme Court
shall not disturb trial court's determination to conduct collective voir dire of prospective jurors.
4. Jury.
Trial court did not abuse its discretion in denying defendant's motion for individual voir dire, in capital
murder prosecution, as defendant could have asked court during collective voir dire for independent,
sequestered voir dire as to any prospective jurors suspected of holding back in questioning regarding
exposure to any impressions of mental illness, which was raised by defendant's assertion insanity defense.
5. Jury.
Defendant established prima facie case of purposeful discrimination by establishing that prosecutor used
preemptory challenges to remove only two blacks from jury, but use of challenges was neutrally explained
by pattern of prosecution challenges to persons who were rather young and who did not have long work
experience.
6. Criminal Law.
Defendant's Fifth Amendment privilege against self-incrimination and Sixth Amendment right to effective
assistance of counsel are not violated when prosecution calls defense-retained psychiatrist, who has not
been called as defense witness, as rebuttal witness. U.S.C.A.Const. Amends. 5, 6.
7. Witnesses.
Attorney-client privilege is not absolute.
8. Witnesses.
Attorney-client privilege rests on theory that encouraging clients to make full disclosure to attorneys
enables attorneys to act more effectively, justly, and expeditiously, a benefit outweighing risks posed to
truth-finding.
9. Witnesses.
Attorney-client privilege is not violated by admission of opinion testimony on sanity by defense-retained
psychiatrist, who has not been called as defense witness but who has been called as prosecution witness,
and testimony of non-incriminatory observations in reaching that opinion, including non-incriminatory
statements by defendant.
10. Witnesses.
Statements made by defendant and observations made of defendant as to which defense-retained
psychiatrists testified did not incriminate defendant in crime of murder, even though psychiatrists
testified that defendant was sane, and thus, admission of such testimony by psychiatrists, who were called
as prosecution witnesses, did not violate attorney-client privilege.
11. Criminal Law.
Loss of evidence as a result of inadequate government handling requires reversal only when defendant
shows bad faith or connivance on part of government, or prejudice from loss of evidence.
12. Criminal Law.
Defendant failed to establish that he was prejudiced as a result of officer's destruction of original notes
recording events between arrest and incarceration or that officer acted in bad faith, and thus, loss of notes
did not require reversal, where officer had prepared written report dictated from destroyed notes.
13. Homicide.
Imposition of death sentence on mentally disturbed defendant convicted of irrational murder based on
single aggravating circumstance of prior armed robbery committed 15 years previously, when defendant
was 18 years old, was inappropriate, and life sentence without possibility of parole would be imposed;
evidence indicated that defendant was homeless wanderer who had been in and out of mental institutions
for four or five years and that murder occurred when defendant walked up behind victim and, without
apparent reason, hit him on head twice with iron pipe.
14. Criminal Law.
State courts are not constitutionally required to conduct proportionality review of death sentence.
Prohibition against ex post facto law requires that law with regard to proportionality review of death
sentence be applied as it existed when defendant committed murder, rather than two days later, when
statute was amended to abolish proportionality review requirement. NRS 177.055, subd. 2(d).
OPINION
Per Curiam:
This is an appeal from a conviction of first degree murder and imposition of the death
penalty. We reject Haynes's claims of error during the guilt phase and affirm the conviction.
For reasons to be stated, we annul the death penalty and substitute the sentence of life
imprisonment without the possibility of parole.
To understand why we cannot allow the death penalty to be imposed, a rather detailed
account of circumstances surrounding the homicide is provided.
On June 4, 1985, Eddie Lee Haynes walked up behind Robert Ross, who was washing a
car, and hit him on the head twice with an iron pipe. Ross died from the head injuries. Haynes
thought Ross was a member of a group that had earlier peered over a wall at him and taunted
him for masturbating behind some bushes. Three individuals saw Haynes strike Ross. Haynes
was chased down a railway track into the local Teamsters' building. Haynes was trapped in
that building until the police arrived and arrested him.
The arresting officer found Haynes in the bathroom where he was washing his face and
hands. A scuffle occurred before the arresting officer was able to handcuff Haynes.
After being read his Miranda rights, Haynes said yes when asked if he understood those
rights. Haynes identified himself, and when asked if he was the one who hit a man with a
pipe, Haynes said yes and that's just the beginning. Haynes was laughing when he made
these statements. Haynes stated at the time that he was going to kill anybody who messed
with him. He continually talked of killing and called for Lucifer to help him.
Because Haynes received a cut on his head from a rock thrown by one of his pursuers,
paramedics arrived at the scene of the arrest to treat him. When asked by a paramedic if he
took drugs, Haynes replied that he took anything and everything he could get his hands on. At
the scene of arrest, Haynes was described by the paramedics as being very agitated and
belligerent. He was unsure as to why the paramedics were there, and he thought they were
there to hurt him. He refused to tell the paramedics his past medical history. He complained
that people had been messin' with him. His pupils were dilated but responsive; his speech
was slightly slurred. He did not like to be touched in any way. He looked straight at one
paramedic and said: I will kill you if you mess with me.
While being transported to the hospital, Haynes talked of Hell. He mumbled incoherently.
He stated that he would kill anybody who got in his way and that he would hunt down and
kill them. He remarked that everyone wanted to hurt him.
At the hospital, while being transported from a gurney to a bed, Haynes threatened that he
would kill any motherf----- that messed with him. Haynes was taken to a private,
curtained-off room because he was screaming and boisterous. In the private, curtained-off
room, the arresting officer heard Haynes holler, several times, Oh God, I killed somebody
and I got so much more to do. When the officer looked inside the curtained area, Haynes
was masturbating while saying those phrases. Haynes continued to masturbate, looked at the
officer, and smiled.
During the entire time Haynes was in the hospital, he rambled and talked about things that
made no sense. At the hospital, Haynes continually employed satanic type phrases and
referred to Lucifer. Blood and urine samples taken from Haynes revealed that he was not
under the influence of alcohol or drugs. Haynes was given Haldol, an antipsychotic medicine.
An officer testified at the preliminary hearing that while being transported from the
hospital to the jail Haynes acted erratically or said bizarre things, Haynes talked of killing
someone (anyone), and Haynes said he was tired of being messed with.
During the months prior to the homicide, Haynes had been arrested several times. On
February 23, 1985, Haynes was arrested for masturbating while completely naked on the lawn
of the law library in downtown Las Vegas. On February 26, 1985, Haynes was arrested for
throwing rocks toward the street; one rock cracked the windshield of a car. On March 16,
1985, Haynes was arrested for disorderly conduct wherein he challenged a highway
patrolman to shoot him. On April 15, 1985, Haynes was arrested for refusing to leave the
steps of an apartment complex. He was found sitting on those steps mumbling about God and
singing. Haynes threatened to poke out the eyes of the apartment manager's dog and
threatened to hurt the persons who asked him to leave. When arrested, Haynes rocked the
patrol car and threatened to kill everybody.
On May 21, 1985, a little over two weeks before this killing, Haynes was arrested for open
and gross lewdness when he was observed masturbating on a sidewalk near heavy vehicle
traffic. At that time, Haynes was examined by Dr. Ivan Aralica, a board certified psychiatrist
employed by the State of Nevada to examine inmates in the Clark County Jail. Dr. Aralica
observed that Haynes was in a catatonic state and noted that Haynes had marked decrease in
motor behavior but recognized that the doctor was present. At that time, Dr. Aralica
determined that Haynes was psychotic and prescribed Haldol.
Eight days after the homicide, on June 12, Dr. Aralica again examined Haynes and
doubled the dose of Haldol. On June 19, Dr. Aralica observed that Haynes was less catatonic
and less psychotic; he diagnosed Haynes as having a chronic psychotic illness, schizophrenic
disorder. On August 6, Dr. Aralica observed Haynes to be catatonic, markedly psychotic and
paranoid. On September 5, Dr. Aralica observed that Haynes was withdrawn and in a daze.
On September 17, Dr. Aralica observed that Haynes was friendly, loud and disruptive, and
that his psychosis was not well controlled.
When asked at trial if he had an opinion of whether Haynes was psychotic on June 4, when
the homicide occurred, Dr. Aralica stated that he never inquired about that but that his
educated guess was that he was most likely psychotic.
Dr. Aralica testified that symptoms of schizophrenia include persecutorial delusions, ideas
which shift from one subject to another with no rational connection, incomprehensible and
incoherent speech, a dislike of being touched, inappropriate affects such as laughing when
admitting killing a person, social withdrawal and preoccupation with himself, and dilated
pupils. Dr. Aralica testified in connection with his examination of Haynes that schizophrenics
rarely accept the fact that they are schizophrenic or victims of a mental disease.
Haynes has a history of intermittent admissions to mental hospitals in Mississippi,
Wisconsin, Illinois, and Florida between February 1982 and December 7, 1984.
1
Dr. Aralica
was first able to review the medical records from Illinois and Mississippi at trial; he testified
that those records strengthened his opinion that Haynes suffered from paranoid type
schizophrenia.
A corrections officer at the jail, James Evans, testified that Haynes's behavior improved
with medication. When Evans first saw Haynes in June 1985, Haynes was hostile and unable
to communicate.
Dr. William O'Gorman, a psychiatrist originally hired by the defense to determine
Haynes's legal sanity at the time of the killing and his competency to stand trial, testified for
the prosecution that Haynes knew right from wrong at the time of the killing and knew the
nature and quality of his actions. Dr. O'Gorman examined Haynes on three occasions in
October for periods totaling less than three hours. Dr. O'Gorman disagreed with the diagnosis
of schizophrenia; rather, he diagnosed Haynes as schizoid and antisocial. Dr. O'Gorman
testified that Haynes wanted to get off the street and that the real reason for his behavior
was drug abuse.
At the penalty hearing the jury returned a special verdict finding the aggravating
circumstance of conviction of a felony involving the use or threat of violence to the person
of another, namely, a robbery committed by Haynes in 1970, when he was eighteen years
old. For evidence of mitigating circumstances, the defense called Dr. Myerson, a clinical
psychologist, and Dr. O'Gorman, the state's witness at trial. The jury imposed the death
penalty.
Guilt Phase
First we shall address the validity of the conviction at the guilt phase.
[Headnote 1]
There can be very little doubt that Haynes suffered from a "defect of reason, from disease
of the mind,"2 namely, the "chronic psychotic illness . . . schizophrenic disorder"
described by Dr.
____________________

1
Haynes was involuntarily committed to hospitals in Mississippi and Illinois. The Mississippi records
described Haynes as paranoid schizophrenic. The records contain a letter from Haynes to a Mississippi
psychiatrist wherein Haynes admitted lying about epilepsy, asthma and hallucinations in order to get a disability
check. In Illinois, Haynes was diagnosed as psychotic, antisocial, and schizophrenic, and he was given
chemotherapy. An Illinois psychiatrist recorded that Haynes is overtly psychotic and very prone to agitation;
eventually dangerous to others and unable to guard himself from serious harm. Haynes told the Wisconsin
hospital that he suffered from epilepsy and mental illness; the Wisconsin psychiatrist wrote in the records:
suspect that this is a scam. Although mentally disordered, Haynes was apparently able to dissemble in order to
serve his own ends.
defect of reason, from disease of the mind,
2
namely, the chronic psychotic illness . . .
schizophrenic disorder described by Dr. Aralica. Haynes's defense counsel, however, did not
call an expert or lay witness to render an opinion that, under the M'Naghten rule adopted in
this state,
3
Haynes did not know, at the time of committing the act, the nature and quality of
the act or if he did know it he did not know that what he was doing was wrong.
On this state of the record it is difficult to see how a jury could have come to the
conclusion that Haynes had presented a viable insanity defense, particularly in light of the fact
that the state presented a categorical and uncontradicted opinion by its expert, Dr. William
O'Gorman, that Haynes knew right from wrong at the time of the killing and knew the nature
and quality of his acts.
There is no question about Haynes's having struck the death-dealing blows and, absent any
real prima facie showing of the defense of insanity, the sole defense, insanity, collapses.
Haynes makes five assertions of error which warrant discussion but which do not alter the
propriety of the conviction.
[Headnote 2]
First, Haynes asserts that the district court erred by denying his motion for a continuance
on the morning of trial. The purpose of the motion was to allow discovery of medical records
and witnesses which would assist in establishing the insanity defense. Upon exercise of
discretion to deny a motion for continuance, a district court is instructed by Rule 14 to
consider whether or not the same facts can be proven by other witnesses . . . whose
attendance . . . might have been obtained. Banks v. State, 101 Nev. 771, 773, 710 P.2d 723,
725 (1985); see DCR 14(c). In following this guideline, the district court was acting within
the bounds of its discretion in denying the motion. The defense counsel could have procured a
local expert to examine Haynes to render an opinion on Haynes's legal sanity at the time of
the killing. While the medical records might have assisted a local expert in coming to a
conclusion, the absence of such records did not of itself preclude a local expert from coming
to a conclusion on Haynes's legal sanity.
____________________

2
As seen in footnote 1, Haynes is not incapable of guile in seeking admission to mental institutions, but a
reading of this record leaves very little doubt that he suffered from serious mental disorders.

3
For almost a century, the Nevada Supreme Court has applied the M'Naghten test to determine legal insanity.
Ford v. State, 102 Nev. 126, 717 P.2d 27 (1986); Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); Bean v.
State, 81 Nev. 25, 398 P.2d 251 (1965); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Sollars v. State, 73
Nev. 248, 316 P.2d 917 (1957); Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957); State v. Hartley, 22 Nev. 342,
40 Pac. 372 (1895); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889).
[Headnotes 3, 4]
Second, Haynes asserts that the district court erred in denying his motion for individual
voir dire. Absent a showing that the district court abused its discretion or that the defendant
was prejudiced, this court shall not disturb a district court's determination to conduct a
collective voir dire of prospective jurors. Summers v. State, 102 Nev. 195, 718 P.2d 676
(1986) (capital case); see Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); Cunningham v.
State, 94 Nev. 128, 575 P.2d 936 (1978); NRS 175.031. While some prospective jurors may
be inhibited from speaking frankly about their exposure to and impressions of mental illness,
the defense counsel could have asked the trial court during collective voir dire for
independent, sequestered voir dire as to any prospective jurors suspected of holding back on
this subject matter. The district court did not abuse its discretion, and Haynes has not shown
actual prejudice.
[Headnote 5]
Third, Haynes asserts that the district court erred by denying his motion for a mistrial
based upon prosecutorial abuse of peremptory challenges. The equal protection clause forbids
the prosecutor to challenge potential jurors solely on account of their race. Batson v.
Kentucky, ___ U.S. ___, 106 S.Ct. 1712 (1986). To establish a prima facie case of purposeful
discrimination, the defendant first must show that he or she is a member of a cognizable
racial group and that the prosecutor has exercised peremptory challenges to remove members
of defendant's race from the venire. Id. at 1723. Second, the defendant is entitled to rely on
the fact that peremptory challenges constitute a jury selection practice that permits those to
discriminate who are of a mind to discriminate. Id. Third, the defendant must show that
these facts and any other relevant circumstances raise an inference that the prosecutor used
that practice to exclude the venire members on account of their race. Id. Upon making such a
prima facie case, the burden shifts to the state to come forward with a neutral explanation for
challenging the racially excluded jurors. Id. The state cannot meet this burden on mere
general assertions that its officials did not discriminate but must demonstrate that
permissible racially neutral selection criteria and procedures have produced the
monochromatic result. Id. at 1721.
Haynes has made out a prima facie case. The prosecutor used six of the eight peremptory
challenges. Two of those challenges excused the only two black members of the panel. When
asked to give his reasons for excusing those two black veniremen, the prosecution responded
that one black venireman indicated on the jury sheet that he was unmarried, but on voir dire
he indicated he was married. The trial court made a note of whom the prosecution was
challenging and observed a consistent pattern of state challenges to persons who were
"rather young" and who did not have long work experience.
tion was challenging and observed a consistent pattern of state challenges to persons who
were rather young and who did not have long work experience. The trial court noted that
the other black venireman, a high school graduate, was very young and had been two months
unemployed. The state and the trial court, together, have supplied an explanation consistent
with neutrality.
[Headnote 6]
Fourth, Haynes asserts that his attorney-client privilege was violated when the state called
two psychiatrists as rebuttal expert witnesses who had been originally hired by defense
counsel to examine and test Haynes. A defendant's fifth amendment privilege against
self-incrimination and sixth amendment right to effective assistance of counsel, as extended
to the states by the fourteenth amendment, are not violated when the prosecution calls a
defense-retained psychiatrist as a rebuttal witness and when that psychiatrist had not been
called as a defense witness. Noggle v. Marshall, 706 F.2d 1408, 1410 (6th Cir.), cert. denied,
464 U.S. 1010 (1983).
[Headnotes 7, 8]
The attorney-client privilege is not absolute. State v. Bonds, 653 P.2d 1024 (Wash. 1982).
The attorney-client privilege rests on the theory that encouraging clients to make full
disclosure to their attorneys enables the latter to act more effectively, justly, and
expeditiously, a benefit out-weighing the risks posed to truth-finding.
4

[Headnote 9]
The jurisdictions are split as to whether the attorney-client privilege is violated when a
defense-retained psychiatrist, who is not called as a defense witness, is called as a rebuttal
witness to give an opinion on the legal sanity of the defendant. Most jurisdictions hold that
the attorney-client privilege is violated. United States v. Alvarez, 519 F.2d 1036 (3d Cir.
1975); Houston v. State, 602 P.2d 784 (Alaska 1979); State v. Pratt, 398 So.2d 421 (Md.App.
1979); Pouncy v. State, 353 So.2d 640 (Fla.App. 1977); People v. Lines, 531 P.2d 793 (Cal.
1975); People v. Hilliker, 185 N.W.2d 831 (Mich.App. 1971); cf. State v. Kociolek, 129 A.2d
417 (N.J. 1957). Likewise, most courts find that the attorney-client privilege is waived only
if the defendant calls a psychiatrist as a defense witness or places the psychiatrist's name
on a witness list.
____________________

4
The decision of whether the attorney-client privilege may include a communication to a non-lawyer by the
lawyer's client contemplates two conflicting forces. United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961)
(expert accountant). One is the investigation of truth and the enforcement of testimonial duty [which] demand
the restriction, not the expansion of [all] privileges. 8 Wigmore, Evidence 2192 at 73 (McNaughton Rev.
1961). The other is that it is absolutely necessary that a person should be able to place unrestricted and
unbounded confidence in a professional lawyer. Kovel, 296 F.2d at 921.
that the attorney-client privilege is waived only if the defendant calls a psychiatrist as a
defense witness or places the psychiatrist's name on a witness list. Tucker v. State, 484 So.2d
1299 (Fla.App. 1986); see Pratt, supra.
A few jurisdictions allow admission of the testimony of a defense-retained psychiatrist
who has not been called as a defense witness but who has been called as a prosecution
witness. State v. Craney, 347 N.W.2d 668, 673 (Iowa), cert. denied, 469 U.S. 884 (1984)
(opinion testimony on sanity or insanity and testimony of that opinion including
non-incriminatory statements by the defendant are admissible); State v. Bonds, 653 P.2d
1024, 1036 (Wash. 1982), cert. denied, 464 U.S. 831 (1983) (attorney-client privilege should
not extend to testimony of a psychiatrist when the issue of insanity is raised by the defense);
People v. Edney, 350 N.E.2d 400 (N.Y. 1976) (a plea of innocence by reason of insanity
constitutes a complete and effective waiver by the defendant of any claim to the
attorney-client privilege); State v. Steinkraus, 417 P.2d 431, 432 (N.M. 1966) (attorney-client
privilege applies only to communications, rather than facts; observations and conclusions
by a psychiatrist are facts).
[Headnote 10]
We choose to follow the position that opinion testimony on sanity and testimony of
non-incriminatory observations in arriving at that opinion, including non-incriminatory
statements by the defendant, are admissible. Craney, 347 N.W.2d at 673. Under these
principles, an observation or statement is not incriminatory merely because it tends to show
the defendant is sane. Id. None of the statements made by Haynes or observations made of
Haynes, to which the psychiatrists testified, incriminated Haynes in the crime of murder.
[Headnotes 11, 12]
Finally, Haynes claims that the district court erred in denying his motion for a mistrial
because a police officer destroyed his original notes recording the events between the arrest
and incarceration of Haynes in jail. Where evidence is lost as a result of inadequate
governmental handling, a conviction may be reversed. Wood v. State, 97 Nev. 363, 632 P.2d
339 (1981). This court will reverse only when the appellant shows either (1) bad faith or
connivance on the part of the government, or (2) prejudice from its loss. Rogers v. State, 101
Nev. 457, 463, 705 P.2d 664, 669 (1985). Haynes has shown neither prejudice nor bad faith.
The police officer prepared a written report dictated from the destroyed notes.
Penalty Phase
[Headnote 13]
We do find merit in Haynes's claim that his sentence is excessive.
sive. This was a crazy, motiveless killing. Although we have said in Ford v. State, 102 Nev.
126, 717 P.2d 27, that once the defense of insanity has been rejected by the jury, we will not
diminish punishment because of evidence regarding mental deficiencies, this case is different
from Ford. The record in Ford discloses an angry, homicidal intent and an unexcused,
deliberate, and premeditated mass murder. Here we have a mentally disturbed person lashing
out irrationally, and probably delusionally, and striking a person he did not know and
probably had never seen before.
The case before us can be compared to Biondi v. State, 101 Nev. 252, 699 P.2d 1062
(1985), in which we also reduced a death penalty to life without the possibility of parole.
Biondi killed a man in a barroom confrontation among strangers in an emotionally charged
atmosphere. Biondi had, like Haynes, one previous armed robbery on his record. There is
probably less reason to subject Haynes to the death penalty than there was Biondi. It certainly
would not be fair to spare Biondi and kill Haynes.
The basis on the record for the jury's death verdict was a single aggravating circumstance,
namely, a prior violent act in the form of an armed robbery committed fifteen years prior to
this crime when Haynes was eighteen years old.
Haynes is a homeless wanderer who has been in and out of mental institutions for the past
four or five years. He has committed a grave and serious offense, but it does not appear to us
that it can be properly and justly maintained that this man deserves to die for what he did.
[Headnotes 14, 15]
Under Gregg v. Georgia, 428 U.S. 153 (1976), we are required to consider whether the
sentence was influenced by passion, prejudice, or any other arbitrary factors; whether the
evidence supports the finding of a statutory aggravating circumstance; and, whether the death
sentence is excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
5

The United States Supreme Court has observed that under contemporary standards of
decency death is viewed as an inappropriate punishment for a substantial portion of convicted
firstdegree murderers."
____________________

5
The state courts are not constitutionally required to conduct proportionality reviews. Pulley v. Harris, 465
U.S. 37 (1984). In 1985, NRS 177.055(2)(d) was amended to abolish the proportionality review requirement;
this amendment became effective June 6, 1985. 1985 Nev. Stats, ch. 527 1 at 1597-98; Crump v. State, 102
Nev. 158, 162 n. 5, 716 P.2d 1387, 1389 n. 5 (1986). The prohibition against ex post facto laws requires that
this court apply the law as it existed when the crime was committed. Id. Haynes committed the crime of murder
on June 4, 1985, two days before the deadline.
degree murderers. Woodson v. North Carolina, 428 U.S. 280, 296 (1976). It is inappropriate
in this case.
We vacate the death penalty and impose a sentence of life imprisonment without the
possibility of parole.
____________
103 Nev. 320, 320 (1987) Keller & Streeter v. Warehouse Markets, Inc.
JACK H. KELLER and JACK STREETER, Appellants, v.
WAREHOUSE MARKETS, INC., Respondent.
No. 17392
June 25, 1987 738 P.2d 891
Appeal from partial summary judgment and judgment; Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
Action was brought contesting meaning of term gross sales in percentage lease. The
district court granted summary judgment for lessee, and lessors appealed. The Supreme Court
held that whether term gross sales was intended by parties to include income from slot
machines operated on leased premises presented factual question precluding summary
judgment.
Hardesty, Moss & Michaels, Reno, for Appellants.
McDonald, Carano, Wilson, Bergin, Frankovich and Hicks, Reno, for Respondent.
Judgment.
Whether term gross sales in percentage lease was intended by parties to include income from slot
machines operated on leased premises presented factual question precluding summary judgment where
lessors rejected lease provision originally proposed by lessee which excluded slot machine income from
definition of gross sales.
OPINION
Per Curiam:
This is a dispute between lessors and lessee relating to the meaning of the term in the
lease, gross sales. Lessors, Keller and Streeter, claim that the term gross sales, was
intended by the parties to include income from slot machines operated on the leased premises.
The lessee, Warehouse Markets, Inc., claims that the term gross sales was not intended to
include income from slot machines. The district court granted summary judgment to
Warehouse holding that the term gross sales cannot, as a matter of law, include slot
machine revenues.
103 Nev. 320, 321 (1987) Keller & Streeter v. Warehouse Markets, Inc.
a matter of law, include slot machine revenues. There are issues of fact bearing on the issue
of the parties' understanding of the meaning of gross sales; therefore, the summary
judgment is reversed.
The lease in question provided for a flat rental charge plus an additional rental of 1 1/2%
of the gross sales. Prior to execution of the lease and during negotiations Warehouse offered
for consideration by Keller and Streeter a lease provision which contained a phrase restricting
gross sales with the language, not including gaming revenues. The quoted language in the
lease was rejected by Keller and Streeter during negotiations. Warehouse's inclusion of that
phrase as a proposed lease term is certainly some indication that inclusion or exclusion of
gaming revenues as an intended part of gross sales was a part of the negotiations and that
Warehouse recognized that the simple term gross sales was not entirely clear. If it were as
clear as Warehouse claims, there would have been no call for language either excluding or
including gaming revenues.
Keller and Streeter, in opposition to the motion for summary judgment, claim that they can
prove that the parties intended gaming revenues to be included in the computation of gross
sales. Warehouse claims that gaming revenues must be excluded and that, as the trial court
held, the term gross sales clearly and unequivocally excludes the possibility of gaming
revenues being considered as part of gross sales. We disagree with Warehouse and hold that
Keller and Streeter are entitled to present their case on the meaning of the questioned lease
term, gross sales.
Summary judgment is reversed.
____________
103 Nev. 321, 321 (1987) Hui v. State
FRANCISCO HUI, Appellant, v. THE
No. 16835
June 25, 1987 738 P.2d 892
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County;
Miriam Shearing, Judge.
Defendant was convicted of first-degree murder with use of deadly weapon and battery
with use of deadly weapon by the district court and defendant appealed. The Supreme Court
held that: (1) not every instance of juror misconduct requires granting of motion for new trial
of criminal charges, and (2) defendant was entitled to have judgment of conviction reversed
and cause remanded for new trial, after newspaper article which detailed defendant's first
trial on same charges was revealed to second jury at retrial.
103 Nev. 321, 322 (1987) Hui v. State
defendant's first trial on same charges was revealed to second jury at retrial.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City, Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Brad Jerbic, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Not every instance of juror misconduct requires granting motion for new trial of criminal charges.
2. Criminal Law.
Disclosure by juror of newspaper article detailing defendant's first trial for charges of first-degree murder
and battery with use of deadly weapon to jury which was convened for retrial of same charges after first
conviction was reversed, required reversal of conviction and remand for new trial, where disclosure could
have prevented defendant from receiving impartial jury trial and due process of law, in that entire jury was
informed of previous jury's verdict, and defendant was charged with serious felony.
OPINION
Per Curiam:
Appellant Francisco Hui was convicted of first-degree murder with the use of a deadly
weapon and battery with the use of a deadly weapon. He appeals, citing numerous
assignments of error including the admission of evidence derived from an allegedly
unnecessarily suggestive police showup, the district court judge's examination into each
juror's mental processes after discovering juror misconduct during deliberation, and the
court's failure to grant a new trial based upon prejudicial juror misconduct. We conclude that
the instance of juror misconduct prevented Hui from receiving a fair trial. Accordingly, we
reverse the judgment of conviction and remand for a new trial.
On March 13, 1983, Hui allegedly shot Luis Adams and Jorge Rivero with a handgun.
Adams died from a bullet wound to his abdomen and Rivero was treated for a bullet wound
to his leg.
On November 7, 1983, Hui's first jury trial commenced. The jury returned a guilty verdict
and Hui was sentenced to life imprisonment without the possibility of parole. Hui's counsel
moved for a new trial and the motion was granted.
On July 22, 1985, Hui's second jury trial commenced. In court, two eyewitnesses
positively identified Hui as the suspect at the scene of the shooting.
103 Nev. 321, 323 (1987) Hui v. State
court, two eyewitnesses positively identified Hui as the suspect at the scene of the shooting.
Hui's counsel moved for a mistrial based upon the suggestive nature of the police's prior
staged one-on-one identification. The district court denied the motion and the case was
submitted to the jury.
During deliberation, the jury foreman informed the district court judge that one of the
jurors had revealed to the jury a newspaper article reciting Hui's first trial verdict. Thereafter,
the judge undertook an individual examination of each juror in order to determine the effect
the disclosure would have upon the verdict. Eleven jurors stated that the disclosure would
have no effect on their decision. Juror No. 8, however, was unsure of the effect of the
disclosure. Hui's counsel moved for a mistrial based upon the prejudicial effect the newspaper
disclosure would have upon the jury. The district court denied the motion. The jury returned
to deliberation and found Hui guilty.
Hui's counsel moved for a new trial based upon the juror misconduct. The district court
denied the motion. Hui was sentenced to two consecutive terms of life imprisonment without
the possibility of parole for murder in the first degree with the use of a deadly weapon and a
concurrent ten-year sentence for battery with the use of a deadly weapon.
Nevada law prohibits a juror from divulging personal knowledge to the jury. NRS
175.121(1)(a).
1
Once personal knowledge is disclosed, the judge shall declare a mistrial.
2

[Headnote 1]
Not every instance of juror misconduct, however, requires the granting of a motion for
new trial. Barker v. State, 95 Nev. 309, 594 P.2d 719 (1979). We must consider the issue in
light of Chapman v. California, 386 U.S. 18, 24 (1966), reh'g denied, 386 U.S. 987 (1967)
where the United States Supreme Court held [t]hat before a constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a reasonable
doubt. Applying the foregoing standard, we conclude that the error in this case was not
harmless. To reach this conclusion one need only glance at Juror No. 8's canvass which is set
forth as follows in full:
Q. We understand that one of the jurors disclosed that she had read a newspaper article
and that the contents of what she read were disclosed to you and we wanted to know if it
influenced your decision or whether you have reached a decision on the matter.
____________________

1
NRS 175.121(1)(a) prescribes:
No juror may declare to his fellow jurors any fact relating to the case as of his own personal knowledge.
. . .

2
NRS 175.121(4) prescribes:
If it appears that the juror has declared any fact relating to the case to his fellow jurors as of his own
knowledge, or that his vote was influenced by such knowledge undisclosed, the judge shall declare a
mistrial.
103 Nev. 321, 324 (1987) Hui v. State
read a newspaper article and that the contents of what she read were disclosed to you and we
wanted to know if it influenced your decision or whether you have reached a decision on the
matter.
A. No, it hadn't influenced my decision.
* * * *
Q. Had you reached a conclusion?
A. No. I'm teetering.
Q. You're still teetering?
A. Yes.
Q. Okay. You still have not reached a decision then?
A. Right.
Q. Okay. Do you have a feeling whether that disclosure
THE COURT: Okay. [Defense Counsel?]
EXAMINATION
Q. It hasn't, to this point, but you think it may, at least consciously or subconsciously,
affect you?
A. No.
Q. Do you think, after the proceedings are over, you'll believe your decision wouldn't have
been affected at all by what you have been told about the newspaper article?
A. No, I don't think so. Well, I thought before it was a hung jury. That's why we
werewhy he was being tried again. Maybe it would have some bearing because now you
know for sure that he was convicted before, with life in prison, but I don't know whether with
or without the possibility of parole.
Q. I assume it would make your decision easier, one way or another, mightn't it?
A. I try not to take it into consideration, because I'm still trying to put all the evidence
together and see whether he really did it or not, so I'm really not even using that to make my
decision.
Q. But you indicated it might make some difference.
A. I don't know. I don't think so.
THE COURT: [Prosecutor?]
EXAMINATION
Q. Do you still feel like you can be fair and impartial in reaching a decision regarding
guilt or innocence?
A. Yes.
Q. Knowing what you know now, since you've heard the instructions, you've heard all the
evidence, you've heard the argument, but you did hear some disclosure about what someone
had read in the newspaper, if you were in the position of either the prosecution or the defense,
would you still want 12 jurors of your frame of mind to sit in judgment on the case? A.
103 Nev. 321, 325 (1987) Hui v. State
A. Yeah.
We are unable to conclude that the disclosure of the newspaper article did not affect the
jury's verdict, or the decision of any juror, [b]eyond a reasonable doubt. Id. at 24. In Big
Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985), we established a review procedure
for misconduct:
We have established certain considerations which are relevant to the decision of
whether the error is harmless or prejudicial. These include whether the issue of
innocence or guilt is close, the quantity and character of the error, and the gravity of the
crime charged.
[Headnote 2]
In the case at hand, the quantity and character of the error are severe because an entire jury
was informed of the previous jury's verdict for the identical offense. Also, Hui was charged
with a serious felony. Moreover, we cannot say without reservation that the verdict would
have been the same in the absence of error. The newspaper disclosure may have prevented
Hui from receiving an impartial jury trial and due process of law as guaranteed him by the
Sixth and Fourteenth Amendment to the United States Constitution. Accordingly, we need
not reach Hui's remaining assignments of error and conclude that the judgment of conviction
must be reversed and remanded for a new trial.
____________
103 Nev. 325, 325 (1987) Kleitz v. Raskin
WILLARD ALLEN KLEITZ, Appellant, v. ELLEN RASKIN, MURRAY RASKIN,
dba ECONOMY FOOD SERVICE, Respondents.
No. 16904
June 25, 1987 738 P.2d 508
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Plaintiff, who was involved in two separate automobile accidents which occurred
approximately one month apart, brought action against persons involved in both first and
second accident, and persons involved in second accident moved for summary judgment. The
district court granted motion on basis that plaintiff could not apportion damages between
tortfeasors, and plaintiff appealed. The Supreme Court held that plaintiff was required to
prove that second accident defendants' actions were cause of injury, and after this is
established, burden would then shift to defendants to apportion damages, and if
defendants failed to meet burden, they would be jointly and severally liable for entire
amount of damages attributable to single injury.
prove that second accident defendants' actions were cause of injury, and after this is
established, burden would then shift to defendants to apportion damages, and if defendants
failed to meet burden, they would be jointly and severally liable for entire amount of damages
attributable to single injury.
Crockett & Myers, Jonathan C. Reed, James Lavelle, Lorraine J. Mansfield, Las Vegas,
for Appellant.
Leavitt & Leavitt, Las Vegas, for Respondents.
Automobiles.
In order for plaintiff, who was involved in two separate automobile accidents which occurred
approximately one month apart, to recover for injuries against driver involved in second accident, plaintiff
was required to demonstrate that second accident defendants' actions were cause of injuries; after
establishing causation, burden would then shift to defendants to apportion damages, and if defendants
failed to meet this burden, they would be jointly and severally liable for entire amount of damages
attributable to single injury.
OPINION
Per Curiam:
Appellant Kleitz was injured in an automobile accident on December 23, 1981. Following
the accident, Dr. Bentley examined Kleitz and determined that he was suffering from a loss of
lumbar curve due to muscle spasm. Dr. Bentley examined Kleitz again on January 21, 22 and
25, 1982, determining on the last visit that Kleitz should be hospitalized. Dr. Bentley thought
it a good possibility that Kleitz had a herniated disc. En route to the hospital on January 25th,
Kleitz was in a second automobile accident. The driver of the other car in the second accident
was respondent Ellen Raskin.
In 1985, Kleitz brought suit against the persons involved in the first accident and
respondents Ellen and Murray Raskin, dba Economy Food Service (Raskin). Kleitz settled
with the first accident defendants, but reserved his rights against Raskin. Raskin moved for
summary judgment, alleging that the second accident did not cause additional injury to Kleitz.
Raskin supported her motion with the deposition testimony of Dr. Bentley, who stated that he
examined Kleitz before and after the second accident and found his condition to be
unchanged. Kleitz moved for partial summary judgment on a legal issue, asking the trial court
to conclude that [i]f two related tortfeasors, in separate auto impacts, produce an injury to
the Plaintiff which cannot be apportioned between the two impacts, both are jointly and
severally liable to the Plaintiff."
auto impacts, produce an injury to the Plaintiff which cannot be apportioned between the two
impacts, both are jointly and severally liable to the Plaintiff. Kleitz represented to the trial
court that Dr. Gordon, the physician who operated on Kleitz after the second accident, would
testify at trial that one or both of the automobile accidents caused Kleitz's herniated disc and
it was medically impossible to apportion causation between the two. Kleitz offered to reduce
Dr. Gordon's proposed testimony to affidavit form, but the trial court felt it unnecessary. The
trial court granted Raskin's motion for summary judgment, concluding that in as much [sic]
as Plaintiff cannot apportion damages as between tortfeasors, the jury would have nothing
upon which to base a reasoned opinion as to damages to be awarded in the event liability was
established.
In our view, this appeal presents two related issues of law: When a plaintiff allegedly
suffers a single injury from automobile accidents occurring one month apart, in order to
recover from the second accident defendants, must plaintiff prove (a) that the second accident
defendants' breach of duty was a cause of his injury, and (b) what portion of his damages is
apportionable to the second accident defendants' negligence? We conclude that in the facts of
this case, plaintiff must prove that the second accident defendants' actions were a cause of the
injury. Once this is established, the burden shifts to the defendant to apportion damages. If the
defendant fails to meet his burden, he is jointly and severally liable for the entire amount of
damages attributable to the injury.
A case on point is Phennah v. Whalen, 621 P.2d 1304 (Wash.Ct.App. 1980). In Phennah,
plaintiff was injured in two automobile accidents occurring approximately four months apart.
Trial testimony established that both accidents caused plaintiff's injury, but there was no basis
for segregating damages among the causes. Id. at 1306. The issue before the court was
whether plaintiff was required to proffer an evidentiary basis for the segregation of damages
among successive tortfeasors. Id. at 1305. The court held that
Once a plaintiff has proved that each successive negligent defendant has caused some
damage, the burden of proving allocation of those damages among themselves is upon
the defendants; if the jury find [sic] that the harm is indivisible, then the defendants are
jointly and severally liable for the entire harm.
Id. at 1310.
We agree with the result reached in Phennah. A similar principle is found in 433B{2) of
the Restatement.1 The Restatement explains that the rationale for placing upon the
defendant the burden of apportioning damages is that "as between the proved tortfeasor
who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due
to lack of evidence as to the extent of the harm caused should fall upon the former."
ple is found in 433B(2) of the Restatement.
1
The Restatement explains that the rationale
for placing upon the defendant the burden of apportioning damages is that as between the
proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any
hardship due to lack of evidence as to the extent of the harm caused should fall upon the
former. Restatement (Second) of Torts 433B comment d (1965).
As is evident from both the Restatement 433B(2) and Phennah, before the burden shifts
to the defendant to apportion damages, plaintiff must establish that defendant's actions were a
cause of his injury.
2
The basis of Raskin's motion for summary judgment was that the second
accident did not cause any aggravation to the injury sustained in the first accident. The trial
judge did not reach this issue because he erroneously concluded that Kleitz must offer an
evidentiary basis for apportionment of damages, and Kleitz admittedly could not do so. Based
on the present state of the record, it is not clear whether Kleitz can demonstrate a genuine
issue of fact with regard to whether the second accident was a cause of his injury. Kleitz
failed to develop adequately his evidence on this issue, but this was at least in part due to the
trial court's erroneous conclusion. We therefore reverse, but note that Raskin may renew his
motion for summary judgment, at which time Kleitz must demonstrate a genuine issue of fact
concerning whether the second accident contributed to his injury.
____________________

1
The Restatement (Second) of Torts 433B (1965) provides:
Burden of Proof.
(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the
defendant has caused the harm to the plaintiff is upon the plaintiff.
(2) Where the tortious conduct of two or more actors has combined to bring about harm to the
plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable
of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

2
Restatement (Second) of Torts 433B(3) (1965) describes circumstances in which the burden shifts to the
defendant to show not only apportionment of damages but causation. In our view, this legal principle applies
when two separate tortfeasors act near simultaneously and it is unclear which one of the two caused the injury.
See Restatement (Second) of Torts 433B comment h (1965). See, e.g., Summers v. Tice, 199 P.2d 1 (Cal.
1948). In the instant case, this rule of law does not apply.
____________
103 Nev. 329, 329 (1987) Healy v. Volkswagenwerk
LEE HEALY as Administratrix of the Estate of PATRICIA MARIE HEALY, Deceased, and
BRIAN HEALY, By and Through His Guardian ad Litem, LEE HEALY, Appellants, v.
VOLKSWAGENWERK AKTIENGESELLSCHAFT, VOLKSWAGEN OF AMERICA,
SHELL OIL COMPANY, KINGS BEACH SHELL STATION, CLARK YOUNG,
Individually and dba KINGS BEACH SHELL STATION and FRED JAY RADTKE,
Respondents.
No. 18022
August 21, 1987 741 P.2d 432
Motion to dismiss appeal. Ninth Judicial District Court, Douglas County; David R.
Gamble, Judge.
Plaintiffs appealed from order of the district court granting defendants' motion to dismiss.
Defendants moved to dismiss appeal as untimely. The Supreme Court held that running of
time for filing notice of appeal started when plaintiffs received initial notice of entry of
judgment from first defendant.
Motion granted; appeal dismissed.
Riley M. Beckett, Carson City, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & List, and Joseph J. Van Walraven, Reno; Eugene
J. Wait, Reno; Shamberger, Georgeson, McQuaid & Thompson, Reno; Erickson, Thorpe,
Swainston, Cobb & Lundemo, Reno, for Respondents.
Appeal and Error.
Time for filing notice of appeal from order dismissing complaint began to run on date first defendant
served notice of entry of judgment on plaintiffs, even though other defendants served successive notices of
entry of judgment, where first notice of entry of judgment provided plaintiffs with actual notice that written
order dismissing their complaint as to all defendants had been entered, absent showing that any defendant
had ability or obligation to influence conduct of other defendant or that defendants did not act
independently of each other in serving various notices. NRAP 4(a), 26(c).
OPINION
Per Curiam:
1
This is an appeal from an order of the district court granting
respondents' motion to dismiss appellants' complaint.
____________________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to the request of
counsel for respondent Volkswagen of America, we have determined that our decision should be issued in a
published opinion. Accordingly, we hereby issue this opinion in place of our order dismissing this appeal filed
on May 27, 1987.
This is an appeal from an order of the district court granting respondents' motion to
dismiss appellants' complaint. Respondents have moved to dismiss this appeal on the ground
that appellants failed to file a timely notice of appeal. Appellants oppose the motion.
The district court entered its order dismissing appellants' complaint on January 13, 1987.
The following day, on January 14, 1987, respondent Kings Beach Shell Station served
appellants by mail with written notice of entry of the district court's order. Thereafter, three of
the remaining respondents served appellants by mail with separate written notices of entry on
January 15, 1987, January 16, 1987, and January 27, 1987, respectively. Appellants filed the
notice of appeal on February 23, 1987.
Respondents contend that because appellants' notice of appeal was not filed within
thirty-three days of service of any of the first three notices of entry of judgment, appellants
filed an untimely notice of appeal which failed to vest jurisdiction in this court to hear this
appeal. See NRAP 4(a); NRAP 26(c); Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660
P.2d 980 (1983) (this court lacks jurisdiction to entertain an appeal where the notice of appeal
was filed beyond the time provided in NRAP 4(a)).
Appellants contend, however, that the time for filing their notice of appeal commenced to
run and should be computed from the date of service of the last notice of entry of judgment
served by respondent Shell Oil Company on January 27, 1987. Appellants maintain that by
serving multiple notices, respondents created a confusing situation which misled appellants
into believing that the time for filing the notice of appeal would not commence to run until all
the respondents had served notices of entry of the judgment. Further, appellants suggest that
by serving successive notices, respondents may have admitted that something was wrong with
each prior notice and that, therefore, the last notice vitiated the prior notices, thus rendering
them nugatory. See Ross v. Giacomo, 97 Nev. 550, 635 P.2d 298 (1981). We disagree. Our
decision in Ross v. Giacomo involved one respondent who served successive notices of entry
of judgment. Thus, in that case, the respondent, acting alone, created a confusing situation
which we concluded should not accrue to his benefit. Here, multiple respondents filed
successive notices. There is no indication that any respondent in this litigation had the ability
or obligation to influence the conduct of the other respondents. Each respondent acted
independently of the others in serving the various notices. Moreover, service of the initial
notice of entry of judgment clearly provided appellants with actual notice that a written order
dismissing their complaint as to all the respondents had been entered. Under these
circumstances, we conclude that service of the first notice of entry of judgment
commenced the running of the time for filing the notice of appeal.
service of the first notice of entry of judgment commenced the running of the time for filing
the notice of appeal. The subsequent service of additional notices of entry by the other
respondents did not operate to extend the time for filing a notice of appeal beyond the period
provided by NRAP 4(a). Cf. Walker v. Scully, 99 Nev. 45, 657 P.2d 94 (1983) (the thirty-day
period specified in NRAP 4(a) may not be extended by the district court).
NRAP 4(a) requires that a notice of appeal in a civil case shall be filed . . . within thirty
(30) days of the date of service of written notice of the entry of the judgment or order
appealed from. NRAP 26(c) allows three extra days for filing a notice of appeal where
written notice of entry of the order was served by mail. Because the first written notice of
entry of judgment was served by mail on January 14, 1987, appellants had until February 16,
1987, within which to file a timely notice of appeal. Appellants, however, filed the notice of
appeal on February 23, 1987, seven days beyond the time provided by NRAP 4(a) and NRAP
26(c). Consequently, appellants' untimely notice failed to invoke this court's jurisdiction to
entertain this appeal. See Walker v. Scully, 99 Nev. 45, 657 P.2d 94 (1983). Accordingly, we
hereby grant respondents' motion, and we
ORDER this appeal dismissed.
____________
103 Nev. 331, 331 (1987) Tarkanian v. Nat'l Collegiate Athletic Ass'n
JERRY TARKANIAN, UNIVERSITY OF NEVADA, LAS VEGAS; DR. LEONARD
GOODALL, as President of the University of Nevada, Las Vegas and Officer
of the University of Nevada; FRANKIE SUE DEL PAPA, LILLY FONG, DOROTHY
GALLAGHER, CHRIS KARAMANOS, JOAN DENNEY,
DANIEL J. KLAICH, JOHN McBRIDE, JOANN SHEERIN and JUNE
WHITELY as Members of the Board of Regents of the University
of Nevada, Appellants and Cross-Respondents, v. NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION, Respondent and
Cross-Appellant.
No. 16256
August 27, 1987 741 P.2d 1345
Appeal from injunction prohibiting suspension of Jerry Tarkanian as UNLV Basketball
Coach; cross-appeal from denial of attorney's fees as damages; appeal from order granting
attorney's fees as costs pursuant to 42 U.S.C. 1988. Eighth Judicial District Court, Clark
County; Paul S. Goldman, District Judge.
NCAA ordered suspension of state university basketball coach for violations of athletic
rules. Basketball coach sought to enjoin suspension. The district court granted the injunction
and awarded attorney's fees. NCAA appealed and coach cross-appealed. The Supreme Court
held that: (1) action of NCAA was state action, and required procedural due process; (2)
coach had a due process property and liberty interest in keeping coaching position; and (3)
award of attorney's fees was not entirely correct.
Reversed in part, affirmed in part, remanded.
Lionel, Sawyer & Collins and Mark A. Solomon, Las Vegas for Jerry Tarkanian Appellant
and Cross-Respondent.
Jones, Jones, Close & Brown, Las Vegas, for UNLV, et al. Appellants and
Cross-Respondents.
Beasley, Hamilton & Holden, Reno; David Goldwater, Las Vegas; Swanson, Midgley,
Gangwere, Clarke & Kitchin, Kansas City, Mo. for Respondent and Cross-Appellant.
Action of NCAA, requiring state university to suspend basketball coach, was discipline of state university
employee, and therefore exercise of traditionally exclusive prerogative of State, and thus constituted state
action for purposes of due process analysis. Const. Art. 11, 4; 42 U.S.C.A. 1983; U.S.C.A.Const.
Amend 14.
State university basketball coach and tenured physical education professor had property interest in
continued employment as basketball coach, protected by due process, despite general rule that employee
does not have property interest in particular position, where continuing employment only as physical
education professor would have been drastic change from previous position. U.S.C.A.Const. Amend. 14.
Requirements of stigma plus test invoking due process protections for liberty interests was met by state
university basketball coach, suspended as required by NCAA order, where suspension would have
foreclosed coach's opportunity for similar employment, and where change in status from basketball coach
to physical education professor was drastic. U.S.C.A.Const. Amend. 14.
Fact-finding hearing of NCAA, in determining whether to order suspension of state university basketball
coach, should, at least, have required production of written affidavits to meet due process requirements.
5. Civil Rights.
Trial court did not abuse its discretion in awarding attorney's fees to basketball coach incurred in
successful injunction of suspension by university as ordered by NCAA, despite coach's failing to plead a
specific substantive civil rights statute, and only pleading federal civil rights attorney fees statute, where
factual allegations of complaint met criteria of substantive statute. 42 U.S.C.A. 1983, 1988;
6. Civil Rights.
Trial court did not abuse its discretion in awarding attorney's fees to state university
basketball coach, in enjoining suspension ordered by NCAA, because of violation of due
process, despite coach's failure to prevail on First Amendment claim, where coach
obtained all relief sought. 42 U.S.C.A. 1988; U.S.C.A.Const. Amends. 1, 14.
7. Civil Rights.
Trial court abused its discretion in awarding a portion of attorney's fees incurred in civil
rights suit by basketball coach, where portion of fees was not supported by billing
records and where another portion incurred was for unsuccessful and distinct part of
litigation. 42 U.S.C.A. 1988.
Trial court, in action by state university basketball coach to enjoin suspension by state
university, as ordered by NCAA, committed at worst, harmless error, when it refused to
grant continuance to allow infractions committee member of NCAA to testify, and
further refused to admit testimony of same member of infractions committee made to
congressional subcommittee, where other infractions committee members were allowed
to testify.
OPINION
Per Curiam:
This is the second appeal in litigation involving Jerry Tarkanian's suspension as head
basketball coach at the University of Nevada-Las Vegas (UNLV). The trial court granted
Tarkanian injunctive relief because of the NCAA's failure to comply with due process
standards. The trial court also awarded Tarkanian attorney's fees pursuant to 42 U.S.C.
1988. We affirm in most respects, reversing and remanding only for recomputation of
attorney's fees.
THE FACTS
The NCAA is a private, voluntary association consisting of approximately 960 public and
private educational institutions. The NCAA Council, which is elected at annual conventions,
is responsible for implementation and interpretation of NCAA policies. The NCAA
Committee on Infractions administers the NCAA enforcement program.
UNLV is a public university existing by virtue of Article 11, Section 4 of the Nevada
Constitution. Jerry Tarkanian has been a head basketball coach for nearly thirty years, at
UNLV since 1973.
After a two and one-half year investigation of UNLV's basketball program, the Committee
on Infractions issued to UNLV an Official Inquiry on February 25, 1976. The Official Inquiry
was fifty-four pages in length and outlined seventy-two rule violations which allegedly
occurred between 1970 and 1976. The Official Inquiry was later supplemented with six
additional allegations.
UNLV was requested to conduct its own investigation and respond by June 1, 1976. The
Nevada State Attorney General's Office conducted an extensive investigation of the
allegations. The individuals named in the Official Inquiry were located, and attorney general
personnel either traveled to their homes or flew them to Las Vegas for interviews.
UNLV submitted to the Committee on Infractions a response consisting of a restatement of
each allegation and an explanation whether UNLV agreed that a violation occurred. UNLV
also submitted two boxes of sworn statements, affidavits and other documentary evidence
supporting denials of rule violations.
The Committee on Infractions considered the allegations in hearings covering
approximately a three-day period. The NCAA enforcement staff's evidence consisted of the
investigators' oral recollections of interviews with sources. The investigators relied on
memoranda of the interviews, sometimes dictated after the interviews. The interviewees did
not check the accuracy of the memoranda. With respect to the allegations against Tarkanian,
UNLV affidavits and sworn statements directly controverted the testimony of the NCAA
enforcement staff.
Of the seventy-eight allegations, the Committee found thirty-eight violations of NCAA
rules. Tarkanian was named in ten of the violations. The Committee issued its findings in
Confidential Report No. 123(47), which directed UNLV to show cause why additional
penalties should not be imposed against it if it did not suspend Tarkanian from involvement
with the University's Intercollegiate Athletic Program for two years.
UNLV appealed certain findings and penalties to the NCAA Council in May, 1977,
including all involving Tarkanian. The Council affirmed the findings and penalties of the
Committee on August 23, 1977. In September, 1977, UNLV conducted a hearing to
determine whether to follow the NCAA's directive. The hearing officer questioned the factual
basis of the charges against Tarkanian, but felt UNLV had no choice but to accept the
penalties in the Confidential Report. UNLV's President accepted the hearing officer's
recommendation and suspended Tarkanian.
Tarkanian brought suit against UNLV in September, 1977 and obtained injunctive relief.
This court reversed for failure to join a necessary party, the NCAA. University of Nevada v.
Tarkanian, 95 Nev. 389, 594 P.2d 1159 (1979). Tarkanian commenced a second suit in July,
1979, against both UNLV and the NCAA. The trial court granted Tarkanian injunctive relief
but denied Tarkanian's claim for attorney's fees as damages under state law. The trial court,
however, did allow attorney's fees as costs pursuant to 42 U.S.C. 1988.
DISCUSSION
State Action.
The NCAA first contends that UNLV's and the NCAA's imposition of penalties against
Tarkanian does not constitute state action.
[Headnote 1]
Due process restrictions apply only to activities which can be characterized as state action.
1
Early cases held that NCAA regulatory activity constituted state action. See, e.g., Regents
of the Univ. of Minn. v. N.C.A.A., 560 F.2d 352 (8th Cir. 1977), cert. denied, 434 U.S. 978
(1977); Howard University v. N.C.A.A., 510 F.2d 213 (D.C.Cir. 1975); Parish v. N.C.A.A.,
506 F.2d 1028 (5th Cir. 1975); Associated Students, Inc. v. N.C.A.A., 493 F.2d 1251 (9th
Cir. 1974). The rationale underlying these cases was that many NCAA member institutions
were either public or government supported. Rivas Tenorio v. Liga Athletica
Interuniversitaria, 554 F.2d 492, 495 (1st Cir. 1977). However, the NCAA argues that a
trilogy of 1982 Supreme Court decisions and cases subsequently interpreting them require a
different result. We disagree.
The Supreme Court cases on which the NCAA relies are Rendell-Baker v. Kohn, 457 U.S.
830 (1982), Lugar v. Edmonson Oil Company, Inc., 457 U.S. 922 (1982), and Blum v.
Yaretsky, 457 U.S. 991 (1982).
In Blum, medicaid patients in private nursing homes challenged the decision of physicians
to transfer them to lower levels of care without notice or a hearing. 457 U.S. at 1006. The
Court held that due process limitations did not apply because government regulations did not
dictate the decision to transfer. Rather, private physicians determined whether the patient's
care was medically necessary based upon professional standards. Id. at 1006-08. The Court
stated that a State normally can be held responsible for a private decision only when it has
exercised coercive power or has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the State. Id. at 1004. The Court
further noted that mere regulation, subsidization, or acquiescence in the initiatives of a private
party do not create state action. Id.
In Rendell-Baker, the Court relied upon similar reasoning to hold that a private high school
for maladjusted students did not act under color of law when it discharged teachers. The
Court reached this conclusion even though the school was governmentally regulated and
received most of its students by referral from public schools, and public funds had
accounted for over ninety percent of its budget.
____________________

1
The under color of law requirement of 42 U.S.C. 1983 is identical to the state action requirement of the
Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The parties use both terms, but for
convenience' sake, we will refer only to state action.
reached this conclusion even though the school was governmentally regulated and received
most of its students by referral from public schools, and public funds had accounted for over
ninety percent of its budget. 457 U.S. at 832-33.
In Lugar, the Court determined that a private party's joint participation with state officials
in the seizure of disputed property constituted action under color of state law. The Court
interpreted its cases to require that the conduct allegedly causing the deprivation of a federal
right be fairly attributable to the State. 457 U.S. at 937. This inquiry contains a two-part
approach:
First, the deprivation must be caused by the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the State or by a person for whom the
State is responsible. . . . Second, the party charged with the deprivation must be a
person who may fairly be said to be a state actor. This may be because he is a state
official, because he acted together with or has obtained significant aid from state
officials, or because his conduct is otherwise chargeable to the State.
Id. at 937.
Cases subsequent to Blum, Rendell-Baker, and Lugar have rejected the earlier line of cases
which held that NCAA regulatory activity is state action. In Arlosoroff v. N.C.A.A., 746 F.2d
1019 (4th Cir. 1984), a Duke University tennis player challenged NCAA eligibility
requirements. In holding that the state action requirement was not met, the court said that it
could not be shown that state schools joined as a bloc to cause the bylaw in question to be
adopted. Thus the coercive power test explained in Blum was not met, and the court found no
state action. 746 F.2d at 1022. Arlosoroff specifically rejected the earlier line of cases which
held that NCAA regulatory activity is state action. Id. at 1021. See also Graham v. N.C.A.A.,
804 F.2d 953 (6th Cir. 1986); Ponce v. Basketball Federation, 760 F.2d 375 (1st Cir. 1985);
McHale v. Cornell Univ., 620 F.Supp. 67 (N.D.N.Y. 1985).
The Blum trilogy and cases subsequently interpreting it do not require the result which the
NCAA urges. Both Blum and Rendell-Baker recognized that state action may be present if
the private entity has exercised powers that are traditionally the exclusive prerogative of the
state.' Blum, 457 U.S. at 1005 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. at 345,
353 (1974)); see also Rendell-Baker, 457 U.S. at 842, UNLV is a public institution, existing
by virtue of Article 11, section 4 of the Nevada Constitution. Tarkanian is therefore a public
employee.
In our view, the right to discipline public employees is traditionally the exclusive prerogative
of the state. UNLV cannot escape responsibility for disciplinary action against employees by
delegating that duty to a private entity.
The Arlosoroff court held that the regulation of intercollegiate athletics is not a function
traditionally exclusively reserved to the state. See also Rendell-Baker, 457 U.S. at 842 (while
education is a public function, it has not been traditionally the exclusive function of the state).
However, the facts of the instant case are distinguishable from Arlosoroff and other cases
cited by the NCAA in that those cases concerned private schools. See Arlosoroff, 746 F.2d
1019 (applicability of NCAA eligibility requirements to Duke University tennis player);
McHale, 620 F.Supp. 67 (applicability of NCAA eligibility requirements to Cornell
University student). Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953 (6th Cir.
1986), on which the NCAA relies in its supplemental points and authorities, is also
distinguishable. Graham did not deal with the enforcement of NCAA rules against a state
employee, as in the instant case.
For similar reasons, the two-part approach articulated in Lugar requires that we conclude
state action is present. The first prong is met because no third party could impose disciplinary
sanctions upon a state university employee unless the third party received the right or
privilege from the university. Thus, the deprivation which Tarkanian alleges is caused by the
exercise of a right or privilege created by the state. Also, in the instant case, both UNLV and
the NCAA must be considered state actors. By delegating authority to the NCAA over
athletic personnel decisions and by imposing the NCAA sanctions against Tarkanian, UNLV
acted jointly with the NCAA.
Property or Liberty Interest.
The protections of due process attach only to deprivations of property or liberty interests.
Sullivan v. Brown, 544 F.2d 279, 282 (6th Cir. 1976). The NCAA argues that Tarkanian did
not possess a constitutionally protected property or liberty interest. We disagree.
In Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the Supreme Court stated that
property interests are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state lawrules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits. A contract for employment can be the basis of a property right. Stewart v. Bailey,
556 F.2d 281, 285 (5th Cir. 1977).
[Headnote 2]
In our view, Tarkanian's contractual relationship with UNLV establishes a property
interest in continued employment. Since July, 1973, Tarkanian had been employed under a
series of one-year contracts running from July through June. His 1977-1978 contract was
entitled Tenured Professional Employment Document. This contract, which was dated June
20, 1977 and was for a term running from July 1, 1977 through June of 1978, was a
continuation of an established practice between the parties. The contract granted Tarkanian
tenure, thus confirming his testimony that upon arrival at UNLV he was promised tenure
would be given at some time in the future. This contract was in force when UNLV suspended
Tarkanian in September, 1977.
The NCAA argues that Tarkanian was not deprived of a property interest because the
suspension affected only his duties as head coach. According to his 1977-1978 contract,
Tarkanian held the positions of both head basketball coach and professor of physical
education. Case law supports that employees do not have a property interest in a particular
position. See e.g., Childers v. Independent School Dist. No. 1, 676 F.2d 1338, 1341 (10th Cir.
1982); Sullivan v. Brown, 544 F.2d 279, 282 (6th Cir. 1976). Given the facts of this case, this
argument is not persuasive. Tarkanian had been a head basketball coach for twenty-eight
years, four at UNLV. Continued employment only as a professor of physical education would
be a drastic change from his previous assignment.
[Headnote 3]
We also believe that Tarkanian possessed a liberty interest protected by the due process
clause. The Supreme Court defined the parameters of the due process liberty interest in Paul
v. Davis, 424 U.S. 693, reh'g denied, 425 U.S. 985 (1976). In Davis, the Court held that in
order to invoke the protections of the due process liberty interest, a plaintiff must show that a
right or status previously recognized by state law was distinctly altered or extinguished and
that his reputation was injured as a result. Id. at 711. This test has become known as the
stigma-plus test, the stigma being an injury to reputation, the plus being a change in a
previously recognized status. The NCAA is unpersuasive in contending that Tarkanian fails
both prongs of the test.
The stigma which satisfies the stigma-plus test in the employment context must be such
that it forecloses plaintiff's opportunity to take advantage of other employment opportunities.
Altman v. Hurst, 734 F.2d 1240, 1243 (7th Cir. 1984), cert. denied, 469 U.S. 982 (1984);
Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1101 (9th Cir. 1981), cert. denied, 455 U.S.
948 (1982). Dismissal from employment on grounds involving immorality or dishonesty
satisfies the stigma prong of the stigma-plus test.
rality or dishonesty satisfies the stigma prong of the stigma-plus test. Lawson v. Sheriff, 725
F.2d 1136, 1139 (7th Cir. 1984). The grounds for suspending Tarkanian satisfy this standard.
2

The NCAA also contends that Tarkanian has not suffered a sufficient change of status. As
already noted, however, even though Tarkanian would have retained employment as a
professor, the NCAA's disciplinary action would have drastically altered his position. Cf.
Hardiman v. Jefferson County Bd. of Educ., 709 F.2d 635 (11th Cir. 1983) (one week
suspension without pay insufficient to invoke due process protections); Mosrie v. Barry, 718
F.2d 1151, (D.C.Cir. 1983) (lateral transfer to less desirable district insufficient to invoke due
process protections). Absent judicial intervention, Tarkanian's suspension might well have
ended his college coaching career.
Due Process.
The NCAA contends that the trial court erred in finding that the manner in which
Tarkanian was suspended did not afford due process of law. We disagree.
In the hearings before the Committee on Infractions, the NCAA enforcement staff
presented orally the NCAA's case. The investigators' presentation consisted of their
recollections of interviews with sources. The investigators relied upon notes of the
interviews, sometimes dictated after the fact. Tarkanian and UNLV hotly contested virtually
all of the testimony which allegedly established rule violations by Tarkanian, and they
presented evidence directly contradicting the investigators' testimony, generally consisting of
signed affidavits and statements from persons whom the NCAA had interviewed. In the
circumstances of this case, this procedure does not comport with due process requirements.
Procedural due process requirements are flexible and vary as the particular situation
demands. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). In Mathews, the Court held that
three competing interests should be balanced in determining what process is due:
First, the private interest that will be affected by the official action; second, the risk of
an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
____________________

2
The NCAA's findings against Tarkanian included that (1) he arranged for a student to get a B grade
without attending class or doing class work; (2) he attempted to impede the NCAA's investigation by
discouraging individuals from providing information and encouraging individuals to provide false information;
(3) he provided free airline transportation to a student-athlete; (4) he reimbursed an individual's expenses for
recruiting a student-athlete; (5) he falsely certified UNLV's program as in compliance with NCAA rules; and (6)
his conduct did not comport with high ethical standards.
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Id. at 335.
A case on point is Stanley v. Big Eight Conference, 463 F.Supp. 920 (W.D.Mo. 1978). In
Stanley, the plaintiff sought to enjoin the Big Eight Conference, working in cooperation with
the NCAA, from conducting a hearing to determine if Oklahoma State University athletic
personnel had violated rules of the Conference and the NCAA. The court granted injunctive
relief.
In Stanley, the court noted the severe impact on coaching personnel when they are found to
have violated the rules governing their activities. Id. at 926-27, 930. We have already
discussed this point in the context of Tarkanian's liberty or property interest and will not
repeat it here. We only reiterate our view that Tarkanian's suspension likely would have
ended his near thirty-year career as a head coach and permanently tarnished his reputation. He
no doubt possessed a significant interest in the outcome of the NCAA proceedings, an interest
which cannot be taken lightly.
[Headnote 4]
We next consider the nature of the fact-finding procedures employed by the NCAA. In
Stanley, the fact-finding body intended to rely upon as evidence of wrongdoing an
investigator's eighteen page report detailing interviews with approximately seventy-five
people. Id. at 924. The court held the procedures to be unconstitutional, stating:
Of greatest concern to the Court is that the author of the investigative report is free
to draw certain inferences beyond those statements of fact made to him in his
interviews.
. . . .
. . . Furthermore, the author of the report presents statements made to him in a
fashion that may not necessarily be prejudicial or biased but may certainly be classified
as not completely neutral. It is this unconscious subjective coloring of the statements
that troubles the Court. Accurate findings of fact should not be made upon pre-digested
information.
Id. at 931.
There are significant similarities between this case and Stanley, and we are persuaded by
Stanley's reasoning. Stanley involved a substantial investigation, with seventy-five people
interviewed. The NCAA's investigation of Tarkanian and UNLV spanned approximately a
two and one-half year period and resulted in fifty-eight pages of typed material detailing
seventy-eight allegations of infractions.
approximately a two and one-half year period and resulted in fifty-eight pages of typed
material detailing seventy-eight allegations of infractions. Also, in Stanley, the plaintiff
denied the allegations pertaining to him. In the instant case, Tarkanian not only denied the
allegations, he produced numerous sworn statements directly contradicting the testimony of
the NCAA's investigators. In these circumstances, basing findings of fact upon pre-digested
information creates serious due process problems. The lengthy and far-reaching scope of the
NCAA's investigation in this case creates the danger that the enforcement staff may not
remember the precise nature of interviews. This increases the likelihood that investigators, no
matter how pure their intentions, will gloss their testimony with an unconscious subjective
coloring. Also, despite the NCAA's desire to make the investigation a cooperative effort, the
proceedings obviously became adversarial. Again, this enhances the likelihood that
pre-digested information will be presented in a fashion favorable to the investigator-witness's
position. As the court noted in Stanley, [f]ew investigative reports can be written in a totally
objective manner void of the author's subjective attitudes. Id. at 931 n.4.
Alternative procedures for protecting Tarkanian's interest are available. At a minimum the
NCAA should be required to produce written affidavits of persons interviewed by the
enforcement staff. This would attenuate the problem of a subjective coloring of the facts.
Attorney's fees.
[Headnote 5]
The NCAA next argues that the trial court erred in awarding attorney's fees pursuant to 42
U.S.C. 1988 (1982). Section 1988 allows the court in its discretion to award a party
prevailing in a 42 U.S.C. 1983 (1982) action a reasonable attorney's fee as a part of the
costs. The NCAA argues that Tarkanian pleaded only in his complaint violations of the
Fourteenth Amendment, without mentioning 1983, and therefore cannot recover attorney's
fees pursuant to 1988. We disagree.
A cause of action under 1983 requires an allegation that someone deprived the plaintiff
of a federal right under color of state law. Gomez v. Toledo, 446 U.S. 635, 638 (1980).
Tarkanian's complaint met these criteria, even though his complaint did not mention 1983.
This is a sufficient basis for obtaining attorney's fees. See Kirchberg v. Feenstra, 708 F.2d
991, 1000 (5th Cir. 1983); Harradine v. Board of Supervisors, 425 N.Y.S.2d 182, 188
(App.Div. 1980) (plaintiff may recover attorney's fees pursuant to 1988 in a state court
action which does not allege violation of 19S3, but seeks to enforce federal rights).
not allege violation of 1983, but seeks to enforce federal rights).
[Headnote 6]
The NCAA also contends that the trial court erred by awarding attorney's fees for claims
upon which Tarkanian did not prevail. Tarkanian's complaint sought redress for violation of
both First and Fourteenth Amendment rights. Because the trial court made findings only on
violation of Tarkanian's Fourteenth Amendment rights, the NCAA argues that he did not
prevail on his First Amendment claim and the attorney's fees award should be reduced
proportionately. We disagree. Tarkanian's claims for relief are not so easily separated. Both
involve a common core of facts and are based on closely related legal theories. Moreover,
Tarkanian obtained all the relief he hoped to obtain. See Hensley v. Eckerhart, 461 U.S. 424,
440 (1983) (Where a lawsuit consists of related claims, a plaintiff who has won substantial
relief should not have his attorney's fee reduced simply because the district court did not
adopt each contention raised.)
[Headnote 7]
The NCAA next asserts that the trial court erred by awarding attorney's fees for a phase of
the litigation in which Tarkanian did not prevail. We agree. Tarkanian initially sued only
UNLV. On appeal, this court reversed Tarkanian's favorable judgment for failure to join a
necessary party, the NCAA. University of Nevada v. Tarkanian, 95 Nev. 389, 594 P.2d 1159
(1979). Nonetheless, the trial court awarded attorney's fees against the NCAA in favor of
Tarkanian for fees expended during the first trial.
Section 1988 allows recovery of fees only to a prevailing party. In our view, the first trial
is a distinct phase of this litigation in which Tarkanian did not prevail. See Doulin v. White,
549 F.Supp. 152 (E.D.Ark. 1982). The district court erred in awarding fees to Tarkanian for
that phase of this litigation. On remand, the trial court shall reduce attorney's fees
accordingly.
The trial court also awarded Tarkanian an additional $5,000.00 in fees that was not
supported by billing records submitted. Because there was no evidence to support this
amount, it shall likewise be eliminated.
Tarkanian submitted detailed records to establish attorney's fees, and except as noted, the
trial court did not abuse its discretion in fixing the amount of fees awarded. Because some
attorney's fees were appropriate pursuant to 1988, it is unnecessary to consider Tarkanian's
cross-appeal for fees as damages under state law.
Testimony of Charles Alan Wright.
[Headnote 8]
The NCAA contends on Appeal that the trial court erred in refusing to grant a continuance
in order to allow Charles Alan Wright to testify. The NCAA also asserts that the trial court
should have admitted the transcript of Mr. Wright's prior testimony before a congressional
sub-committee. Mr. Wright is a noted law professor and was a member of the Committee on
Infractions. The NCAA argues that the trial court's failure to allow his testimony warrants
reversal. We reject the NCAA's argument. Three members of the Committee on Infractions
testified at trial, two of whom were law professors. In these circumstances, even if the trial
court did err, we fail to see how the NCAA was prejudiced.
The Trial Court Injunction.
Finally the NCAA argues that the trial court's order granting injunctive relief is overly
broad. We agree that the order does contain some confusing language. We are certain,
however, that the trial court intended only to prohibit enforcement of the penalties imposed
upon Tarkanian in Confidential Report No. 123(47) and UNLV's adoption of those penalties.
To the extent the trial court's order may be given a broader interpretation, we modify its
meaning to comport with this intention.
We have considered the NCAA's remaining contentions and conclude they lack merit.
____________
103 Nev. 343, 343 (1987) Travelers Hotel v. City of Reno
TRAVELERS HOTEL, LTD., a California Limited Partnership, Appellant and
Cross-Respondent, v. THE CITY OF RENO, STATE OF NEVADA,
Respondent and Cross-Appellant.
No. 16707
August 27, 1987 741 P.2d 1353
Appeal and cross-appeal from the trial court's judgment awarding damages, attorney's fees,
and costs. Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
Special use permit applicant brought action against city for damages arising out of denial
of permit. The district court awarded damages and attorney fees. Appeal and cross-appeal
were taken. The Supreme Court held that: (1) city's determination on whether to issue special
use permit fell within statutory discretionary function exception to liability, and {2) special
use permit applicant could not recover damages and attorney fees by virtue of statutes
which became effective after cause of action accrued.
discretionary function exception to liability, and (2) special use permit applicant could not
recover damages and attorney fees by virtue of statutes which became effective after cause of
action accrued.
Reversed in part, affirmed in part.
Stephen C. Mollath, Reno, for Appellant and Cross-Respondent.
Robert L. VanWagoner, City Attorney, Reno; Shamberger, Georgeson, McQuaid &
Thompson, Reno, for Respondent and Cross-Appellant.
Brian McKay, Attorney General, and William E. Isaeff, Chief Deputy, Carson City, as
Amicus Curiae.
1. Municipal Corporations.
City ordinance allowed city officials discretion in balancing various factors to make a decision on
whether to grant special use permit; therefore, city's determination whether to issue permit fell within
statutory discretionary function exception from municipal liability, and city was immune from award of
attorney fees arising out of its denial of special use permit application. NRS 41.032, subd. 2.
2. Limitation of Actions.
A cause of action for damages arising out of any final action, decision or order of agency imposing
requirements, limitations or conditions upon use of property in excess of those authorized by ordinances,
resolutions or regulations accrues upon final action of state or local agency which places limitations on
property in excess of those authorized by law. NRS 278.0233.
3. Municipal Corporation.
City's final action denying request for special use permit occurred prior to effective date of statutes
allowing recovery of damages upon final action of state or local agency which places limitations on
property in excess of that authorized by law and since there was no clear legislative intent to retroactively
apply those statutes, special use permit applicant could not recover damages and attorney fees by virtue of
those statutes. NRS 18.020, 278.0233, 278.0237.
OPINION
Per Curiam:
In the spring of 1983, Travelers Hotel, Ltd. (Travelers) applied for a special use permit
to build a hotel-casino complex in Reno. On June 13, 1983, the Reno City Council (City)
denied Travelers' application. On June 30, 1983, Travelers filed an application for a writ of
mandamus challenging the City Council's action. The district court ordered the City to issue
Travelers a special use permit, reasoning that denial of the permit was an abuse of
discretion and not supported by substantial evidence."
abuse of discretion and not supported by substantial evidence. On appeal, this court
affirmed. City Council, Reno v. Travelers Hotel, 100 Nev. 436, 683 P.2d 960 (1984).
Thereafter, Travelers initiated an action for damages.
In order to recover damages, Travelers relied on the tort theory, interference with
prospective economic advantage. The district court held that the City's act in denying the
permit was discretionary and damages could not be recovered by virtue of NRS 41.032(2).
1
The court however concluded that NRS 278.0233(1) was an appropriate basis for an award of
actual damages, subject to the $50,000.00 limitation found in NRS 41.035(1).
2
The trial
court also awarded attorney's fees pursuant to NRS 278.0237(2).
3
We conclude that the trial
court correctly determined that the City's action in considering and denying the special use
permit was a discretionary function. We hold however that the trial court erred in applying
NRS 278.0233 and NRS 278.0237 to award damages and attorney's fees.
[Headnote 1]
Discretionary acts are those which require the exercise of personal deliberation, decision
and judgment.
____________________

1
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an
officer or employee of the state or any of its agencies or political subdivisions which is:
* * * * *
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer or
employee of any of these, whether or not the discretion involved is abused.

2
1. Any person who has any right, title or interest in real property, and who has filed with the
appropriate state or local agency an application for a permit which is required by statute or an ordinance,
resolution or regulation adopted pursuant to NRS 278.010 to 278.630, inclusive, before that person may
improve, convey or otherwise put that property to use, may bring an action against the agency to recover
actual damages caused by:
(a) Any final action, decision or order of the agency which imposes requirements, limitations or
conditions upon the use of the property in excess of those authorized by ordinances, resolutions or
regulations adopted pursuant to NRS 278.010 to 278.630, inclusive, in effect on the date the application
was filed, and which:
(1) Is arbitrary or capricious; or
(2) Is unlawful or exceeds lawful authority.
(b) The failure of the agency to act on that application within the time for that action as limited by
statute, ordinance or regulation.

3
2. The court may award reasonable attorney's fees to the prevailing party in an action brought under
NRS 278.0233.
personal deliberation, decision and judgment. Parker v. Mineral County, 102 Nev. 593, 729
P.2d 491, 493 (1986). Travelers' proposed development constituted a major project and
thus required the issuance of a special use permit. The ordinance required that certain factors
be considered when determining whether to issue a permit. See RMC 18.06.05(g). In our
view, the ordinance allowed city officials discretion in balancing the various factors in order
to make a decision. The City's determination whether to issue a special use permit falls within
the discretionary function exception of NRS 41.032(2).
4
The discretionary nature of the
City's action also means that the City was immune from an award of attorney's fees against it.
See County of Esmeralda v. Grogan, 94 Nev. 723, 725, 587 P.2d 34, 36 (1978).
[Headnotes 2, 3]
As noted above, the trial court allowed Travelers to obtain damages and attorney's fees
pursuant to NRS 278.0233 and NRS 278.0237, despite the fact that those sections did not
take effect until after the City denied Travelers' application for a special use permit. Statutes
do not apply retrospectively unless there is a clear legislative intent to do so. Rice v.
Wadkins, 92 Nev. 631, 555 P.2d 1232 (1976). The statutes in question do not manifest such
an intent. We also reject Travelers' argument that its cause of action did not accrue until after
July 1, 1983, the effective date of NRS 278.0233 and NRS 278.0237. A cause of action for
damages accrues under NRS 278.0233 upon the final action of a state or local agency which
places limitations on property in excess of that authorized by law. The City's final action
denying Travelers' request for a special use permit occurred prior to the effective date of NRS
278.0233 and NRS 278.0237, and therefore the district court erred in allowing Travelers' to
recover damages and attorney's fees by virtue of the statute.
Also, we reverse the trial court's award of costs in favor of Travelers because Travelers is
not a prevailing party. See NRS 18.020.
In light of the foregoing, it is unnecessary to consider the remaining issues raised in the
briefs.
____________________

4
The trial court declined to consider specifically whether NRS 34.270 is a basis for Travelers' recovery of
damages. In our view, the City is immune from a damage claim pursuant to NRS 34.270 by virtue of the
discretionary nature of its actions. See County of Esmeralda v. Grogan, 94 Nev. 723, 587 P.2d 34 (1978).
____________
103 Nev. 347, 347 (1987) Edwards v. City of Reno
STEPHEN A. EDWARDS, Individually and Doing Business as JUNIOR CAREERS,
Appellant, v. CITY OF RENO, Respondent.
No. 16763
August 27, 1987 742 P.2d 486
Appeal from judgment declaring a city ordinance constitutional and awarding respondent
$6,690.60 on its counterclaim. Second Judicial District Court, Washoe County; Robert J.
Schouweiler, Judge.
Supervisor of organization that employed teenagers to sell various goods door-to-door
sued city seeking declaration that municipal ordinance setting licensing fees for door-to-door
peddlers and solicitors was unconstitutional. The district court found ordinance constitutional
and awarded city judgment on its counterclaim for licensing fees owed by supervisor, and
supervisor appealed. The Supreme Court held that: (1) municipal ordinance was
constitutional, and (2) supervisor was liable only for licensing fees incurred as a result of his
own sales efforts, not for licensing fees of sales people under his supervision.
McAuliffe, White, Long & Guinan and Hamilton & Lynch, Reno, for Appellant.
Robert L. Van Wagoner, City Attorney, and Tudor Chirila, Senior Assistant City Attorney,
Reno, for Respondent.
A statute or ordinance which is so vague that men of common intelligence must guess at its meaning
violates due process guarantees found both in State and Federal Constitutions because no fair notice or
warning of prohibited action is given. U.S.C.A.Const. Amend. 14; Const. Art. 1, 8; Art. 4, 21.
2. Constitutional Law; Municipal Corporations.
One who is not prejudiced by operation of a statute or ordinance may not question its validity.
3. Municipal Corporations.
Supervisor was not entitled to question constitutional validity of municipal ordinance setting higher
license fees for door-to-door peddlers than for solicitors, on ground of vagueness in the distinction;
supervisor was clearly peddler, and any vagueness in portion of ordinance applicable to an individual
attempting to circumvent classification of peddler did not apply to him and therefore did not prejudice
supervisor. U.S.C.A.Const. Amend. 14; Const. Art. 1, 8; Art. 4, 21.
4. Constitutional Law; Licenses.
Municipal ordinance setting higher licensing fees for door-to-door peddlers than for solicitors did not
violate equal protection guarantees of State or Federal Constitutions as higher fee required of
peddlers was rationally related to legitimate government purpose in preventing
fraudulent sales by more transient class of sellers.
State or Federal Constitutions as higher fee required of peddlers was rationally related to legitimate
government purpose in preventing fraudulent sales by more transient class of sellers. U.S.C.A.Const.
Amend. 14; Const. Art. 1, 8; Art. 4, 21.
5. Constitutional Law; Licenses.
infringe on due process rights of businessman who was a peddler. U.S.C.A.Const. Amend. 14.
6. Licenses.
violate state constitutional guarantee to uniform assessment and taxation, as difference in fees was justified
by more transient nature of peddlers in comparison to solicitors. Const. Art. 10, 1.
7. Commerce; Licenses.
Municipal ordinance imposing licensing fees on door-to-door peddlers was not an impermissible burden
on interstate commerce as peddler was defined by ordinance as person who delivers goods at time order is
taken, and there was no discrimination between residents and non-residents.
8. Licenses.
Door-to-door salesman was liable only for licensing fees relating to his own sales pursuant to ordinance
setting licensing fees for peddlers; salesman was not liable for licensing fees of salespeople he supervised.
OPINION
Per Curiam:
This appeal presents a multi-pronged constitutional challenge to a regulatory scheme
enacted by the City of Reno which distinguishes between peddlers and solicitors, and imposes
different licensing fees based on the distinction. Though we conclude that the regulatory
scheme is constitutional, we agree with appellant that the district court erred in awarding
$6,690.60 to the City of Reno on its counterclaim.
Junior Careers is an organization that employs teenagers to sell various goods
door-to-door. Appellant, Stephen Edwards (Edwards), is a crew manager for Junior Careers,
and Edwards' job is to recruit the teenaged salespeople and to transport them to and from the
different sales areas. Although Edwards obtained the permits needed to sell items
door-to-door in other areas, Edwards did not obtain the requisite permit from the City of
Reno (City) because the cost was prohibitive. According to the City, Edwards and his
salespeople were peddlers; therefore, each person was required to obtain a license from the
City at a minimum cost of $318.60 per quarter per person. Edwards brought suit in the court
below seeking a declaration that the distinction between peddlers and solicitors was
unconstitutional. The City counterclaimed for license fees because Edwards and his crew had
sold items door-to-door in the city without the required licenses.
items door-to-door in the city without the required licenses. Edwards appeals both the ruling
that the distinction does not violate constitutional safeguards and the award of $6,690.60 to
the City on its counterclaim.
The ordinance of which Edwards complains is Reno Municipal Code (RMC) 4.40.010,
which states:
(a) Peddler, as used in this chapter, includes any person, whether a resident of the
city or not, traveling by foot, wagon, automotive vehicle, or any other type of
conveyance, from place to place, from house to house, or from street to street, carrying,
conveying or transporting goods, wares, merchandise, meats, fish, vegetables, fruits,
garden truck, farm products or provisions, offering and exposing the same for sale, or
making sales and delivering articles to purchasers, or who, without traveling from place
to place, sells or offers the same for sale from a wagon, automotive vehicle, railroad
car, or other vehicle or conveyance, and further provided that one who solicits orders
and as a separate transaction makes deliveries to purchasers as a part of a scheme or
design to evade the provisions of this chapter is deemed a peddler subject to the
provisions of this chapter. The word peddler includes the words hawker and
huckster.
(b) Solicitor, as used in this chapter, is defined as any individual, whether resident
of the city or not, traveling either by foot, wagon, automobile, motor truck, or any other
type of conveyance, from place to place, from house to house, or from street to street,
taking or attempting to take orders for sale of goods, wares and merchandise, personal
property of any nature whatsoever for future delivery, or for services to be furnished or
performed in the future, whether or not such individual has, carries or exposes for sale a
sample of the subject of such sale or whether he is collecting advance payments on such
sales or not, provided that such definition shall include any person who, for himself, or
for another person, firm or corporation, hires, leases, uses or occupies any building,
structure, tent, railroad boxcar, hotel room, lodging house, apartment, shop or any other
place within the city for the sole purposes of exhibiting samples and taking orders for
future delivery.
RMC 4.40.020 makes both peddling and soliciting without a license unlawful; however, the
license fees for peddling and soliciting differ dramatically. RMC 4.40.060(b) provides that
one applying for a license to solicit shall pay $15.00 every six months. On the other hand,
RMC 4.40.060(a) sets out a sliding scale for fixing license fees to be paid by peddlers.
scale for fixing license fees to be paid by peddlers. The scale is set out in the margin;
however, as an example, a peddler with gross receipts per quarter less than $3,000 must pay
$318.60 per quarter for the required license.
1

Edwards first contends that the distinction between peddlers and solicitors is
unconstitutionally vague because [t]he modifier to [RMC 4.40.010] subsection (a) which
causes those who attempt to defeat the ordinance by later delivery to be nonetheless classified
as peddlers' defeats the definitional distinction. . . . It is our opinion that Edwards is not in a
position to challenge this portion of RMC 4.40.010.
[Headnotes 1-3]
It is well established that a statute or ordinance which is so vague that men of common
intelligence must guess at its meaning violates the due process guarantees found both in the
Nevada and United States Constitutions
2
because no fair notice or warning of the prohibited
action is given. Eaves v. Board of Clark Co. Comm'rs, 96 Nev. 921, 923, 620 P.2d 1248,
1249 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976). However, it is also well
established that one who is not prejudiced by the operation of a statute or ordinance may not
question its validity. Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212 (1979); see also
Westinghouse Beverage Group v. Dep't of Taxation, 101 Nev. 184, 698 P.2d 866 (1985).
Edwards is clearly a peddler; therefore, any vagueness in the portion of RMC 4.40.010(a)
applicable to one attempting to circumvent classification as a peddler does not prejudice
Edwards.
3
Accordingly, we decline to reach this assignment of error.
[Headnote 4]
Contrary to Edwards' next contention, we conclude that the distinction between peddlers
and solicitors contained in RMC 4.40.010 does not violate the equal protection
guarantees found in article 4, section 21 of the Nevada Constitution and in the Fourteenth
Amendment to the U.S. Constitution.
____________________

1
The fees for a peddling license vary according to the applicant's gross receipts for the previous quarter
according to the following chart:
Gross Receipts Fee Per Quarter
Less than $3,000 $318.60
3,001- 5,000 531.00
5,001-10,000 1,062.00
10,001-15,000 1,593.00
15,001-20,000 2,124.00
20,001-30,000 3,186.00
30,001-40,000 4,248.00
Greater than 40,000 5,310.00

2
Nev. Const., art. 1, 8; U.S. Const. amend. XVI, 1.

3
It was asserted by Edwards' counsel at oral argument that Edwards would have modified his method of sales
in order to qualify as a solicitor had he known how to do so without violating RMC 4.40.010. This contention
is not supported by the record.
distinction between peddlers and solicitors contained in RMC 4.40.010 does not violate the
equal protection guarantees found in article 4, section 21 of the Nevada Constitution and in
the Fourteenth Amendment to the U.S. Constitution. An ordinance such as RMC 4.40.010
necessarily must be reasonable in its classification and such classification must be rationally
related to the objective sought to be accomplished. McDonald v. Board of Election, 394 U.S.
802 (1969). Similarly, it has long been settled that a classification, though discriminatory, is
not arbitrary nor violative of the Equal Protection Clause of the Fourteenth Amendment if any
state of facts reasonably can be conceived that would sustain it. Allied Stores of Ohio v.
Bowers, 358 U.S. 522, 528 (1959).
We find a rational distinction between peddlers and solicitors explained as follows:
There has grown up a drummer or commercial traveler class which is entirely
different from the peddler class, and the distinction has been recognized and respected.
The difference between the two classes is easy to state in terms of the mischievous
situation to be remedied by legislative regulation of peddlers. Those soliciting orders
for future delivery almost universally do so for reliable solvent principals, and,
furthermore, the buyer has a period of time before delivery and payment within which
to discover and rescind for fraud.
60 Am.Jur.2d Peddlers, Solicitors, Etc. 10 (1972). (Footnotes omitted.) Oftentimes, a
peddler who carries his wares with him cannot be traced after a sale; thus, peddlers present a
greater opportunity for fraudulent sales. However, a solicitor often has some ties to an
existing entity; there is a lesser chance for fraud. Therefore, any excess license fee paid by a
peddler may be allocated to increased police activity necessary to prevent fraud by peddlers.
Because we can reasonably conceive of a state of facts to support the distinction between
peddlers and solicitors that is rationally related to a legitimate government purpose, no equal
protection guarantees are violated.
[Headnote 5]
Under a due process theory, Edwards also contends that the classification contained in
RMC 4.40.010 is unconstitutional. We conclude that this argument is misplaced. Pursuant
to the power to regulate to protect the public's health, safety, welfare and morals, a city may
regulate peddlers and solicitors and may go so far as to prohibit both without infringing on
due process rights. See Breard v. Alexandria, 341 U.S. 622 (1951). Therefore, regulations
affecting peddlers and solicitors do not violate due process rights. Edwards is clearly
attacking the classification made, and this argument is more properly made under an equal
protection theory.
made, and this argument is more properly made under an equal protection theory. We have
already concluded that the equal protection challenge must fail.
[Headnote 6]
As to Edwards' claim that the difference in license fees violates the Nevada constitutional
guarantee of uniform assessment and taxation, the distinction between peddlers and solicitors
does not violate this mandate. There is no dispute that all assessment and taxation rates in
Nevada shall be uniform and equal. Nev. Const., art. 10, 1. Any statute or ordinance that
seeks to classify persons or businesses and, then, treats those classifications differently for
purposes of taxation comports with the Nevada Constitution only if the classification is
reasonable and not arbitrary. See Boyne v. State ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225
(1964). The classification of peddlers and solicitors is not arbitrary or unreasonable. Peddlers
generally carry their wares with them and have no fixed place of business in the community;
therefore, it is quite possible that peddlers may avoid taxation completely but for the license
fee. However, solicitors tend to have some ties to a community; these ties make them
susceptible to taxes other than the license fee. Thus, there is an identifiable difference
between peddlers and solicitors which justifies the difference in fees.
[Headnote 7]
Finally, we conclude that the license fee imposed on peddlers is not an impermissible
burden on interstate commerce. It is clear that not all burdens on interstate commerce are
forbidden; only those burdens which are undue or discriminatory are forbidden. See Nippert
v. Richmond, 327 U.S. 416 (1946). The United States Supreme Court has made a clear
distinction between those persons who solicit orders for goods to be shipped later and those
persons who deliver goods at the time an order is taken. In the former case, if the goods are to
be shipped in interstate commerce, any license tax imposed on the solicitor is an
impermissible burden on interstate commerce. See Nippert, above; see also Robbins v.
Shelby Taxing District, 120 U.S. 489 (1887). However, in the latter case (order and delivery
in the same transaction), license taxes have been held to be permissible burdens upon
interstate commerce. One such case, Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941), is
illustrative. In Caskey Baking, appellant manufactured bread and carried it by truck across
state lines. The truck drivers would stop at regular locations, and the bread would be
delivered at the time the customer placed the order. The United States Supreme Court held
that it was not the transporting of the bread that was taxed, but, rather, that [t]he purely local
business of peddling" was the activity being taxed or licensed. Id. at 119.
purely local business of peddling was the activity being taxed or licensed. Id. at 119. Thus,
so long as there is no discrimination between residents and non-residents, no impermissible
burden on interstate commerce was imposed by the license fee because the tax was on a
purely local activity. Id. See also Wagner v. City of Covington, 251 U.S. 95 (1919); Emert v.
Missouri, 156 U.S. 296 (1895); Machine Co. v. Gage, 100 U.S. 676 (1880). No
impermissible burden is placed on interstate commerce by RMC 4.40.010.
[Headnote 8]
We do, however, conclude that the district court erred in awarding $6,690.60 to the City
on its counterclaim. The evidence shows that Edwards was in Reno peddling goods on one
occasion. Edwards admitted as much in his deposition.
4
It was the position of the City that
Edwards and each of his salespeople were responsible for their own license fee. The City
cannot exact license fees for the salespeople from Edwards if those salespeople are not parties
to this action. However, because Edwards sold goods without a license, he is liable for the
license fee of $318.60.
Accordingly, for the reasons set out above, we affirm the decision of the district court that
RMC 4.40.010 is constitutional, and we reverse the judgment on the City's counterclaim of
$6,690.60 with instructions to the district court to enter judgment in the amount of $318.60
on the counterclaim.
____________________

4
At page 28 of Edwards' deposition contained in the record on appeal is the following:
Q. [By Mr. Chirila] Have you or any of the children who work for you sold your products in Reno?
A. [By Mr. Edwards] I was in Reno once.
____________
103 Nev. 353, 353 (1987) Conner v. Southern Nevada Paving
ARTHUR CONNER, STANLEY EBNER, and STANLEY A. MALLIN, Individually
and d/b/a EBCON CONSTRUCTION CO., Appellants, v. SOUTHERN
NEVADA PAVING, INC., Respondent.
No. 17030
August 27, 1987 741 P.2d 800
Appeal from judgment. Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Breaching subcontractor brought action against contractor for labor and goods, and
contractor counterclaimed for damages resulting from breach. The district court entered
judgment awarding damages to both parties, and appeal was taken.
ing damages to both parties, and appeal was taken. The Supreme Court, held that: (1)
subcontractor did not meet its burden of proving that contractor failed to take reasonable
measures to mitigate its damages, and (2) subcontractor was liable for portion of liquidated
damages assessed to contractor, but not for contractor's additional interest on its construction
loan due to delay in completion.
Affirmed in part; reversed in part; and remanded in part.
Rogers, Moore, Mahoney & Cook, Las Vegas, for Appellants.
Mills, Gibson & Carter, Las Vegas, for Respondent.
1. Damages.
Breaching subcontractor did not meet its burden of proving that contractor failed to take reasonable
measures to alleviate its damages absent evidence of time when breach occurred.
2. Damages.
Breaching subcontractor was liable for portion of liquidated damages assessed to contractor as penalty
for failing to complete construction on time, in that agreement between contractor and subcontractor
contemplated such damages, but contractor's additional interest on its construction loan was neither
contemplated nor foreseeable at time contractor and subcontractor entered into their agreement, and thus
could not be recovered from subcontractor.
OPINION
Per Curiam:
On March 31, 1978, Southern Nevada Paving (SNP) entered into a contract with Ebcon
Construction (Ebcon) to grade and pave a 340-unit apartment complex being built by Ebcon.
The contract provided that SNP was to have enough men working so as not to delay the
progress of the job. If SNP failed to employ sufficient help to complete the work in the given
time, Ebcon could give 48 hours notice and employ help to complete the work. SNP agreed to
reimburse Ebcon for any sum over the contract price. SNP also agreed that if Ebcon was
assessed late penalties or liquidated damages, SNP would pay the portion attributable to its
failure to complete work on time.
Between March 1978 and June 1979, SNP graded and paved approximately 130,000 sq. ft.
Paving was done in sections as certain phases of construction were completed. From June
1979 through November 16, 1979, SNP had some men on the job but no paving was done.
Beginning from September 15, 1979 through November 16, 1979, Ebcon made several
requests for SNP to finish the job. SNP admitted that there were times when it said it would
have someone on the job but no one showed up.
said it would have someone on the job but no one showed up. SNP claimed it was waiting so
it could pave a large area instead of doing it piecemeal. In mid-October, Ebcon decided to
hire somebody else and began calling around. On November 14, Ebcon sent a mailgram to
SNP, terminating it for failure to maintain adequate personnel on the job. Two days later,
Ebcon signed a contract with Las Vegas Paving which finished paving the remaining 102,000
sq. ft. on December 1, 1979.
In March 1980, SNP filed a complaint contending Ebcon owed $34,428.87 for labor and
goods. Ebcon counterclaimed, alleging that as a result of SNP's breach, Ebcon had incurred
debts $52,571.00 over the contract price. At trial, however, Ebcon testified that as a result of
SNP's two month delay, it had to pay $100,000.00 in late penalties and $134,000.00 in
additional interest on the construction loan.
Final judgment was entered on August 28, 1985. The court found that SNP had breached
the contract, but that Ebcon owed SNP $31,767.00 for work completed by SNP. The court
found that Ebcon was entitled to an offset of $.19 per square foot, or $19,380.00, for the
additional cost of the paving done by Las Vegas Paving. SNP was awarded $12,387.00. The
court dismissed Ebcon's counterclaim with prejudice, finding that Ebcon had failed to
mitigate damages by giving SNP a more timely notice of termination and promptly hiring
another contractor, and that the damages sought by Ebcon in its counterclaim were not
foreseeable to SNP when it breached the contract. We hold that the district court erroneously
dismissed Ebcon's counterclaim and remand for a new trial on the issue of damages.
1

[Headnote 1]
As a general rule, a party cannot recover damages for loss that he could have avoided by
reasonable efforts. See First Nat. Bank v. Milford, 718 P.2d 1291, 1297 (Kan. 1986). The rule
of mitigation of damages begins when the breach is discovered. See Holland v. Green
Mountain Swim Club Inc., 470 P.2d 61, 63 (Colo.App. 1970). It is difficult to determine
whether Ebcon attempted to mitigate its damages because the district court failed to pinpoint
the time of breach. The breach occurred sometime between June and November 14, when the
contract was terminated. It is impossible to determine which damages could have been
mitigated without knowing when the breach occurred. However, the burden of proving failure
to mitigate is on the breaching party. Cobb v. Osman, 83 Nev. 415, 422, 433 P.2d 259, 263
{1967).
____________________

1
Because we remand for a new trial, we do not decide whether the district court correctly provided for
judgment interest to run from January 3, 1985, the date of its initial decision, rather than August 29, 1985, the
date the Judgment was filed.
(1967). We hold that SNP did not meet its burden of proving that Ebcon failed to take
reasonable measures to alleviate its damages.
[Headnote 2]
Ebcon contends that the district court erred in finding that the damages sought in the
counterclaim were not foreseeable to SNP when it breached the contract. Damages from a
breach of contract should be such as may fairly and reasonably be considered as arising
naturally, or were reasonably contemplated by both parties at the time they made the contract.
Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854). Ebcon claims that SNP's breach caused
it to pay additional interest on its construction loan, and a $100,000.00 late penalty for failing
to complete construction on time. Based on the facts of this case, we hold that the interest on
the construction loan was a damage neither contemplated nor foreseeable at the time Ebcon
and SNP entered into the contract.
However, the contract clearly contemplates that SNP would be liable for the portion of
liquidated damages assessed to Ebcon that was attributable to SNP's failure to complete its
work on time. Paragraph 3 of the contract provides, in relevant part, any penalties to us due
to the impromptness of the completion of your work will be deducted from your final
payment. Paragraph 10 provides, in relevant part:
If the Contractor is assessed liquidated damages by the owner for failure to complete
the work on time, and if the delay has been caused by the Sub-Contractor [SNP] herein,
the Sub-Contractor agrees to pay the portion of the liquidated damages caused by or
attributed to his failure to complete his work on time and in accordance with the
working schedule.
While we agree that Ebcon may be entitled to additional damages, Ebcon's argument that
SNP is liable for the entire $100,000 late penalty is tenuous at best. The record shows that
there were buildings in various stages of construction at the time Las Vegas Paving began
working. Although it is reasonable to assume that SNP's breach may have caused some delay,
it is unlikely that it is solely responsible for Ebcon's failure to finish construction on time. It is
unclear from the record what portion, if any, of the liquidated damage assessed to Ebcon can
reasonably be attributed to SNP's breach. Therefore, it is necessary to remand the case to the
district court for such a determination. Accordingly, this case is remanded for proceedings
consistent with this opinion.
____________
103 Nev. 357, 357 (1987) Home Savers v. United Security Co.
HOME SAVERS, INC., and RAY BAILEY, Appellants, v. UNITED SECURITY
COMPANY, AND UNITED MORTGAGE COMPANY, Respondents.
No. 17249
August 27, 1987 741 P.2d 1355
Appeal from judgment in favor of defendant in the action to rescind a trustee's sale and for
damages. Eighth Judicial District Court, Clark County; Earle W. White, Judge.
Purchaser of property at trustee's sale sought rescission of sale. The district court denied
rescission. Purchaser appealed. The Supreme Court held that purchaser was entitled to
rescission of sale on basis of unilateral mistake.
Reversed.
John Peter Lee and Barney C. Ales, Las Vegas, for Appellants.
Deaner & Deaner, Las Vegas, for Respondents.
1. Contracts.
Where mistake of one party, at time contract was made, as to basic assumption on which he made
contract has material effect on agreed exchange of performances that is adverse to him, contract is voidable
by him if he does not bear risk of mistake and other party had reason to know of mistake or his fault caused
mistake.
Purchaser of property at trustee's sale was entitled to rescission of sale on basis of unilateral mistake;
shortly after foreclosure sale, purchaser discovered that it had bought parcel located in back of parcel it
believed it had purchased, notice published by trustee was misleading in that it included street address for
front parcel, no one would have anticipated that dilapidated back parcel would have served as security for
loan with balance many times value of property, and purchaser telephoned trustee for purpose of
investigating property and trustee gave purchaser tax parcel number for front parcel, not back parcel.
3. Mortgages.
Purchaser of property at trustee's sale was not required to join trust deed beneficiaries in action for
rescission of sale; purchaser only sought to rescind transaction whereby trustee conveyed title, and only
issues before court concerned manner in which trustee conducted sale. NRCP 19(a).
4. Cancellation of Instruments.
When a plaintiff seeks to set aside conveyance of property, person who received property in conveyance
must be joined as party. NRCP 19(a).
OPINION
Per Curiam:
Respondent United Mortgage Company is in the business of brokering loans secured by
real property. Respondent United Security Company acts as trustee in the Deeds of Trust
securing the loans brokered by United Mortgage. These companies appear to be essentially
different divisions of the same business, and for purposes of this opinion we will refer to
them collectively as United. Appellant Home Savers, Inc. (Home Savers) is in the
business of buying real property at foreclosure sales and reselling the property for a profit.
In May, 1983, United, acting as a trustee, gave notice of a trustee's sale. Home Savers saw
the notice, investigated the property, and purchased the property at the foreclosure sale for
$64,285.00, an amount approximately one dollar greater than United's opening bid on behalf
of the beneficiaries.
Based on its investigation, Home Savers believed it had purchased a 2,000 square foot
home situated on a one-half acre lot. Mike and Ray Bailey had inspected the property on
Home Savers' behalf and estimated the property's value at approximately $90,000.00 to
$100,000.00. Shortly after the foreclosure sale, however, Home Savers discovered that it had
actually bought a parcel located in back of the parcel it believed it had purchased. This parcel
included a 600 square foot home in poor condition and was valued at approximately
$17,000.00. Originally, both parcels were encumbered by the Trust Deed. However, the front
parcel had been released and only the back parcel was sold at the trustee's sale.
After discovering the mistake, Home Savers attempted to persuade United to buy the
property back. United refused. Home Savers then brought this lawsuit seeking rescission and
damages, and the trial court found in United's favor. We conclude that Home Savers is
entitled to rescission by virtue of a unilateral mistake, and we therefore reverse.
[Headnotes 1, 2]
It is evident that United was not mistaken concerning the property to be sold at the
trustee's sale. The legal notices and the trustee's deed contained accurate legal descriptions.
However, it is also evident that Home Savers was mistaken, and we have recognized that a
unilateral mistake may be a basis for rescission. Allenback v. Ridenour, 51 Nev. 437, 461,
279 P. 32, 37 (1929). We adopt the unilateral mistake rule found in the Restatement:
Where a mistake of one party at the time a contract was made as to a basic assumption
on which he made the contract has a material effect of the agreed exchange of
performances that is adverse to him, the contract is voidable by him if he does not
bear the risk of the mistake under the rule stated in 154, and
material effect of the agreed exchange of performances that is adverse to him, the
contract is voidable by him if he does not bear the risk of the mistake under the rule
stated in 154, and
* * * * * *
(b) the other party had reason to know of the mistake or his fault caused the mistake.
Restatement (Second) of Contracts 153 (1981). In the instant case, the doctrine of unilateral
mistake requires reversal.
The notice published by United was misleading in that it included the street address for the
front parcel, the parcel which Home Savers believed it was purchasing. The back parcel
apparently was not clearly visible from the road. Moreover, no one would anticipate that the
dilapidated back parcel would serve as security for a loan with a balance many times the
value of the property. Additionally, the record reveals that Home Savers telephoned United
for the purpose of investigating the property described in the notice of sale, and United gave
Home Savers the tax parcel number for the front parcel, not the back parcel. Given the facts
of this case, we conclude that the evidence clearly reveals that United caused Home Savers'
mistake, and the trial court should have granted rescission.
[Headnote 3]
At the close of Home Savers' case, United moved to dismiss the rescission counts on the
grounds that Home Savers failed to name the trust deed beneficiaries as defendants. The trial
court adopted this position in its conclusions of law, concluding that even if rescission were
otherwise appropriate, Home Savers could not obtain that relief because of failure to join the
beneficiaries. We disagree.
[Headnote 4]
We have held that NRCP 19(a) requires that when a plaintiff seeks to set aside a
conveyance of property, the person who received the property in the conveyance must be
joined as a party. Johnson v. Johnson, 93 Nev. 655, 658, 572 P.2d 925, 927 (1977). We have
also held that in an action to set aside a conveyance of property into trust, the beneficiaries of
the trust must be joined. Robinson v. Kind, 23 Nev. 330, 338, 47 P. 1, 3 (1896). Neither case
requires the result urged by United.
As trustee, United held legal title to the real property in question. See Summa Corp. v.
Greenspun, 96 Nev. 247, 252, 607 P.2d 569, 572 (1980). Home Savers seeks only to rescind
the transaction whereby United conveyed title to Home Savers. The only issues before the
trial court concerned the manner in which United conducted the sale of the property. In our
view, NRCP 19{a) did not require joinder of the trust deed beneficiaries, and the district
court erred in concluding that Home Savers could not obtain rescission without their
presence in the lawsuit.
19(a) did not require joinder of the trust deed beneficiaries, and the district court erred in
concluding that Home Savers could not obtain rescission without their presence in the
lawsuit. We therefore reverse and remand the case to the district court with instructions to
enter judgment in accordance with the views expressed herein.
____________
103 Nev. 360, 360 (1987) Nevada Industrial Dev. v. Benedetti
NEVADA INDUSTRIAL DEVELOPMENT, INC., a Nevada Corporation,
Appellant, v. LINDA BENEDETTI, Respondent.
No. 17333
August 27, 1987 741 P.2d 802
Appeal from an order granting a motion to dismiss pursuant to NRCP 41(b); Second
Judicial District Court, Washoe County; Robin Anne Wright, Judge.
Purchaser brought action against vendor for relief from prior judgment and restitution on
theory of mutual mistake. The district court dismissed action, and purchaser appealed. The
Supreme Court held that: (1) evidence supporting purchaser's claim for restitution for unjust
enrichment established prima facie case upon which equitable relief could be granted, and (2)
action seeking modification of prior judgment on theory of mutual mistake was permissible
after statutory period within which to obtain relief from judgment had run.
Erickson, Thorpe, Swainston, Cobb & Lundemo and Thomas P. Beko, Reno, for Appellant.
John C. Hope, Reno, for Respondent.
In ruling on motion to dismiss, court must accept plaintiff's evidence as true, draw all permissible
inferences in favor of the plaintiff and not pass on credibility of the witnesses nor weight of the evidence.
NRCP 41(b).
2. Implied and Constructive Contracts.
Evidence supporting purchaser's claim for restitution or unjust enrichment established prima facie case
upon which equitable relief could be granted; under prior stipulated judgment, vendor received more
money for remaining land to be reconveyed to purchaser than she was entitled to under original bargain.
NRCP 41(b), 60, 60(b).
3. Implied and Constructive Contracts.
Unjust enrichment occurs whenever person has and retains benefit which in equity and good
conscience belongs to another; unjust enrichment is unjust retention of benefit to loss of
another, or retention of money or property of another against fundamental principles
of justice and equity and good conscience.
enrichment is unjust retention of benefit to loss of another, or retention of money or property of another
against fundamental principles of justice and equity and good conscience.
4. Judgment.
Action seeking modification of prior judgment on theory of mutual mistake was permissible after
statutory period within which to obtain relief from judgment had run. NRCP 60(b).
5. Judgment.
When statutory period within which to obtain relief from judgment has run, relief may be granted in
independent action on basis of mutual mistake; court may modify final judgment in former proceeding on
ground of mistake as well as fraud, at least where mutual mistake is shown and where party seeking relief is
without fault or negligence.
6. Judgment.
When proceeding is independent action to obtain equitable relief from prior judgment, it is not brought
under rule relating to relief from judgment, so that time limitations contained in rule do not apply. NRCP
60(b).
7. Judgment.
Equitable independent action for relief from prior judgment is not precluded by doctrine of former
adjudication. NRCP 60(b).
8. Judgment.
In limited circumstances relief from judgment may be obtained in equitable independent action; in such
instances, policies furthered by granting relief from judgment outweigh purposes of res judicata.
9. Judgment.
If equity allows modification of judgment on theory of mutual mistake, res judicata does not bar such
equitable proceeding. NRCP 60(b).
OPINION
Per Curiam:
Nevada Industrial Development, Inc. (NID) appeals dismissal, pursuant to NRCP 41(b),
of its independent action for relief from a prior judgment and its action for restitution against
Linda Benedetti. NID sought amendment of a prior judgment or, in the alternative, restitution
on a theory of mutual mistake.
In late 1971, NID entered into a transaction with Benedetti whereby Benedetti sold certain
properties to NID. The purchase price was $12,500.00 per acre. NID executed a promissory
note for the principal amount which was secured by a deed of trust. Thereafter, Benedetti
reconveyed one acre to NID for each payment of $12,500.00 of principal.
Prior to NID's final payment under the promissory note in April 1981, Benedetti notified
NID that she refused to execute a reconveyance of the remaining parcels subject to the deed
of trust until certain water rights were conveyed back to her. NID denied that water rights had
been reserved to Benedetti. As a result of this dispute, Benedetti instituted a lawsuit seeking
recovery of the water rights or damages for their loss and an amount in excess of
$51,000.00 plus interest due pursuant to the promissory note.
water rights or damages for their loss and an amount in excess of $51,000.00 plus interest due
pursuant to the promissory note.
NID acknowledged that it owed the remaining amount of principal due on the promissory
note and would pay that amount due if Benedetti would execute full reconveyance of the
remaining property. Ultimately, Benedetti's counsel realized and agreed that the claims
regarding water rights were meritless. On the eve of trial, the parties agreed to settle the
lawsuit by agreeing to stipulate to entry of judgment that (1) the claims regarding water rights
would be dismissed with prejudice, (2) NID would pay the amount of principal plus interest
due on the promissory note, and (3) Benedetti would execute a full and complete
reconveyance of the remaining properties. The stipulation for entry of judgment and judgment
stated that NID owed Benedetti the amount of Eighty-Three Thousand Eight Hundred
Seventy-Five Dollars ($83,875.00) plus interest.
NID and Benedetti agree that the principal amount of $83,875.00 is incorrect and that the
correct amount is $51,105.70. NID calculated the erroneous amount by multiplying the
unreleased acreage on a map by the purchase price per acre. The map was inaccurate because
four years earlier 2.62 acres had been paid for by NID but had not been released by Benedetti.
NID resorted to using the map to calculate the amount of principal due after the title company
misplaced the escrow file.
Between six and seven months after final judgment had been entered, the mistake was
discovered when the title company located the escrow file. A new accounting revealed the
amount due was only $51,105.70. Benedetti refused to agree to a modification of the
judgment.
The district court dismissed the action to modify the judgment pursuant to NRCP 41(b) on
two grounds: first, that the action to modify the prior judgment was untimely pursuant to
NRCP Rule 60; second, that the action to modify the prior judgment was barred under the
doctrine of former adjudication. The district court did not rule on the issue of restitution for
unjust enrichment.
[Headnote 1]
NRCP Rule 41(b) provides that the defendant may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or
jury. In ruling on a 41(b) motion a court must accept the plaintiff's evidence as true, draw all
permissible inferences in favor of the plaintiff and not pass on the credibility of the witness
nor weigh the evidence. 268 Limited v. Sanson, 97 Nev. 173, 625 P.2d 1173 (1981); Havas v.
Carter, 85 Nev. 132, 451 P.2d 711 (1969). To defeat a 41(b) motion the plaintiff must have
presented a prima facie case upon which the trier of fact can grant relief.
facie case upon which the trier of fact can grant relief. Griffin v. Rockwell International, Inc.,
96 Nev. 910, 620 P.2d 862 (1980). NID introduced evidence of a prima facie case for mutual
mistake.
1

[Headnotes 2, 3]
The district court erred by failing to address NID's claim to recover restitution for unjust
enrichment. Such claim for restitution is not precluded by Rule 60(b) or by the doctrine of
former adjudication. NID presented evidence of a prima facie case upon which equitable
relief could be granted.
2

[Headnote 4]
The district court erred by ordering dismissal of NID's cause of action seeking
modification of a prior judgment. Independent actions to modify prior judgments on a theory
of mutual mistake are permissible under Rule 60(b).
3
[Headnote 5]
[Headnote 5]
____________________

1
At trial, NID presented evidence that (1) the parties agreed to stipulate to an entry of judgment based upon
the amount of principal due pursuant to the promissory note, (2) NID mistakenly believed that the parcel map
upon which it calculated the principal amount due was accurate, (3) Benedetti mistakenly believed that the
stipulated amount included both the principal and interest due, and (4) the mistake was discovered after the
six-month limitation period for motions pursuant to Rule 60(b) had expired; thus, there was no remedy at law.

2
Unjust enrichment occurs whenever a person has and retains a benefit which in equity and good conscience
belongs to another. Union America Mortgage & Equity Trust v. McDonald, 97 Nev. 210, 212, 626 P.2d 1272,
1273 (1981). Unjust enrichment is the unjust retention of a benefit to the loss of another, or the retention of
money or property of another against the fundamental principles of justice or equity and good conscience.
Rankin v. Emigh, 218 U.S. 27 (1910). Money paid through misapprehension of facts belongs, in equity and good
conscience, to the person who paid it. 66 Am.Jur.2d Restitution & Implied Contracts 119 (1973).
Under the prior stipulated judgment, Benedetti received a benefit of more money for the remaining land to be
reconveyed than she was entitled to according to the original bargain. The original bargain entitled her to
$51,105.70 for the remaining parcels rather than $83,875.00. Benedetti received a windfall of $32,769.30
because of the mistake in calculating the amount of principal due for the remaining land to be reconveyed. NID
did not compromise on any issue which would justify settlement for a higher figure than that of the original
bargain.
Benedetti did not dispute at trial that the correct amount of principal due on the promissory note for the
reconveyance of the remaining parcels of land was $51.105.70. Benedetti did not present evidence that she
would suffer prejudice or hardship if she had to repay the windfall amount.

3
NRCP 60(b)(1) provides that:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order,
or proceeding for the following reasons: (1) mistake . . . The motion shall be made within a reasonable
time, and for [the reason of mistake] . . . not more than six months after
[Headnote 5]
When the statutory period within which to obtain relief from a judgment under 60(b) has
run, relief may be granted in an independent action on the basis of mutual mistake. Wisconsin
v. Michigan, 295 U.S. 455 (1935); West Virginia Oil & Gas Co. v. George E. Breece Lumber
Co., 213 F.2d 702 (5th Cir. 1954); 7 J. Moore & S.D. Lucas, Moore's Federal Practice
60.37[1] (1983); see Kulchar v. Kulchar, 462 P.2d 17, 19 (Cal. 1969; cf. Johnson Waste
Materials v. Marshall, 611 F.2d 593 (5th Cir. 1980) (mere negligence does not preclude
reformation of judgment in a Rule 60(b) independent action when evidence of partial prior
payment of an obligation from which a judgment arose is virtually conclusive). A court, in an
independent action, may modify a final judgment in a former proceeding on the ground of
mistake as well as fraud, at least where mutual mistake is shown and where the party seeking
relief is without fault or negligence. West Virginia Oil, 231 F.2d at 706; see Moore and
Rogers, Federal Relief from Final Judgment, 55 Yale Law Journal 623, 655-59 (1946).
The salutary purpose of Rule 60(b) is to redress any injustices that may have resulted
because of excusable neglect or the wrongs of an opposing party. Mendenhall v. Kingston,
610 P.2d 1287, 1289 (Utah 1980). Rule 60 should be liberally construed to effectuate that
purpose. Id. NID was responsible for the erroneous calculation of the principal owed, but this
negligence is not inexcusable as a matter of law.
[Headnote 6]
Rule 60(b) contemplates two distinct procedures for obtaining relief from final
judgmentby motion and by independent action. Bankers Mortgage Co. v. United States,
423 F.2d 73, 77-78 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970); St. Pierre v. Edmonds,
645 P.2d 615, 618 (Utah 1982); Mendenhall, 610 P.2d at 1289; Hayashi v. Hayashi, 666 P.2d
171, 175 (Haw.Ct.App. 1983); cf. Atlas Construction Company v. District Court in and for
Boulder County, 589 P.2d 953 (Colo. 1979) (independent action is expressly permitted by
Rule 60 but is not brought under Rule 60(b)). An independent action is considered to be a
new civil action, not a motion under Rule 60(b). Atlas, 589 P.2d at 955. When a proceeding is
an independent action to obtain equitable relief from a prior judgment, it is not brought
under Rule 60{b) and hence the time limitation contained in the rule has no application.
____________________
the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a
judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.
equitable relief from a prior judgment, it is not brought under Rule 60(b) and hence the time
limitation contained in the rule has no application. Terry v. Terry, 387 P.2d 902, 903 (Colo.
1963); see Johnson Waste, supra; Carr v. District of Columbia, 543 F.2d 917 (D.C.Cir.
1976); Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072 (2d Cir. 1972);
Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179 (Md.D.C. 1979); United States ex rel.
Bonner v. Warden, 78 F.R.D. 344 (N.D.Ill. 1978).
The only time limitations on independent actions under Rule 60(b) are laches or a relevant
statute of limitations. St. Pierre, 645 P.2d at 618; Terry, 387 P.2d at 903. Laches requires not
only passage of time but either prejudice to the defendant or an acquiescence in the alleged
wrong. Hayashi, 666 P.2d at 176. The district court found that NID's action to modify was
untimely since such actions could only be brought as motions under Rule 60. The district
court did not consider the question of laches; the evidence does not support laches as a matter
of law.
4

In sum, the district court erred by holding that NID's cause of action to modify a previous
judgment on the basis of mutual mistake could only be filed as a motion within the six month
time period in Rule 60.
[Headnotes 7, 8]
An equitable independent action for relief from a prior judgment is not precluded by the
doctrine of former adjudication. Generally, a judgment entered is res judicata with respect to
all issues which were or could have been litigated. McDonald v. Barlow, 705 P.2d 1056,
1059 (Idaho App. 1985) (fraudulent misrepresentation during property settlement
negotiations). In limited circumstances, however, relief from a judgment may be obtained in
an equitable independent action. Id. (citing I.R.C.P. 60(b) which is comparable to NRCP
60(b)). In such instances, the policies furthered by granting relief from the judgment outweigh
the purposes of res judicata. Id.
[Headnote 9]
If equity allows modification of a judgment on a theory of mutual mistake, accordingly, res
judicata does not bar such an equitable proceeding.
The district court order granting dismissal of NID's causes of action is reversed, and the
matter is remanded for a determination on the merits.
5

____________________

4
NID discovered the mistake in late March, between six and seven months after judgment had been entered,
commenced negotiations with Benedetti soon after the mistake was discovered, and filed an independent action
in early May.

5
The district court reserved ruling on the 41(b) motion until after the trial.
____________
103 Nev. 366, 366 (1987) SIIS v. Surman
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant,
v. EDDIE SURMAN, Respondent.
No. 16996
August 27, 1987 741 P.2d 1357
Appeal from the district court's order reversing the decision of an appeals officer. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Worker's request for a lump sum award of permanent partial disability benefits was denied
by the State Industrial Insurance System. The district court reversed, and the System
appealed. The Supreme Court held that statute retroactively removing right to lump sum
award in the worker's circumstances was a permissible exercise of the police power.
Reversed.
Pamela Bugge, General Counsel, and Scott Young, Associate General Counsel, Carson
City, for Appellant.
Badger and Baker, Carson City, for Respondent.
Statute retroactively removing entitlement to lump sum workers' compensation award in claimant's
circumstances was a permissible exercise of the police power. NRS 616.605, subd. 4(c)(2)(II).
2. Statutes.
Statute enacted in 1983, specifically altering entitlement to lump sum compensation award to persons
injured between July, 1973 and July 1, 1981, took precedence over general statute providing that amount of
compensation and benefits must be determined as of date of accident or injury. NRS 616.607, subd.
1(a), 616.625.
OPINION
Per Curiam:
Respondent Eddie Surman injured his shoulder in a compensable industrial injury on May
15, 1981. Subsequently, Surman was rated for permanent partial disability (PPD) and found
to have a sixteen percent impairment. His entitlement to the PPD compensation accrued in
February, 1985.
At the time Surman was injured, NRS 616.605(4)(b)(2)(II) (1979) provided that a claimant
may elect to receive twenty-five percent of his compensation in a lump sum if his PPD
impairment exceeded twelve percent. In 1983, the legislature changed the lump sum payment
provisions to provide that claimants injured on or after July 1, 1973 and before July 1, 1981
may receive a lump sum award if their PPD is twelve percent or less; claimants injured on
or after July 1, 19S1 may receive a lump sum award if their PPD is twenty-five percent or
less.
103 Nev. 366, 367 (1987) SIIS v. Surman
lump sum award if their PPD is twelve percent or less; claimants injured on or after July 1,
1981 may receive a lump sum award if their PPD is twenty-five percent or less. See NRS
616.607(1)(a). Thus, the 1979 provisions would allow Surman a lump sum award while the
1983 provisions would not. The SIIS denied Surman's request for a lump sum award, and a
hearing officer and an appeals officer upheld the SIIS' determination. The district court
reversed, reasoning that the right to a lump sum award is a vested substantive right, not
merely a procedural option. The court further concluded that Surman's right to compensation
was fixed at the time of his injury, reasoning that at the time of his injury, NRS
616.605(4)(b)(2)(II) (1979) allowed Surman to elect a twenty-five percent lump sum award,
and subsequent legislation could not alter that right. We disagree with the district court's
conclusions and therefore reverse.
We first note that undoubtedly the legislature intended the 1983 lump sum provisions to
apply retroactively to cases such as Surman's. Those provisions establish the conditions upon
which persons injured between July, 1973 and July, 1981 may receive PPD compensation in a
lump sum, and they apply to Surman since he was injured in May, 1981. The remaining issue
is whether subsequent to a claimant's injury the legislature may alter his right to a lump sum
award.
[Headnote 1]
Legislation enjoys a strong presumption of constitutional validity until the contrary is
clearly established. Allen v. State, Pub. Emp. Ret. Bd., 100 Nev. 130, 133, 676 P.2d 792, 794
(1984). In the instant case, this presumption has not been overcome. In K-Mart Corporation v.
SIIS, 101 Nev. 12, 23, 693 P.2d 562, 569 (1985), we held that the benefits and burdens
attendant to worker's compensation legislation are subject to exercise of the police power. In
the facts of this case, we conclude that the legislation which denies Surman a lump sum
award is a permissible exercise of the police power. The legislation in question neither
decreased nor increased the amount of compensation payable. It merely altered the timing of
the payments.
[Headnote 2]
In determining that the lump sum provisions in force at the time of Surman's injury
controlled, the district court relied on NRS 616.625, which states: Except as otherwise
provided by specific statute, the amount of compensation and benefits and the person or
persons entitled thereto must be determined as of the date of the accident or injury to the
employee, and their rights thereto become fixed as of that date. This statute, however, does
not require the result the district court reached. NRS 616.607{1){a) specifically addresses
the question of when lump sum PPD awards are permissible, and a specific statute takes
precedence over a general statute.
103 Nev. 366, 368 (1987) SIIS v. Surman
616.607(1)(a) specifically addresses the question of when lump sum PPD awards are
permissible, and a specific statute takes precedence over a general statute. See Sierra Life Ins.
Co. v. Rottman, 95 Nev. 654, 601 P.2d 56 (1979).
The district court erred in refusing to apply NRS 616.607(1)(a) to the instant case, and we
accordingly reverse.
____________
103 Nev. 368, 368 (1987) Charter Medical Corp. v. Bealick
CHARTER MEDICAL CORPORATION, a Delaware Corporation Qualified to do Business
in the State of Nevada, Appellant and Cross-Respondent, v.
DENNIS BEALICK, M.D., JORDAN GOODMAN, M.D., LTD., a Nevada Corporation,
Respondents and Cross-Appellants.
No. 16633
August 27, 1987 741 P.2d 1359
Appeal from final judgment, and cross-appeal from dismissal of claims; Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Doctors sued hospital, concerning office lease agreement option for renewal. Following a
jury trial in the district court the doctors were awarded damages for breach of contract. The
hospital appealed. The Supreme Court, Springer, J., held that: (1) properly instructed on
reasonable duration of lease option, jury could have found that parties negotiations on rent for
new term had failed, option had died, and parties should be left to own resources, and (2)
failure to give proper instruction required new trial.
[Rehearing denied November 30, 1987]
Steffen, J., dissented.
Beckley, Singleton, DeLanoy, Jemison & List, and Sherman B. Mayor, Las Vegas, for
Appellant and Cross-Respondent.
Gang & Berkley, Las Vegas, for Respondents and Cross-Appellants.
1. Landlord and Tenant.
Under lease granting lessees option to renew at a rent to be negotiated, only obligation of the parties
following exercise of option was to negotiate in good faith, and if no agreement could be reached within a
reasonable time, the option would expire, absent a suit by one of the parties to determine a reasonable rent.
Failure, in action by lessees for breach of option agreement of lease, to give instruction on reasonable
duration of the option when the parties failed to agree on rent for the new term, thereby allowing jury to
decide for lessees merely because the parties were unable to reach agreement, required new trial.
Under option to renew lease at rent to be negotiated, no liability of any party arises out of simple inability
to negotiate and arrive at rental agreement in writing.
OPINION
This controversy relates to a lease of medical office space from appellant hospital to
respondent doctors. The doctors sued the hospital, claiming that the hospital violated the
lease agreements by not honoring the options for renewal granted in the lease agreements. A
jury awarded damages to the doctors for breach of contract, and this appeal by the hospital
ensued.
The doctors occupied premises leased from the hospital under a three-year lease which
expired on February 29, 1980. The lease contained an option which is set out in full in the
margin.
1
This is an outline of the terms of the option: 1.
____________________

1
1. Option to Renew, Negotiated Rent. Lessee shall have the option to renew this lease for an additional
term of five (5) years, beginning on March 1, 1980, and ending on February 28, 1985. Lessee shall exercise
this renewal option by giving Lessor written notice of such exercise not sooner than October 1, 1979 and not
later than January 1, 1980. Such five-year renewal term shall be on the same terms and conditions as are
contained in this Lease, except for the provisions of Section 3, relating to annual and monthly rent.
Promptly after Lessee gives notice to Lessor of Lessee's exercise of Lessee's option to renew this Lease
for an additional five (5) year term, Lessee and Lessor shall negotiate the amount of such annual rent to be
due and payable by Lessee during such five (5) year renewal term. In no event shall the annual rent during
such five (5) year renewal term be less than $1.00 per square foot of space as described in Section 1 of this
Lease nor more than $6.00 per square foot of such space. In the event Lessee and Lessor agree on the amount
of annual rent and monthly installments thereof due and payable by Lessee during such five (5) year renewal
term, such agreement shall be made in writing. In the event Lessee and Lessor are unable to agree on the
amount of such rent by January 20, 1980, then Lessee shall have the right, exercisable on or before January
25, 1980, to terminate Lessee's exercise of this option to renew this Lease for a five (5) year renewal term.
Any such action by Lessee shall be made in writing to Lessor. Upon such action, taken in writing on or
before January 25, 1980, Lessee shall have no obligation to lease the space covered by this Lease Agreement
during the five (5) year renewal term provided by the Special Stipulation No. 1.
(Emphasis supplied).
1. The lessee has the right to renew for a five-year term, March 1, 1980 through
February 28, 1985.
2. Lessee must exercise the option by written notice between October 1, 1979 and
January 1, 1980.
3. The lease provided for in the option was to be on the same terms as the old except
for rent. Rent was to be negotiated (within a bracket of $1.00 to $6.00 per square
foot) and settled in writing by the parties.
4. The lessee, after exercise of the option, could still terminate Lessee's exercise of
this option by written notice to lessor before January 25, 1980.
In sum, the doctors could get a new five-year term if they gave proper notice of option and
if rent for the new term could be successfully negotiated by the parties and agreed upon in
writing. The doctors also had the additional right, until January 25, to get out of the new
lease, simply by terminating their exercise of the optionpresumably if they were unable
to negotiate a satisfactory rent arrangement for the new term or were otherwise dissatisfied
with the new lease.
The doctors did not exercise their option by giving notice within the time required by the
option agreement, but the hospital has waived this requirement and accepted the doctors'
position that the option was exercised insofar as notice is concerned. The only remaining
question is the effect that failure of the parties to negotiate an agreed-upon rent had on the
rights of the parties.
The right that the doctors were given to terminate their option is problematical. It could be
argued that an escape was given to the doctors in the event that rent or other problems
relating to the lease could not be resolved before January 25. Although the lease does not give
the hospital a similar escape, the position could be advanced that both parties contemplated
nullification of option rights if no agreement had been made in writing before January 25.
The doctors did not seek to affirm the lease and retain occupancy, something that they
were clearly entitled to do. (See, e.g., Cassinari v. Mapes, 91 Nev. 778, 542 P.2d 1069
(1975)), in which it was held that in these kinds of situations, in which an option provides for
rental to be negotiated and the parties fail to reach an agreement, the option is enforceable and
a reasonable rental will be imposed.) Rather, the doctors have taken the position that the
hospital breached the option agreement, thereby entitling them to recover contract damages.
The hospital's response to this contention is that exercise of option was not effectuated,
and the new lease could not go into effect until the new, negotiated rent had been agreed
upon. Therefore, says the hospital, since rent was not agreed upon within a reasonable time,
the option expired with no liability being incurred thereunder by either party.
within a reasonable time, the option expired with no liability being incurred thereunder by
either party.
The hospital points out that in good faith it initiated a rental proposal in January
2
and that
the rental amount contained in that proposal was never repudiated or rejected by the doctors;
instead, the hospital claims, the doctors initiated a scheme of petty caviling about extraneous
matters such as who was to bear the costs of painting the offices. The doctors counter by
blaming the failure to consummate the rental negotiations entirely on the hospital.
The pivotal issue here, however, is not which party was at fault
3
but, rather, who, if
anyone, violated the contract of the parties. The option right obviously cannot go on forever
given the parties' inability to arrive on their own at an agreement on the rent. Of course, if it
could be established that the hospital refused to negotiate, or, as put in offered Instruction
D-2,
4
failed to extend an opportunity [to the doctors] to lease offices at a rate of between $1
and $6 per year, then this could have possibly constituted a breach on the part of the
hospital. If, on the other hand, the parties simply could not agree in writing on what the rent
should be, then one or the other of the parties could have enforced the lease by suing under
Cassinari to determine a reasonable rental; otherwise, the option, not having life perpetual,
would die.
____________________

2
On January 22, 1980, the hospital proposed the following rental arrangement (per square foot): Year 1,
$1.50; Year 2, $1.75; Year 3, $2.00; Years 4 and 5, rate to be negotiated between $2.00 and $5.00.

3
The doctors have independent claims arising out of claimed fault on the part of the hospital. They have
charged the hospital with fraud and wrongful eviction and with the tort of bad faith. Neither tort claim was
successfully prosecuted in the trial court. The doctors' bad faith claim is legally insufficient under Aleuvich v.
Harrah's, 99 Nev. 215, 660 P.2d 986 (1983), q.v.

4
Offered Instruction D-2 reads as follows:
Under the terms of the option provision of the lease agreement of March 1, 1977, Plaintiffs had a
right to renew the lease for an additional five-year period with a rental rate of between $1 and $6 per
year.
If you find that the Defendant failed to extend an opportunity to Plaintiff to lease offices at a rate of
between $1 and $6 per year for the five-year term of the option, then you should find that the Defendant
has breached its contract with Plaintiffs and that the Plaintiffs are entitled to recover damages as set forth
in these instructions.
If you find that the Defendant did extend to Plaintiffs an opportunity to lease the property at a rate
between $1 and $6 per year and withdrew that offer without affording Plaintiffs a reasonable time in
which to accept the offer, then you should find for the Plaintiffs and assess damages as provided in these
instructions.
If you find that the Defendant did extend to Plaintiffs an opportunity to lease the property at a rate
between $1 and $6 per year and that Plaintiffs failed to accept the offer within a reasonable length of
time, then you should find for the Defendant.
The hospital tried to bring the issue of the option's duration before the jury by requesting
that the court give proposed Instruction D-2. The first portion of the hospital's offered
instruction would have told the jury to find for the doctors if it believed that the hospital
failed to negotiate. The hospital's proposed instruction would also have told the jury to find in
favor of the doctors if the hospital had failed to afford the doctors with a reasonable time
within which to accept its offer. Finally, the hospital's offered instruction would have told the
jury to find for the hospital if the jury found that the doctors had failed to accept the hospital's
offer within a reasonable time.
[Headnote 1]
The last portion of the instruction is misleading because the doctors were under no
obligations to accept the hospital's offer within a reasonable time. The only obligation of the
parties was to negotiate in good faith, and if no agreement could be reached within a
reasonable time, absent action under Cassinari, the option would expire.
[Headnote 2]
Whether it was error to refuse the offered instruction or not, not giving the instruction
necessarily left the jury with the impression that the option would remain open for an
indefinite time. Without an instruction on the reasonable duration of the option, we are left
with a situation in which, as the hospital complains, there was no time period established by
which the [parties] were required to consummate the negotiations.
There were large damage verdicts in the case, based presumably on the breach by the
hospital of an option agreement which a jury properly instructed could have found to have
expired by reason of passage of time.
The parties failed to settle on the new rent during January, February, March and April of
1980. In April the hospital sent a letter to the doctors telling them that it would be necessary
that you vacate the space by June 1, 1980. At this time the doctors were not paying rent, and
it appeared to the hospital that negotiations had broken down. As stated, the doctors could
have chosen to pursue their lessees' interest and ask the courts to set a reasonable rent.
Instead, they decided to move.
Properly instructed, a jury could have found that negotiations had failed, that the option
had died and that the parties should be left to their own resources.
The doctors chose to vacate the premises and sue for breach of the option agreement.
Negotiations could have reasonably been seen by the jury to have terminated on January 25,
the end of the doctors' "escape" privilege, or at the time the doctors removed themselves,
or at the time they filed suit in December of 19S0 or at some other time.
doctors' escape privilege, or at the time the doctors removed themselves, or at the time they
filed suit in December of 1980 or at some other time. Failure of the parties to reach an
agreement was failure of a vital term of the option. Absent an agreement on the rent within a
reasonable time (or a judicial determination of reasonable rent), there was no option, there
was no new lease, there was no breach of contract.
[Headnote 3]
Under the instructions as given in this case the jury was necessarily unaware of the relative
rights of the parties. They did not know that the option could end as a result of the passage of
time or the conduct of the parties. In a way the jury was led to decide for the doctors merely
because the parties were unable to reach an agreement on the new rental payable on exercise
of the option. Certainly no liability of any party arises out of the simple inability to negotiate
and arrive at a rental agreement in writing. The court's instructions did not frame the issues
between the hospital and the doctors, and a fair trial was denied the parties. We reverse and
remand so that the case can be tried in a manner that makes the jury aware of the legal
obligations of the parties. The hospital's breach, if any, must be defined in terms of its having
breached or repudiated a valid and subsisting agreement. Since this issue has not been
litigated, we reverse and remand this cause so that it can be litigated in accordance with the
principles announced in this opinion.
Gunderson, C. J., and Young and Mowbray, JJ., concur.
Steffen, J., dissenting:
If the hospital had defended this action on the basis that the doctors had adopted a
negotiation strategy of belligerence, hostility and bad faith regarding the terms of lease
renewal, I suspect the need for this dissent would have been obviated. However, the hospital
repeatedly has emphasized that it rested its entire case on a single argument: that after a
reasonable time passed without agreement on a rental rate, the doctors' power to exercise the
option lapsed. That contention is meritless, for the options were exercised, by their very
wording, when notice was given. Thus, the legal effect of the passage of a reasonable time
without agreement was that a court would imply a reasonable rent for the renewal term.
Cassinari v. Mapes, 91 Nev. 778, 542 P.2d 1069 (1975). There is evidence that the doctors
failed to pay any rent, reasonable or otherwise, during portions of their negotiations.
Therefore, an eviction for nonpayment of rent might have been proper. However, the eviction
which took place was based, expressly and solely, on expiration of the option.
expressly and solely, on expiration of the option. Thus, on the sole legal theory chosen by the
hospital, I suggest that the hospital's appeal should fail.
Moreover, I know of no legal basis for the majority's conclusion that a jury, properly
instructed, could find that the option had died. The option had, in fact, been exercised. It
was no longer subject to death, expiration or debate over its duration. Nor was it necessary for
the doctors to resist the hospital's eviction notice as a prerequisite for an action for breach of
contract.
Based upon the hospital's theory of defense, there was substantial evidence to support the
jury's verdict favoring the doctors. Accordingly, that verdict should stand. Steen v. Gass, 85
Nev. 249, 253, 454 P.2d 94, 97 (1969). I therefore respectfully dissent.
____________
103 Nev. 374, 374 (1987) Lowden Investment Co. v. General Electric
LOWDEN INVESTMENT COMPANY, EDWARD DOUMANI, FRED M.
DOUMANI, PAUL LOWDEN, ELENORE DOUMANI, and SYDNEY DOUMANI,
Appellants/Cross-Respondents, v. GENERAL ELECTRIC CREDIT COMPANY,
Respondent, YUBA GOLDFIELDS, INC., MARVIN KRATTER, and
WILBUR A. OEHLER, Cross-Appellants.
No. 17245
August 27, 1987 741 P.2d 806
Appeal from deficiency judgment; appeals from relief granted on third-party complaint.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Seller of jet sued initial purchaser to recover balance owing on note used to purchase jet,
and initial purchaser sued subsequent purchasers of jet seeking indemnification. The district
court awarded judgment in favor of seller as against initial purchaser and awarded
indemnification to initial purchaser from subsequent purchasers. Initial purchaser and
subsequent purchasers appealed. The Supreme Court held that: (1) repossession sale of jet
conducted by seller was commercially reasonable, and (2) subsequent purchasers had
assumed initial purchaser's debt to seller.
Affirmed.
Raggio, Wooster & Lindell, Reno; Frank W. Daykin, Carson City, for
Appellants/Cross-Respondents.
Jolley, Urga, Wirth, Woodbury and Jay Smith, Las Vegas; Lionel, Sawyer & Collins and
Linda Mabry, Las Vegas; Monsey, Andrews & Reed, Las Vegas, for
Respondent/Cross-Appellants.
Gibbons & Berman, Las Vegas, for Wilbur A. Oehler, Cross-Appellant.
1. Secured Transactions.
Whether a sale conducted by a secured party to dispose of collateral is commercially reasonable, under
California law is a question of fact and depends on all circumstances existing at time of sale. West's
Ann.Cal.Com.Code 9504(3).
2. Secured Transactions.
Secured party's sale of repossessed jet to itself was commercially reasonable under California law in
light of evidence that secured party advertised sale in ten different publications, including an aviation
specialty newspaper, gave public notice five days prior to sale, and 12 registered bidders attended auction,
one of whom bid on jet; price of $310,000 obtained was not inadequate considering repair work needed
and jet's low wholesale blue book value was $376,000. West's Ann.Cal.Com.Code 9504(3).
3. Evidence.
Photographer's testimony that auctioneer showed two people present at auction certain defects in jet,
which was offered to show that auctioneer was deprecating jet and stifling interest in bidding, was not
inadmissible hearsay as testimony was not offered to prove truth of matter asserted, i.e., the defects. NRS
51.035.
Erroneous exclusion of testimony that auctioneer at repossession sale showed two bidders certain defects
in repossessed jet did not warrant reversal as auctioneer's disclosing of defects would not by itself make
sale commercially unreasonable. NRS 47.040.
5. Aviation.
Notwithstanding contract language that sale was subject to debt, subsequent purchasers of jet assumed
initial purchaser's debt to seller under purchase agreement describing entire purchase price as being
payable and then breaking price into two components, one being payment made at closing to initial
purchaser and balance of purchase price represented by initial purchaser's debt to seller.
6. Evidence.
Parol evidence is not admissible to vary or contradict terms of written agreement; however, parol
evidence is admissible in order to resolve ambiguities in a written instrument.
7. Evidence.
Parol evidence was properly admitted to assist in interpreting purchase agreement for jet to determine
whether subsequent purchasers had assumed debt owed by initial purchaser to seller.
8. Costs; Damages.
Attorney's fees may not be awarded unless provided for by agreement, statute, or rule; however,
attorney's fees attributable to litigation with third parties may be recovered as damages when defendant's
conduct caused litigation.
OPINION
Per Curiam:
In December 1977, Lowden Investment Company, (Lowden) through a predecessor in
interest, purchased a 1966 Lear Jet. Lowden financed the purchase by borrowing $520,000.00
from General Electric Credit Corporation (GECC), secured by the jet. The debt was
personally guaranteed by Edward Doumani, Elenore Doumani, Fred Doumani, Sydney
Doumani, and Paul Lowden.
A few months after the purchase, Lowden leased the jet to Las Vegas Jet Charter Service
(LVJCS). Trial testimony described LVJCS as a co-ownership comprised of Marvin Kratter
and Wilbur Oehler. After the three-year lease expired, Lowden sold the plane to LVJCS as
evidenced by a purchase agreement which Kratter signed. The agreement recited a purchase
price of $590,000.00, $90,000.00 to be paid to Lowden, and the balance represented by the
debt to GECC to which the sale was subject.
Trial testimony revealed that when Kratter bought the jet, he was acting for an undisclosed
principal, Yuba Goldfields, Inc. (Yuba). Kratter was an officer, director, and shareholder of
Yuba. Oehler, the co-owner of LVJCS, was also a member of Yuba's Board of Directors.
Yuba authorized negotiations to purchase a jet and subsequently ratified the purchase made
by LVJCS. LVJCS transferred title within thirty days after the purchase.
Less than one month after Yuba purchased the jet through LVJCS, it contracted to sell it to
John McLelland for $650,000.00. The sale agreement required that McLelland pay
$150,000.00 in cash and assume the unpaid debt to GECC. McLelland made the payments on
the jet until October or November of 1982.
GECC repossessed the jet in early 1983. On May 16, 1983, a public sale was conducted to
satisfy the debt, and GECC purchased the jet for $310,000.00
GECC brought suit to recover from Lowden the difference between the $310,000.00
auction price and the amount owing on the note. Lowden filed a third-party complaint seeking
indemnification from all subsequent purchasers of the jet, including Oehler and Kratter dba
LVJCS, Yuba, and McLelland.
1
The trial court awarded judgment against Lowden in favor
of GECC in the amount of $207,407.17. The trial court awarded relief to Lowden pursuant to
its third-party complaint for the full amount of Lowden's liability to GECC. Lowden and the
third-party defendants appeal.
____________________

1
Default was entered against McLelland.
THE LOWDEN APPEAL
[Headnote 1]
Lowden's main argument on appeal is that GECC's May 16, 1983 sale of the jet was
commercially unreasonable. The California Commercial Code, which the parties agree
applies, allows a secured party to dispose of collateral provided the secured party acts in
good faith and in a commercially reasonable manner. Cal.Com.Code 9504(3) (West Supp.
1987). Whether a sale is commercially reasonable is a question of fact and depends on all the
circumstances existing at the time of the sale. Clark Equipment Co. v. Mastelotto, Inc., 150
Cal.Rptr. 797, 802 (Ct.App. 1978).
[Headnote 2]
At the completion of trial, the district judge concluded that the auction sale was
commercially reasonable. The record amply supports this conclusion. GECC advertised the
sale in ten different publications, including the Controller, an aviation specialty newspaper.
The advertising complied with the provisions of Section 9504(3), which require public notice
five days prior to the sale. Twelve registered bidders attended the auction, one of whom bid
on the jet. Moreover, the price obtained is not altogether inadequate when considering that the
jet needed approximately $90,000.00 in repair work. The jet's low wholesale blue book value
was $376,000.00, and the high blue book value was $399,000.00. The retail blue book value
was $460,000.00 It is also notable that GECC eventually sold the jet for only $156,000.00, a
figure significantly lower than its bid at the auction. We conclude that the record supports the
trial court's finding that the sale was commercially reasonable, and we decline to disturb the
finding. See Jones v. Bank of Nevada, 91 Nev. 368, 373, 535 P.2d 1279, 1282 (1975).
2

[Headnotes 3, 4]
Lowden also argues that the trial court erred in excluding on hearsay grounds the
testimony of a photographer who attended the auction. The witness sought to testify that the
auctioneer or his representative showed to people present at the auction certain defects in the
jet.
Hearsay is a statement offered to prove the truth of the matter asserted.
____________________

2
On appeal, Lowden also argues that the trial court improperly granted partial summary judgment in favor of
GECC because issues of material fact remained concerning the commercial reasonableness of GECC's public
sale. This argument, however, is misplaced. The trial court's partial summary judgment determined only that
Edward Doumani, Elenore Doumani, Fred Doumani, Sydney Doumani, and Paul Lowden had not been released
from liability as guarantors. The trial court did not resolve the issue of commercial reasonableness until after
trial.
asserted. NRS 51.035. In the instant case, the purpose of the statements was not to prove the
existence of defects. The purpose of the proposed testimony was to show that the auctioneer
was deprecating the jet, thereby stifling interest and making the sale commercially
unreasonable. The trial court therefore erred in excluding the testimony on hearsay grounds.
See Wilson v. State, 669 P.2d 1292, 1298 (Alaska 1983). We conclude, however, that this
error does not warrant reversal.
NRS 47.040 states that error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected. . . . We do not believe
that the auctioneer's disclosing defects would alone make the sale commercially
unreasonable. In order for the excluded testimony to be significant, Lowden must have
alleged, for example, that the auctioneer's representations were inaccurate. Lowden's offer of
proof did not suggest that this was the case, and we are unable to conclude that the trial
court's error prejudiced Lowden.
THE APPEAL OF YUBA, KRATTER, AND OEHLER
[Headnote 5]
The major contention raised by these parties is that the trial court erred in concluding that
appellants Kratter and Oehler, as co-owners of LVJCS, and Yuba assumed Lowden's debt to
GECC. They also contend that the trial court erred in allowing parol evidence on the issue of
an assumption. We disagree.
The agreement whereby LVJCS purchased the jet on behalf of its undisclosed principal,
Yuba, stated:
2. The purchase price for the Aircraft is Five Hundred Ninety Thousand Dollars
($590,000.00) payable as follows:
(a) Ninety Thousand Five Hundred Fifty Dollars and Eighty Five Cents ($90,550.85)
to be paid by Purchaser to Seller at the closing as provided for in Section 3 of this
Agreement;
(b) The balance of Four Hundred Ninety-Nine Thousand Four Hundred Forty-Nine
Dollars and Fifteen Cents ($499,449.15) is represented by a certain Security Agreement
between Seller and GECC dated December 30, 1977, to which this sale is subject and
such sum is represented by Seller as being the balance under such security Agreement
as of March 24, 1981.
Appellants' contention is that because the sale is described as being subject to the GECC
debt, there can be no assumption of personal liability on that debt. We recognize that
generally the words subject to connote an absence of personal liability. See e.g.,
e.g., Helvering v. Southwest Consol. Corp., 315 U.S. 194, 200 (1942); Escrow Found. Bldg.
Corp. v. Henderson, 26 F.Supp. 865, 866 (D.Nev. 1939); Corbett v. Rice, 2 Nev. 840, 843
(1866). The language used in the instant agreement, however, does not require such a result.
The purchase agreement describes the entire $590,000.00 purchase as being payable. It
then breaks the price into two components, one being $90,550.85 to be paid at the closing, the
second being the balance of the purchase price represented by Lowden's debt to GECC. These
provisions read together suggest that the purchaser is accepting responsibility for both
components, despite the use of the words subject to. Thus appellants' argument is
unpersuasive. We now turn to the parol evidence issue.
[Headnotes 6, 7]
Parol evidence is not admissible to vary or contradict the terms of a written agreement.
Daly v. Del E. Webb Corp., 96 Nev. 359, 609 P.2d 319 (1980). However, parol evidence is
admissible in order to resolve ambiguities in a written instrument. Trans Western Leasing v.
Corrao Constr. Co., 98 Nev. 445, 652 P.2d 1181 (1982). The agreement in question contained
both language suggesting that appellants were responsible for the debt and language
suggesting they were not. The trial court therefore properly admitted parol evidence to assist
in interpreting the agreement. Based on the agreement and other trial evidence, we conclude
that substantial evidence supports the trial court's determination that LVJCS and Yuba
assumed responsibility for Lowden's obligation to GECC.
Appellant Oehler also contends that the trial court erred in denying his motion to set aside
the judgment against him. The basis of his argument is that he was never served with process,
nor did he authorize counsel to appear in his behalf. The trial court rejected Oehler's
argument, finding that he was personally served with a third-party summons and complaint
and that he authorized the appearance of counsel. Our review of the record reveals that
substantial evidence supports the trial court's finding, and we decline to disturb it. See Kenney
v. Greer, 99 Nev. 40, 44, 656 P.2d 857, 859 (1983).
Finally, appellants Yuba and Kratter assert that the trial court improperly awarded as
damages the attorney's fees which Lowden was required to pay GECC. We disagree.
[Headnote 8]
Generally attorney's fees may not be awarded unless an agreement, statute, or rule provides
for such. Von Ehrensmann v. Lee, 9S Nev. 335
98 Nev. 335, 647 P.2d 377 (1982). However, attorney's fees attributable to plaintiff's
litigation with other parties may be recovered as damages when defendant's conduct caused
the litigation. See Elijah v. Fender, 674 P.2d 946, 951 (Colo. 1984); see also American Fed.
Musicians v. Reno's Riverside, 86 Nev. 695, 699, 475 P.2d 220, 222 (1970). In the instant
case, the trial court declined to award Lowden the attorney's fees incurred in pursuing its
third-party complaint against Kratter and Yuba. The only fees allowed against Kratter and
Yuba were those which Lowden was required to pay GECC. This award as an element of
damages was proper.
We have considered the parties' remaining contentions and conclude they lack merit.
____________
103 Nev. 380, 380 (1987) Washoe County v. Wildeveld
WASHOE COUNTY, Appellant, v. ALLAN WILDEVELD,
dba VALLEY MARKETING, Respondent.
No. 17468
August 27, 1987 741 P.2d 810
Appeal from an order denying demand for change of venue; Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Plaintiff sued to recover property seized by county from third party in possession thereof
pursuant to alleged contract. County filed demand to remove trial to other county. The district
court denied county's motion to remove, and county appealed. The Supreme Court held that
plaintiff failed to satisfy burden of proving that county in which action was filed was indeed
proper venue.
Mills Lane, District Attorney, Thomas F. Riley, Deputy District Attorney, Washoe County,
for Appellant.
Albert D. Massi, Las Vegas, for Respondent.
1. Venue.
If no defendants reside in county in which action was filed, and if timely demand for change of venue is
filed, then removal of action is mandatory unless venue is otherwise proper in county where action was
filed. NRS 13.040.
2. Venue.
Once timely demand for change of venue is filed, plaintiff has burden of proving that county in which
action was filed is indeed proper venue.
3. Counties.
Individual who sued to recover property seized by county from third party in possession thereof pursuant
to alleged contract failed to show that venue was properly in county where he filed suit, so that county's
motion for removal of action should have been granted, where no defendant resided in county where suit
was filed and plaintiff presented no evidence, beyond mere allegations, that his contract with third party
would have been performed in county. NRS 13.010, subd. 1, 13.040.
OPINION
Per Curiam:
On February 25, 1986, respondent Allan Wildeveld filed a complaint in Clark County. The
named defendants include Kent Reidesel, the State of Nevada and Washoe County. In his
complaint Wildeveld avers that property belonging to him was seized from Reidesel by
Washoe County and the State of Nevada as a result of criminal charges filed against Reidesel
and the other defendants. Wildeveld's claim to the property seized is based on an alleged
contract between himself and Reidesel.
On May 7, 1986, Washoe County and the State filed a demand to remove the trial to
Washoe County pursuant to NRS 13.050(2)(a) ([w]hen the county designated in the
complaint is not the proper county.). Wildeveld's opposition to the demand contends that
Clark County is a proper venue pursuant to NRS 13.010 (a contract action must be
commenced in the county in which the obligation is to be performed or the county in which
the defendant resides.) Wildeveld, however, failed to aver the county of performance in his
complaint and failed to present the district court with any affidavits or testimony supporting
his allegation that a contract was to be performed in Clark County.
Washoe County's and the State's demand for a change of venue was denied at a June 4,
1986, hearing. After this hearing but before Washoe County's appeal was filed, the State was
dismissed from the action.
Appellant Washoe County asserts that removal to Washoe County is mandatory because
NRS 13.040 prescribes that an action shall be tried in the county in which any one defendant
resides and because NRS 13.030 provides that any action against a county must be
commenced in that county. With appellant's first assertion we agree.
[Headnote 1]
The Civil Practice Act provides that a proper venue is either the county in which one or
more defendants reside, NRS 13.040,
1
or in a contract action, the county in which the
obligation is to be performed, NRS 13.010{1).2 If a demand for a change of venue is filed
in a timely manner, and no defendants reside in the county in which the action is filed,
and that county is not otherwise a proper venue, then removal is mandatory.

____________________

1
NRS 13.040 provides, in pertinent part:
13.040 Venue in other cases. In all other cases, the action shall be
or in a contract action, the county in which the obligation is to be performed, NRS 13.010(1).
2
If a demand for a change of venue is filed in a timely manner, and no defendants reside in
the county in which the action is filed, and that county is not otherwise a proper venue, then
removal is mandatory. Western Pacific R.R. Co. v. Krom, 102 Nev. 40, 714 P.2d 182 (1986),
Williams v. Keller, 6 Nev. 141 (1870).
[Headnotes 2, 3]
Washoe County's and the State's demand for removal asserted that no defendants resided
in Clark County. Their assertion is supported by Wildeveld's complaint along with a signed
affidavit. Once a timely demand is filed, the plaintiff, Wildeveld, has the burden of proving
that the county in which the action is filed is indeed a proper venue. See Ash Springs Dev.
Corp. v. Crunk, 95 Nev. 73, 589 P.2d 1023 (1979). No evidence or arguments were offered
contrary to Washoe County's and the State's position that no defendants resided in Clark
County. Wildeveld did argue that Clark County is to be the situs of the contract's performance
and is thus a proper venue pursuant to NRS 13.010(1). Without offering any evidence
supporting these contentions Wildeveld, however, failed to meet his burden of proving that
Clark County is a proper county for the commencement of the action. Because Wildeveld
failed to meet his burden of proving that action was commenced within the proper venue, the
district court erred in failing to change the place of trial to Washoe County.
In light of our disposition of appellant's first contention, we decline to address appellant's
argument that a county defendant has a preemptory right to have all actions filed against it
commenced in its own county courts. Accordingly, the order of the district court denying
Washoe County's and the State's demand for change of venue is reversed, and the case is
remanded to the district court with directions to vacate the order and to order a change of
venue to Washoe County.
____________________
tried in the county in which the defendants, or any one of them, may reside at the commencement of the
action. . . .

2
NRS 13.010(1) provides, in pertinent part:
13.010 Where actions are to be commenced.
1. When a person has contracted to perform an obligation at a particular place, and resides in another
county, the action must be commenced, and, subject to the power of the court to change the place of trial
as provided in this chapter, must be tried in the county in which such obligation is to be performed or in
which he resides. . . .
____________
103 Nev. 383, 383 (1987) Van Duzer v. Shoshone Coca Cola
SHELLEY VAN DUZER, Appellant, v. SHOSHONE COCA COLA BOTTLING CO.,
a Nevada Corporation, and OWENS-ILLINOIS, INC., an Ohio
Corporation, Respondents.
No. 17520
August 27, 1987 741 P.2d 811
Appeal from judgment and order denying motion for judgment notwithstanding the verdict
or a new trial. Second Judicial District Court, Washoe County; Robin Anne Wright, Judge.
Supermarket cashier filed strict liability action against bottle manufacturer and against
bottler, seeking to recover for injuries she sustained when a bottle in a customer's shopping
cart exploded, severely injuring the cashier in the eye. The district court denied the cashier's
motion for judgment notwithstanding the verdict or for a new trial, after the jury returned a
verdict for the bottler and the manufacturer. Cashier appealed. The Supreme Court held that:
(1) the bottle's susceptibility to breakage on impact with other bottles ordinarily found in
shopping carts rendered the bottle unreasonably dangerous and defective, and (2) the jury's
verdict in favor of the bottler and the manufacturer could only have resulted from manifest
disregard of the instructions.
[Rehearing denied December 31, 1987]
Nada Novakovich and Nicholas J. Drakulich, Reno, and D. Bert Garraway and Bart
Eaton, Baton Rouge, Louisiana, for Appellant.
Echeverria, Osborne & Jenkins, and Cathy Bradford, Reno, for Respondent Shoshone
Coca Cola Bottling Co.
Vargas & Bartlett, and Michael A. Iglesia, Reno, and Morganstein & Jubelirer, and James
Balich, San Francisco, for Respondent Owens-Illinois, Inc.
Product is defective when it fails to perform in manner reasonably to be expected in light of its nature and
intended function.
Manufacturer or distributor is entitled to assume that product will not be subjected to abnormal or
unintended uses; hence, there is no liability for injury resulting from abnormal or unintended use of
product.
Product container that cannot withstand rigors of normal shopping practices is unreasonably and, by
definition, defective.
Even if bottle in customer's shopping cart sustained blow from being placed in cart with other objects,
that blow did not result from misuse or abuse; it was to be expected that bottle product sold in supermarket
would be placed in cart with other products which could also be sold in glass containers and that bottle
would not explode.
Bottle's susceptibility to breakage on impact with other bottles ordinarily found in shopping carts
rendered bottle unreasonably dangerous and defective.
Evidence that bottle had no visible flaw and conformed to manufacturing specifications did not negate
presence of inherent trait rendering bottle, which shattered as result of single blow, unreasonably
dangerous.
7. New Trial.
Jury verdict for bottle manufacturer and for bottler in strict liability action arising out of injury sustained
by supermarket cashier when bottle shattered in customer's shopping cart, could only have resulted from
manifest disregard of instructions where cashier presented prima facie case that bottle was unreasonably
dangerous and there was no evidence negating elements of strict liability or supporting defense of product
misuse; thus, cashier was entitled to new trial.
OPINION
Per Curiam:
Appellant Shelley Van Duzer worked as a cashier at Raley's Supermarket in Reno. On July
25, 1985, a customer brought a shopping cart containing bottles of Canada Dry Salt-Free
Seltzer to Van Duzer's checkstand. As Van Duzer began removing potato chips from the top
of the cart, a bottle of seltzer exploded severely injuring her in the eye. As a result, Van Duzer
required surgery and, ultimately, a cornea transplant. She brought suit on a strict liability
theory against Owens-Illinois, Inc., which manufactured the bottle, and Shoshone Coca Cola
Bottling Co., which bottled the product and placed it on the shelves of the store. She alleged
she was injured because the bottle was defective. Although the bottle exploded while in a
shopping cart and there was not evidence it had been subjected to abnormal handling or
misuse, the jury returned a verdict for the defendants. Van Duzer moved for judgment
notwithstanding the verdict or for a new trial. The district court denied her motion. She
appeals.
Van Duzer argues she was entitled to a new trial because of manifest disregard of the
court's instructions by the jury. NRCP 59(a). A new trial is warranted if it would have been
impossible for the jury to have rendered the verdict if it had properly applied the
instructions.
for the jury to have rendered the verdict if it had properly applied the instructions. Rees v.
Rodrigues, 101 Nev. 302, 304, 701 P.2d 1017, 1019 (1985).
[Headnotes 1, 2]
This court has long recognized that a manufacturer or distributor of a product is strictly
liable for injuries resulting from a defect in the product that was present when the product left
its hands. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970). The
district court correctly instructed the jury that a product is defective when it fails to perform
in the manner reasonably to be expected in light of its nature and intended function. Id. As a
corollary, the manufacturer or distributor is entitled to assume the product will not be
subjected to abnormal or unintended uses. General Electric Co. v. Bush, 88 Nev. 360, 365,
498 P.2d 366, 369 (1972). Hence, there is no liability for an injury resulting from an
abnormal or unintended use of the product. Id.
[Headnote 3]
According to the uncontradicted evidence, the bottle exploded while in a parked shopping
cart. The customer testified she did not drop the bottle or bump the cart. Van Duzer, herself,
did not even touch the bottle. We are at a loss to understand how the jury could have
concluded from this evidence that the bottle did not fail to perform in the manner to be
reasonably expected. The bottle was handled in precisely the manner in which it was intended
to be handled. The customer removed it from the shelf, placed it in the shopping cart with
other items, and took it to the checkstand. A product container that cannot withstand the
rigors of normal shopping practices is unreasonably dangerous and, by definition, defective.
[Headnote 4]
We are mindful the evidence must be viewed in the light most favorable to the
respondents. Wilkes v. Anderson, 100 Nev. 433, 434, 683 P.2d 35 (1984). Thus, we accept
their theory and the testimony of their expert witness that the bottle shattered after colliding
with one of the other glass containers in the cart. However, we fail to see the significance of
this evidence. Respondents have suggested a sharp external blow to the bottle constitutes
misuse which relieves them of liability for the ensuing injury. This contention has no merit
when the external blow occurs as an incident of normal handling. Use of a product in a
manner which should be reasonably anticipated is not misuse or abuse. Crown Controls Corp.
v. Corella, 98 Nev. 35, 37, 639 P.2d 555, 557 (1982). It is to be expected that a bottled
product sold in a supermarket will be placed in a cart with other products which may also
be sold in glass containers.
sold in a supermarket will be placed in a cart with other products which may also be sold in
glass containers. Some jostling can be anticipated as the items are wheeled around the store.
We note the customer had brought the cart to a stop at Van Duzer's checkstand at the time of
the explosion and that none of the percipient witnesses detected an impact. The resulting
blow did not result from misuse. This is not a case where one object was hurled across a
speeding cart at another object.
[Headnotes 5, 6]
By respondents' own theory of the facts, the bottle shattered because of a single blow.
Under the facts of this case, susceptibility to breakage on impact with other bottles ordinarily
found in shopping carts, rendered the bottle unreasonably dangerous and defective. The
evidence indicates this defect was inherent in the bottle and present when it left the control of
the manufacturer and, hence, the distributor. Respondents' own expert witness testified the
bottle had not been weakened prior to breakage. Although respondent Owens-Illinois, Inc.
presented evidence the bottle had no visible flaw and conformed to certain manufacturing
specifications, this does not negate the presence of an inherent trait rendering the item
unreasonably dangerous.
[Headnote 7]
Van Duzer succeeded in presenting a prima facia case. Respondents did not present any
evidence negating the elements of a cause of action in strict liability or supporting the defense
of product misuse. The verdict could only have resulted from manifest disregard of the
instructions. Since we conclude Van Duzer is entitled to a new trial, we need not address her
remaining assignments of error. We reverse the judgment of the district court and remand the
cause for proceedings consistent with this opinion.
____________
103 Nev. 387, 387 (1987) Airport Casino v. Jones
AIRPORT CASINO, INC., a Nevada Corporation, Appellant, v. STANLEY P. JONES,
Executive Director, State of Nevada Department of Employment; HAROLD
KNUDSON, Chairman, Board of Review, Employment Security Department;
EMPLOYMENT SECURITY DEPARTMENT; YVONNE NODURFT; FRANCIS
KITCHEN; RAYMOND COHEN; JEAN BARTON; YSABEL R. DIAZ; WILLIAM
GOTSCHALL; ANATANIA WEIDMANN; AMANDA BURNS; SHIRLEY CAVILL;
MONIQUE ENGE; CAROLEE FERNANDEZ; A. NIDIA FERNANDEZ; ISABEL
GUIROLA; NICHOLAS GUZMAN; GOMESINDO HERNANDEZ; GLORIA
INGRAM; ANNA JUSTICE; ALAN KEARNEY; PAULA KUTY; LORENZO
LIMON; PEGGY LYNN; FRED McGOWAN; ELENA MEDINA; ANN MARIE
MILLER; SARA MORALES; MARIA MORENO; VIRGINIA NACHTIGALL;
FERMIN NUNEZ; EDUARDO PAIS; OSVALDO PAIS; HERBERT REED;
JOSEPH SANTANGELO; H. B. SAVAGE; ANTHONY SCAPPETTA; GARYFALIA
SMITH; RATKO SODA; JOHN STIBRANY; CONCESA VERONICA STRASSER;
DOLORES JONES; RICHARD STANLEY; KIMIE BALLESTEROS; GREGORY
BLACKWELL; DORIS LEWIS; RAMON RODRIGUEZ; PENNY STEINMAN;
DAWN ANDERSON; ROBERT BARNES; DARLEAN DICKERSON; MILDRED
FIET; ROBERT SANDOVAL; MAMMIE OLIVER; JOHN SIMKO; LEA
ARENCIBIA; BEVA SALAZAR; LEONORA GARCIA; SANDRA DELGADO; LEON
REINALDO; ANSEL COWART; MARIA PEREZ; LYNDA NIEVES; BEVERLY
MANGRUM; MARIA ACOSTA; HELEN WASHINGTON; BARBARA
BANKS; VERA BELL; MARIA COLMENARES, Respondents.
No. 17150
August 27, 1987 741 P.2d 814
Appeal from order denying relief and affirming the decision of the Employment Security
Department Board of Review. Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
The district court held that hotel employees were entitled to unemployment compensation
benefits, and employer appealed. The Supreme Court held that: (1) employer's reduction of
salaries and benefits did not constitute termination of employees and consequent substandard
offer to rehire, and (2) employees who went on strike after bankruptcy court permitted
employer to reject its collective bargaining agreement with union were unemployed due to
"labor dispute," and were thus ineligible to receive unemployment compensation benefits.
ployed due to labor dispute, and were thus ineligible to receive unemployment
compensation benefits.
Reversed.
Rexon, Freedman, Klepetar & Thomas and Fred Griffin, Los Angeles, California.
Jones, Jones, Close & Brown, and Robert D. Martin, Las Vegas, for Appellant.
Crowell, Crowell, Crowell & Susich, Carson City, for Respondents.
1. Social Security and Public Welfare.
Hotel employees were not terminated due to employer's unilateral 10 percent reduction of salaries and
benefits, where employees did not actually quit their jobs, but rather chose to go on strike. NRS
612.390, subd. 3(b).
2. Social Security and Public Welfare.
Hotel employees who went on strike after bankruptcy court granted employer permission to reject its
collective-bargaining agreement with union were unemployed due to labor dispute, and thus not entitled
to unemployment compensation benefits, where employer and unions had been actively negotiating new
contract, and employer's offer entailed substantial reduction of salaries and benefits, NRS 612.395.
OPINION
Per Curiam:
This is an unemployment compensation case involving the application of the labor
dispute disqualification provision of NRS 612.395. The basic facts underlying the present
controversy are essentially undisputed. The sole legal issue before us is whether claimants
were unemployed due to a labor dispute within the meaning of NRS 612.395 and were
therefore disqualified from receiving benefits. We conclude that the unemployment was due
to a labor dispute in active progress and that the claimants were not entitled to benefits.
Accordingly, we reverse the judgment of the lower court and the decision of the Employment
Security Department Board of Review.
Appellant Airport Casino, Inc. is a Nevada Corporation doing business as the Marina
Hotel (Marina) in Las Vegas, Nevada. Marina is an employer subject to Chapter 612,
Unemployment Compensation Law, of the Nevada Revised Statutes. The claimants involved
were members of the Culinary Workers Local 226, Bartenders Local 165, and Stagehands
Local 720; all were employed by the Marina Hotel.
employed by the Marina Hotel. The majority of the claimants, however, were members of the
Culinary Workers Local 226. The unemployment involved in this litigation arose out of the
following situation.
Marina had a three-year collective-bargaining agreement with Culinary Local that was to
expire on April 1, 1984. On January 26, 1984, Marina's executive vice president and chief
operating officer sent a letter to the Culinary Union stating that Marina was willing to begin
new contract negotiations. On February 3, 1984, because of ongoing financial problems and
major upcoming expenses in connection with conforming the newly adopted fire codes,
Marina filed a voluntary petition in bankruptcy for reorganization under Chapter 11 of the
Bankruptcy Code. Marina informed the Culinary Union that it had filed the petition on
February 28, 1984. On March 9 and again on March 22, Marina and the Culinary Union met
to consider proposals submitted by Marina; on March 26, members of the Culinary Union
rejected Marina's proposal.
The following day, Tuesday, March 27, 1984, Marina requested permission from the
bankruptcy court, pursuant to 11 U.S.C. 365(a), to reject its collective-bargaining agreement
with the Culinary Union. The bankruptcy court did not allow Marina to reject its
collective-bargaining agreement at that time, but rather asked Marina and the Culinary Union
to meet another time and try to negotiate an agreement. No negotiations were held. However,
on March 29, 1984, Marina returned to the bankruptcy court and renewed its request to reject
its collective-bargaining agreement. The court found that the modification of the Culinary
Union contract alone could supply Marina with an additional $75,000 per month that it
needed to comply with the new fire code. The court announced from the bench that the
Culinary Union contract represented a burden to Marina's reorganization efforts and permitted
Marina to reject its collective-bargaining agreement with the employees of the Culinary and
Bartenders Unions. Representatives of the union and union members were present in the
court room when the bankruptcy court made its decision. However, the written order of the
court, rejecting the collective-bargaining agreement in its entirety, was not signed until April
2, 1984.
On the following day, Friday, March 30, 1984, Marina's executive vice president and chief
operating officer hand delivered a letter to the president of the Local Joint Executive Board of
the Culinary and Bartenders Unions. The letter informed the unions that pursuant to the
March 29, 1984 authorization of the bankruptcy court to reject their collective-bargaining
agreement, Marina was instituting new terms and conditions of employment that would
become effective at 7:00 a.m.,
Marina was instituting new terms and conditions of employment that would become effective
at 7:00 a.m., Sunday, April 1, 1984. Included in the newly instituted changes were a 10
percent reduction in wages, elimination of pension payments, elimination of three holidays,
and reduction to one meal per eight hours of work. Marina stated that it would continue to
contribute to the union health insurance program but that any increase in contributions would
have to be paid by employees or into a company program. Marina additionally stated that it
stood ready to continue to bargain with the union at a mutually agreeable date and time.
At 1:00 p.m. on March 30, 1984, the same day that Marina's letter was hand delivered to
the union, there was a mass walkout by all the culinary, bartenders, and stagehand employees.
Picket lines were set up in front of the Marina.
Following the walkout, numerous former employees applied for unemployment benefits
with the Employment Security Department. All claims for benefits were filed on or after
April 9, 1984. One group of approximately 47 claimants, who had initially been found
ineligible because of their involvement in a labor dispute, appealed that determination to a
senior appeals referee. That referee affirmed the original determination that the employees
were ineligible for benefits because their unemployment was due to a labor dispute in
progress at the Marina. The 47 claimants then appealed the decision to the Board of Review,
which reversed the decision of the referee and found that the claimants were not disqualified
under the labor dispute provision. Marina then filed its petition for judicial review of the
Board's decision. The Board of Review also found two other groups of Marina employees
eligible for benefits and Marina sought judicial review of these decisions as well. Following a
hearing of Marina's consolidated petitions for judicial review, the district court found that the
claimants had not been involved in a labor dispute and were entitled to unemployment
benefits. The court issued its order denying the relief sought in Marina's petition and affirmed
the decision of the Employment Security Department Board of Review. This appeal followed.
We begin our consideration of this issue by emphasizing that the legislative intent of
unemployment compensation statutes is to provide temporary assistance and a measure of
economic security for individuals who become involuntarily unemployed. In the instant
matter, we are asked to construe NRS 612.395, the labor dispute disqualification provision
for unemployment benefits, which provides in pertinent part: An individual shall be
disqualified for benefits for any week with respect to which the executive director finds that
his total or partial unemployment is due to a labor dispute in active progress at the factory,
establishment or other premises at which he is or was last employed."
labor dispute in active progress at the factory, establishment or other premises at which he is
or was last employed. The positions of the parties are clearly set forth. Marina contends that
employees who go on strike because their employer has been authorized by a bankruptcy
court to change the terms of their collective bargaining agreement are engaged in a labor
dispute within the meaning of NRS 612.395. Conversely, the claimants maintain that
Marina's unilateral reduction of salaries and benefits was substantial enough to constitute a
termination. Further, the claimants argue that their unemployment was not due to a labor
dispute but was rather due to Marina's bankruptcy and the changes it instituted. We reject
the claimant's arguments for the reasons stated below.
We initially note that the term labor dispute, although not defined in the Unemployment
Compensation Act, includes any controversy concerning wages, hours, working conditions,
or terms of employment. See Gorecki v. State, 335 A.2d 647 (N.H. 1975); Be-Mac Transport
Company, Inc. v. Grabiec, 314 N.E.2d 242 (Ill.App. 1974); Smith v. Michigan Employment
Sec. Commission, 301 N.W.2d 285 (Mich. 1981). This definition is reflected in the language
of NRS 614.0101 (which provides that the governor shall attempt to settle labor disputes
amicably) and is essentially the same as the definitions used in the Norris-LaGuardia Act and
the National Labor Relations Act
2
.
In determining whether the claimants unemployment is due to a labor dispute, we find
Briggs Transportation Co. v. Intern.
____________________

1
NRS 614.010(1) provides in pertinent part:
Whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise
between an employer and his employees, seriously interrupting or threatening to interrupt the business of
the employer, the governor shall, upon the request of either party to the controversy, with all practicable
expedition, put himself in communication with the parties to such controversy. . . .

2
29 USCS 113(c) provides:
The term labor dispute includes any controversy concerning terms or conditions of employment, or
concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or
seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand
in the proximate relation of employer and employee.
29 USCS 152(9) provides:
The term labor dispute includes any controversy concerning terms, tenure or conditions of
employment, or concerning the association or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether
the disputants stand in the proximate relation of employer and employee.
Broth. of Teamsters, 116 LRRM 2241 (D.C.Minn. 1984) to be highly instructive. There, the
employer Briggs filed a Chapter 11 petition under the Bankruptcy Code. After failing to
arrive at an agreeable reduction in contract benefits with the unions, the bankruptcy court
entered an order approving Briggs' rejection of its collective-bargaining agreements. Briggs
immediately announced a unilateral reduction in wages from $13.21 an hour to $9.00 an hour
as well as significant cuts in fringe benefits and changes in important terms of employment.
Employee members of the Teamsters Union began a strike and stationed pickets at many of
Briggs' terminals. In response, Briggs agreed to postpone the effective date of the proposed
changes; the parties conducted further meetings but failed to arrive at a negotiated solution.
Briggs then filed an action in federal court seeking an injunction preventing the Teamsters
from engaging in strike-related activities. In denying Briggs' request for a preliminary
injunction to bar disruptive picketing activity, the court specifically found that the
controversy was a labor dispute stating:
The very basis of the present action is Briggs' fear that the defendant unions will engage
in unlawful picketing activities after Briggs institutes its reduced wage schedule in
conformity with the Bankruptcy Court's order authorizing a reduction in wages.
Nothing could be more central to the employer-employee relationship than the wages
and fringe benefits employees will receive for their services. Thus this court believes
that the dispute between Briggs and its union arises out of a labor dispute within the
meaning of the Norris La-Guardia Act. (Emphasis added.) Id. at 2243.
In affirming the district court's refusal to enjoin Briggs' employees from picketing, the Eighth
Circuit Court reiterated that Briggs' employees were involved in a labor dispute by noting
that any Briggs employees who strike out of dissatisfaction with Briggs' wages, benefits, and
terms of employment may be considered economic strikers. . . . Briggs Transp. Co. v. Intern.
Broth. of Teamsters, 739 F.2d 341, 344 (8th Cir. 1984), cert. denied, 105 S.Ct. 295 (1984).
While Briggs does not deal with a labor dispute within the meaning of the
unemployment compensation statutes, the court's reasoning is directly applicable to the case
at bar. Here, Marina obtained approval from the bankruptcy court to reject its
collective-bargaining agreement. When Marina announced its changes the following day,
members of the union walked off the job and set up picket lines. They did not wish to accept
the abrogation of their contract and they had failed to negotiate a new agreement. As in
Briggs, the employees were expressing their dissatisfaction with wages, benefits and terms
of employment.
dissatisfaction with wages, benefits and terms of employment. Quite clearly the employees
were economic strikers engaged in a labor dispute. In fact, in a number of jurisdictions, a
strike itself constitutes a labor dispute so as to disqualify employees from recovering
unemployment compensation. Cameron v. De Board, 370 P.2d 709 (Ore. 1962); American
Steel Foundries v. Gordon, 88 N.E.2d 465 (Ill. 1949). Moreover, it makes no difference that
the strike occurred after Marina was allowed to reject the collective-bargaining agreement.
The common meaning and ordinary sense of the term labor dispute includes strikes whether
during the term of a collective-bargaining agreement or after its expiration. Barbour v. D. C.
Dept. of Employment Services, 499 A.2d 122, 125 (D.C.App. 1985).
[Headnote 1]
Respondents maintain, however, that Marina's reduction of salaries and benefits was
substantial enough to constitute a termination of the employees and a consequent substandard
offer to rehire. See NRS 612.390(3)(b). To support this contention, respondents draw this
court's attention to a number of cases including International Spike, Inc. v. Ky.
Unemployment Ins., 609 S.W.2d 374 (Ky.App. 1980) which stand for the proposition that a
substantial reduction of income is good cause within the unemployment benefits acts to
terminate employment by the worker. Such cases are simply inapposite given the facts of the
instant case. Here, the claimants did not actually quit their jobs, as did the workers in
International Spike, but rather they chose to go on strike. Based on our ruling in Landis v.
American Potash, 78 Nev. 424, 375 P.2d 402 (1962) that the employer-employee relationship
is a status which is not destroyed by a strike, we cannot accept respondents' contention that
Marina's reduction of salaries and benefits amounted to a termination in this case.
Respondents contend that the employees had been terminated, but fail to satisfactorily explain
to this court why these terminated employees were striking their employer.
[Headnote 2]
In Sandoval v. Industrial Commission, 130 P.2d 930, 935 (Colo. 1942) the Colorado
Supreme Court stated that a strike possesses at least four elements other than a suspended
employer-employee relationship: (1) A demand for some concession, generally for a
modification of conditions of labor or rates of pay; (2) a refusal to work, with intent to bring
about compliance with the demand; (3) an intention to return to work when compliance is
accomplished; and (4) an intention on the part of the operator to re-employ the same men or
men of a similar class when the demands are acceded to or withdrawn, or otherwise adjusted.
Here, Marina and the unions had been actively negotiating a new contract. In fact, in Marina's
March 30, 1984 letter informing the unions of its unilateral reductions, Marina stated that it
stood ready to continue to bargain with the union at a mutually agreeable date and time.
Under these circumstances, we conclude that the employees were striking to protest the
modifications but with the intention of returning to work under more agreeable wages and
terms of employment. We reject the notion that the present controversy arises out of a
bankruptcy proceeding and therefore is not a labor dispute. This is precisely the king of
activity which constitutes a labor disputea controversy concerning wages, hours, working
conditions, and terms of employment. Moreover, because we recognize this state's policy of
maintaining strict neutrality in cases of industrial strife, we find it unnecessary to place blame
or decide which party was at fault. Depaoli v. Ernst, 73 Nev. 79, 309 P.2d 363 (1957). We
hold that the claimant's unemployment was due to a labor dispute within the meaning of NRS
612.395.
Judgment of the lower court and the decision of the Employment Security Department
Board of Review are reversed.
____________
103 Nev. 394, 394 (1987) Collins v. Burns
KATHY COLLINS, DWAYNE HOLMAN, MARJORIE CHATTAWAY and
NORMAN CHATTAWAY, Appellants, v. WILLIAM R. BURNS
and STELLA BURNS, Respondents.
No. 17483
August 27, 1987 741 P.2d 819
Appeal from judgment. First Judicial District Court, Carson City, Michael R. Griffin,
Judge.
Vendors sued to recover on note executed by purchasers of liquor store. Purchasers
defended based on fraud and counterclaimed for damages allegedly resulting from vendors'
misrepresentations regarding profitability of store. The district court entered judgment for
vendors, and purchasers appealed. The Supreme Court held that: (1) parties who agreed to
purchase vendors' liquor store could justifiably rely on fact that sales chart they were shown
in connection with purchase did not overstate store's sales by more than 50 percent, and (2)
purchasers were entitled to recover out-of-pocket damages based on difference between
amount they paid to vendors and actual value of business at time of sale.
Linda E. Johnson, Carson City, for Appellants.
Vargas & Bartlett and David A. Harris, Reno; Bean & Smedley and Lawrence L.
Waggoner, Layton, Utah, for Respondents.
1. Fraud.
Elements of intentional misrepresentation are: false representation made with knowledge or belief that it
is false or without sufficient basis of information, intent to induce reliance, and damage resulting therefrom.
2. Fraud.
Lack of justifiable reliance bars recovery in action at law for deceit.
3. Fraud.
Justifiable reliance requirement, which prevents party from recovering damages for misrepresentations
on which he does not justifiably rely, does not impose on party any duty to investigate absent facts that
should alert him that his reliance is unreasonable.
4. Fraud.
Party to contract has duty to investigate, in order to later recover for other party's fraudulent
misrepresentations, only when he has information such as would serve as danger signal and red light to any
normal person of like intelligence and experience.
5. Fraud.
Contracting party has right to rely on express statement of existing fact, the truth of which is known to
party making representation and unknown to other party, absent any facts that should alert him that his
reliance is unreasonable.
6. Fraud.
Parties who agreed to purchase vendors' liquor store could place justifiable reliance on fact that sales
chart they were shown in connection with purchase did not overstate store's sales by more than 50 percent,
so that purchasers' failure to demand hard factual data did not prevent them from recovering for vendors'
intentional misrepresentations, where there is nothing to alert purchasers that income figures were grossly
inflated.
7. Fraud.
Defrauded party may be able to recover benefit of bargain damages for defendant's intentional
misrepresentations.
8. Fraud.
Defrauded purchasers could not recover benefit of bargain damages for vendors' intentional
misrepresentations regarding liquor store's monthly receipts, where purchasers relied on fraud as defense to
avoid obligation to vendors on note.
9. Fraud.
Parties who purchased liquor store in reliance on vendors' intentional misrepresentations regarding store's
monthly receipts could recover out-of-pocket damages, based on difference between amount they paid
and actual value of business at time of sale.
10. Fraud.
Parties who purchased liquor store in reliance on vendors' intentional misrepresentations regarding store's
monthly receipts could not recover all of their losses throughout life of business, but only difference
between amount they paid and actual value of business at time of sale, where
subsequent decline in sales resulted solely from general economic conditions.
between amount they paid and actual value of business at time of sale, where subsequent decline in sales
resulted solely from general economic conditions.
OPINION
Per Curiam:
William and Stella Burns sued on a promissory note executed by appellant Dwayne
Holman in connection with the sale of a business to appellants Kathy Collins and Marjorie
Chattaway. Appellants interposed the defense of fraud and counterclaimed for damages
alleging that respondents had misrepresented the profitability of the store. The district court
concluded appellants had not proven fraud because they were not justified in relying on the
representations and because no damages resulted from the misstatements.
Dwayne Holman and Kathy Collins wanted to buy a business to provide an income for her
parents, Marjorie and Norman Chattaway. In 1980, Holman attended a meeting at which
realtor Jerry Golanty made a sales pitch for Schnapps N Stuff, a Carson City liquor store
owned by the Burnses. Golanty distributed a fact sheet on the store which listed gross sales
and expenses and which reflected a growing business. By subtracting expenses from income,
Holman quickly determined the store could provide the Chattaways with an acceptable
income even absent growth. Holman and Collins visited the store and were shown various
business records. Collins carefully compared the expense figures on the realtor's fact sheet
with entries in the expense ledger. The fact sheet appeared to be correct. William Burns
showed Holman and Collins a graph charting sales in four product areas. Each one-half inch
space on the graph represented $300.00 in sales. Total monthly sales could be determined by
adding all the weekly sales. Collins compared the information on the graph to the gross sales
figures on the fact sheet and found the numbers generally close. In fact, however, the fact
sheet overrepresented the store's income by several thousand dollars a month. The chart
showed sales inflated by over $7,000.00 in each of two months. The Burnses' federal income
tax returns reported business losses of $11,474.00 for 1979 and $18,321.00 for the first nine
and a half months of 1980.
Relying on the earning history of the liquor store, as represented by the realtor's fact sheet
and the Burnses' chart, Collins and her mother, Marjorie Chattaway, decided to purchase
Schnapps N Stuff for $93,575.00, plus inventory. They made a down payment of $10,075.00.
In addition, the Chattaways executed a promissory note secured by a second deed of trust
on property in California.
cuted a promissory note secured by a second deed of trust on property in California. Holman
executed two promissory notes for $73,500.00 and $19,203.20 to Collins and Chattaway who
assigned them to the Burnses. Escrow closed September 15, 1980. Collins and the
Chattaways took over the store. Actual gross sales initially remained about the same, then
plummeted. The store never realized a profit. Collins spent over $90,000.00 of her own
money to keep the business going until she closed it in August, 1983. Holman defaulted on
payments on the $73,500.00 note. The Burnses brought this action for the unpaid principal in
the amount of $71,131.62, plus interest. Appellants asserted fraud as a defense and
counterclaimed for damages.
[Headnote 1]
The elements of intentional misrepresentation are a false representation made with
knowledge or belief that it is false or without a sufficient basis of information, intent to
induce reliance, and damage resulting from the reliance. Lubbe v. Barba, 91 Nev. 596, 599,
540 P.2d 115, 117 (1975). The district court found no justifiable reliance and no damage.
Appellants contend the district court misapprehended the requirements of justifiable
reliance. The court noted that appellants did not demand to examine hard factual income
data or make such an examination a condition of the purchase. Under these circumstances,
the court concluded reliance on the realtor's figures was not justifiable. We disagree.
[Headnotes 2-5]
Lack of justifiable reliance bars recovery in an action at law for damages for the tort of
deceit. Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 870, 619 P.2d 816, 818 (1980). However,
this principle does not impose a duty to investigate absent any facts to alert the defrauded
party his reliance is unreasonable. Sippy v. Cristich, 609 P.2d 204, 208 (Kan.App. 1980). The
test is whether the recipient has information which would serve as a danger signal and a red
light to any normal person of his intelligence and experience. Id. It has long been the rule in
this jurisdiction that the maxim of caveat emptor only applies when the defect is patent and
obvious, and when the buyer and seller have equal opportunities of knowledge. Fishback v.
Miller, 15 Nev. 428, 440 (1880). Otherwise, a contracting party has a right to rely on an
express statement of existing fact, the truth of which is known to the party making the
representation and unknown to the other party. Id. The recipient of the statement is under no
obligation to investigate and verify the statement. Id.
The Michigan Supreme Court long ago commented on the injustice of allowing a party to
say, It is true that I lied to you, and for the purpose of defrauding you, but you were guilty
of negligence, of want of ordinary care, in believing that I told you the truth; and because
you trusted to my word, when you ought have suspected me of falsehood, I am entitled to
the fruits of my falsehood and cunning, and you are without a remedy.
It is true that I lied to you, and for the purpose of defrauding you, but you were guilty of
negligence, of want of ordinary care, in believing that I told you the truth; and because
you trusted to my word, when you ought have suspected me of falsehood, I am entitled
to the fruits of my falsehood and cunning, and you are without a remedy.
Bristol v. Braidwood, 28 Mich. 191, 196 (1873) quoted in Besett v. Basnett, 389 So.2d 995,
998 (Fla. 1980). Such a result would be untenable. We agree with the Florida Supreme Court
that a person guilty of fraud should not be permitted to use the law as his shield, [W]hen the
choice is between the two-fraud and negligencenegligence is less objectionable than fraud.
Though one should not be inattentive to one's business affairs, the law should not permit an
inattentive person to suffer loss at the hands of a misrepresenter. Besett v. Basnett, supra,
389 So.2d at 998.
[Headnote 6]
In the case at hand, we are unable to discern any facts that should have alerted appellants
that the income figures provided by respondents were grossly inflated. Although the sales
chart shown to appellants was understood to be a management tool and not an exact statement
of income, appellants had no reason to suspect the chart did not accurately state sales within a
reasonable margin. Certainly, they were not given to understand that the chart consistently
overstated sales by thousands of dollars, and, in some months, by amounts over 50 percent of
actual sales. Given these facts, we conclude that appellants had a right to rely on the
representations made by the Burnses and that their reliance was justifiable.
The district court also concluded that appellants suffered no damage because subsequent
declines in sales resulted solely from general economic conditions. We disagree. In reliance
on the misrepresentations, appellants, who thought they were purchasing a viable business,
gained ownership of a losing enterprise with no proven potential for any profit at all.
Regardless of subsequent events, appellants were damaged in the transaction.
[Headnotes 7-9]
The measure of damages can be determined in one of two ways. First, a defrauded party
may be able to recover the benefit of the bargain, that is the value of what he would have
received had the representations been true, less what he actually received. Randano v. Turk,
86 Nev. 123, 130, 466 P.2d 218, 222-223 (1970). We think this measure inappropriate when
the defrauded party has avoided the obligation arising from the contract by asserting fraud as
a defense. The second measure of damages allows the defrauded party to recover what he has
lost out-of-pocket, that is the difference between what he gave and what he actually
received. Id. Appellants are entitled to recover the difference between the amount they
paid to the respondents and the actual value of the business at the time of the sale.
what he actually received. Id. Appellants are entitled to recover the difference between the
amount they paid to the respondents and the actual value of the business at the time of the
sale.
[Headnote 10]
Appellants contend they should recover all their losses throughout the life of the business.
We cannot agree. The district court found subsequent operating losses were solely due to a
recession that devastated the Carson City area in the early 1980's. The trial court's
determination of a question of fact will not be disturbed unless clearly erroneous or not based
on substantial evidence. Ivory Ranch v. Quinn River Ranch, 101 Nev. 471, 472, 705 P.2d
673, 675 (1985); NRCP 52(a). Since there is substantial evidence in the record indicating a
severe economic recession in the period following the sale of the store, we will not disturb the
district court's finding that the economic climate caused subsequent losses.
Having determined that the trial court erred in concluding that appellants failed to prove
fraud because they could not show justifiable reliance or damage, we reverse the judgment of
the district court and remand the cause for entry of judgment consistent with this opinion and
for a determination of damages suffered by the appellants.
____________
103 Nev. 399, 399 (1987) Quinlan v. Mid Century Ins.
ROBERT QUINLAN and PATRICIA QUINLAN, Appellants, v.
MID CENTURY INSURANCE COMPANY, Respondent.
No. 17406
TAMARA SERVICE, ROBERT L. SERVICE, CASEY J. PIERETTI, Appellants and
Cross-Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY and LES KNOTT, Respondents and Cross-Appellants.
No. 17678
August 27, 1987 741 P.2d 822
Two insureds brought action to reform their automobile insurance policies to indicate that
uninsured motorist coverage was equal to liability coverage, and summary judgment motions
of two insurers were granted in separate actions before the district court and appeals of
insureds were consolidated. The Supreme Court held that: (1) notice provided by insurers to
insureds was sufficient under statute requiring insurers to offer uninsured motorist coverage
equal to limits of bodily injury coverage sold to
each policyholder, and {2) "each accident" provision of insurance policy did not apply to
two people injured in one accident.
each policyholder, and (2) each accident provision of insurance policy did not apply to two
people injured in one accident.
Quinlan v. Mid Century:
Appeal from summary judgment entered in a declaratory relief action. Second Judicial
District Court, Washoe County; Deborah A. Agosti, Judge.
Affirmed.
Service v. State Farm:
Appeal from summary judgment entered in a declaratory relief action. Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Affirmed in part, reversed in part.
Bradley & Drendel, and Joseph Bradley; J. P. Reynolds, Reno, for Appellants Robert
Quinlan, Patricia Quinlan, and Appellants and Cross-Respondents Tamara Service, Robert L.
Service and Casey J. Pieretti.
Stokes, Terry, Winter and Wessel, Carson City, for Appellants and Cross-Respondents
Tamara Service, Robert L. Service and Casey J. Pieretti.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, and Frank W. Daykin, Carson City,
for Respondent Mid Century Insurance Company.
Jon Douglas Benson and Robert Enzenberger, Reno, for Respondents and
Cross-Appellants State Farm Mutual Automobile Insurance Company and Les Knott.
Peter Chase Neumann, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
1. Insurance.
Statute providing that insurers must offer uninsured motorist coverage equal to limits of bodily injury
coverage sold to each policyholder requires that insurers notify their customers that coverage is available.
NRS 687B.145, subd. 2.
2. Insurance.
Notice included in policy renewal statement indicating that uninsured motorist coverage was available in
amount up to bodily injury liability limit and which instructed interested customers to contact insurance
agent was sufficient under statute requiring insurers to offer uninsured motorist coverage in amount of
bodily injury coverage. NRS 687B.145, subd. 2.
3. Insurance.
Insurance agent's advice to policyholder to raise her uninsured motorist coverage to her bodily injury
liability limits, together with inserts into policy renewal notices discussing availability of increased
uninsured motorist coverage, was sufficient under statute requiring insurers to provide uninsured motorist
coverage equal to limits of bodily injury coverage to policyholders. NRS 687B.145, subd. 2.
4. Insurance.
Insured who, along with friend, was injured in automobile accident, was not entitled to application of
each accident provision of uninsured motorist coverage where insurance policy unambiguously provided
that even if multiple persons were injured, each could receive no more than the per person figure.
OPINION
Per Curiam:
Facts of Quinlan v. Mid Century
On May 30, 1981, appellant's son, Paul Quinlan, was killed in an automobile accident.
Quinlan had an automobile insurance policy which provided for liability coverage of
$100,000/$300,000, and uninsured motorist coverage of $15,000/$30,000.
The owner of the vehicle which killed Paul Quinlan had insufficient insurance to
compensate appellants for the loss of their son. Respondent Mid Century Insurance Company
tendered $15,000 in uninsured motorist coverage, but appellants sought to reform the policy
to indicate that the uninsured motorist coverage was equal to the liability coverage.
On two occasions prior to the accident, Mid Century has sent premium renewal notices
informing Quinlan that higher uninsured motorist coverage could be purchased. The renewal
notices each contained the following notice in bold capital letters:
Did you know that you may now have uninsured motorist coverage in amounts up to
your bodily injury liability limits? If interested, contact your agent.
Quinlan renewed his insurance policy after he received each of these notices, but made no
inquiry with respect to increasing his uninsured motorist coverage. The facts were undisputed
before the district court and summary judgment was entered in favor of Mid Century.
Facts of Service v. State Farm
Tamara Service had insured her vehicles through State Farm Mutual Automobile
Insurance Company and its agent, Les Knott, for several years. In mid-1983, Service spoke
briefly with Knott about the coverage on her vehicles and raised her liability limits from
$50,000/$100,000 to $100,000/$300,000 and her medical coverage from $10,000 to
$25,000.
coverage from $10,000 to $25,000. Her uninsured motorist coverage was left at the previous
level of $50,000/$100,000.
1
Service later dropped several vehicles from the policy, then
added Robert L. Service as a named insured on one vehicle. The policy was renewed several
times after the conversation with Knott.
On November 3, 1985, Mrs. Service's son and a friend were pushing a vehicle when they
were struck from behind by a car driven by an uninsured motorist. The son sustained
numerous injuries to his legs, and one leg was partially amputated as a result. State Farm paid
$25,000 for medical payments and $50,000 under uninsured motorist coverage; Service
reserved the right to bring an action to determine whether additional coverage should be
afforded.
Service maintained that the uninsured motorist limits of the policy should have been
reformed to the liability limits of $100,000/$300,000 through operation of law for State
Farm's failure to comply with the requirements of NRS 687B.145(2). The district court ruled
on summary judgment that State Farm had made an adequate offer of additional coverage, but
also held that the per accident limits of the policy applied to Service's son. Both parties
appeal.
Issue Common to Both Appeals
These appeals center on the meaning of the term must offer in NRS 687B.145(2):
Insurance companies doing business in this state must offer uninsured motorist
coverage equal to the limits of bodily injury coverage sold to the individual
policyholder. Uninsured motorist coverage must include a provision which enables the
insured to recover up to the limits of his own coverage any amount of damages for
bodily injury from his insurer which he is legally entitled to recover from the owner or
operator of the other vehicle to the extent that those damages exceed the limits of the
bodily injury coverage carried by that owner or operator.
____________________

1
The record indicates that in her telephone conversation with Knott, Service was informed that she could
raise her uninsured motorist coverage to her bodily injury liability limits. She was informed that this would be
prudent in light of her past experience, and that the increased coverage would cost slightly more. In addition to
this telephone conversation, State Farm had sent Service an insert in early 1980 which discussed the possibility
of increasing uninsured motorist coverage; an additional offer of increased uninsured motorist coverage was sent
during the six-month period between December 1, 1983, and May 31, 1984. Each of these notices included
statements indicating that uninsured motorist coverage could be purchased up to the amount of the insured's
liability coverage.
Four alternative potential interpretations are offered as to what the phrase must offer
could mean. First, must offer could simply mean that an insurance company must have
available, on its menu of coverages, uninsured motorist coverage equal in amount to the
liability coverage sold to individual policy holders. Second, must offer could mean that an
insurance company is required to inform its policy holders through renewal notices and policy
addenda, that uninsured motorist coverage equal to the limits of personal liability coverage is
available. Third, must offer could require a personal, verbal offer to sell enhanced
uninsured motorist coverage, but not a specific statement of the additional cost or an
explanation of the need for heightened coverage. Fourth, must offer could require
significantly more, as is exhibited in a four-part test utilized by other jurisdictions. In
Cloninger v. National Gen. Ins. Co., 488 N.E.2d 548, 550 (Ill. 1985), the following test was
used:
(1) notification must be commercially reasonable if the offer is made in other than
face-to-face negotiations; (2) the limits of the optional coverage must be specified and
not set forth in general terms; (3) the insured must be intelligibly advised by the insurer
of the nature of the option; and (4) the insurer must advise the insured that the optional
coverage is available for relatively modest premium increases.
[Headnotes 1-3]
In order to divine the meaning of must offer, we have recourse to the wording of the
statute, the use of the word offer in other Nevada insurance statutes, and the pertinent
legislative history. The statute itself is of little help; hence these appeals. In other insurance
statutes, the word offer is used to instruct an insurance carrier simply to make a certain type
of coverage available to an insured.
2
The legislative history indicates an intent to compel
insurance carriers to begin providing heightened uninsured motorist coverage as an option.
3
However, to effectuate that intent we conclude that insurance carriers must be required to
notify their customers that such coverage is available. The clear and unambiguous language
utilized by Mid Century to notify Quinlan of his option to increase his uninsured motorist
coverage meets this requirement, as do State Farm's notices coupled with Knott's
conversation with Service.
____________________

2
See NRS 689B.150; 691A.020(1); 695D.200. See also 686A.240; 688A.330, .340; 689B.220, .240;
691A.020; 695B.254, .259; 695C.030(7).

3
See, e.g., Hearings on A.B. 617 before the Senate Comm. on Commerce and Labor, 60th Sess. 7-8 (May 7,
1979).
Cross-Appeal by State Farm Against Tamara Service
[Headnote 4]
The district court in the Service case held that the each accident provision of the
uninsured motorist coverage was available to the injured son instead of the each person
coverage because a second person was also injured in the accident. However, the policy
unambiguously provided that even if multiple persons were injured, each could receive no
more that $50,000, the per person figure. Therefore, the court erred.
Conclusion
The judgments are affirmed with the one exception noted above.
____________
103 Nev. 404, 404 (1987) Levinson v. District Court
MICHAEL LEVINSON, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; and THE
HONORABLE ROBERT L. SCHOUWEILER, DISTRICT JUDGE, Respondents.
No. 16502
WILLIAM WISTER, JR., Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; and THE
HONORABLE ROBERT L. SCHOUWEILER, DISTRICT JUDGE, Respondents.
No. 16503
September 23, 1987 742 P.2d 1024
Original petitions for writs of mandamus or, alternatively, prohibition. Second Judicial
Nonresident defendants brought petitions seeking writs of mandamus or writs of
prohibition, challenging order of the district court which refused to quash service of process
in breach of contract action brought against nonresidents by domestic corporation. The
Supreme Court consolidated petitions and held that there were sufficient contacts with state
to warrant exercise of personal jurisdiction.
Writs denied.
Beckley, Singleton, DeLanoy, Jemison & List and Stephen S. Kent, Reno, for Petitioners.
Stephen C. Mollath, Reno, for Respondents.
1. Courts.
When a defendant challenges the personal jurisdiction of state courts the plaintiff must introduce
competent evidence of essential facts establishing a prima facie showing of jurisdiction. NRS 14.065,
subd. 2(a); U.S.C.A.Const. Amend 14.
2. Courts.
Performance of professional services within forum, at the request of a nonresident defendant, is sufficient
to justify the exercise of personal jurisdiction, where the contract clearly contemplates that the plaintiff
would perform substantial services within the forum. NRS 14.065, subd. 2(a); U.S.C.A.Const. Amend.
14.
3. Courts.
Contract between domestic corporation and nonresidents clearly contemplated that corporation would
perform substantial services at its headquarters in state, which services were to secure funding for mining
concession in Africa, which was the object of the parties' joint venture, sufficient to justify exercise of
personal jurisdiction over defendants by state court in breach of contract action. NRS 14.065, subd. 2(a);
4. Courts.
When factual disputes arise in a proceeding that challenges personal jurisdiction, those disputes must be
resolved in favor of the plaintiff. U.S.C.A.Const. Amend. 14.
5. Courts.
When a defendant creates continuing obligations between itself and residents of the forum, the defendant
avails itself of the privilege of conducting business in the forum.
6. Courts.
Domestic corporation's alleged preparation of documents and reports at request of nonresident defendants
established existence of a continuous course of dealing between corporation and nonresidents, and a prima
facie showing that defendants purposely availed themselves of benefits and protection of state law, for
purposes of nonresidents' claim that they lacked minimum contacts with state to support personal
jurisdiction of state court in contract action. NRS 14.065, subd. 2(a); U.S.C.A.Const. Amend. 14.
7. Courts.
Nonresident defendants had sufficient contacts with state to be subject to jurisdiction of state court in
action brought by domestic corporation alleging breach of contract, since corporation established that
contract contemplated performance of substantial services in state, defendants purposely directed their
activities at corporate resident of forum state and nonresidents failed to present a compelling argument that
exercise of state court jurisdiction would be unreasonable, particularly in light of State's recognized interest
in providing an effective means of redress for its residents. NRS 14.065, subd. 2(a); U.S.C.A.Const.
Amend. 14.
OPINION
Per Curiam:
1

These petitions, seeking writs of mandamus or, alternatively, writs of prohibition,
challenge an order of the district court refusing to quash service of process on petitioners
Michael Levinson {Case No.
____________________

1
These petitions were previously denied on the merits in an unpublished order of this court. We have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our order filed May 28, 1986.
writs of prohibition, challenge an order of the district court refusing to quash service of
process on petitioners Michael Levinson (Case No. 16502) and William Wister (Case No.
16503). Because these petitions challenge the same order of the district court and present
similar arguments, we hereby consolidate them for disposition. See NRAP 3(b). For the
reasons set forth below, we deny the petitions.
According to the allegations set forth in the pleadings below, real party in interest Placer
Development Corporation (Placer) entered into a contract with Brady Mines, Ltd., a Nevada
corporation and the owner of a mining concession in the Republic of Guinea, Africa. The
terms of the agreement were contained in a letter from Placer to Brady Mines. The letter was
written on Placer's letterhead, which showed Placer's business address as Reno, Nevada.
In September of 1984, Placer filed a complaint in the district court against the petitioners
(Levinson and Wister), Donley Brady, and Brady Mines, Ltd., alleging causes of action for
breach of the contract referred to above, specific performance, and quantum meruit.
According to Placer, it performed the work required under its alleged contract with Brady
Mines, but was not paid for that work. Placer further alleged that petitioners are doing
business as Brady Mines, Ltd., or doing business through their alter ego, Brady Mines, Ltd., a
Nevada corporation. Alternatively, Placer averred below that petitioners, Donley Brady and
Brady Mines, Ltd., formed a joint venture to develop and manage the mining concession.
Placer served petitioner Levinson with a copy of the summons and complaint in New York
City, and served petitioner Wister with a copy of the summons and complaint in Bryn Mawr,
Pennsylvania. Thereafter, petitioners moved to quash service of process alleging that
insufficient contacts existed to support Nevada's exercise of jurisdiction over them. The
district court denied the motion to quash, and this proceeding followed.
[Headnote 1]
Under NRS 14.065(2)(a), the courts of Nevada may exercise personal jurisdiction over
nonresident defendants who transact any business in Nevada. We have construed NRS
14.065(2)(a) to be broad enough to reach the outer limits of federal constitutional due
process. See Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971). Further,
when a defendant challenges the personal jurisdiction of the Nevada courts, the plaintiff must
introduce competent evidence of essential facts establishing a prima facie showing of
jurisdiction. See Davis v. District Court, 97 Nev. 332, 337, 629 P.2d 1209, 1213 (1981). We
conclude under this standard that the district court properly refused to quash service of
process in this case.
Petitioners contend that they lack sufficient business contacts with Nevada to be subject to
the jurisdiction of the Nevada courts. In the district court, however, Placer argued that its
performance of professional services within Nevada, at the specific request of petitioners
Levinson and Wister, subjected petitioners to personal jurisdiction here. Specifically, the
president of Placer averred that Placer prepared, at petitioners' request, a limited partnership
agreement between the parties detailing petitioners' involvement in the mining concession.
Placer further alleged that it prepared, at petitioners' request, several geological reports and
development plans regarding the mining concession. Placer asserted that it prepared those
documents in Nevada and mailed them to petitioners from its headquarters in Nevada.
[Headnotes 2-4]
The performance of professional services within the forum, at the request of a nonresident
defendant, is sufficient to justify the exercise of personal jurisdiction where the contract
clearly contemplates that the plaintiff would perform substantial services within the forum.
See Mouzavires v. Baxter, 434 A.2d 988 (D.C.App. 1981), cert. denied, 455 U.S. 1006
(1982). In the present case, the alleged contract between Placer and Brady Mines, Ltd.
provided that Placer was to collect data in Guinea regarding the mining concession, and then
bring samples back for independent assay, [and] prepare reports that will enable [Brady
Mines] to raise funds [to finance the mining concession].
Thus, the contract clearly contemplated that Placer would perform substantial services at its
headquarters in Nevada. Moreover, Placers' services were calculated to secure funding for the
mining concession, the object of the parties' alleged joint venture. Petitioners dispute Placer's
version of the facts. However, when factual disputes arise in a proceeding that challenges
personal jurisdiction, those disputes must be resolved in favor of the plaintiff. See Caicos
Petroleum Service Corp. v. Hunsaker, 551 F.Supp. 152, 153 (N.D.Ill. 1982). Therefore, the
factual dispute in this case must be resolved in Placer's favor.
[Headnotes 5-6]
Further, Placer's alleged preparation of documents and reports at petitioners' request
establishes the existence of a continuing course of dealing between Placer and petitioners.
When a defendant creates continuing obligations between itself and residents of the forum,
the defendant avails itself of the privilege of conducting business in the forum. See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475-476 (1985). Therefore, Placer made a prima
facie showing that petitioners purposely availed themselves of the benefits and protection of
Nevada law.
benefits and protection of Nevada law. See Burger King, supra; Caicos, supra.
[Headnote 7]
Moreover, we note that where a defendant who purposely has directed his activities at
forum residents seeks to defeat jurisdiction, he must present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable. Burger King,
471 U.S. at 477. Petitioners failed to present a compelling argument that Nevada's exercise of
jurisdiction, under these circumstances, would be unreasonable.
Finally, Nevada has a recognized interest in providing an effective means of redress for its
residents. See Burger King, 471 U.S. at 482-483; McGee v. International Life Ins. Co., 355
U.S. 220, 223 (1957). Similarly, when deciding an issue of personal jurisdiction, Nevada is
entitled to consider the interest of the interstate judicial system in obtaining the most efficient
resolution of controversies. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
292 (1980). In the present case, if petitioners prevail in this jurisdictional challenge, Placer
may be forced to institute one, and possibly two, additional lawsuits to prosecute its claims
against petitioners. This duplication of effort would certainly waste judicial resources, and
deprive Placer of an effective means of redress in this case.
Accordingly, for the reasons discussed above, we deny the petitions for extraordinary
relief. NRAP 21(b).
____________
103 Nev. 408, 408 (1987) Pelletier v. Pelletier
PHEBE PELLETIER, Appellant, v. EMMA L.
PELLETIER, Respondent.
No. 17594
September 30, 1987 742 P.2d 1027
Appeal from an order dismissing appellant's counterclaim for conversion, filed in a
divorce action between her son and daughter-in-law; Eighth Judicial District Court, Clark
County; Miriam Shearing, Judge.
In divorce action, mother of one of the parties filed counterclaim for conversion. The
district court ruled against the claim, and mother appealed. The Supreme Court held that: (1)
mother was not eligible to file claim in divorce action, but (2) daughter-in-law was liable for
conversion.
Dennis A. Kist, Las Vegas, for Appellant.
Paul L. Larsen, Las Vegas, for Respondent.
1. Divorce.
Mother of party to divorce action was not eligible to file claim in that action; no application was made for
intervention and counterclaim was completely beyond scope of pleadings. NRCP 13(b), 24.
2. Trover and Conversion.
Exercise of rights of ownership sufficient to constitute conversion is present when tortfeasor takes
possession, sells property and pockets proceeds of sale.
3. Trover and Conversion.
Daughter-in-law, who admitted that she took her mother-in-law's coins, cashed them in and spent the
money, was liable for conversion.
OPINION
Per Curiam:
This is a most unusual case, one in which a person who was not a party to a divorce action
was allowed to prosecute a counterclaim for tortious conversion against the plaintiff in the
divorce action. The court ruled against the tort counterclaimant, and she now appeals.
The case began with the filing of a divorce complaint by Emma L. Pelletier against her
husband, George N. Pelletier. George Pelletier is the son of Phebe Pelletier, the appellant.
Phebe, claiming that wife Emma sold some coins that belonged to her, decided to assert a
conversion claim against her daughter-in-law by involving herself in Emma's divorce case.
Phebe did this by filing a fugitive counterclaim in which she attempted to sue the divorce
plaintiff Emma in tort on the ground that Emma had converted to her own use certain coins,
personal property belonging to Emma.
[Headnote 1]
Phebe, of course, was not a party to the quasi-in-rem divorce action and was not eligible to
file a counterclaim in a divorce action in which, obviously, she was not a party. A pleading
may state as a counterclaim any claim against an opposing party. . . . NRCP 13(b).
(Emphasis supplied). No application was made for intervention under Rule 24, and the
counterclaim was completely beyond the scope of the pleadings in the divorce action.
Curiously, divorce plaintiff Emma nonetheless filed a reply to the purported counterclaim,
denying Phebe's allegations of conversion and claiming that Phebe's personal property was
community property of the marriage.
The confusion already inherent in the litigation was compounded when Emma filed a
Second Amended Complaint for Divorce in which she sued Phebe, Phebe's grandson (son
of George), a corporation, Tas Properties, Inc., and one Unette Wall, all newly named
defendants in the divorce action.
George), a corporation, Tas Properties, Inc., and one Unette Wall, all newly named
defendants in the divorce action. Each of the named defendants filed an answer and Phebe
filed again her conversion counterclaim against Emma. Emma replied to Phebe's
counterclaim with a general denial and an affirmative defense claiming that Phebe's
allegedly converted property was community property of Emma and her husband George.
This teratoid divorce case went to trial without anyone recognizing that the tort action had
not been properly pleaded before the court either as a counterclaim under Rule 13(b) or as a
complaint in intervention authorized by Rule 24.
The trial judge found as a formal finding of fact that George had acquired some of the
coins in question with community property funds and some other coins with his mother's
money. The trial judge further found that the community coins and the mother's coins
1
were
commingled.
The trial court also found that because of the way George handled the coins Emma
justifiably relied on the presumption that the coins were community property. The trial
court then concluded, Phebe failed to show by a preponderance of the evidence that Emma
was liable to her [Phebe] for property which Phebe Pelletier gave to defendant George
Pelletier.
A decree of divorce was entered, and, at the same time Phebe's conversion claim stated as
a counterclaim was dismissed.
There are two ways of looking at this case on review. One is simply to say that even with
the apparent consent of the parties, Phebe's tort action could not be legally tried on these
pleadings. If this view were followed, we would merely invalidate the order dismissing the
counterclaim and allow Phebe to file whatever independent tort or other action that she might
choose.
The other approach to the case is to recognize the error inherent in the court's findings and
judgment and return the case to the same domestic relations court to decide the conversion
issues in a reasoned and legal manner. Phebe's coins did not undergo a metamorphosis,
changing into the community property of the married plaintiff and defendant, by being
commingled with that property. Setting aside Phebe's weird intrusion into the divorce case
and looking at this controversy in tort between Phebe and Emma as an independent claim for
relief, there can be no presumption that Phebe's coins were the community property of Emma
and George.
____________________

1
It is undisputed that some of the coins were purchased with the mother's (Phebe's) money and that some of
the coins were the mother's property, merely being stored by divorce defendant George.
[Headnote 2]
Because the litigation has gone this far, we are reluctant to tell Phebe that she has to start
all over in asserting her tort claim against Emma. In examining the evidence supporting
Phebe's claim, we are compelled to conclude that, as a matter of law, Emma is liable to Phebe
for tort of conversion.
[Headnote 3]
An exercise of the rights of ownership sufficient to constitute conversion is present when a
tortfeasor takes possession, sells the property, and pockets the proceeds of the sale. Wantz v.
Redfield, 74 Nev. 196, 199, 326 P.2d 413, 414 (1958). Emma admitted at trial that she took
the coins, cashed them in, and spent the money. The act of conversion is not excused by good
faith or lack of knowledge. Bader v. Cerri, 96 Nev. 352, 356 n.1, 609 P.2d 314, 317 n.1
(1980).
Since the court found that Phebe had an ownership interest in some of the coins and
evidence is undisputed that Emma seriously interfered with Phebe's dominion by cashing in
the coins and spending the proceeds, the district court erred by not concluding that Emma
converted the coins. We reverse the trial court's dismissal of Phebe's counterclaim for
conversion and remand for further findings solely on the issue of damages.
____________
103 Nev. 412, 412 (1987) Lipitt v. State of Nevada
ALLAN B. LIPITT, Appellant, v. THE STATE OF NEVADA; CITY OF LAS VEGAS,
NEVADA; WILLIAM H. BRIARE; RON LURIE; AL LEVY; ROY WOOFTER and
PAUL CHRISTENSEN; RUSSELL DORN; WILLIAM B. BERK; LARRY
DANIELSON; J. ANGUS MACEACHERN; CLARK COUNTY, a Political Subdivision
of the State of Nevada; SAM BOWLER, ROBERT N. BROADBENT, DAVID B.
CANTER, MANUEL J. CORTEZ; THALIA M. DONDERO, JACK R. PETITTI;
RICHARD J. RONZONE; THE CITY OF HENDERSON, NEVADA; KENT
ANDERSON and PHIL STOUT; CITY OF NORTH LAS VEGAS, NEVADA; RAY
DAINES; TOM BROWN; CITY OF BOULDER CITY, NEVADA; RICHARD
DANIELSON; LAS VEGAS/CLARK COUNTY CONSORTIA CETA PRIME
SPONSOR; THE EXECUTIVE BOARD OF THE LAS VEGAS/CLARK COUNTY
CONSORTIA, CETA PRIME SPONSOR, Respondents.
No. 17732
September 30, 1987 743 P.2d 108
Appeal from order of involuntary dismissal. Eighth Judicial District Court, Clark County;
Miriam Shearing, Judge.
Plaintiff appealed from order of the district court dismissing claims for assault, battery and
infliction of emotional distress against cities and other defendants. The Supreme Court held
that sham proceeding whereby plaintiff called opposing counsel as his witness, did not
constitute bringing the matter to trial, as required to avoid dismissal for lack of prosecution.
Affirmed.
Orin G. Grossman, Las Vegas, for Appellant.
George F. Ogilvie, Las Vegas City Attorney, and Stephen G. Jones, Deputy; Shauna M.
Hughes, Henderson City Attorney, and Ronald Sailon, Deputy; Roy A. Woofter, North Las
Vegas City Attorney, and Liza Conroy, Deputy; and B. G. Andrews, Boulder City City
Attorney, for Respondents.
Pretrial Procedure.
Sham proceeding whereby plaintiff called opposing counsel, who had no knowledge of events involved,
as his witness, did not constitute bringing the matter to trial, as required to avoid dismissal for want of
prosecution. NRCP 41(e).
OPINION
Per Curiam:
Plaintiff Allan Lipitt sued the State, several cities and their respective officials (hereinafter
cities) as a result of his termination as the head of the CETA program in Las Vegas. The
district court dismissed his claims for wrongful termination and we upheld this determination
in an earlier appeal. The State was dismissed by stipulation. However, his claims for assault,
battery and infliction of emotional distress against the cities were not dismissed and are at
issue now. The cities moved to have these remaining claims dismissed under the mandatory
five year dismissal provisions of NRCP 41(e). We affirm the district court's order of
dismissal.
The cities argue that the five year time limit for prosecution of an action under NRCP
41(e) ran before the May 9, 1986 hearing so that dismissal was mandatory. (The complaint
was filed on June 17, 1980.) Rule 41(e) provides, as relevant, that an action must be
dismissed if it is not brought to trial within five years after it was filed unless the parties have
stipulated in writing that time may be extended. Lipitt contends, on the other hand, that
dismissal was not mandated under the rule until three years after entry of our April 21, 1983
order dismissing the earlier appeals. See Massey v. Sunrise Hospital, 102 Nev. 367, 724 P.2d
208 (1986); NRCP 41(e). Judgment on our order was filed May 11, 1983, in district court.
Thus, Lipitt had until May 11, 1986, to continue to prosecute his action. We conclude he did
not succeed in bringing the matter to trial within the required time period.
Lipitt argues that the case was brought to trial within the time limits of Rule 41(e)
because he called a witness
1
at the May 9 hearing.
2
We have held that a litigant who obtains
a trial date within the statutory period, appears for trial in good faith, argues motions and
examines jurors, thereby brings the case to trial. Smith v. Timm, 96 Nev. 197, 606 P.2d 530
(1980). We have also held that, for purposes of Rule 41(e), one way an action may be
brought to trial is to call one witness who testifies. Ad-Art, Inc. v. Denison, 94 Nev. 73, 74,
574 P.2d 1016, 1017 (1978).
However, calling on witness who has no knowledge of the events involved in the action
does not satisfy the spirit of our cases on what may constitute bringing a matter to trial.
____________________

1
Lipitt called one of opposing counsel, the city attorney representing Boulder City.

2
The matter was taken under submission on May 9. The court requested supplemental briefing, heard
additional argument on September 17, 1986, and dismissed the case that day.
cases on what may constitute bringing a matter to trial. Plaintiff's counsel did not act in good
faith by calling one of opposing counsel as his witness. The witness was not a Nevada
resident or an attorney licensed to practice here at the time Lipitt was fired and had no
personal knowledge of the incident. Lipitt's counsel stated repeatedly at the hearing that he
could call any person in the courtroom as a witness and satisfy the requirement that the case
be brought to trial. We conclude that Lipitt did not bring the matter to trial for purposes
of Rule 41(e) by this sham proceeding.
In sum, we conclude this matter was correctly dismissed. Even though dismissal would
have been improper here under the five year provisions of Rule 41(e), this matter continued
beyond the three year extension following appeal provided by the rule. The district court did
not err in dismissing a matter which had exceeded both mandatory dismissal provisions of
Rule 41(e). Accordingly, we affirm the judgment of the district court.
____________
103 Nev. 414, 414 (1987) Dixon v. Thatcher
RICHARD P. DIXON and SHARON E. DIXON, Appellants, v. R. H. THATCHER, E. E.
BUCHANAN and C. READE KALEY, Respondents.
No. 17835
September 30, 1987 742 P.2d 1029
Appeal from denial of preliminary injunction. Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
In foreclosure proceeding, the district court denied preliminary injunction to stop
foreclosure, and borrowers appealed. The Supreme Court held that borrowers established
irreparable harm, inadequacy of compensatory damages and reasonable likelihood of
prevailing on the merits.
C. Nicholas Pereos and Laurie A. Yott, Reno, for Appellants.
Guild, Hagen & Clark, Ann Morgan, and C. Joseph Guild III, Reno, for Respondents.
1. Mortgages.
Borrowers were entitled to preliminary injunction to stop foreclosure proceedings instituted against them
after lender declared bankruptcy and failed to forward funds to pay off loan to assignees of note and deed
of trust; loss of real property would result in irreparable harm for which compensatory damages would not
provide adequate remedy, and borrowers made prima facie showing that lender had actual
or apparent authority to act as collection representative for assignee.
and borrowers made prima facie showing that lender had actual or apparent authority to act as collection
representative for assignee.
2. Injunction.
Preliminary injunction to preserve status quo is normally available upon showing that party seeking it
enjoys reasonable probability of success on the merits and that defendant's conduct if allowed to continue,
will result in irreparable harm for which compensatory damage is inadequate remedy.
3. Principal and Agent.
To bind principal, agent must have actual authority, express or implied, or apparent authority.
Apparent authority is that authority which principal hold his agent out as possessing or permits him to
exercise or to represent himself as possessing, under such circumstances as to estop principal from denying
its existence.
OPINION
Per Curiam:
The Dixons borrowed money from Lemons and Associates which was secured by a
promissory note and deed of trust. Lemons assigned the note and deed of trust to R. H.
Thatcher and his niece, E. E. Buchanan. Lemons continued collecting monthly payments on
behalf of Thatcher and Buchanan. Stewart Title of Northern Nevada set up an escrow in order
for the Dixons to pay off the entire loan and sent a check for $62,339.50 to Lemons. Lemons
declared bankruptcy and did not forward the money to Thatcher and Buchanan, who instituted
foreclosure proceedings against the Dixons. The district court denied a preliminary injunction
to stop the foreclosure. We conclude the district court erred.
[Headnotes 1, 2]
The Dixons contend, and we agree, that the district court abused its discretion in not
granting their motion for a preliminary injunction. A preliminary injunction to preserve the
status quo is normally available upon a showing that the party seeking it enjoys a reasonable
probability of success on the merits and that the defendant's conduct, if allowed to continue,
will result in irreparable harm for which compensatory damage is an inadequate remedy.
Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 780, 587 P.2d 1329, 1330 (1978).
The district court held that the Dixons had not met the burden of proof on irreparable harm
as required by statute. NRS 33.010 provides, in relevant part, An injunction may be granted
in the following cases: . . . 2. When it shall appear by the complaint or affidavit that the
commission or continuance of some act, during the litigation, would produce great or
irreparable injury to the plaintiff."
the litigation, would produce great or irreparable injury to the plaintiff. Because real property
and its attributes are considered unique and loss of real property rights generally results in
irreparable harm, the district court erred in holding otherwise. See Leonard v. Stoebling, 102
Nev. 543, 728 P.2d 1358 (1986) (view from home is unique asset; injunction issued to
preserve view); see also Nevada Escrow Service, Inc. v. Crockett, 91 Nev. 210, 533 P.2d 471
(1975) (denial of injunction to stop foreclosure reversed because legal remedy inadequate).
The Dixons had built a log house which they use as their home. If the house is sold at a
trustee's sale, they will not be able to reclaim it. The house is worth in excess of $127,000.
Thatcher holds the first deed of trust for a debt of approximately $59,000. Clearly,
compensatory damages do not provide an adequate remedy in this situation.
However, even if damages are an inadequate remedy, the Dixons must also show a
reasonable likelihood of prevailing on the merits before a preliminary injunction can issue.
See Number One Rent-A-Car v. Ramada Inns, supra, 94 Nev. 779, 587 P.2d 1329. The
district court held that there was little likelihood of success on the merits because the Dixons
had actual notice of the assignment to Thatcher by Thatcher's recording of the assignment.
Stewart Title, the Dixon's agent, obtained actual notice when it ran a title search and found
the recorded assignment. NRS 106.210 provides as relevant: [A]ny assignment of the
beneficial interest under a deed of trust may be recorded, and from the time any of the same
are so filed for record shall operate as constructive notice of the contents thereof to all
persons.
The Dixons maintain that Lemons was Thatcher's agent and, therefore, their payment to
Lemons was proper. They rely on Nevada Escrow Service, Inc. v. Crockett, supra, 91 Nev.
201, 533 P.2d 471, which held: For the purpose of a preliminary injunction to halt a
threatened foreclosure on the property that is the subject of the proposed purchase and about
which the litigation arose a prima facie showing of possible agency . . . need only be shown.
Id. at 203, 533 P.2d at 472, emphasis supplied. Nevada Escrow is nearly identical to the
present case. The Crocketts were the beneficiaries of two deeds of trust on property which
was being sold. The buyers agreed to pay off the existing debt of $51,000 plus 12% interest
owed by Ray Petitfils. Nevada Escrow, as escrow agent, wrote Acro Mortgage for the payoff
on the Crockett loan. Acro had negotiated the loan from the Crocketts on behalf of Petitfils
and allegedly was acting as collecting agent for the loan even though no payments had been
made. Nevada Escrow issued a draft in the amount of $52,955.00, payable to Acro, who
deposited it in their account. Acro was bankrupt at the time. When the Crocketts did not get
paid, they commenced foreclosure proceedings.
foreclosure proceedings. The district court denied a motion for a preliminary injunction on
the grounds that money damages were an adequate remedy at law. We reversed, holding a
preliminary injunction should issue if a prima facie showing of possible agency of Acro to the
Crocketts was shown. We found such a showing because the Crocketts had executed a written
document appointing Acro their collection representative for the promissory note when the
payments would come in from Petitfils. Also, when the trust deeds were recorded, there was a
notation that they were to be returned to the Crocketts, c/o Acro Mortgage Company.
The district court in the present case distinguished Nevada Escrow on the basis that there
was no written document appointing Lemons the collection representative and nothing on the
trust deed stating they were to be returned c/o Lemons. This is an insufficient distinction
between the two cases. Unlike Nevada Escrow, several months of payments to Lemons may
be sufficient to convince the trier of fact that Lemons had actual or apparent authority to act
as collection representative for Thatcher.
[Headnotes 3, 4]
The Dixons made a prima facie showing of agency between Lemons and Thatcher and
therefore are entitled to a preliminary injunction of the foreclosure. To bind a principal, an
agent must have actual authority, express or implied, or apparent authority. See Myers v.
Jones, 99 Nev. 91, 93, 657 P.2d 1163, 1164 (1983). Apparent authority is that authority
which a principal holds his agent out as possessing or permits him to exercise or to represent
himself as possessing, under such circumstances as to estop the principal from denying its
existence. Id.
We conclude there are sufficient indicia of agency here because there is no dispute that
Lemons was authorized to collect monthly payments. We believe the trier of fact could find
Thatcher's authorization of Lemons to collect monthly payments created a sufficient agency
relationship to justify an assumption by Stewart Title that Thatcher had given Lemons the
authority, actual or apparent, to collect the final payoff and reconvey the documents.
As a general rule, we will not overturn the district court's ruling on a preliminary
injunction. Nevada Escrow Service, supra, 91 Nev. at 202-203, 533 P.2d at 472; see also
Boyes v. Valley Bank, 101 Nev. 287, 701 P.2d 1008 (1985). However, where, as here, we
conclude that the district court erred, we will not hesitate to do so. Accordingly, we reverse
the district court's order denying the request for a preliminary injunction, and remand the
matter to the district court for further proceedings.
____________
103 Nev. 418, 418 (1987) Hylton v. District Court
IN THE MATTER OF THE APPLICATION OF LANCELOT JULIAN HYLTON,
Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, DEPT. IV and THE HONORABLE EARLE W. WHITE,
Judge of the Eighth Judicial District Court, Respondents.
No. 17301
September 30, 1987 743 P.2d 622
Petition for writ of prohibition.
Defendant filed petition for writ of prohibition asking Supreme Court to prohibit further
prosecution of him on double jeopardy grounds. The Supreme Court held that: (1) record
failed to show that mistrial in second trial of defendant for same offenses after first conviction
was reversed on appeal was not manifestly necessary or dictated by the ends of justice; (2)
prosecutor's decision to proceed to trial was inexcusable negligence; and (3) defendant had
not engaged in course of conduct calculated to necessitate granting mistrial.
Writ of prohibition granted.
James O. Porter, Las Vegas, for Petitioner.
Rex Bell, District Attorney, James Tufteland, Deputy District Attorney, Clark County, for
Respondents.
1. Criminal Law.
To determine whether double jeopardy barred further prosecution, reviewing court had to decide whether
declaration of mistrial was dictated by manifest necessity or the ends of justice and, in the presence of
manifest necessity, whether prosecutor was responsible for circumstances which necessitated declaration of
mistrial. U.S.C.A.Const. Amend. 5; Const. Art. 1, 8.
2. Criminal Law.
Mere fact that counsel mentions evidence during opening statement which is later discovered to be
inadmissible does not mean that it is manifestly necessary to abort prosecution and start over.
3. Criminal Law.
There was no manifest necessity for trial court to declare mistrial in murder defendant's second trial, after
first trial resulted in convictions which were reversed on appeal due to prosecutorial misconduct, where
trial court failed to carefully inquire into substance of proposed testimony of prosecution witness expected
to testify in favor of defendant, whose testimony State intended to use to impeach witness by confronting
him with prior inconsistent statements said to have been made by witness, and there was no record
evidence that witness invoked his attorney-client privilege.
4. Criminal Law.
Prosecutor was somewhat responsible for circumstances which gave rise to possible necessity to declare
mistrial that was not manifestly necessary, and thus retrial was barred by double jeopardy
clause, where prosecutor had been given warning by defense counsel prior to trial
that proposed prosecution witness might invoke his right to attorney-client privilege
upon cross-examination by defense counsel, who had previously represented
witness, and defense counsel asked for continuance based on his conflict of interest,
which prosecution opposed, although prosecutor knew that State was actively
attempting to compel witness to testify.
necessary, and thus retrial was barred by double jeopardy clause, where prosecutor had been given warning
by defense counsel prior to trial that proposed prosecution witness might invoke his right to attorney-client
privilege upon cross-examination by defense counsel, who had previously represented witness, and defense
counsel asked for continuance based on his conflict of interest, which prosecution opposed, although
prosecutor knew that State was actively attempting to compel witness to testify. U.S.C.A.Const. Amend. 5;
Const. Art. 1, 8.
5. Criminal Law.
For double jeopardy purposes, prosecutor was inexcusably negligent in second trial of defendant
following appellate reversal where prosecutor was warned as early as seven months prior to trial, on three
different occasions, that witness could invoke attorney-client privilege if defense counsel represented
defendant at trial and prosecution had made efforts to compel witness' attendance at trial and yet opposed
defense counsel's motion for continuance to allow defendant to attain new counsel. U.S.C.A.Const. Amend.
5; Const. Art. 1, 8.
6. Criminal Law.
Record did not support finding that defense counsel engaged in course of conduct calculated to
necessitate mistrial where prosecutor was warned as early as seven months prior to trial on three different
occasions that proposed prosecution witness could invoke attorney-client privilege if defense counsel who
had represented witness represented defendant at trial and defense counsel moved to continue trial in order
that defendant could obtain new counsel over prosecution objections. U.S.C.A.Const. Amend. 5; Const.
Art. 1, 8.
OPINION
Per Curiam:
This petition for writ of prohibition asks this court to prohibit further prosecution of
petitioner Hylton on the ground that to try him again would violate his right not to be twice
put in jeopardy for the same offense. U.S. Const. amend. V; Nev. Const. art. 1, 8.
Facts
In 1981, Lancelot Julian Hylton was charged with robbery, murder, and use of a deadly
weapon in the commission of an offense. The first trial, in 1982, resulted in a conviction
which was reversed on appeal due to prosecutorial misconduct. Hylton v. State, 100 Nev.
539, 688 P.2d 304 (1984). The matter was remanded for a new trial. Hylton, 100 Nev. at 541,
688 P.2d at 305. A defense counsel was appointed to represent Hylton.
At two separate appearances, approximately seven months prior to the second trial, the
defense counsel informed the district court and the district attorney's office that one and
one-half years earlier he had had a professional contact with one Paul Chambers, who was a
possible prosecution witness at trial. The defense counsel had contacted Chambers in jail
regarding the possibility of representing Chambers and had discussed the very criminal
transaction from which the charges against Hylton arose.
of representing Chambers and had discussed the very criminal transaction from which the
charges against Hylton arose. The defense counsel talked with the prosecutor; the prosecutor
indicated that the state might call Chambers as a witness. The defense counsel pointed out to
the district court and a deputy district attorney that Chambers might assert his attorney-client
privilege if he were called as a witness at trial.
The district court instructed the assigned deputy district attorney that the district attorney's
office was to give us some better indication of whether or not they are going to use Mr.
Chambers because the objection may not be forthcoming from anyone but Mr. Chambers
himself if he had a discussion with [the defense counsel] wherein he was attempting to
establish an attorney-client relationship. The deputy assented to the district court's
instructions. Later, the state listed Paul Chambers as a prospective witness in an amended
information and certified the state's efforts to compel Chamber's attendance to testify.
Trial was set for November 4, 1985. On October 30, 1985, the defense counsel filed a
motion to continue. In an affidavit, the defense counsel reiterated to the district court that he
had had a previous contact with Chambers and stated that it was not known to him if
Chambers would be a witness. The defense counsel also stated that Hylton had an expectation
of inheriting some money and had expressed a desire to retain his own lawyer. The prosecutor
opposed the motion to continue. The prosecutor acknowledged that Chambers was a
potential witness and stated that the defense counsel's relationship with Chambers posed no
problem for the state. The motion to continue was denied.
At calendar call the prosecutor did not mention Chambers or express his intention to call
him; he merely commented that he was proceeding to compel a certain witness to attend the
trial. Apparently this alerted the defense attorney to the possibility that Chambers might be
called, so he checked the record and found indeed that proceedings were afoot for the state to
compel Chambers' appearance as a witness for the state.
During argument on the motion to grant the mistrial, the prosecutor pointed out that
Chambers, a percipient witness to the homicide, was expected to testify in favor of the
defendant, Hylton. The purpose behind the state's calling Chambers was its intention to
impeach its own witness by confronting Chambers with a prior inconsistent statement said to
have been made by Chambers.
At no time prior to trial did the prosecutor's office advise defense counsel that it planned to
call Chambers, and defense counsel was not aware until calendar call of the state's intention
to call Chambers. Appellate counsel for the state excuses this failure to notify defense counsel
on the ground that the trial prosecutor "didn't perceive the problem in that [sixth
amendment] context"; and further, that if the trial prosecutor "had recognized the
problem there is no doubt that he would have done something about it."
prosecutor didn't perceive the problem in that [sixth amendment] context; and further, that
if the trial prosecutor had recognized the problem there is no doubt that he would have done
something about it. The state's appellate counsel blames the whole fiasco on a
communication breakdown within the district attorney's office.
The end result of the communication breakdown was that defense counsel was confronted
with a prosecution witness who was a former client with whom he had discussed the very
matter being tried.
The problem came to a head when Chambers was called as a witness by the state.
Chambers first claimed the privilege against self-incrimination. This privilege was denied by
the trial court on the ground that Chambers was no longer in jeopardy in the matter at hand.
At this juncture, defense counsel called the court's attention to the difficulties inherent in
cross-examining his former client, Chambers. The prosecutor then moved for a mistrial,
stating that Chambers was a primary witness whose inability to testify would be prejudicial
to the state's case.
Without canvassing Chambers to determine the nature of his testimony or whether
Chambers asserted the attorney-client privilege, the trial court declared a mistrial. Defense
counsel then moved to dismiss the information on the ground that a subsequent prosecution
would put Hylton twice in jeopardy. The motion was denied; and, thereafter, Hylton filed this
petition for prohibition to prohibit further prosecution.
Relief Sought
A writ of prohibition arrests the proceedings of any tribunal exercising judicial functions,
when such proceedings are without or in excess of the jurisdiction of such tribunal. NRS
34.340. Hylton claims that the district court does not have jurisdiction to order a new trial
because a new trial would violate his constitutional right against double jeopardy.
A state may not put a defendant in jeopardy twice for the same offense.
1
U.S. Const.
amend. V; Nev. Const. art. 1, 8. The double jeopardy clause of the fifth amendment directly
applies to states under the due process clause of the fourteenth amendment. Benton v.
Maryland, 395 U.S. 784 (1969).
As a general rule, the prosecutor is entitled to one, and only one, opportunity to require an
accused to stand trial. Arizona v. Washington, 434 U.S. 497, 505 (1978). Retrial is not
automatically barred when a criminal proceeding is terminated without finally resolving the
merits of the charges against the accused. Id. Because of the variety of circumstances
that may make it necessary to discharge a jury before a trial is concluded, and because
those circumstances do not invariably create unfairness to the accused, the defendant's
valued right to have the trial concluded by a particular tribunal is sometimes subordinated
to the public interest in affording the prosecutor one full and fair opportunity to present
the state's evidence to an impartial jury. Id.; Illinois v. Somerville, 410 U.S. 45S, 470
{1973); Downum v. United States, 372 U.S. 734, 736 {1963) {defendant's right
subordinated to the public interest "when there is imperious necessity to do so"); Wade v.
Hunter, 336 U.S. 6S4, 6SS-S9 {1949) {defendant's right may be subordinated to the
"public's interest in fair trials designed to end in just judgments").
____________________

1
Jeopardy attaches when a jury has been selected and sworn. Downum v. United States, 372 U.S. 734 (1963);
Wheeler v. District Court, 82 Nev. 225, 415 P.2d 63 (1966). Jeopardy attached at Hylton's second trial.
finally resolving the merits of the charges against the accused. Id. Because of the variety of
circumstances that may make it necessary to discharge a jury before a trial is concluded, and
because those circumstances do not invariably create unfairness to the accused, the
defendant's valued right to have the trial concluded by a particular tribunal is sometimes
subordinated to the public interest in affording the prosecutor one full and fair opportunity to
present the state's evidence to an impartial jury. Id.; Illinois v. Somerville, 410 U.S. 458, 470
(1973); Downum v. United States, 372 U.S. 734, 736 (1963) (defendant's right subordinated
to the public interest when there is imperious necessity to do so); Wade v. Hunter, 336 U.S.
684, 688-89 (1949) (defendant's right may be subordinated to the public's interest in fair
trials designed to end in just judgments).
The prosecutor has a heavy burden of justifying the mistrial in order to avoid the double
jeopardy bar. Washington, 434 U.S. at 505. The reviewing court must decide whether the
declaration of a mistrial was dictated by manifest necessity or the ends of public justice.
2
Somerville, 410 U.S. at 463; see Carter v. State, 102 Nev. 164, 717 P.2d 1111 (1986);
Wheeler v. District Court, 82 Nev. 225, 229, 415 P.2d 63, 65 (1966) (double jeopardy
protects defendant when the jury is discharged before the verdict, unless defendant consents
or some overruling necessity operates as an acquittal). There are degrees of necessity; the
United States Supreme Court requires a high degree before concluding that a mistrial is
appropriate. Washington, 434 U.S. at 506; Carter, 102 Nev. at 169, 717 P.2d at 1114.
The United States Supreme Court has consistently refused to pronounce general rules
delineating when the manifest necessity standard has been met; each case must turn on its
facts. Downum, 372 U.S. at 737; see Somerville, 410 U.S. at 462-64.
[Headnote 1]
In analyzing the facts of this case to determine if double jeopardy bars further prosecution,
this court must make a two-part inquiry. We must first decide whether declaration of the
mistrial was dictated by manifest necessity or the ends of justice and, second, in the
presence of manifest necessity, whether the prosecutor is responsible for the
circumstances which necessitated declaration of a mistrial.
____________________

2
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into
consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be
defeated. They are to exercise sound discretion on the subject; and it is impossible to define all the
circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the
greatest caution, under urgent circumstances, and for very plain and obvious causes.
(Emphasis added.) United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
and, second, in the presence of manifest necessity, whether the prosecutor is responsible for
the circumstances which necessitated declaration of a mistrial.
Manifest Necessity for New Trial
On the question of whether a mistrial was manisfestly necessary or dictated by the ends of
justice, we note first that Hylton made no objections nor complaints that his counsel was
going to be so impaired in his examination of Chambers that Hylton would be denied a fair
trial. As in the case of Chambers, the trial court did not choose to canvass defendant Hylton
before granting the mistrial to the state. It is highly probable that Hylton, if asked, would have
had no objections to Chambers's testifying because of the likelihood that Chambers would
have testified in his favor.
Chambers never asserted any claim of attorney-client privilege, and the trial court's
granting of a new trial must, of necessity, have been based on the judge's assumption that
Chambers was going to claim the privilege. Chambers may have waived the privilege and
consented to defense counsel's examining him concerning the facts surrounding the
accusation against Hylton. Until the trial judge knew whether or not the privilege was going
to be asserted, he could not make a fully informed decision on the necessity of declaring a
mistrial.
Like the trial judge, we cannot safely tell if a mistrial was necessary and cannot properly
conclude, therefore, that a mistrial was a manifest necessity.
Circumstances constituting a manifest necessity to declare a mistrial should appear in the
record. State v. Eisentrager, 76 Nev. 437, 357 P.2d 306 (1960). In Eisentrager, the trial court
discharged the jury because it was unable to come to a conclusion. While the record did not
reflect the jury foreman's statement that the members of the jury were unable to agree upon a
verdict, the remarks of the judge in discharging the jury included his reference to the fact that
the jury had been unable to come to a conclusion. This court reversed the district court's order
dismissing the information on grounds of double jeopardy.
The essential fact that Chambers invoked his attorney-client privilege is not in the trial
transcript in this case. Chambers did not in fact personally invoke his privilege, rather the
court presumed that Chambers would do so.
Manifest necessity to declare a mistrial may also arise in situations in which there is an
interference with the administration of honest, fair, even-handed justice to either, both, or
any of the parties to the proceeding. People v. Clark, 705 P.2d 1017, 1019 (Colo.Ct.App.
1985). When the absence of a witness would effectively prevent the state from presenting its
case, there can arise a manifest necessity for a mistrial.
arise a manifest necessity for a mistrial. State v. Connery, 100 Nev. 256, 258, 679 P.2d 1266,
1268 (1984).
In Clark, both state and defense counsel referred in their opening statement to fingerprint
evidence; a mistrial was declared when the key fingerprint evidence was ruled inadmissible.
The Clark court found manifest necessity since the jury had been given information during
the course of the trial that they subsequently would not hear as evidence. In the instant case,
both the prosecutor and defense counsel had referred in their opening statements to certain
evidence which would be admissible by virtue of the testimony of Chambers.
[Headnotes 2, 3]
The mere fact, however, that counsel mentions evidence during opening statement which
is later discovered to be inadmissible, does not mean that it is manifestly necessary to abort
the prosecution and start over. Enright v. Siedleck, 451 N.E.2d 176, 181 (N.Y.Ct.App. 1983).
A witness who admittedly will testify in favor of the defendant is of dubious rather than
manifest value to the prosecution. Again, there is an absence of information in the record.
Had the court carefully inquired into the substance of Chambers's testimony and the
inconsistent statement, it would have been in a much better position to make a judgment on
the necessity for Chambers's testimony (or rather the necessity to permit the prosecution to
play the game of calling him and then contradicting him).
We are forced to conclude that if there were a real necessity to declare a mistrial in this
case, the necessity is certainly not manifest from the record before us.
Prosecutorial Responsibility for Mistrial
[Headnote 4]
Our holding that a mistrial was not manifestly necessary in this case makes it unnecessary
to make the second inquiry as to whether the prosecutor was in some way responsible for
the circumstances which gave rise to any possible necessity to declare a mistrial. We do
address this question, nevertheless, and conclude that the prosecutor was responsible and that
even had it been manifestly necessary to declare a mistrial, we should have to grant the writ
on grounds of the prosecutor's role in bringing about any need for mistrial.
Prior to trial, the prosecutor had been given adequate warning that Chambers might invoke
his right to the attorney-client privilege upon cross-examination by the defense counsel,
thereby threatening the integrity of the trial. Even though the state claims that the defense
counsel never elaborated upon the extent of his relationship with Chambers, the defense
counsel did inform the state that he discussed the facts of the pertinent criminal event
with Chambers in a contact with Chambers designed to determine whether he would
represent Chambers.
state that he discussed the facts of the pertinent criminal event with Chambers in a contact
with Chambers designed to determine whether he would represent Chambers. Such
information, even in the abstract, should have put the prosecution on notice that a risk existed
that Chambers would invoke his attorney-client privilege upon cross-examination.
Significantly, in light of the defense counsel's conflict of interest, the district court
requested the district attorney's office to forewarn the court of their intent to call Chambers as
a witness. At the calendar call, the defense counsel asked for a continuance based upon his
conflict of interest and upon Hylton's desire to retain new counsel at his own expense; the
prosecution opposed that motion to continue, although he knew that the state was actively
attempting to compel chambers as a witness at that time.
The prosecutor is in many ways responsible, for the declaration of a mistrial at Hylton's
second trial. The prosecutor was put on notice of the potential for a mistrial and yet failed to
support the defendant's motion for a continuance which would have led to the appointment of
new counsel and would have avoided the potential for a mistrial.
Prosecutorial responsibility for the declaration of a mistrial does not always preclude a
new trial. See Somerville, supra (defective indictment); Wright v. State, 101 Nev. 269, 701
P.2d 743 (1985) (failure to include the count of aiding and abetting in an information);
Enright, 451 N.E.2d at 181 (evidence referred to in opening remarks later discovered to be
inadmissible; prosecutor's motion for mistrial granted and affirmed on appeal if prosecutor
did not act in bad faith).
A factually analogous case is Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d 109 (1983).
In Melchor-Gloria, a tape-recorded interrogation of the defendant was inadmissible because a
second translation revealed incomplete Miranda rights had been given. In preparing for his
opening statement, the prosecutor did not review the portion of the transcript which contained
the Miranda warnings. Prior to trial, both counsel met in chambers to discuss the deficiencies
in the Miranda warnings. The defense counsel came away from that meeting with the
understanding that an agreement had been reached to the effect that the issue of the
admissibility of the defendant's statements would be dealt with in an appropriate hearing. In
his opening statement, the prosecutor referred to the potentially inadmissible statements. The
defense counsel objected, but the prosecution successfully argued to overrule the objection.
The defendant's statements were subsequently suppressed, and on defense motion, a mistrial
without prejudice to the prosecution was declared.
In Melchor-Gloria, we did not find prosecutorial overreaching or harassment intended to
goad a defendant into moving for a mistrial which would preclude a new trial.
mistrial which would preclude a new trial. The Melchor-Gloria prosecutor did not act
intentionally or with bad faith, and the prosecutor was not grossly negligent. We concluded
that the prosecutor had been negligent but that the relatively unusual factual setting of the
instant case partially mitigates the prosecutor's derelictions.
[Headnote 5]
The issue before this court is whether the prosecutor's decision to proceed to trial was
excusable negligence or inexcusable negligence. The prosecutor was warned as early as
seven months prior to trial on three different occasions
3
that Chambers could invoke an
attorney-client privilege if the defense counsel represented Hylton at trial. As of the calendar
call, the prosecutor had made efforts to compel Chamber's attendance at trial and yet he
opposed the defense counsel's motion to continue in order that Hylton could obtain new
counsel.
We conclude that the prosecutor committed inexcusable negligence. The prosecutor did
not prevent the circumstances for a mistrial from occurring, when the prosecutor had
adequate notice that a mistrial was likely to occur and when the prosecutor's office was
expressly asked by the court to be forthcoming on that issue. Although the prosecutor was
subjectively unaware of the substantive ramifications of calling a witness who could invoke
an attorney-client privilege on cross-examination, we cannot accept such an error of judgment
as excusable when weighed against the defendant's constitutional right to be free from
repeated attempts to convict him of the alleged offenses.
Hylton's Responsibility for Mistrial
The state claims that the defendant engaged in a course of conduct calculated to
necessitate the granting of a mistrial. An important factor to be considered is the need to
hold litigants on both sides to standards of responsible professional conduct in the clash of an
adversary criminal process. United States v. Jorn, 400 U.S. 470, 485-86 (1971).
A defendant who actively engages in a course of conduct calculated to necessitate the
granting of a mistrial, but who does not actually request a mistrial, is similarly barred from
relying on a double jeopardy defense at a second trial. McNeal, 481 P.2d at 1151. If the act of
a defendant aborts a trial, he or she should not be allowed to erect a constitutional shelter
based on double jeopardy by frustrating the trial. People v. Paquette, 292 N.E.2d 17 {N.Y.
1972).
____________________

3
The defense counsel brought this issue to the attention of the court and the state on March 11, March 18,
and October 30.
17 (N.Y. 1972). Defendant should not benefit from difficulties of his own creation. Id.
[Headnote 6]
The record does not support a finding that the defense counsel engaged in a course of
conduct calculated to necessitate a mistrial.
Hylton's constitutional right not to be put in jeopardy twice precludes further prosecution
against him of the alleged offenses. We hereby order that an appropriate writ of prohibition
be issued.
____________
103 Nev. 427, 427 (1987) Great American Airways v. Airport Authority
GREAT AMERICAN AIRWAYS, INC., a Nevada Corporation, Appellant, v.
AIRPORT AUTHORITY OF WASHOE COUNTY, Respondent.
No. 17248
October 7, 1987 743 P.2d 628
Appeal from dismissal of civil action pursuant to NRCP 41(b). Second Judicial District
Court, Washoe County; Robert L. Schouweiler, Judge.
Airline brought action against authority to recover for breach of contract arising out of
plane striking large chunk of ice on runway. The district court dismissed action. Airline
appealed. The Supreme Court, Steffen, J., held that airline's contract with airport authority,
which required authority to keep runway free from obstructions and to perform snow removal
reasonably necessary to permit operations, imposed unqualified duty on authority to remove
ice chunk from otherwise clean runway.
Affirmed in part; reversed in part and remanded for new trial.
Bowen, Swafford, Hoffman, Test & Dickey, Reno, for Appellant.
Erickson, Thorpe, Swainston & Cobb, Reno, for Respondent.
Aviation.
Airline's contract with airport authority, which required authority to keep runway free from obstruction
and to perform snow removal reasonably necessary to permit operations, imposed unqualified duty on
authority to remove ice chunk from otherwise clean runway and did not merely require authority to remove
obstructions to degree reasonably necessary to permit operations.
OPINION
Great American Airways (Great American) sued the Airport Authority (Authority),
claiming damages under theories of negligence and breach of contract. The trial court
dismissed Great American's complaint on a Rule 41(b) motion at the conclusion of plaintiff's
case. This appeal ensued.
On February 27, 1983, while attempting to take off from a runway at Reno-Cannon
International Airport, a Great American jet allegedly struck a large chunk of ice, damaging
the airplane's nose wheels, fuselage and engines.
1
The pilot landed safely and the passengers
were transferred to another airplane. The record indicates that the weather that morning was
dry and the runway was clear of snow and slush. In addition, the Authority had inspected the
runway at least once during the two hours prior to takeoff.
Great American contends that it had proved both its claims. We agree with the trial court's
disposition of the tort claim, but conclude that the court erred in dismissing the claim for
breach of contract.
The written agreement between Great American and the Authority provided, in pertinent
part, as follows:
ARTICLE 9
OBLIGATIONS OF AUTHORITY
Section 9.01Operation and Maintenance of the Authority
A. Authority agrees, except as herein otherwise provided, that it will, during the
term of this Agreement, operate and maintain the Authority facilities in a safe,
workable, clean, and sanitary condition, and in good repair and free from obstructions,
including such clearing and removal of snow that is reasonably necessary to permit
operations and as soon as it is practical for Authority to do. Authority agrees to
maintain and operate the Authority facilities so that they are suitable for Lessee [Great
American] to use in its air transport operations (emphasis supplied).
The trial court apparently construed this provision as requiring the Authority to remove
obstructions from the runways to a degree reasonably necessary to permit operations.
Accordingly, Great American was denied relief on the basis that the Authority had, in fact,
maintained the runway in a condition sufficiently free of obstructions to permit Great
American's use of the runway.
____________________

1
The parties have stipulated that the amount of the damage, if compensable, is $46,910.94.
When, as here, a trial court has interpreted a contract solely from its written terms, this
court may apply a plenary review without deference to the lower court's interpretation.
Caldwell v. Consolidated Realty & Management Co., 99 Nev. 635, 668 P.2d 284 (1983).
The preeminent rule of construction is to ascertain the intention of the contracting parties.
Barringer v. Gunderson, 81 Nev. 288, 302, 402 P.2d 470, 477 (1965). If that intention is clear
from the text, no construction is required, id., 81 Nev. at 302-03, 402 P.2d at 477, and this
court is bound by the language of the agreement, Watson v. Watson, 95 Nev. 495, 596 P.2d
507 (1979).
As previously noted, no extrinsic evidence was taken to shed light on the intent and
meaning of section 9.01 of the contract. When read in its entirety, the phrase that is
reasonably necessary to permit operations clearly appears to modify only the Authority's
responsibility concerning the clearing and removal of snow. In drafting the contract, the
Authority did not specify that it would keep the runways reasonably free from obstructions.
To the contrary, the requirement to maintain the facilities free of obstructions is unqualified
and consistent with the Authority's contractual obligation to maintain its facilities so that
they are suitable for Lessee [Great American] to use in its air transport operations. By
modifying the Authority's express agreement to keep its facilities free of obstructions, the
district court effectively revised the agreement while professing to construe it. This the court
was not free to do. Geo. B. Smith Chemical Works v. Simon, 92 Nev. 580, 582, 555 P.2d
216, 217 (1976).
This reading of the contract does not lead to absurd results. When runway obstructions
cause damage or injury, the burden must fall on someone. If the Authority had intended that
Great American bear such losses, it could have so specified. Since it failed to do so, we must
assume that the Authority willingly assumed the risk of loss, based upon such considerations
as an effective preventive maintenance program, insurance, and adequate charges to the users
of its facilities.
Although Great American presented substantial evidence indicating that ice caused the
damage sustained by its aircraft, the 41(b) dismissal precluded consideration of the
Authority's evidence, if any, to the contrary. A new trial is therefore required on the issue of
contract liability.
The judgment of the district court is affirmed as to Great American's negligence claim, but
reversed as to its claim for breach of contract. The matter is remanded to the district court for
a new trial consistent with this opinion.
The Airport Authority was sued by Great American for damage incurred by one of its
airplanes when it struck a chunk of ice on the runway. Great American's tort action was
dismissed, but the majority permits it to pursue its claim for damages in the form of a contract
action.
With the negligence action out of the picture, the Authority is now being held liable as an
insurer, independent of any lack of care or other fault on its part. This result is inconsistent
with the terms of the contract and is based upon an inappropriate interpretation of the contract
document.
The cardinal rule in interpreting contracts is to follow the intention of the contracting
parties. Barringer v. Gunderson, 81 Nev. 288, 302, 402 P.2d 470, 477 (1965). To me it is
obvious, from a reading of the contract, that the parties did not intend for the Authority to be
an insurer, indemnifying its lessee for all losses that might result from objects found on the
premises.
If the tort claim had been sustainable, some fault on the part of the Authority would have
to have been shown. Apparently the airline could not establish that the Authority had been at
fault either in placing the object on the premises or in unreasonably permitting it to remain
where it was. No one knows how the object, the ice ball, got where it was or how long it
remained there. It could have been dropped from Great American's airplane; it could have
been blown on to the runway by other aircraft in the process of landing or taking off. There
are any number of ways in which the ice could have ended up on the runway, and any number
of possible causes of the damage to Great American's propertyincluding lack of vigilance
on the part of the flight crew. The most probable origin of the damages was a simple accident
in its purest form, with no one being at fault. It is hard for me to see under the circumstances
how the Authority, in justice or fairness, can be held liable for property damage under a
theory of breach of contract.
The strained construction of the contract found in the majority opinion causes great and
unanticipated liability to be thrust upon the Authority. I can find nothing in the Authority's
agreement to keep the facilities free from obstructions that would make it an insurer against
all damages incurred as a result of objects lying about the premises.
The obstruction in question was a chunk of ice about the size of a baseball. Because I do
not think a small ice-chunk can be called an obstruction, and because the majority's
position incorrectly converts the Authority into an insurer, liable without fault, I dissent.
As noted, the Authority should not be held liable on the basis of its failing to keep runways
free from what has been miscalled an "obstruction."
an obstruction. An obstruction is an impediment, a barrier. According to my dictionary, to
obstruct is to block or close, to impede or retard. It is possible, I suppose, for a large snow
bank to obstruct, block, or close a runway, but not a softball-sized chunk of ice. So, even if
Great American has an absolute duty to keep the facilities (which I assume means the
whole airport, including terminal facilities as well as runways) free from obstructions, no
contract liability can result from the Authority's supposed failure to keep the facilities clear
from non-obstructive detritus like ice chunks.
Under the majority opinion, the Authority will henceforth be responsible as an insurer for
injuries caused by a miscellany of objects that might be found within the confines of the
facilities. In the widest interpretation of the majority position, no-fault liability could result
from injuries sustained by any of the lessees, lessees' agents or lessees' invitees who might be
injured, independent of any negligence on the part of the Authority, by encounters with such
obstructions as pavement ice, carelessly placed luggage, discarded fast-food containers, and
bubble-gum splotches.
As I read the contract obligation, to keep the facilities free from obstructions, the parties
simply had in mind the duty of the Authority not to block (or obstruct) runways in such a
manner as to retard air traffic. If it violated this agreement, the Authority could be held
contractually liable for monetary losses. It is, of course, possible that some kind of barrier
could be so negligently placed as to create tort liability on the part of the Authority, but this is
not an issue in this case. The Authority does not appear to have shied away from its
obligation to keep its runways free from obstructions, for there were no barriers on the
runway on the day in question.
I disagree with the majority's position that the Authority willingly assumed the risk of
loss. I do not see the Authority as having guaranteed to keep runways free at all times from
every little piece of ice, nor do I see it as having failed in any way to remove obstructions
from the facilities.
The trial court was right in denying a contract claim under these circumstances. I would
affirm the district court's judgment.
I concur: Gunderson, C. J.
____________
103 Nev. 432, 432 (1987) Clauson v. Lloyd
BARBARA A. CLAUSON and DALE L. CLAUSON, Husband and Wife, Appellants,
v. WILLIAM J. LLOYD, JR., M.D., an Individual; WILLIAM J. LLOYD,
JR., M.D., a Nevada Corporation, Respondents.
No. 17695
October 8, 1987 743 P.2d 631
Appeal from order of the district court granting respondents' motion for summary
judgment. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Patient filed malpractice suit against gynecologist for negligent hysterectomy. Doctor filed
affidavit and motion for summary judgment, which was granted by the district court. Patient
appealed. The Supreme Court, Mowbray, J., held that: (1) affidavit did not remove genuine
issue of material fact; (2) while affidavit is not necessary to support motion, support for
motion would have to come out of other indicia in case; and (3) summary judgment was
improper.
Reversed and Remanded.
Michael J. Morrison, Reno, for Appellants.
Echeverria, Osborne & Jenkins and Cathy Bradford, Reno, for Respondents.
1. Judgment.
Gynecologist's affidavit in support of his motion for summary judgment in medical malpractice action,
which stated that he performed according to standard of practice, learning, and skill ordinarily practiced by
medical petitioners in community, was insufficient to adequately address allegations in patient's complaint,
especially where affidavit did not deny he incised patient's bladder but instead stated conclusion that his
performance conformed to applicable standard of care. NRCP 56(e).
2. Judgment.
While affidavit filed in support of motion for summary judgment is not required to support that motion,
other indicia in record would have to support the motion for it to be granted. NRCP 56(e).
3. Judgment.
Genuine issue of material fact regarding whether physician negligently performed hysterectomy on
patient precluded summary judgment.
OPINION
By the Court, Mowbray, J.:
This is an appeal from a grant of summary judgment by the lower court to respondent
William J. Lloyd, Jr., M.D.
(Lloyd). In December 1982, Barbara A. Clauson (Clauson) consulted Lloyd, a Carson
City obstetrician and gynecologist, for the purpose of obtaining diagnosis and treatment of an
unknown illness. Lloyd diagnosed Clauson's condition as endometriosis of the uterus. He
treated her surgically by performing a hysterectomy and oophorectomy. Clauson alleged that
Lloyd negligently incised the back of her bladder and closed her right ureter. Clauson further
alleged that as a result of Lloyd's negligence, she was required to have corrective surgery to
repair the defects. I his answer, Lloyd denied Clauson's allegations and claimed that Clauson
was guilty of contributory negligence which resulted in the injuries alleged in her complaint.
Lloyd moved for summary judgment contending that Clauson lacked competent evidence to
establish her claim. Attached to the motion was an affidavit in which Lloyd asserts that he
performed according to the standard of practice, learning, and skill ordinarily practiced by
medical practitioners in the community.
Clauson alleges that the affidavit filed in support of the motion for summary judgment was
inadmissible because it was self-serving and consisted of inadmissible expressions of
opinion by a nonexpert. Clauson implicitly argues that contrary to Lloyd's allegations and the
district court findings, she had no duty to produce an expert to refute the claims in Lloyd's
summary judgment motion. In sum, she alleges that there are no grounds upon which to
support the district court's grant of summary judgment.
DISCUSSION
It is not necessary for us to address the propriety of Lloyd's allegation regarding Clauson's
failure to produce an expert or other evidence to establish an essential element of her case.
1
Instead, we need only examine Lloyd's summary judgment motion under NRCP 56, so as to
determine whether, in fact, Clauson had any duty to respond on the merits.
NRCP 56(c) provides in part:
The judgment [summary judgment] sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. (Emphasis added.)
[Headnote 1]
Lloyd contends that NRCP 56 does not require a motion for summary judgment to be
accompanied by an affidavit, and that, therefore, the sufficiency of his affidavit is
irrelevant in determining whether his motion for summary judgment was properly
granted.
____________________

1
See Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 581 P.2d 9 (1978).
summary judgment to be accompanied by an affidavit, and that, therefore, the sufficiency of
his affidavit is irrelevant in determining whether his motion for summary judgment was
properly granted. In a recent United States Supreme Court case wherein the court was asked
to interpret Federal Rules of Civil Procedure (FRCP) 56, Lloyd's principal point was
reiterated. In the case of Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986) the court held:
[A]nd if there were any doubt about the meaning of Rule 56(e) in this regard, such doubt is
clearly removed by Rule 56(a) and (b), which provide that claimants and defendants,
respectively, may move for summary judgment with or without supporting affidavits'. Id. at
2553 (emphasis in original). Lloyd alleges that any deficiencies present in his affidavit are at
the very least inconclusive and at most are completely inconsequential to the disposition of
this case. For the reasons herein set forth, we cannot accept Lloyd's interpretation.
[Headnote 2]
The Supreme Court makes it abundantly clear in Celotex that an affidavit is not required to
support a motion under FRCP 56. It is equally clear from the court's opinion, however, that it
assumed in its interpretation of FRCP 56 that other indicia in the record would, standing
alone, support the motion for summary judgment:
[T]he import of these subsections [56(a) and 56(b)] is that regardless of whether the
moving party accompanied its summary judgment motion with affidavits, the motion
may, and should, be granted so long as whatever is before the district court
demonstrates that the standard for the entry of summary judgment, as set forth in Rule
56(c), is satisfied.
477 U.S. 317, ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
[Headnote 3]
We find nothing in the record which clearly demonstrates that there was an absence of a
genuine issue of material fact: no depositions had yet been taken; only one very general set of
interrogatories had been answered; and the admissions, as they existed, were predictably of
little use in determining the issues of this case. In sum, there is little in the essential portions
of the record upon which Lloyd's summary judgment motion could rest.
In light of our findings in the primary record, Lloyd's motion, if it is to stand, must do so
on the strength of the affidavit. Unfortunately, we find it fatally defective for several reasons:
the affidavit is replete with generalizations which do not address adequately the allegations in
the complaint; the affidavit does not show that there is no genuine issue as to any material
fact; and, it states little apart from the doctor's name which is admissible into evidence as
is required under NRCP 56{e);2 indeed, respondent does not deny in the affidavit that he
incised the back of plaintiff's bladderrather, he summarily reaches the conclusion that
his performance conformed to the applicable standard of care.
states little apart from the doctor's name which is admissible into evidence as is required
under NRCP 56(e);
2
indeed, respondent does not deny in the affidavit that he incised the
back of plaintiff's bladderrather, he summarily reaches the conclusion that his performance
conformed to the applicable standard of care.
Were we to hold that the affidavit in this case is strong enough to support a summary
judgment motion, the effect would be chilling: any defendant physician could come into
court, file a motion for summary judgment alleging solely that he conformed to the applicable
standard of care without any valid supporting documentation and if the plaintiff did not
procure an expert to refute the charge, his case would be thrown out. We do not think this is
what the Supreme Court contemplated in Celotex.
3

We are not unmindful of the need to isolate and dispose of factually unsupported
claims. . . . 106 S.Ct. 2548, 2553. They waste court time, cause undue anguish to the
litigants, and perhaps above all else, are expensive. Nevertheless, litigants should not be
deprived of a trial on the merits if there is the slightest doubt as to the operative facts. See
Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 (1982).
NRCP 56(e) mandates that a motion for summary judgment shall be granted when it is
made and supported as provided in this rule and the opposing party has failed to respond.
The moving party has not met the test. Where, as here, there is still an unresolved material
question of fact in dispute we must allow the case to go forward. Accordingly, we reverse the
district court order granting summary judgment and remand the case to the district court for
Gunderson, C. J., and Steffen, Young, and Springer, JJ., concur.
____________________

2
NRCP 56(e) provides in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence. . . .

3
Of course, a party seeking summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact. 106 S.Ct. at 2553; see generally Mullis v. Nevada National Bank, 98
Nev. 510, 654 P.2d 533 (1982).
____________
103 Nev. 436, 436 (1987) Young v. Nevada Title Co.
SHAEL YOUNG AND CHARLES R. ELLIS, TRUSTEES FOR THE BENEFIT OF LOSI,
ALPERN, ROSS & ASSOCIATES PROFIT SHARING PLAN AND TRUST, LOSI,
ALPERN, ROSS & ASSOCIATES PROFIT SHARING PLAN AND TRUST, SHAEL
YOUNG AND CHARLES R. ELLIS, TRUSTEES FOR THE BENEFIT OF ROMAIN
JOHNSTON PRODUCTIONS INC. PENSION PLAN AND TRUST, ROMAIN
JOHNSTON PRODUCTIONS, INC. PENSION PLAN AND TRUST, SHAEL YOUNG
AND CHARLES R. ELLIS, TRUSTEES FOR THE RAYMOND LOSI TRUST;
RAYMOND LOSI TRUST, SHAEL YOUNG AND CHARLES R. ELLIS, TRUSTEES
FOR THE DON ROBERTS DESIGN, INC. DEFINED BENEFIT PENSION PLAN
AND TRUST; DON ROBERTS DESIGN, INC., DEFINED BENEFIT PENSION PLAN
AND TRUST, SHAEL YOUNG AND CHARLES R. ELLIS, TRUSTEES FOR THE
B.F.D. & S. REALTY CO. PENSION PLAN AND TRUST, B.F.D. & S. REALTY CO.
PENSION PLAN AND TRUST, NEVADA SOUTHERN TITLE, SHAEL YOUNG
AND CHARLES R. ELLIS, TRUSTEES FOR THE BENEFIT OF ROCHESTER
METALS, INC. PROFIT SHARING PLAN AND TRUST, ROCHESTER METALS,
INC. PROFIT SHARING PLAN AND TRUST, SHAEL YOUNG AND CHARLES R.
ELLIS, TRUSTEES FOR THE BENEFIT OF JORDAN FILMS, INC. PENSION PLAN
AND TRUST AND JORDAN FILMS, INC., PENSION PLAN TRUST, Appellants, v.
NEVADA TITLE COMPANY, FIRST AMERICAN TITLE COMPANY OF NEVADA,
CHICAGO TITLE AGENCY OF LAS VEGAS, INC., ROBERT SERRES, JOAN
SERRES, aka MARCOTT, LTD., JOSEPH T. PRESTIPINO, SUBURBAN COASTAL
CORP., MICHAEL CHRISTIAN AND GWENDOLYN CHRISTIAN, ADRIENNE
PONSOLLE, KENNETH JONES AND BARBARA JONES, JARED SCHAFFER,
ADMINISTRATOR OF THE ESTATE OF ROBERTO MUNSON, DECEASED,
JAMES E. GARRETT AND JOHN E. GARRETT, DAVID A. LOVE, KAREN LOVE,
ERIC C. MURRAY, BARBARA M. MURRAY AND MINNESOTA TITLE
COMPANY, LAND TITLE OF NEVADA INC., AND MARY FRANCES KELLEY
AND JOYCE PEGGY BREAZ, Respondents.
No. 17431
October 29, 1987 744 P.2d 902 Appeal from judgment in an action for declaratory and
injunctive relief.
Appeal from judgment in an action for declaratory and injunctive relief. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Title companies and individual borrowers sought declaratory and injunctive relief to halt
foreclosures and declare parties' rights in real property. The district court found in favor of
borrowers and title companies. Lenders appealed. The Supreme Court held that: (1) mortgage
broker was agent of lenders; (2) best evidence rule did not bar admission of copies of
Department of Commerce files; (3) trial court did not abuse its discretion in limiting
presentation of evidence; (4) district court lacked power to enter judgment in favor of
non-parties, and (5) title companies were not entitled to award of attorney fees.
Vacated in part, affirmed in part.
[Rehearing denied November 30, 1987]
Thompson & Harper, Las Vegas for Appellants.
Robert M. Apple, Las Vegas, for Respondents Nevada Title Company, First American
Title Company of Nevada, Chicago Title Agency of Las Vegas, Inc., Robert Serres, Joan
Serres, aka Marcott, Ltd., Joseph T. Prestipino, Suburban Coastal Corp., Michael Christian
and Gwendolyn Christian, Adrienne Ponsolle, Kenneth Jones and Barbara Jones, Jared
Schaffer, Administrator of the Estate of Roberto Munson, Deceased, James E. Garrett and
John E. Garrett.
R. Gardner Jolley, Las Vegas, for Respondents David A. Love, Karen Love, Eric C.
Murray, Barbara M. Murray and Minnesota Title Company.
Bill C. Hammer, Las Vegas, for Respondents Land Title of Nevada, Inc. and Mary Frances
Kelley.
Kelly Swanson, Las Vegas, for Respondent Joyce Peggy Breaz.
Same person or entity may act as agent for two parties interested in same transaction when their interests
do not conflict and where loyalty to one does not necessarily constitute breach of duty to the other.
2. Brokers.
Mortgage broker, which failed to give lenders the payoffs from borrowers' loans, was agent of lenders.
Principal may be bound by acts of its agent as to third parties who have no reason to know of agent's
improper conduct, even when agent acts for his own motives and without benefit to his principal.
4. Evidence.
Best evidence rule requires production of original document where actual contents of that document are
at issue and sought to be proved.
5. Evidence.
Best evidence rule did not bar admission of copies of correspondence compiled by Department of
Commerce during its investigation of mortgage broker, where content of correspondence file was not at
issue and evidence was not offered to prove terms of a writing.
6. Trial.
Trial court did not abuse its discretion in limiting presentation of evidence by both parties.
7. Judgment.
Court does not have jurisdiction to enter judgment for or against one who is not a party to the action.
8. Judgment.
District court had no jurisdiction over non-parties, and hence, it lacked power to enter judgment in their
favor.
9. Damages.
Mere request for attorney fees was insufficient to meet requirement, in case which did not contemplate
monetary relief, that fees be pleaded and proven as damages.
OPINION
Per Curiam:
This appeal involves four very similar cases where a mortgage broker, American Investor's
Management (AIM), failed to give the lenders, appellants Young and Ellis (trustees) the
payoffs from the individual borrowers' loans. The lenders sought to foreclose on the
borrowers' homes when the payments became delinquent. The various title companies and the
individual borrowers then sued for declaratory and injunctive relief to halt the foreclosures
and declare the parties' rights in the real property. The district court, after a bench trial, found
in favor of the borrowers and title companies. The lenders appeal. We affirm the judgment,
except for the award of attorneys' fees and one erroneous finding and conclusion.
Young and Ellis first argue there was insufficient evidence to support the district court's
finding that AIM was their agent. As a general rule, the existence or non-existence of an
agency is a question of fact. Northern Nev. Mobile Home v. Penrod, 96 Nev. 394, 397, 610
P.2d 724, 726 (1980). It is well established that we will not reverse a question of fact
determined by the trial court unless it is clearly erroneous or not based on substantial
evidence. Stickelman v. Moroni, 97 Nev. 405, 407, 632 P.2d 1159, 1161 (1981).
Young and Ellis reiterate their argument below that AIM was the agent of the individual
borrowers and not the agent of the lenders.
lenders. They first argue that a mortgage loan broker is generally considered to be the agent of
the borrower. See Wyatt v. United Mortgage Company, 598 P.2d 45, 50 (Cal. 1979). They
maintain that because the borrowers first retained AIM for purposes of negotiating the loan,
paid points for the loan in addition to a monthly fee to AIM, and because AIM retained the
original notes and deeds of trust, that it is clear AIM could only be considered the agent of the
borrowers. (These facts are not disputed by the title companies.)
[Headnote 1]
The title companies point out that even if AIM was the agent of the individual borrowers,
this does not preclude a finding that AIM was also the agent of the lenders. The same person
or entity may act as the agent for two parties interested in the same transaction when their
interests do not conflict and where loyalty to one does not necessarily constitute breach of
duty to the other. See Nevada Nickel Syndicate, Ltd. v. National Nickel Co., 96 F. 133, 147
(C.C.D.Nev. 1899); see also Knudsen v. Weeks, 394 F.Supp. 963 (Okla. 1975). Further,
Nevada statutes contemplate that a mortgage company acts as a dual agent because a
mortgage company is defined as
any person who, directly or indirectly: (a) Holds himself out for hire to serve as an
agent for any person in an attempt to obtain a loan which will be secured by a lien on
real property; (b) Holds himself out for hire to serve as an agent for any person who has
money to lend, if the loan is or will be secured by a lien on real property. . . .
NRS 645B.010(3). No one disputes that AIM was, at all times relevant to this appeal, a
mortgage company licensed to do business in Nevada.
[Headnotes 2, 3]
The district court was correct in finding that AIM acted as agent for Ellis and Young, and
there is ample evidence to support this finding. We therefore affirm the district court's
findings and conclusions on this issue as they are not either clearly erroneous or unsupported
by evidence. See Stickelman v. Moroni, 97 Nev. at 407, 632 P.2d at 1161. Further, once the
finding of agency is confirmed, the trustees' liability is clear. A principal may be bound by the
acts of its agent as to third parties (here the borrowers) who have no reason to know of the
agent's improper conduct. This is so even when the agent acts for his own motives and
without benefit to his principal. Home Savings v. General Electric, 101 Nev. 595, 600, 708
P.2d 280, 283 (1985). The court also found the title companies negligent and therefore
partially liable. We affirm the district court's judgment on this point.
point. Our resolution of this issue makes it unnecessary to address the trustees' claim
concerning their status as third party beneficiaries to the escrow contracts.
Ellis and Young next contend that findings 77, 78, 79, 81 and 83 are not supported by the
evidence. We presume that the decision is supported by evidence and will only consider
arguments which specifically state how the evidence was not sufficient. See Rosina v.
Trowbridge, 20 Nev. 105, 116, 17 P. 751, 756 (1888). It should not be expected that we will
comb the record in such a situation, [where the record is voluminous] to ascertain if the
evidence sustains the finding. Paterson v. Condos, 55 Nev. 134, 145, 28 P.2d 499, 501-502
(1934). Young and Ellis have not met their burden of pointing out how the evidence on the
contested findings was insufficient, and we therefore affirm the district court's findings.
Next, Young and Ellis maintain the district court incorrectly allowed evidence to be
introduced in violation of the best evidence rule. The title companies offered evidence, which
was received, consisting of copies of a file compiled by the State Department of Commerce
during its investigation of AIM. This evidence was offered to prove that the trustees had
notice that AIM claimed to have advanced monies on their behalf, i.e. by keeping certain trust
deeds current and advancing other monies to service certain of the trustees' accounts. Young
and Ellis objected to this evidence on the basis of the best evidence rule (NRS 52.235)
claiming that the correspondence did not prove that AIM had in fact advanced monies on
behalf of the trustees. Young and Ellis now raise this objection as a point of error on appeal.
[Headnotes 4, 5]
The best evidence rule provides: To prove the content of a writing, recording or
photograph, the original writing, recording or photograph is required, except as otherwise
provided in this Title. NRS 52.235. NRS 52.245 allows duplicates to be admitted and NRS
52.255 provides for the admissibility of other evidence of contents.
The best evidence rule requires production of an original document where the actual
contents of that document are at issue and sought to be proved. McCormick defines the rule
as follows: [I]n proving the terms of a writing, where the terms are material, the original
writing must be produced unless it is shown to be unavailable for some reason other than the
serious fault of the proponent. Cleary, McCormick on Evidence, at 560 (2d ed. 1972),
(emphasis added). Here, the content of the correspondence file was not at issue, and the
evidence was not offered to prove the terms of a writing. Thus, the best evidence rule would
not bar admission of the copies.
Next, Young and Ellis assert the district court erred in considering the testimony of Harry
Mills, the former manager of AIM, in reaching its decision. It has long been established in
Nevada that issues regarding the credibility of witnesses are the province of the trier of fact.
See State of Nevada v. Y.J.S.M. Co., 5 Nev. 340, 342 (1870). It is the prerogative of the trier
of facts to evaluate the credibility of witnesses and determine the weight of their testimony,
and it is not within the province of the appellate court to instruct the trier of fact that certain
witnesses or testimony must be believed. Beverly Enterprises v. Globe Land Corp., 90 Nev.
363, 365, 526 P.2d 1179, 1180 (1974). Consequently, this issue is without merit.
Young and Ellis next insist that the trial court's limitations on the presentation of evidence
prejudicially affected their case. They correctly note that the district court, after hearing
several days of testimony, did put limitations on the presentation of evidence by both parties.
[Headnote 6]
Although it is clear that trial judges have wide discretion in how they wish to conduct a
trial, this discretion is not without limits. The Nevada Code of Judicial Conduct provides that:
A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,
and others with whom he deals in his official capacity. . . . Canon 3A(3). Further, [a] judge
should accord to every person who is legally interested in a proceeding, or his lawyer, full
right to be heard according to law. . . . Canon 3A(4). However, a judge also should dispose
promptly of the business of the court. Canon 3A(5). Our review of the record shows that,
although the district court manifested some impatience, it did not abuse its discretion.
Young and Ellis next contend that the district court erred by entering judgment in favor of
non-parties to the action. This contention has merit. The relevant part of the judgment states:
IT IS FURTHER ORDERED, ADJUDGED, DECREED AND DECLARED, that,
in the event any of the parties to this action, who are classified as borrowers, or any
non-parties to this action who are classified as borrowers in the several escrows
involved, sustain damages by virtue of their relationship with the various named title
companies, as a result of a failure of fiduciary duty on the part of the title company
involved to that borrower, this court retains jurisdiction to hear any such claims and
award damages as appropriate.
(Emphasis added.) The judgment goes on to recite that the trustees shall be liable for 80
percent of such damages and the title companies liable for 20 percent.
[Headnotes 7, 8]
The district court was without the power to retain jurisdiction over non-parties because it
never had such jurisdiction in the first place. A court does not have jurisdiction to enter
judgment for or against one who is not a party to the action. Quine v. Godwin, 646 P.2d 294,
298 (Ariz.Ct.App. 1982); Fazzi v. Peters, 440 P.2d 242, 245 (Cal. 1968). Accordingly, it is
clear the district court erred in entering judgment in favor of non-parties.
[Headnote 9]
The trustees' final contention is that the district court erred in awarding attorney fees to the
title companies. This contention is also meritorious. It is well established in Nevada that
attorneys' fees cannot be recovered unless authorized by agreement or by statute or rule. See
Sun Realty v. District Court, 91 Nev. 774, 776, 542 P.2d 1072, 1074 (1975). There was no
express or implied agreement in this case so the issue is whether there is a statute or rule
granting the award.
Pertinent portions of NRS 18.010 applicable to this case provided for attorneys' fees to the
plaintiff or counterclaimant as prevailing party when the plaintiff has not recovered more than
$10,000.00, or to the defendant as prevailing party when the plaintiff has not sought recovery
in excess of $10,000.00. NRS 18.010 (1984). We have held that where the plaintiff seeks
declaratory or other non-monetary relief, attorneys' fees may not be awarded. See City of Las
Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970); accord International Indus. v.
United Mtg. Co., 96 Nev. 150, 606 P.2d 163 (1980). Here, damages were neither sought nor
awarded.
The title companies submit, however, that we have approved awards of attorneys' fees as
damages when properly pleaded and proved. Board of Co. Comm'rs v. Cirac, 98 Nev. 57, 59,
639 P.2d 538, 539 (1982). In the instant case the complaint merely requested attorneys' fees
as part of the relief along with costs and such other and further relief as the Court may deem
just and proper under the premises. The award of fees in this case was improper because a
mere request for fees is not sufficient to meet our requirement that fees, in a case which does
not contemplate monetary relief, must be pleaded and proven as damages.
The district court's decision is correct except for those portions of the judgment awarding
relief to non-parties and attorneys' fees to respondents. Therefore, we modify the judgment to
vacate those portions, and otherwise affirm the judgment of the district court.
____________
103 Nev. 443, 443 (1987) Higgins v. Higgins
DORA IRENE HIGGINS, Appellant, v. DONALD
PATRICK HIGGINS, Respondent.
No. 17442
October 29, 1987 744 P.2d 530
Appeal from judgment after bench trial. Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Former wife brought action against former husband for slander of title as a result of
husband giving deed of trust on property. Husband counterclaimed for partial ownership. The
district court dismissed tort action and found husband and wife to be co-owners of property.
Wife appealed. The Supreme Court held that: (1) prior divorce decree was res judicata bar to
husband's claim to property, and (2) evidence supported trial court's conclusion that husband
did not act maliciously when he gave deed of trust in favor of beneficiaries who had loaned
money for purchase of real estate and that husband did not commit slander of title
Digesti & Peck, Reno, for Appellant.
James R. Brooke, Reno, for Respondent.
1. Divorce.
Divorce decree awarding ownership interests in real estate to former wife was res judicata bar to any
claim to properties by former husband.
2. Libel and Slander.
Slander of title involves false and malicious communications disparaging to one's title in land and
causing special damage.
Evidence supported trial court's conclusion that debtor did not act maliciously when he gave deed of trust
in favor of beneficiaries who had loaned money for purchase of real estate and that debtor did not commit
slander of title.
OPINION
Per Curiam:
This appeal involves Dora Higgins' (Dora) claim that her ex-husband Donald Patrick
Higgins (Patrick) slandered her title to two parcels of real property in Palomino Valley, and
Patrick's counterclaim for partial ownership of that realty.
Facts
Dora and Patrick were divorced in 1981. In the divorce proceeding, Patrick submitted a list
of community property indicating that the couple owned certain real property described as
"Palomino Valley 40 acres," having a stated value of $16,246.
ting that the couple owned certain real property described as Palomino Valley 40 acres,
having a stated value of $16,246. Patrick testified, however, that the couple in fact owned
three parcels of property in Palomino Valley and that the property described in the
community property list constituted a composite of the parties' equity interest in all three
parcels. The divorce court awarded Dora all the parties' interest in the Palomino Valley
properties in February, 1981, and again in rendering a decree of divorce some two months
later.
Five days before entry of the final decree of divorce, Patrick executed a deed of trust
purporting to encumber two of the parcels in favor of Richard and Susan Ashburn. Patrick
claimed that the Ashburns had provided the funds to purchase two of the parcels with the
understanding that they would be reimbursed. Consequently, Dora brought suit against the
Ashburns wherein the judgewho also presided over the divorce between Patrick and
Dora construed the divorce decree as encompassing the parcels funded by the Ashburns.
Dora subsequently brought the present slander of title action against Patrick; Patrick
counterclaimed for partial ownership of two parcels of Palomino land, asserting that the
divorce decree had adjudicated the parties' rights in only one parcel. The court dismissed
Dora's tort action and held that Patrick and Dora were co-owners of two parcels of land. Dora
appeals.
Discussion
We reverse the district court's determination that the divorce decree adjudicated the parties'
rights in only one parcel. Patrick's own testimony indicates that he placed before the divorce
court all of the equity interests the parties claimed in the various parcels of Palomino Valley
land. He testified repeatedly that, in preparing the list of properties on which the divorce court
relied, his purpose was to set forth in one sum the total equity owned by the parties, even
where the parties' interest consisted of partial ownership of multiple lots. Judge Bowen, who
entered the divorce decree, apparently so construed the parties' actions. Moreover, in Dora's
action against the Ashburns, the judge stated that the divorce decree had adjudicated the
spouses' rights in parcels nine and tenthe parcels covered by the trust deed. Thus, the
decree did not deal with only one parcel. Both the decision which preceded the divorce and
the final divorce decree awarded Dora the parties' interest in Palomino Valley properties or
lots; consequently, the decree did not leave open the ownership of two forty-acre parcels.
[Headnote 1]
Because ownership of the parcels in question was adjudicated in the divorce action, the
doctrine of res judicata bars any claim to the properties by Patrick: {1) the issue was
decided in a prior adjudication, {2) there was a final judgment on the merits, and {3) the
party against whom the defense is asserted was a party to the prior adjudication.
in the divorce action, the doctrine of res judicata bars any claim to the properties by Patrick:
(1) the issue was decided in a prior adjudication, (2) there was a final judgment on the merits,
and (3) the party against whom the defense is asserted was a party to the prior adjudication.
See York v. York, 99 Nev. 491, 664 P.2d 967 (1983). Furthermore, a judgment is conclusive
not only on the questions actually contested and determined but on all matters which might
have been litigated and decided in the suit. 99 Nev. at 493, 664 P.2d at 968 (citing 50 C.J.S.
Judgments 716 (1947)).
[Headnotes 2, 3]
Dora also contends that the trial court erred by adversely deciding her tort claim. Slander
of title involves false and malicious communications, Rowland v. Lepire, 99 Nev. 308, 313,
662 P.2d 1332, 1335 (1983), disparaging to one's title in land see Summa Corp. v.
Greenspun, 98 Nev. 528, 530, 655 P.2d 513, 514 (1982), and causing special damage,
Rowland, 99 Nev. at 313, 662 P.2d at 1335. While Patrick indeed had no interest to convey,
the record supports the trial judge's determination that Dora failed to provide the requisite
proof that Patrick acted with malice in connection with the deed of trust to the Ashburns.
Evidently, there was no dispute that the Ashburns put up the money for the two parcels; it is
quite possible that Patrick's actions were a genuine attempt to protect a friend's entitlement.
Moreover, Patrick enjoyed no potential monetary gain from his action. In any event, we
perceive no substantial evidence to support a finding that Patrick acted with malice.
Having concluded that the divorce court adjudicated the parties' rights in all three parcels
of Palomino Valley land, we reverse the decision of the trial court regarding ownership of
that property. The judgment of the district court is affirmed in all other respects.
____________
103 Nev. 445, 445 (1987) M & R Investment Co. v. State Dep't Transp.
M & R INVESTMENT COMPANY, INC., a Nevada Corporation, Appellant,
v. THE STATE OF NEVADA, on Relation of Its Department
of Transportation, Respondent.
No. 16828
October 29, 1987 744 P.2d 531
Appeal seeking new trial after judgment upon jury verdict in an eminent domain action;
Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
State brought action to condemn portion of property on west side of freeway. The district
court determined that property situated on west side, rather than landowner's property on both
sides of freeway, was large parcel for purpose of determining severance damages and that
joinder theory was not applicable. Landowner appealed. The Supreme Court, Springer, J.,
held that: (1) evidence created jury question whether parcels on both sides of freeway were
large parcel for purpose of determining severance damages, and (2) evidence created jury
question whether integration of property on west and east sides of freeway was reasonably
practicable.
Steffen and Mowbray, JJ., dissented.
Kermitt L. Waters, Las Vegas for Appellant.
Brian McKay, Attorney General, Melvin Beauchamp, Deputy Attorney General, and Dale
Haley, Deputy Attorney General, Carson City, for Respondent.
1. Eminent Domain.
Severance damages are awarded when partial taking of property occurs; owner recovers value of land
actually taken and amount by which remaining parcel is diminished in value by virtue of severance. NRS
37.110.
2. Eminent Domain.
Severance damages will not be awarded for injury to separate and independent parcels owned by
condemnee. NRS 37.110.
3. Eminent Domain.
In order to show that condemned parcel is part of larger parcel, it is generally held that there must be
unity of title and use of property; physical contiguity ordinarily must be shown, but is not always necessary.
NRS 37.110.
4. Eminent Domain.
Damaged parcels for purpose of determining severance damages need not be physically contiguous to
those taken so long as evidence discloses actual and existing unity of use and purpose and existing lawful
and utilized access between parcels. NRS 37.110.
5. Eminent Domain.
Evidence created jury question whether landowner's property on west and east sides of freeway was large
parcel from which property on west side of freeway was taken, whether unity of use existed between parcel
on east side that contained hotel and parcel on west side that was used for overflow parking, and whether
landowner was entitled to recover severance damages to property on both sides of freeway or property only
on west side of freeway. NRS 37.110.
6. Eminent Domain.
If highest and best use of separate parcels would involve prospective, integrated, unitary use, then
prospective use may be considered in fixing value of property condemned, providing joinder of parcels is
reasonably practicable. NRS 37.110.
7. Eminent Domain.
When valuating condemned parcel as part of large parcel or assemblage, requisite unity of use may be
merely prospective, but when assessing severance damages to remaining part of large parcel, requisite unity
of use must be actual and present. NRS 37.110.
8. Eminent Domain.
Although joinder is consideration in valuating condemned property and damages to remaining parcels,
possibility of joinder has no bearing on propriety of awarding severance damages to remaining parcels.
NRS 37.110.
9. Eminent Domain.
Even where severance damages to remaining parcel may not be appropriate, possibility of joinder may
still be proper consideration in valuation of property taken. NRS 37.110.
10. Eminent Domain.
To take advantage of joinder theory, condemnee must show that joinder or integration of various parcels
in question is reasonably practicable based on consideration of factors such as time and costs of uniting
land and willingness of other owners to participate in assemblage; party urging joinder theory must lay
foundation showing some probability of joinder. NRS 37.110.
11. Eminent Domain.
Evidence of planned golf course on landowner's property west of freeway and monorail construction to
join property on west and east sides created jury question whether future integration of east and west
parcels was reasonably practicable and created jury question whether condemnation of portion of property
on west side entitled landowner to damages based on integration of property on west and east sides. NRS
37.110.
OPINION
This action, tried before a jury, was brought by the State of Nevada (State) seeking to
condemn property owned by M & R Investment Company (M & R).
The State's eminent domain action was intended to obtain approximately fourteen acres of
M & R's twenty-seven-acre parcel of property for the expansion of the I-15 interchange at
Flamingo Road in Las Vegas. The twenty-seven acres is situated on the west side of I-15. The
Dunes Hotel, also owned by M & R, is on the east side of I-15 directly across from the
property at issue. Contemporaneously with the filing of the complaint, the State filed a
motion for immediate occupancy. The court granted that motion and required $2,393,800.00
to be deposited in court by the State (the value of the land as per the state appraisal).
M & R's answer to the State's complaint placed into issue the question of which property
was to be considered the large parcel for purpose of valuating the parcel condemned and
determining severance damages. M & R contended that the large parcel should consist of the
combined properties on both the west and east sides of I-15.
should consist of the combined properties on both the west and east sides of I-15. The State
insisted that only the twenty-seven-acre parcel on the west side of I-15, from which the
condemned acreage was taken, should be considered the large parcel. The district court
agreed with the State and ruled at a pre-trial hearing that the large parcel consisted of only the
twenty-seven acres on the west side of I-15.
After the district court's ruling on the large parcel issue, M & R sought to include the
possibility of joinder in its expert's valuation of the parcel condemned. The trial court
disallowed the use of the joinder theory by M & R's real estate expert because it was
substantially similar to the large parcel theory and constituted an attempt to avoid indirectly
the court's earlier ruling concerning the composition of the large parcel.
Ultimately, the jury returned a verdict placing the fair market value of the condemned
fourteen acres at $2,040,000.00 and severance damages to the remainder of the west parcel at
$180,000.00. M & R appeals the award.
Certain historical facts provide context and clarity to the issues before us. Originally, M &
R owned a 188-acre parcel of land situated at the southwest corner of Flamingo Road and Las
Vegas Boulevard. In 1965, the State successfully brought an eminent domain action for the
purpose of building I-15. As a result, approximately twenty-seven acres were isolated on the
west side of the freeway; the balance remained where the Dunes Hotel and golf course are
located on the east side of the freeway. M & R was paid $45,000.00 in severance damages at
that time.
In 1980, M & R formulated two alternative plans to develop the parcel on the west side of
the freeway in conjunction with its hotel, casino and golf course. The first plan was to move
four or five holes of the golf course to the west side of the freeway, thus releasing property on
the east side for condominium development. Later, M & R formulated a plan to connect the
west parcel to the east parcel by a monorail in contemplation of using the west parcel as a
park for recreational vehicles.
During the period in which these improvements were contemplated, the Dunes Hotel used
the west parcel for overflow hotel parking. Cars were parked there during special events at
the Dunes Hotel and Caesar's Palace.
Later approval for the expansion of the interchange at I-15 and Flamingo Road
necessitated condemnation of approximately fourteen acres from the twenty-seven-acre parcel
west of the freeway, thus resulting in the present action. M & R contends on appeal that the
district court erred in ruling that the twenty-seven-acre parcel situated west of I-15 was the
large parcel for purposes of determining the value of the parcel taken and severance damages
to the remainder. Alternatively, M & R contends that the district court erred in ruling that
the theory of joinder was not applicable.
district court erred in ruling that the theory of joinder was not applicable. M & R argues that
the issues should have gone to the jury for factual determinations. For reasons hereinafter
specified, we conclude that the trial court so erred, and we reverse the judgment.
Large Parcel and Severance Damages
[Headnotes 1, 2]
As noted above, M & R sought to have the condemned fourteen acres in the west parcel
considered part of the large parcel consisting of those parcels on both the east and west sides
of I-15. The concept of large parcel is instrumental in determining both the value of the
property condemned and whether severance damages are to be awarded in an eminent domain
action. Historically, severance damages are awarded when a partial taking of a landowner's
property occurs. The owner recovers not only the value of the land actually taken, but also the
amount by which the remaining parcel is diminished in value by virtue of the severance. See
Andrews v. Kingsbury Gen. Improvement Dist. No. 2, 84 Nev. 88, 436 P.2d 813 (1968); NRS
37.110.
1
Severance damages will not be awarded for injury to separate and independent
parcels owned by the condemnee. Sharp v. United States, 191 U.S. 341 (1903); State v.
McDonald, 656 P.2d 1043 (Wash. 1983). The issue thus presented becomes one of
identifying the remaining parcel that is injured when property is condemned. In other words,
from which large parcel was the condemned property taken?
[Headnotes 3, 4]
In order to show that a parcel condemned is part of a larger parcel, it is generally held that
there must be unity of title, contiguity, and unity of use of the property. City of Los Angeles
v. Wolfe, 491 P.2d 813, 815 (Cal. 1971). Ordinarily, physical contiguity must be shown but is
not always necessary. 491 P.2d at 815. The parcels damaged need not be physically
contiguous to those taken so long as the evidence discloses an actual and existing2 unity
of use and purpose and an existing, lawful and utilized access between the parcels.
____________________

1
NRS 37.110 states, in pertinent part:
The court, jury, commissioners or master must hear such legal testimony as may be offered by any of
the parties to the proceedings, and thereupon must ascertain and assess:
. . . .
2. If the property sought to be condemned constitutes only a part of a large parcel, the damages
which will accrue to the portion not sought to be condemned, by reason of its severance from the portion
sought to be condemned, and the construction of the improvement in the manner proposed by the
plaintiff.
. . . .
As far as practicable, compensation must be assessed for each source of damages separately.
those taken so long as the evidence discloses an actual and existing
2
unity of use and
purpose and an existing, lawful and utilized access between the parcels. 491 P.2d 819; Cole
Investment Co. v. United States, 258 F.2d 203 (9th Cir. 1958); Housing Authority of the City
of Newark v. Norfolk Realty Co., 364 A.2d 1052 (N.J. 1976); Sauvageau v. Hjelle, 213
N.W.2d 381 (N.D. 1973) (unity of use evidenced by integrated use of non-contiguous
parcels); State Road Commission v. Williams, 452 P.2d 548 (Utah 1969) (unity of use
evidenced by non-contiguous parcels functioning as a single economic unit); 4A Nichols, The
Law of Eminent Domain, 14.26[1] at 14-678 (J. Sackman ed. 1985).
Under the prevailing rule, identification of the larger tract is an issue of fact to be decided
by the trier of fact. United States v. 8.41 Acres of Land Situated in Orange County, State of
Texas, 680 F.2d 388 (5th Cir. 1982), reh'g denied, 685 F.2d 1385 (1982); Victor Co. v. State,
186 N.W.2d 168 (Minn. 1971); 4A Nichols, above, 14.26 at 14.649. Some jurisdictions
hold that the identification of the large parcel is a question of law, fact, or both, which the
judge should determine. United States v. 105.40 Acres of Land, More or Less, in Porter
County, State of Ind., 471 F.2d 207 (1972); People v. Nyrin, 63 Cal.Rptr. 905 (Ct.App. 1967).
While accepting the prevailing rule as being preferable in general, we recognize that there
may be instances wherein the facts are so compellingly clear that the issue becomes one of
law for determination by the trial court.
[Headnote 5]
In this case, however, the facts are not so compellingly clear as to warrant taking the
determination away from the jury. The use of the west parcel as a parking facility in
conjunction with the Dunes Hotel would have justified a jury finding that there was a unity of
use favoring M & R's position. The district court erred in not allowing the jury to determine
whether the condemned west parcel was part of the east parcel for the purpose of
awarding severance damages.
____________________

2
M & R asserts that there exists a federal minority rule which provides for severance damages to
noncontiguous parcels when evidence discloses an integrated unitary use in the reasonably near future, Baetjer v.
United States, 143 F.2d 391 (1st Cir. 1944), cert. denied, 323 U.S. 772 (1944). This statement, however, is
merely dicta. Furthermore, the language in Baetjer is derived from United States v. Powelson, 319 U.S. 266
(1943). The holding in Powelson is in reference to joinder and is not related to the issue of severance damages.
Baetjer's dictal expansion of the law of large parcel has been questioned by both commentators and other
federal courts. E.g., United States v. Certain Parcel of Land in Jackson County, Mo., 322 F.Supp. 841 (W.D.
Mo., W.D. 1971); Annotation, Eminent Domain-Damages-Severance, 6 A.L.R.2d 1197, 1203 (1949). Thus, we
view the so-called minority rule more as an aberration than as an alternate rule.
not allowing the jury to determine whether the condemned west parcel was part of the east
parcel for the purpose of awarding severance damages. Thus, the district court's ruling on the
large parcel issue is reversed, and the cause is remanded for a new trial in accordance with
this opinion.
Joinder and Valuation of Parcel Condemned
After the trial court ruled that the twenty-seven-acre parcel west of the freeway was the
large parcel for the purpose of awarding severance damages, precluding damages to the east
parcel, M & R sought to have the entire west parcel valued in connection with the east parcel
under the theory of joinder. The trial court rejected the joinder theory as an attempt to achieve
the large parcel composition urged previously and rejected by the court.
[Headnotes 6, 7]
Joinder, also referred to as assemblage, is a theory involving the prospect of joining
separate parcels. People v. Ocean Shore R.R., 196 P.2d 570 (Cal. 1948). If the highest and
best use of separate parcels would involve a prospective, integrated, unitary use, then such
prospective use may be considered in fixing the value of the property condemned providing
joinder of the parcels is reasonably practicable. 196 P.2d at 581; see also City of Stockton v.
Vote, 244 P. 609 (Cal. 1926); People ex rel. Dep't of Public Works v. TeVelde, 91 Cal.Rptr.
556 (Ct.App. 1970). Hence, when valuating the condemned parcel as part of a large parcel or
assemblage, the requisite unity of use may be merely prospective; whereas, when assessing
severance damages to the remaining part of a large parcel, the requisite unity of use must be
actual and present.
[Headnotes 8, 9]
Although joinder is a consideration in valuating the condemned property and the damages
to the remaining parcels, the possibility of joinder has no bearing on the propriety of awarding
severance damages to the remaining parcels. Ocean Shore R.R., 196 P.2d at 582. Thus, even
where severance damages to a remaining parcel may not be appropriate, the possibility of
joinder may still be a proper consideration in the valuation of the property taken. United
States v. Certain Parcel of Land in Jackson County, Mo., 322 F.Supp 8419 (W.D. Mo. W.D.
1971).
[Headnote 10]
To take advantage of the joinder theory, a condemnee must show that joinder or
integration of the various parcels in question is reasonably practicable. Factors considered
include time and costs of uniting the land and willingness of other owners to participate in
the assemblage.
costs of uniting the land and willingness of other owners to participate in the assemblage. See
City of Stockton, 244 P. at 609. The party urging the position must lay a foundation showing
some probability of joinder and carry the burden of proof. In laying such a foundation,
elements affecting value which are possible, but not reasonably probable, should be excluded.
Ocean Shore R.R., 196 P.2d at 583.
It is up to the jury to determine whether the market value of the condemned parcel is
increased when the possibility of joinder exists. Whether the combination of two parcels is
reasonably practicable is clearly a question of fact for the jury. See County of Santa Clara v.
Ogata, 49 Cal.Rptr. 397 (Ct.App. 1966).
[Headnote 11]
M & R attempted to offer the testimony of its appraiser, Mr. Metcalf, to show that under
his professional appraisal the highest and best use of the property on the west side was usage
in conjunction with the M & R property on the east side. Metcalf was also willing to opine
that there was a reasonable possibility that the two properties could be joined for joint usage.
The district court refused to admit any evidence regarding joinder with the larger east parcel
and limited Metcalf's testimony to the value of the property taken in relation to the smaller,
west parcel only.
Evidence of the planned golf course and monorail construction would have justified a jury
finding of a reasonably practicable future integration of the east and west parcels. The district
court erred in not allowing Mr. Metcalf to testify to the condemned parcel's value based on
the possibility of joinder.
The district court's rulings erroneously removed the issues of large parcel and joinder from
the jury's consideration of just compensation. Accordingly, the judgment upon the jury verdict
is reversed and the matter remanded for retrial.
Gunderson, C. J., and Young, J., concur.
Steffen, J., dissenting:
Respectfully, I dissent.
In my view the district court correctly understood and applied the law as required by the
trial evidence.
Large Parcel
The majority recognize that identification of the larger tract is an issue of law when the
facts are compellingly clear. I agree and conclude that the trial judge, after evaluating the
totality of the evidence and the credibility of witnesses, properly determined as a matter of
law that the 27-acre parcel of land on the west side of the freeway constituted the larger
parcel affected by the condemnation and the only property subject to valuation for the
purpose of establishing severance damages.
the freeway constituted the larger parcel affected by the condemnation and the only property
subject to valuation for the purpose of establishing severance damages.
Under the general rule of law cited by the majority, City of Los Angeles v. Wolfe, 491
P.2d 813 (Cal. 1971), the property must reflect a unity of title, contiguity and use. The
requirement of physical contiguity may be relaxed in the presence of evidence showing an
actual and existing unity of use and purpose. No such showing occurred here. The only
evidence of integrated use or functional connection between the west and east parcels was
irregular, isolated instances when the west parcel was used as supplemental parking for large
events hosted by the Dunes Hotel or an unrelated property, Caesar's Palace. There was,
therefore, no evidentiary basis under the majority rule for determining that the larger parcel
included the Dunes property east of the freeway. Moreover, M & R essentially conceded, in
its opening brief on appeal, that it could not prevail under the majority or general rule. It then
sought to persuade this court to adopt a so-called minority rule which, interestingly, the
majority reject as an aberration. We are thus faced with the anomaly of M & R recognizing
that it must lose under the majority rule since non-contiguous property was not being jointly
used at the time of condemnation, and the majority holding that M & R is entitled to have a
jury consider the issue under the same rule.
Indeed, even if we were to adopt the aberrational minority position, M & R would still
lose. The 1980 plans to utilize the west 27 acres as a fractional part of the existing golf
course on the east property or to use the west parcel as an RV park connected to the east
parcel by monorail represented such tentative, unfocused and speculative prospects for future
usage as to fail, as a matter of law, to satisfy the requirement of an integrated use to be
implemented in the reasonably near future.
I agree with the trial court and my brethren in the majority that the general rule applies to
this case. I therefore concur with M & R's recognition that, under the general rule, the trial
court correctly determined that the west parcel was the large parcel as a matter of law.
Joinder
After the trial court ruled that the 27-acre parcel west of the freeway was the larger parcel
for purposes of awarding severance damages, thus precluding damages to the hotel-casino
and golf course operation, M & R sought to have the west parcel valued in connection with
the hotel-casino and golf course under the theory of joinder. This theory likewise would have
produced greater damages than those suggested by the State, because of the impossibility of
joining the parcels allegedly intended for assembly in the future.1
sibility of joining the parcels allegedly intended for assembly in the future.
1

The trial court rejected the joinder theory as an attempt by another name to achieve the
larger parcel composition urged by M & R. In my opinion, the trial court was correct. The
large parcel theory would give severance damages based upon the amount of value lost
through severance, while the joinder theory would award damages based on the value lost by
disassembling tracts which had been or would, with reasonable probability, be assembled for
some higher use. The damages here would be nearly identical.
It is true that courts have accepted the joinder theory, see People ex rel. Department of
Public Works v. TeVelde, 91 Cal.Rptr. 556 (Ct.App. 1970); County of Santa Clara v. Ogata,
49 Cal.Rptr. 397 (Ct.App. 1966); however, the same issue arises here as with the large parcel
theory: was it within the province of the trial court to determine that this theory of appraisal
did not apply to the facts as presented? I believe that it was.
The joinder theory requires evidence of reasonable probability that the parcels will be
joined in the reasonably near futurethis includes considering whether the prospective use of
the parcel sought to be joined is adaptable for such use, needed or likely to be needed in the
near future, and reasonably (i.e., economically) practicable. Ocean Shore R.R., 196 P.2d at
583. The speculative, unfocused and uncommitted prospects for using the condemned acreage
as an adjunct to the hotel property to accommodate an RV park or a small portion of the
Dunes' golf course simply do not satisfy the legal requisites of joinder. Consequently, the trial
court correctly ruled as a matter of law that the theory was inapplicable.
2
My review of the
law and the record convinces me that the trial court provided a fair basis, to both
landowner and taxpayer, for assessing the value of the condemned land and the damages
occasioned by its severance from the remaining acreage.

____________________

1
The theory of joinder can be explained as follows:
The theory is used to show that the combined properties have a highest and best use superior to that of the
single condemned parcel. A higher recovery is then possible when the condemned parcel is considered as part of
the larger area. See People v. Ocean Shore R.R., 196 P.2d 570 (Cal. 1948).
To take advantage of the assemblage theory, a condemnee must show that joinder or integration of the
various parcels in question is reasonably practicable. Factors considered include time and cost of uniting the land
and willingness of other owners to participate in the assemblage. See Stockton v. Vote, 244 P. 609 (Cal. 1926);
People ex rel. Department of Public Works v. TeVelde, 91 Cal.Rptr. 556 (Ct.App. 1970). The weighing of the
foregoing factors is a question of fact for the jury. Santa Clara v. Ogata, 49 Cal.Rptr. 397, 401 (Ct.App. 1966).
Although the decisions concerning union of parcels have not spoken on the point, the party urging the position
must lay a foundation showing some probability of joinder and carry the burden of proof. [E]lements affecting
value which, while possible, are not reasonably probable, should be excluded. People v. Ocean Shore R.R., 196
P.2d at 583.

2
I observed that in the instant case there would be little difference in the practical effect of either theory. If,
as M & R contends, the larger parcel
My review of the law and the record convinces me that the trial court provided a fair basis,
to both landowner and taxpayer, for assessing the value of the condemned land and the
damages occasioned by its severance from the remaining acreage. Therefore, I would affirm.
Mowbray, J., concurs.
____________________
included the hotel property, the condemned land would have enjoyed the benefit of an appraisal substantially
increased by inclusion of the higher valued parcel and improvements. In addition, M & R would have received
severance damages representing loss of value sustained by the larger, uncondemned property. See supra, n. 1;
TeVelde, 91 Cal.Rptr. at 559. Under a joinder theory, M & R would have enjoyed the enhanced value effect of
joining the condemned parcel with the hotel property, just as it would if considered part of the hotel property as
the larger parcel. In addition to the higher value realized on the land taken, M & R also would have been entitled
to severance damages based upon the market value of the remaining property both before and after its severance
from the condemned acreage. Id. Indeed, TeVelde refers to the joinder and larger parcel theories
interchangeably. Id. Under the joinder theory, joinder should be shown to be both reasonably probable and
reasonably imminent. Ocean Shore R.R., 196 P.2d at 583. Property owners deprived of property by the power of
eminent domain are entitled to just compensation based upon the fair market value of the property taken. They
are not entitled to damages founded on speculation or conjecture as to what eventually might be possible
concerning the condemned land.
____________
103 Nev. 455, 455 (1987) Peterson v. State
DAVID ALAN PETERSON, Appellant, v. THE
No. 17538
November 12, 1987 744 P.2d 1259
Appeal from conviction of offering to sell a controlled substance and giving a controlled
substance away. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Defendant was convicted for offering to sell and giving away a controlled substance,
following trial in the district court and he appealed. The Supreme Court, Steffen, J., held that
admission of hearsay testimony as to statements made by undercover officer when he left
hotel room where he met with defendant, to corroborate the undercover officer's testimony
after defendant denied occurrence of transactions testified to by the undercover officer, was
prejudicial error where, according to defense theory, undercover officer's motive to lie arose
before he made the statements.
Carelli & Miller, Las Vegas, for Appellant.
Brain McKay, Attorney General, Carson City, Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, and Bradford Robert Jerbic, Deputy District Attorney,
Clark County, for Respondent.
1. Witnesses.
For prior consistent hearsay statements to be admissible to corroborate testimony of a witness, the prior
statements must have been made before witness had a motive to lie. NRS 51.035, 51.035, subd. 2(b).
2. Witnesses.
Testimony by other officers that undercover officer, after leaving hotel room, told them that defendant
had offered to sell undercover officer cocaine was not admissible over hearsay objection to corroborate
undercover officer's testimony at trial after defendant denied officer's version of events where, according to
defense theory, officer's motive to lie arose before he left the hotel room in that he was allegedly jealous
when woman with whom he had developed relationship repeatedly entered bedroom alone with defendant.
NRS 51.035, 51.035, subd. 2(b).
3. Criminal Law.
Error in admitting hearsay testimony that bolstered the credibility of a lone, crucial prosecution witness
was prejudicial, particularly where prosecutor highlighted the hearsay corroboration in closing arguments.
OPINION
Appellant David Alan Peterson appeals from his convictions of offering to sell and giving
away a controlled substance. For the reasons set forth below, we reverse.
The Facts
In the course of his work as an undercover narcotics officer, James Campbell developed a
relationship of trust with Leslie Dekeyser and periodically purchased cocaine from her.
Officer Campbell repeatedly asked Dekeyser to introduce him to someone who could provide
him with larger amounts of cocaine.
Near the hour of 4 a.m. on August 12, 1983, Dekeyser phoned Campbell and told him to
join her in room 1101 of the Tropicana Hotel where she would introduce him to a source of
larger quantities of cocaine.
1
Campbell responded promptly and was greeted by both
Dekeyser and Peterson. Campbell stayed in the room with Dekeyser and Peterson for
approximately four hours. During that time, all three ingested cocaine.
____________________

1
The source turned out to be Peterson. Dekeyser later testified the only reason she believed Peterson could
provide cocaine was because he knew a lot of people.
Campbell testified at trial that, during this first meeting, Peterson offered to sell him three
kilos of cocaine for $150,000. Campbell also testified that Peterson told him to secure the
money that afternoon and Peterson would provide the cocaine. The officer also stated that
Peterson gave him a 0.6 gram sample of cocaine before he left to obtain the $150,000.
Campbell exited the room at approximately 8:00 a.m. to secure the money. After leaving,
he spoke with two surveillance officers and a supervisor, each of whom later testified at trial
about their conversations with Campbell. At about 7:30 p.m., Campbell returned to the room
with $150,000. However, Peterson had no cocaine and a sale was never consummated.
Moreover, Peterson testified at trial that none of the alleged drug transactions with Campbell
ever occurred.
Peterson was convicted of the two felonies charged: giving away a controlled substance
and offering to sell a controlled substance. He was sentenced to ten years on each count, but
the sentences were suspended and he was given probation. This appeal followed.
Discussion
[Headnotes 1, 2]
After leaving room 1101 to obtain the $150,000, Campbell spoke with three other officers:
Sergeant Edwards, Officer Collins and Officer Acklin. Collins testified Campbell told him
that Peterson had given Campbell a small amount of cocaine and wanted to sell him more.
Acklin and Edwards testified Campbell told them that Peterson had offered to sell Campbell
cocaine. All three officers' testimony was admitted despite hearsay objections.
Peterson argues that the lower court erred in admitting the officers' testimony as prior
consistent statements. We agree.
Hearsay means a statement offered in evidence to prove the truth of the matter
asserted unless:
. . . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is:
. . . .
(b) Consistent with his testimony and offered to rebut an express or implied charge
against him of recent fabrication or improper influence or motive. . . .
On cross-examination, Campbell was accused of fabricating his testimony about Peterson's
actions.
2
Therefore, the lower court could properly admit, under NRS 51.035{b), prior
consistent hearsay statements to corroborate Campbell's testimony.
____________________

2
On cross-examination, the following exchange occurred:
court could properly admit, under NRS 51.035(b), prior consistent hearsay statements to
corroborate Campbell's testimony. However, to be admissible, these prior consistent
statements must have been made before Campbell had a motive to lie. See Smith v. State, 100
Nev. 471, 472, 686 P.2d 247, 248 (1984); Daly v. State, 99 Nev. 564, 568-69, 665 P.2d 798,
802 (1983).
This court has previously adopted defendants' theories of cases to determine when the
hearsay declarant's motive to lie arose. See Daly, 99 Nev. at 569, 665 P.2d at 802 ([if the
motives of the hearsay declarant] were as the defense suggested, the record would not
affirmatively show that her statements to her friend were made when she had no motive to
fabricate.) (emphasis added); Gibbons v. State, 97 Nev. 299, 301-02, 629 P.2d 1196, 1197
(1981).
Peterson argued at trial that Campbell's motive to lie arose during his first meeting with
Peterson and Dekeyser. Peterson argued that when Campbell entered the room at 4 a.m. and
saw Dekeyser alone with Peterson, and then later saw Dekeyser repeatedly enter a bedroom
alone with Peterson, Campbell became jealous and began his vendetta against Peterson.
Under Peterson's theory, Campbell's statements to the other officers clearly occurred
subsequent to the occasion for the motive. His comments to the three officers were made after
he ended his four-hour stay in the room and thus after the occasion for the allegedly jealous
feelings and vendetta arose.
3
Therefore, the lower court's admission of the three officers'
testimony was error.
[Headnote 3]
The prosecution's case rested entirely on the credibility of Campbell. The case was, in
essence, a swearing contest between Campbell and Peterson. By admitting hearsay testimony
that bolstered the credibility of a lone, crucial witness, the lower court committed prejudicial
error. See Smith, 100 Nev. at 474, 686 P.2d at 249; Daly, 99 Nev. at 569, 665 P.2d at 802;
Gibbons, 97 Nev. at 302, 629 P.2d at 1197. This is particularly true when three police officers
merely repeat the hearsay testimony of Campbell, thereby expanding the effect and credibility
of their fellow officer's testimony.
____________________
Ms. Roske: Well isn't it true that you've made these allegations against David Peterson because you're
jealous and for your own vengeance, your own vendetta?
Campbell: That's not true at all.

3
We, of course, express or infer no view concerning the strength or veracity of Peterson's theory. However,
the State accorded at least theoretical value to Peterson's contention by using it as a basis for the erroneous
admission of the hearsay testimony.
Moreover, the prosecutor highlighted the officers' hearsay corroboration in his closing
arguments. We have noted that such reemphasis magnifies the prejudicial effect of
improperly admitted corroborating hearsay. See Daly, 99 Nev. at 569, 665 P.2d at 802;
Gibbons, 97 Nev. at 302, 629 P.2d at 1197.
Because the lower court committed prejudicial error by admitting the hearsay testimony of
the three officers, it is unnecessary to consider other issues. The judgment of conviction is
reversed and the case remanded for a new trial.
Young, J., Springer, J., and Mowbray, J., concur.
Gunderson, C. J., concurring:
I fully agree with my brethren; however, I think it may be well to add a few further
comments.
Perhaps it can be argued that, when one is in pursuit of professional distinction as a
narcotics officer, one should not be expected to respect either the norms of social propriety or
of the law. The police officer who figures prominently in the instant case evidently thinks this
is so, and, of course, he is as entitled to his opinion as any other person. I personally will not
assay to make moral judgments about his behavior, but rather will permit the readers of this
opinion to reach their own conclusions. I must, however, recite the salient facts of the
officer's activities, so that I may explain my perceptions about his motives in the factual
context of this case.
As my brethren have pointed out, the central issue before us is: At the time the officer
made his hearsay statements to his fellow officers, did he then have a motive to lie, or to
distort intentionally or unintentionally? Although I agree with the analysis of my brethren, i.e.
that jealousy inferably gave the officer a motive to distort, I wish to elaborate upon the issue
of motive from what I consider to be a more fundamental perspective.
Now, then, let it first be said that Leslie Dekeyser was a businesswoman of some ability
and distinction, who had fallen victim to drug-pushers and had become addicted to cocaine.
She operated some fashionable dress shops which, at one time at least, before her addiction,
had been successful. The record indicates she was a user of cocaine, not a pusher in any
committed sense.
It appears from the record that the officer in question, whatever his other qualities may be,
is a physically attractive man. An undercover narcotics officer for the Las Vegas Metropolitan
Police Department, the officer apparently portrayed himself as a swinger, out for good
times on the Las Vegas strip. In this guise, he met Dekeyser andpursuing his efforts to
score arrestshe established a friendship, and then ultimately a romantic relationship
with her.
arrestshe established a friendship, and then ultimately a romantic relationship with her.
While enjoying her society thus, the officer induced Dekeyser to procure cocaine at his
instancewhich the policeman was wont to consume with her. As noted by my brethren, he
repeatedly pressed her to find someone who could sell him larger quantities of drugs than her
modest contacts were able to supply. Ultimately, attempting to meet his expectations,
Dekeyser introduced him to appellant Peterson. Her uncontested testimony is that she did not
do so because she had any information that he was a dealer, but only because she was aware
that Peterson knew a lot of people.
It is with this factual background in mind that I tender the thought that, in addition to the
motive of jealousy mentioned by my brethren, the officer in question had another, more
fundamental reason to dissemble or distort, when he tendered hearsay reports of Peterson's
alleged inculpatory remarks to the back-up officers outside the hotel room.
It seems quite clear that, for some time previously, the officer in question had harbored a
fixed purpose ultimately to set up and to arrest the woman he had seduced into serving his
purposes and needs. I suggest that police officers, like other humans, are motivated to see that
their own enterprises succeed. I suggest this is true, axiomatically, even of the best and most
honorable of officers, a category in which I believe many readers may conclude the officer in
question does not belong. Indeed, psychologists suggest that humans are subject to a tendency
to hear words in accord with their own expectationsa phenomenon called selective
auditory perception.
It therefore seems clear that, even in prosecutions far less clouded than this one, this court
could not condone any general practice permitting a prosecutor to bolster the testimony of an
officer who has precipitated an arrest, by introducing the out-of-court assertions of that same
officer that were made to other officers who heard nothing at all. A fortiori, I think we must
take such a view in this case, in which the officer's motives were otherwise suspect (as my
brethren have noted), and in which I believe most persons would agree some of his conduct
was unethical and arguably illegal.
1

In any case, from the facts of this case, I believe it clearly appears that the officer had a
pre-existing fixed purpose to score a bust with any person Dekeyser might be induced to
lure to himwhich person proved to be the hapless Peterson, a legitimate businessman with
no criminal record whatever.
____________________

1
It may be worthwhile to note that, following the incident in question, the officer was relieved from duty as
an undercover agent and assigned to airport guard duty.
mate businessman with no criminal record whatever. Obviously, therefore, quite apart from
jealousy, at the time of his out-of-court statements, the officer had a preexisting motive to lie,
or, at least, to construe the words of Dekeyser and Peterson in accord with the officer's
established interests and purposes.
I question that there should ever be a case in which an investigating officer, who arranges
an arrest, may properly bolster his own story by making and then invoking contemporaneous
out-of-court statements made to back-up officers.
2
In any event, if one can hypothesize a
state of facts in which such hearsay would be legitimate, I suggest that the instant case does
not present it.
Finally, I also wish to note that, although I have no fundamental disagreement with my
brethren, I believe as a matter of judicial economy that we should say right now that this case
is not worth a retrial. Thus, I would remand with instructions to dismiss. At any retrial, as my
brethren point out, the back-up officers could not properly testify. Also, as has been noted,
the investigating officer's testimony would be impeached by his own recognized motive of
potential jealousy, based on his relationship with Dekeyser. The officer's testimony is directly
contradicted by appellant Peterson who, as previously mentioned, is a businessman with no
prior arrests. His testimony is also directly contradicted by Dekeyser, the vulnerable but once
socially respectable businesswoman whom he used, lied to, manipulated, and betrayed. In the
face of all this, I submit with all due respect to the officer that, at a new trial, his
uncorroborated interpretation of what was said behind the closed doors of a hotel room would
not establish an offer to sell drugs beyond a reasonable doubt.
____________________

2
Obviously, such an officer's testimony will almost always be contradicted and, if we were to hold that such
contradiction routinely opens the door to the introduction of out-of-court hearsay statements, then the limited
exception that NRS 51.035 contemplates to the hearsay rule would be expanded to subsume the rule. Clearly,
such a thing was never intended by our Legislature.
____________
103 Nev. 462, 462 (1987) Taylor v. Vilcheck
GAIL HURT TAYLOR, Appellant, v.
ALAN C. VILCHECK, Respondent.
No. 16581
THE COUNTY OF YOLO, on Behalf of CHERYL ANN DRAKE,
Appellant, v. ROBERT THOMAS DRAKE, Respondent.
No. 17017
November 20, 1987 745 P.2d 702
Consolidated appeals from orders of the district courts in RURESA proceedings. Fifth
Judicial District Court, Nye County; William P. Beko, Judge (No. 16581); Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge (No. 17017).
Two revised Uniform Reciprocal Enforcement of Support Act proceedings were brought.
The district courts entered judgment. Consolidated appeals were taken. The Supreme Court,
Mowbray, J., held that: (1) district court had jurisdiction to enter order enforcing child
support payments in amount less than amount set forth in prior child support decree, and (2)
district court lacked jurisdiction to increase prospective child support payments to amount
greater than that set forth in prior decree.
Affirmed.
Brian McKay, Attorney General, Nancy Ford Angres, Deputy Attorney General, Carson
City, for Appellant Gail Taylor; Rex Bell, District Attorney, John B. Squires and V. Monet
Woods, Deputy District Attorneys, Las Vegas, for Appellant County of Yolo.
Rick Lawton, Fallon, for Respondent Alan Vilcheck; Brian H. Breedlove, Las Vegas, for
Respondent Robert Drake.
1. Parent and Child.
In a Revised Uniform Reciprocal Enforcement of Support Act proceeding, district court had jurisdiction
to enter order enforcing child support payments in amount less than amount set forth in prior child support
decree in Kentucky, where obligor father had demonstrated that his present financial condition warranted a
reduction. NRS 130.010 et seq.
2. Divorce.
Record did not disclose what defenses, if any, father asserted with respect to amount of arrearages of
child support due; accordingly, it had to be assumed district court did not err by requesting additional
documentation relating to total amount of arrearages accrued as of date of its order before it entered
judgment for amount of alleged arrearages. NRS 130.010 et seq.
District court lacked jurisdiction in Revised Uniform Reciprocal Enforcement of Support Act proceeding
to increase prospective child support payments to an amount greater than that set forth in prior decree;
however, amount of prospective support payments may be increased to structure payment schedule
calculated to pay off accrued arrearages under prior decree. NRS 130.010 et seq., 130.030, 130.0411,
130.210, subd. 2, 130.265, subd. 2, 130.280, subd. 1.
OPINION
These are separate appeals from orders of the Fifth and Eighth Judicial District Courts
enforcing the child support obligations of the individual respondents pursuant to the
provisions of Nevada's Revised Uniform Reciprocal Enforcement of Support Act (RURESA).
See NRS 130.010 et seq. Because of the similarity of the issues of law presented, we have
consolidated these appeals for decision. See NRAP 3(b). Specifically, in both cases, the
parties contest the jurisdiction of the district courts of this state, in accordance with Nevada's
RURESA statutes, to enter child support orders which alter the amount of support payments
due under prior child support decrees. In light of the arguments presented to this court by the
parties to these appeals, we perceive a need to clarify the law of this state relating to the
authority of our district courts to award child support payments in RURESA proceedings that
differ from previous awards. Before discussing the specifics of these two cases, however, a
brief overview of the law in this area is warranted.
The purpose of the Revised Uniform Reciprocal Enforcement of Support Act is to improve
and extend by reciprocal legislation in separate jurisdictions the enforcement of existing
duties of family support. See NRS 130.030; State ex rel. Welfare Div. v. Vine, 99 Nev. 278,
283, 662 P.2d 295, 298 (1983). Generally speaking, RURESA itself creates no duties of
family support, but is concerned solely with the enforcement of the already existing duties
when the person to whom a duty is owed is in one state and the person owing the duty is in
another. See Annotation, Construction and Effect of Provision of Uniform Reciprocal
Enforcement of Support Act That No Support Order Shall Supercede or Nullify Any Other
Order, 31 ALR 4th 347, 351 (1984) citing Uniform Reciprocal Enforcement of Support Act,
Commissioner's Prefatory Note, 9B U.L.A. 382 (1968); see also NRS 130.280; Vix v. State
of Wisconsin, 100 Nev. 495, 686 P.2d 226 (1984) (in RURESA proceedings, a court only has
jurisdiction to order enforcement of pre-existing duties of support).
order enforcement of pre-existing duties of support). Moreover, the remedies provided by the
act are in addition to and not in substitution for any other remedies. See NRS 130.050. The
act further provides that it shall be so interpreted and construed as to effectuate its general
purpose to make uniform the law of those states which enact it. See NRS 130.020.
As discussed below, the major issue in these appeals involves the construction and effect
of NRS 130.280(1) which directs that:
A support order made by a court of this state pursuant to this chapter does not nullify
and is not nullified by a support order made by a court of this state pursuant to any
other law or by a support order made by a court of any other state pursuant to a
substantially similar law or any other law, regardless of priority of issuance.
Prior to 1981, this statute contained language which permitted a Nevada court in a RURESA
proceeding to modify a previous support award but only if the modification was specifically
provided for in the reciprocal support order. See, e.g., Peot v. Peot, 92 Nev. 388, 551 P.2d
242 (1976). The legislature, however, specifically deleted this modification provision from
NRS 130.280 by amendments adopted in 1981. See 1981 Nev. Stats. ch. 418 5.
With the above policy considerations in mind, we turn to a discussion of the merits of the
present appeals.
Taylor v. Vilcheck, No. 16581
In 1977, appellant Gail Hurt Taylor and respondent Alan Vilcheck obtained a divorce
decree, pursuant to a settlement agreement, in Jefferson County, Kentucky. The agreement
and the divorce decree awarded custody of the parties' minor child to appellant Taylor. In
1981, the Jefferson County Circuit Court entered an order modifying the original settlement
agreement and divorce decree, pursuant to a further agreement between the parties, to
provide, inter alia, that Vilcheck would pay Taylor $65.00 per week in child support until the
child attained the age of eighteen years. Thereafter, appellant apparently remarried and moved
with her child to Colorado, where in 1984 she sought enforcement of the Kentucky decree
with respect to the award of weekly child support and $2,435 of alleged arrearages. The
Colorado initiating court forwarded the action to the Nye County District Attorney, who,
pursuant to Nevada's RURESA statutes, filed the instant action against respondent. A hearing
was held before the district court on September 12, 1984. Respondent Vilcheck appeared in
proper person and moved the district court to reduce his prospective child support
payments.1 On May 14, 19S5, the district court entered a written order reducing
Vilcheck's prospective monthly child support payments to $150 per month.
to reduce his prospective child support payments.
1
On May 14, 1985, the district court
entered a written order reducing Vilcheck's prospective monthly child support payments to
$150 per month. The district court specifically ruled that its determination was made after an
examination of [Vilcheck's] income, expenses, and ability to pay. Additionally, the district
court ordered that a judgment for the amount of arrearages would be entered after it received
documentation of those arrearages from the initiating court. This appeal followed.
Appellant Taylor first contends that prior holdings of this court prohibit the district court
from entering an order enforcing prospective monthly support payments against Vilcheck in a
lesser amount than that provided in the prior Kentucky decree. Specifically, appellant
observes that in Vix v. State of Wisconsin, 100 Nev. 495, 497, 686 P.2d 226, 227 (1984), this
court stated that in a RURESA proceeding, a district court only has jurisdiction to order the
enforcement of a pre-existing duty of child support, and furthermore is prohibited from
modifying or nullifying a pre-existing duty to any extent. (Emphasis in original.) See also
NRS 130.280(1), supra.
Respondent correctly contends, however, that our holding in Vix is inapposite, and that the
above-cited language in Vix should not be construed to prohibit the actions of the district
court in the instant case. In Vix, the parties' initial divorce decree awarded custody of a minor
child to the father. Thereafter, in violation of the custody award, the mother took the child to
Wisconsin, and refused to return him to the father. In response to a RURESA action filed by
the State of Wisconsin seeking reimbursement for child assistance payments, the Nevada
district court entered an order directing the father to pay the mother prospective child support
in the amount of $175 per month. As we noted in Vix, the Nevada RURESA court thereby
altered the previously imposed obligations of the parties in essence changing [the father's]
status to that of a non-custodial parent owing partial child support in the specific sum of $175
a month. . . . See Vix, 100 Nev. at 497, 686 P.2d at 227. Thus, we concluded in Vix that not
only did the court's URESA order purport to alter [the father's] financial obligations . . . , it
essentially changed the custodial status of the parties. Id. Consequently, we held that [s]uch
changes in the custodial status and financial obligations of the parties were clearly outside
the scope of a URESA proceeding.
____________________

1
We note that the record on appeal does not contain a written copy of respondent's motion. We also note that
respondent Vilcheck now has retained counsel to represent him in this appeal. Additionally, the Attorney
General's Office of the State of Nevada presently is representing appellant Taylor on appeal.
(Emphasis added.) Id. Moreover, we observed that [s]uch changes may only be made in a
proceeding in which a party has brought a motion to modify the original divorce decree or
any subsequent custody or support orders. (Emphasis added.) Id. at 497-98, 686 P.2d
227-28.
Unlike the situation in Vix, the district court's order in the present case did not modify or
alter any previously-imposed custodial duties or obligations. The district court merely found
that although respondent was under a previously-imposed child support obligation, his
financial status at the time of the hearing below precluded him from paying the full amount
set forth in the Kentucky decree. Such an order has no effect on the prior decree issued by the
Kentucky court. See NRS 130.280; Foster v. Marshman, 96 Nev. 475, 478, 611 P.2d 197, 199
(1980) (a Nevada RURESA order setting support payments at $30 per month per child did
not modify a prior California support obligation setting child support payments at $60 per
month per child); Campbell v. Jenne, 563 P.2d 574 (Mont. 1977) (Idaho and Montana
RURESA orders setting child support at a lesser amount than provided in a prior Nevada
divorce decree did not modify the Nevada decree; the Nevada decree was entitled to full faith
and credit in a separate civil action for enforcement of that judgment). Moreover, we note that
the full amount of support ordered by the Kentucky court will continue to accumulate under
that prior order, and appellant may seek enforcement of any arrearages due under the
Kentucky decree, subject to a credit for any payments made pursuant to the Nevada RURESA
order, in an appropriate civil action. See Foster v. Marshman, supra. See also NRS
130.265(2) (court must conform its support order to the amount allowed in the prior
proceeding unless the court is of the opinion for good cause shown that another amount
would be proper); McEvily v. McEvily, 437 A.2d 1110 (Vt. 1981) (the practical difficulties
involved in enforcing an order that an obligor is unable to carry out mandate that a court must
be able to alter the manner of payment to reflect the inability of the obligor to comply). As
discussed in more detail below, however, in a RURESA proceeding, a Nevada court may only
increase the amount of payments due under a prior support decree in order to structure a
payment schedule calculated to decrease accrued arrearages.
[Headnote 1]
In light of the above, we hold that, in a RURESA proceeding, a district court of this state
has jurisdiction to enter an order enforcing child support payments in an amount less than the
amount set forth in a prior child support decree, where the obligor has demonstrated that his
or her present financial condition warrants such a reduction.
tion warrants such a reduction. Based on our review of the record in Docket No. 16581, we
are not persuaded that the district court abused its discretion in enforcing a reduced amount of
support payments. Consequently, we affirm the order of the district court.
We also note that our review of this appeal was hampered by the inadequate state of the
record on appeal. The record on appeal in the instant case does not contain a copy of
respondent's written motion seeking a reduction, nor does it contain a transcript of the hearing
below, or a settled and approved statement of the evidence and proceedings. See NRAP
10(b), (c) and (e). As we have previously held, in the absence of a prima facie showing that
the judgment of the district court was clearly erroneous, or that it was not based on substantial
evidence, this court must assume that the record supports the lower court's factual finding that
a reduction was warranted. See Jaramillo v. Blackstone, 101 Nev. 316, 704 P.2d 1084 (1985);
State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709 (1959).
[Headnote 2]
Appellant Taylor further contends that the lower court abused its discretion by delaying
entry of the judgment for the amount of alleged arrearages until it received documentation of
those arrearages from the Colorado initiating court. Appellant notes that the only evidence in
the record before us relative to the amount of arrearages due is contained in a notarized
affidavit of Gail Taylor asserting that $2,435 is due and owing as arrears from the period of
May 20, 1981, to and including May 17, 1984. Appellant further asserts that the district
court erred by requiring documentation from the Colorado initiating court because, under the
Kentucky decree, respondent was to pay support directly to appellant. Appellant maintains,
therefore, that the Colorado court is not in a position to document any arrearages.
Respondent observes, however, that appellant's initial complaint sought an order toward
arrearages in the amount of $2,435, as of May 17, 1984, and also requested the court to
please update the arrearages. Similarly, the order and certificate issued by the Colorado
initiating court indicated that the arrearages should be updated subsequent to May of 1984.
Accordingly, respondent contends that the lower court simply was seeking an updated
affidavit or deposition relating to the amount of arrearages due after May 17, 1984.
NRS 130.210(1) provides in pertinent part that the affidavit of the obligee is admissible
into evidence subject to challenges using the procedure proscribed in NRS 130.205. NRS
130.205, in turn, provides:
If the obligee is not present at the hearing and the obligor denies owing the duty of
support alleged in the complaint or offers evidence constituting a defense, the court,
upon request of either party, may continue the hearing to permit evidence relative
to the duty to be adduced by either party by deposition or interrogatories or by
appearing in person before the court.
offers evidence constituting a defense, the court, upon request of either party, may
continue the hearing to permit evidence relative to the duty to be adduced by either
party by deposition or interrogatories or by appearing in person before the court. The
court may designate the judge of the initiating court as a person before whom a
deposition may be taken or interrogatories propounded.
(Emphasis added.)
As previously noted, the sparse record before us contains neither a transcript of the hearing
before the district court, nor a settled and approved statement of the evidence presented.
Thus, the record does not disclose what defenses, if any, respondent asserted with respect to
the amount of arrearages due. Under these circumstances, we must assume that the district
court did not err by requesting additional documentation relating to the total amount of
arrearages accrued as of the date of its order. See State ex rel. Lyon v. Lyon, 75 Nev. 495, 346
P.2d 709 (1959). Accordingly, we reject appellant's assignments of error, and we affirm the
judgment of the district court in Docket No. 16581.
County of Yolo v. Drake, No. 17017
On September 14, 1977, the Superior Court of Yolo County, California entered a final
judgment dissolving the marriage of Judy and Robert Drake. The dissolution decree
incorporated the provisions of a prior interlocutory order that awarded custody of the Drakes'
minor child, Cheryl Ann, to Judy Drake. It further directed respondent Robert Drake to pay
$50 per month in child support until the child reaches the age of majority, or further order of
this court. (Emphasis added.)
On February 3, 1983, the district attorney of Yolo County, California, filed a RURESA
complaint on behalf of the minor child in a California Superior Court. The complaint alleged
that the child had been receiving $253 per month in public assistance from Yolo County, and
that, as of December 31, 1982, a balance of $8,778 in public assistance was due and owing.
See, e.g., NRS 130.100.
2
Consequently, the complaint sought an order compelling
respondent to pay support in the amount of $253 per month, or a reasonable amount based
on [respondent's] financial ability. Further, the complaint requested that respondent be
directed to pay the alleged balance of $8,778 in accrued public assistance.
____________________

2
Whenever the state, or a political subdivision thereof, furnishes support to an individual obligee, it has
the same right to initiate a proceeding under this chapter as the individual obligee for the purpose of
securing reimbursement for support furnished or of obtaining continuing support, or both.
Thereafter, the California initiating court forwarded the complaint to the Clark County
District Attorney, who instituted RURESA proceedings against respondent in the Eighth
Judicial District Court. The district court then referred the matter to a special master, and
subsequently entered a series of temporary support orders adopting the master's
recommendations. The last of these temporary orders was filed by the district court on
October 1, 1984. The order approved the master's recommendation that respondent be
directed to pay $75 per month in child support.
On November 8, 1984, following this court's decision in Vix v. State of Wisconsin, 100
Nev. 495, 686 P.2d 226 (1984), respondent filed a motion to reduce his child support
payments to conform to the $50 per month amount directed in the prior California divorce
decree. Respondent asserted that this court's holding in Vix precluded the district court from
entering a child support order in an amount greater than the amount provided in the prior
California decree. On December 4, 1984, the master filed findings of fact, conclusions of law
and a recommended order denying respondent's motion to reduce the support payments.
Respondent filed timely objections to the master's findings on December 12, 1984. See NRCP
53(e)(2). On January 15, 1985, appellant (the County of Yolo) moved the district court for an
order approving the master's findings of December 4, 1984. On June 26, 1985, the district
court entered an order denying appellant's motion seeking approval of the master's findings.
The district court further directed that respondent's prospective child support payments should
conform to the $50 per month figure provided in the prior California divorce decree, and that
respondent's arrears if any be calculated at $50 per month from December of 1984.
3

Thereafter, appellant filed a timely motion in the district court for additional findings of
fact. See NRCP 52(b). Appellant requested the court to find that respondent has the ability to
pay $75 per month in child support recommended by the Master on December 4, 1984, and
that it is reasonable for him to do so. Appellant further requested the district court to find
that were this an action brought to modify the [California divorce decree] that there are
sufficient changed circumstances to require a modification. On September 6, 1985, the
district court entered an order refusing to make the requested additional findings of fact
relating to respondent's ability to pay child support in excess of $50 per month.
____________________

3
The district court also ordered that any sum paid by respondent in excess of $50 per month after . . .
respondent filed his objection to the Master's Findings . . . be credited to any arrearages which heretofore have
accumulated.
relating to respondent's ability to pay child support in excess of $50 per month. The court
stated that it had no jurisdiction in a RURESA hearing to consider the increase in child
support which was in excess of that previously ordered in the divorce action. This appeal
followed.
[Headnote 3]
Appellant contends that the district court erred in concluding that it lacked jurisdiction, in
a RURESA proceeding, to increase respondent's prospective child support payments to an
amount greater than that set forth in the prior decree. Appellant first contends that a reading
of Nevada's RURESA provisions, in light of the entire act, compels a conclusion that the
legislature intended to confer jurisdiction upon the district courts, in RURESA proceedings,
to increase the amount of a support obligation imposed in a prior civil proceeding. See Ex
Parte Prosole, 32 Nev. 378, 108 P. 630 (1910) (court should look to the entire act in
construing the meaning of a particular clause). Specifically, appellant observes that NRS
130.265(2) provides in part that a RURESA court must conform its support order to the
amount allowed in a prior, separate civil action unless the court is of the opinion for good
cause shown that another amount would be proper. Additionally, appellant points to NRS
130.210(2) which essentially provides that an order issued by a court of this state in a
RURESA proceeding has the same effect and is subject to the same procedures, defenses
and proceedings for . . . modifying . . . any support order of this state. . . . Appellant also
cites NRS 130.030 (purposes of [RURESA] are to improve and extend by the reciprocal
legislation the enforcement of duties of support), and NRS 130.0411 (duty of support is a
duty imposed or imposable by law or order). (Emphasis added.)
The construction advanced by appellant, however, ignores the legislature's amendments to
NRS 130.280(1). As we previously noted, the legislature amended NRS 130.280(1) in 1981
so as to delete the language permitting a Nevada court to modify or nullify a prior order of
support. In our view, this amendment to NRS 130.280(1) clearly indicates a legislative intent
to prohibit the district courts of this state from modifying or nullifying a pre-existing duty of
support in a RURESA proceeding. See Vix v. State of Wisconsin, supra. Moreover, the
above-noted provisions of the act cited by appellant are not inconsistent with NRS 130.280(1)
as amended. For example, NRS 130.265(2) can be reasonably construed to apply to the case
where an obligor demonstrates to the responding court that good cause exists for a
temporary reduction in the amount of support payments due under a prior decree. As we
previously explained, such a reduction does not amount to a modification or nullification of
the prior order.
tion does not amount to a modification or nullification of the prior order.
The more difficult question, however, is whether a RURESA court may order an increase
in the amount of support payments due under a prior decree and whether such an order
modifies or nullifies the pre-existing duty of support. As discussed above, the district court, in
a RURESA action, may reduce the amount of support payments awarded under a prior
decree, without modifying or nullifying the prior decree, if the obligor is unable to pay the
original amount. See Foster v. Marshman, 96 Nev. 475, 611 P.2d 197 (1980); Campbell v.
Jenne, 563 P.2d 574 (Mont. 1977). We conclude, however, that the same rationale does not
apply in cases where an increase over the initial amount of support is sought in a RURESA
action.
Initially, we note that strong practical reasons, as well as policy considerations, mandate
our conclusion in this regard. As noted, the remedies provided by RURESA are in addition
to and not in substitution for any other remedies. (Emphasis added.) See NRS 130.050. An
obligee who wishes to litigate the question of changed circumstances necessitating an
increase in previously-imposed support payments may pursue other more appropriate
remedies than RURESA provides. See e.g., NRS 125A.010 et seq. Moreover, the
circumstances and the procedures employed in formal civil proceedings differ substantially
from those in a RURESA proceeding. See Peot v. Peot, 92 Nev. 388, 390, 551 P.2d 242, 244
(1976). Under RURESA, one seeking support . . . is not usually present in the responding
state, and relies upon the prosecuting attorney of the various states in which the obligor is
found. Id. Further, a RURESA court is not bound by the changed circumstances' doctrine
and is primarily concerned with the enforcement of support. Id. We further observe that in
light of the aforementioned legislative amendment to NRS 130.280(1), it is doubtful that the
legislature ever envisioned that RURESA should place upon the already overburdened
prosecuting attorneys of this state the additional obligation of litigating the complex questions
involved where an absent obligee seeks an increase in a prior support award on the basis of
changed circumstances. Such cases, if they are to be adequately litigated and decided, require
a thorough review of the facts and circumstances giving rise to the initial decree, as well as an
extensive investigation and documentation of the alleged changes in those facts and
circumstances. The sparse records and limited factual predicates upon which suits are
initiated in summary RURESA proceedings often do not afford the prosecuting attorney an
adequate evidentiary basis from which he or she can meet the requisite affirmative burden of
proof. It is difficult to see how a prosecuting attorney acting on behalf of an absent obligee
can fulfill his or her mandate to litigate such a case diligently under these circumstances.4
See NRS 130.190{2).
to litigate such a case diligently under these circumstances.
4
See NRS 130.190(2). In our
view, the prosecuting attorneys of this state, acting on behalf of an absent obligee, should not
be forced to litigate the complex issues involved where support increases are sought on the
limited evidence and summary procedures contemplated by the RURESA scheme. See, e.g.,
NRS 130.210.
Moreover, a RURESA order directing an increase in the amount of support payments due
from an obligor is much more likely to effect, in practical terms, a real modification of a prior
support decree than is a corresponding temporary reduction. In the case of a reduction, the
difference between the greater and lesser amounts will continue to accrue in the form of
arrearages due under the prior decree. In contrast, where an increase in prospective support
payments has been imposed by a RURESA court on the basis of changed circumstances, it is
unlikely that an obligor, in an action based on the prior decree, could recover or obtain credit
for any support paid pursuant to the RURESA action which was in excess of the amount
ordered in the initial decree. Accordingly, we conclude that an increase imposed in a
RURESA proceeding is much more likely to effect a modification in realistic terms.
We are mindful of the contrary authorities from other jurisdictions allowing RURESA
courts in those states to increase the amount of prospective support payments due under prior
support decrees based upon the independent nature of RURESA proceedings. See, e.g., Koon
v. Boulder Cty., Dept. of Soc. Serv., 494 So.2d 1126 (Fla. 1986); Jaramillo v. Jaramillo, 618
P.2d 528 (Wash.Ct.App. 1980); Olson v. Olson, 534 S.W.2d 526 (Mo.Ct.App. 1976). We
must defer, however, to the legislature's 1981 amendment to NRS 130.280(1) as a clear
pronouncement of legislative intent to deny the courts of this state, in RURESA proceedings,
the jurisdictional authority to increase the amount of a pre-existing duty of support. See, e.g.,
Bushway v. Riendeau, 407 A.2d 178 (Vt. 1979) (interpreting a Vermont RURESA provision
to preclude an increase); see also McEvily v. McEvily, 437 A.2d 1110 (Vt. 1981)
(distinguishing the Riendeau opinion and holding that Vermont courts must be able to alter
manner of payment to reflect obligor's inability to comply with pre-existing order). Nothing in
this opinion, however, should be construed to preclude a district court, in a RURESA
proceeding, from increasing the amount of prospective support payments in order to
structure a payment schedule calculated to pay off accrued arrearages under the prior
decree.
____________________

4
We note that an equally onerous burden of proof rests upon the obligor seeking a temporary reduction in
support payments on the grounds that his or her current financial status precludes payment of the full amount
due. However, RURESA actions typically are litigated in jurisdictions where the obligor and his current
financial records are located. Further, the obligor may engage private counsel to litigate the cause.
ing the amount of prospective support payments in order to structure a payment schedule
calculated to pay off accrued arrearages under the prior decree. Accrued arrearages clearly
constitute good cause under NRS 130.265(2) to enter a support order in an amount in
excess of the periodic amounts due under a prior decree. In this regard, we observe that in
future RURESA proceedings, the County of Yolo may appropriately seek an increase in
respondent's monthly support payments in order to decrease accrued arrearages.
5

Accordingly, we reject appellant's contentions and we affirm the judgment of the district
court in Docket No. 17017.
Gunderson, C. J., Steffen, Young, and Springer, JJ., concur.
____________________

5
The parties have not discussed the applicability to these appeals of those provisions of RURESA which
relate to the registration of foreign support orders. See NRS 130.320 to NRS 130.370. We note that NRS
130.370(1) provides in part that a properly registered foreign support order shall be treated in the same manner
as a support order issued by a court of this state and that [i]t has the same effect and is subject to the same
procedures, defenses and proceedings for reopening, modifying, vacating or staying as a support order of this
state. . . . Nothing in NRS 130.370(1) conflicts with the views expressed herein. The provision clearly provides
that a foreign support decree, once registered here, is subject to the same res judicata effect as a support decree
of this state, and it may be reopened and modified in the same manner as a support decree of this state, i.e., in a
formal civil proceeding. See also NRS 17.350.
____________
103 Nev. 473, 473 (1987) K.J.B. Inc. v. District Court
K.J.B. INC., a Nevada Corporation, Petitioner, v. SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
WASHOE, AND THE HONORABLE JERRY CARR WHITEHEAD,
DISTRICT JUDGE, Respondents.
No. 17867
November 20, 1987 745 P.2d 700
Original petition for writ of prohibition.
Petition was filed for writ of prohibition challenging district court granting temporary writ
of restitution to real party in interest pending trial of unlawful detainer action and ordering
tenant to vacate real property by date certain. The Supreme Court held that original
jurisdiction over landlord tenant disputes for possession of lands and tenements was vested
exclusively in justices' courts, and district court therefore exceeded its jurisdiction.
Writ granted.
Douglas Norberg, Reno, for Petitioner.
Smith & Corder, Reno, for Respondents.
Courts.
District court would be prohibited from enforcing order granting temporary writ of restitution and from
exercising jurisdiction over unlawful detainer action, as original jurisdiction over landlord-tenant disputes
for possession of lands and tenements was vested exclusively in justices' courts. Const. Art. 6, 6;
NRS 4.370.
OPINION
Per Curiam:
This original petition for a writ of prohibition challenges an order of the district court
granting a temporary writ of restitution to real party in interest Emmett Kelly, and ordering
petitioner, K.J.B. Inc., to vacate certain real property in Reno, Nevada. We conclude that the
district court exceeded its jurisdiction in issuing the writ of restitution, and therefore we grant
this petition.
The predecessors in interest of Kelly and KJB entered into a lease agreement on July 1,
1977. Disputes over rent arose between Kelly and KJB in 1985. Kelly commenced an
unlawful detainer action in the justice's court, and the justice of the peace scheduled a hearing
for October 8, 1985. The parties, however, entered into negotiations on October 7, 1985, and
the unlawful detainer action was continued and eventually abandoned. Although the
negotiations never resulted in any written agreement, KJB continued to occupy the real
property and to pay rent in an increased amount until November of 1986. In December, 1986,
when KJB tendered a check for rent to Kelly in an amount less than the amount KJB had paid
in the preceding thirteen months, Kelly served a thirty-day notice to quit on KJB.
On December 19, 1986, Kelly commenced an action in the district court alleging unlawful
detainer and seeking damages in excess of $10,000 on theories of failure to repair and waste.
KJB answered the complaint and, as an affirmative defense, asserted that the district court
lacked subject matter jurisdiction over the unlawful detainer portion of the complaint. KJB
moved for dismissal of the unlawful detainer action. The district court rejected KJB's
challenge to its jurisdiction, granted a temporary writ of restitution to Kelly pending trial, and
ordered KJB to vacate the real property by a date certain. This petition followed.
KJB contends that the district court exceeded its jurisdiction in issuing a writ of
restitution in this case.
issuing a writ of restitution in this case. Specifically, KJB contends that the justices' courts
have exclusive, original subject matter jurisdiction over disputes for possession of land in any
case where the relation of landlord and tenant is involved, regardless of the amount of any
ancillary claims for damages. According to KJB, the district courts have only appellate
jurisdiction in such cases. We note that this argument presents an issue of statutory
construction which is a question of first impression in Nevada.
1

Prior to 1978, the Nevada Constitution allowed the district courts and the justices' courts
to exercise concurrent jurisdiction in some areas, including unlawful detainer actions. In
1978, however, Article 6, section 6 of the Nevada Constitution was amended to provide, in
part: The District Courts . . . shall have original jurisdiction in all cases excluded by law
from the original jurisdiction of the justices' courts. Therefore, the district courts have no
original jurisdiction in matters in which the justices' courts have original jurisdiction. In short,
concurrent jurisdiction between the district courts and the justices' courts can no longer exist.
In 1981, the legislature amended NRS 4.370 to make it consistent with the relevant 1978
amendment to the constitution. As amended, NRS 4.370 now provides for the original
jurisdiction of the justices' courts as follows:
1. Except as limited by subsection 2, justices' courts have jurisdiction of the
following civil actions and proceedings and no others except as provided by specific
statute:
. . .
(g) Of actions for the possession of lands and tenements where the relation of
landlord and tenant exists.
(h) Of actions when the possession of lands and tenements has been unlawfully or
fraudulently obtained or withheld, if damages are sought and the damages claimed do
not exceed $2,500.
Thus, by the express terms of this statute, it appears that the justices' courts enjoy exclusive
original jurisdiction over all actions for possession of lands if the relation of landlord and
tenant exists.
2
Kelly argues, however, that subsections {g) and {h) of NRS 4.370, when
read together, provide that the justices' courts have original jurisdiction over unlawful
detainer actions when the amount of damages sought is less than $2,500, but that the
district courts have such jurisdiction if the amount of damages exceeds $2,500.

____________________

1
Kelly has cited three cases to this court which Kelly contends are relevant to the issue now before this court.
See Gasser v. Jet Craft Ltd., 87 Nev. 376, 487 P.2d 346 (1971); Waugh v. Casazza, 85 Nev. 520, 458 P.2d 359
(1969); Volpert v. Papagna, 83 Nev. 429, 433 P.2d 533 (1967). We note, however, that the statute and
constitutional provisions involved in the present case have been substantially amended since the decision of
these cases. Therefore, these cases shed very little light on the issue now before this court.

2
The legislative history of NRS 4.370, although limited, appears to support this conclusion. Frank Daykin,
legislative counsel and drafter of the
Kelly argues, however, that subsections (g) and (h) of NRS 4.370, when read together,
provide that the justices' courts have original jurisdiction over unlawful detainer actions when
the amount of damages sought is less than $2,500, but that the district courts have such
jurisdiction if the amount of damages exceeds $2,500. Such a construction of the statute
would effectively amend subsection (g) to add the words unless damages in excess of $2,500
are sought. Further, the phrase actions for possession of lands and tenements where the
relation of landlord and tenant exists in subsection (g) was apparently intended to have a
different meaning than the phrase actions when the possession of lands and tenements has
been unlawfully or fraudulently obtained or withheld, if damages are sought . . . in
subsection (h).
Subsections (g) and (h) are a part of a list of subsections providing the jurisdiction of the
justices' courts. Each subsection stands on its own without reference to the others.
Significantly, subsection (g) is the only subsection that does not include a specific monetary
limit. Thus, construing the statute to impose a monetary limit in subsection (g) would render
nugatory the express language of the statute and would be contrary to the intent of the
legislature. We therefore reject such a construction. See Nevada Tax Comm'n v. Bernhard,
100 Nev. 348, 683 P.2d 21 (1984) (statute should be construed to give meaning to all of its
parts); see also Nevada State Personnel Div. v. Haskins, 90 Nev. 425, 529 P.2d 795 (1974).
We conclude, therefore, that original jurisdiction over landlord-tenant disputes for
possession of lands and tenements is vested exclusively in the justices' courts. Although the
district court had jurisdiction to entertain Kelly's cause of action for damages, it lacked
jurisdiction over Kelly's unlawful detainer action. The district court, therefore, exceeded its
jurisdiction by granting Kelly a temporary writ of restitution. Accordingly, we grant this
petition. The clerk of this court shall forthwith issue a writ of prohibition precluding the
district court from enforcing its order granting Kelly a temporary writ of restitution and from
exercising any jurisdiction over Kelly's action for possession of the subject real property.3
____________________
amendments to NRS 4.370, explained that NRS 4.370, as amended, would vest exclusive jurisdiction over
disputes for possession of real property between landlords and tenants in the justices' courts. Daykin recognized
that the statute would require separate actions for possession and damages in some cases because the Nevada
Constitution no longer allows for concurrent jurisdiction, but Daykin suggested that a defendant should not be
allowed to delay an action for possession of land by forcing the matter into the district court. See Minutes of
Assembly Committee on Judiciary, March 3, 1981.
exercising any jurisdiction over Kelly's action for possession of the subject real property.
3

____________________

3
In light of this order, we deny Kelly's request for attorney's fees and costs.
____________
103 Nev. 477, 477 (1987) Nevada Dep't Prisons v. Bowen
NEVADA DEPARTMENT OF PRISONS, GEORGE SUMNER,
DIRECTOR, Appellant, v. WAYNE L. BOWEN, Respondent.
No. 17395
November 20, 1987 745 P.2d 697
Appeal from order granting writ of habeas corpus. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Defendant convicted of robbery with use of deadly weapon and sentenced to consecutive
seven-year prison terms petitioned for writ of habeas corpus. The district court granted
petition and ordered immediate release. Director of Department of Prisons appealed. The
Supreme Court held that penalty for primary offense and enhancement penalty for use of
deadly weapon in commission of crime were separate and distinct and consecutive sentences
imposed had to be treated as separate for all purposes.
Affirmed.
Brian McKay, Attorney General and Arthur G. Noxon, Deputy Attorney General, Carson
City, for Appellant.
Terri Steik Roeser, State Public Defender and Michael K. Powell, Chief Appellate Deputy
State Public Defender, Carson City, for Respondent.
Criminal Law.
Penalty for primary offense and enhancement penalty imposed for use of firearm or other deadly weapon
are separate and distinct, and consecutive primary and enhancement sentences must be treated as separate
sentences for all purposes; overruling Biffath v. Warden, 95 Nev. 260, 593 P.2d 51; Director, Prisons v.
Biffath, 97 Nev. 18, 621 P.2d 1113; Kreidel v. State, 100 Nev. 220, 678 P.2d 1157. NRS 193.165.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondent's post-conviction
petition for a writ of habeas corpus, and ordering respondent's immediate release from
prison.
and ordering respondent's immediate release from prison. We affirm.
The facts are not disputed. On June 29, 1979, respondent was convicted of one count of
robbery with the use of a deadly weapon. Respondent was sentenced to two consecutive
seven-year prison terms; seven years for the robbery and seven years for the use of a deadly
weapon. See NRS 200.380; NRS 193.165. The State Board Parole Commissioners (parole
board) treated respondent's sentences as two separate seven-year terms. Therefore,
respondent was granted an institutional parole from his first seven-year sentence to his second
seven-year sentence on May 27, 1980. In early 1981, pursuant to Director, Prisons v. Biffath,
97 Nev. 18, 621 P.2d 1113 (1981), prison officials recalculated the sentences of all prisoners
serving consecutive sentences for using a deadly weapon during the commission of a crime to
reflect this court's opinion that the primary sentence for an offense and the enhancement
sentence for the use of a deadly weapon must be treated as a single sentence for purposes of
computing parole eligibility. Respondent's sentence was recomputed at that time, and
respondent was so informed. Thereafter, the parole board and the prison treated respondent's
two consecutive sentences as a single term of imprisonment for all purposes. It is stipulated,
however, that the parole board took no official action to revoke the institutional parole
granted to respondent on May 27, 1980. Instead, the parole board and the department of
prisons simply ignored the institutional parole as a nullity.
On February 19, 1986, respondent petitioned the district court for a writ of habeas corpus,
contending that his sentence had finally expired on May 29, 1985. The district court,
reasoning that the parole board was the only entity that could revoke a parole, concluded that
respondent's parole was effective until formally revoked. Therefore, the district court granted
the petition on the sole ground that the parole board had not taken any official action to
revoke respondent's institutional parole.
The state contends that the district court erred in concluding that official action on the part
of the parole board was necessary to revoke appellant's institutional parole. According to the
state, the opinions of this court on which the parole board and the department of prisons
relied in ignoring respondent's institutional parole rendered his initial institutional parole void
as a matter of law, and no action on the part of the parole board was required to revoke
respondent's institutional parole. Because we have determined that the decision of the district
court must be affirmed on other grounds, we decline to address the state's contention at this
time.
NRS 193.165 (emphasis added) provides in relevant part as follows: 1.
1. Any person who uses a firearm or other deadly weapon . . . in the commission of
a crime shall be punished by imprisonment in the state prison for a term equal to and in
addition to the term of imprisonment prescribed by statute for such crime. The sentence
prescribed by this section shall run consecutively with the sentence prescribed by
statute for such crime.
2. This section does not create any separate offense but provides an additional
penalty for the primary offense, whose imposition is contingent upon the finding of the
prescribed fact.
In Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), this court upheld the
constitutionality of NRS 193.165 against attacks based on double jeopardy and vagueness.
Specifically, this court concluded that the enhancement sentence for the use of a deadly
weapon in the commission of a crime constituted an additional penalty for the primary
offense rather than a separate offense. Therefore, this court perceived no conflict between the
penalty imposed by NRS 193.165 and the double jeopardy clause of the United States
Constitution. This court also held that NRS 193.165 was sufficiently clear and definite to
withstand constitutional scrutiny under the vagueness doctrine. Id. at 762, 542 P.2d at 1400.
In Raby v. State, 92 Nev. 30, 544 P.2d 895 (1976), this court, relying on Woofter, vacated
five of Raby's ten convictions that were improperly based on Raby's use of a firearm in the
commission of five robberies. This court held that, although Raby's sentences for the five
robberies could be enhanced for the use of the dangerous weapon pursuant to NRS 193.165,
the enhancement sentences did not constitute separate offenses that could form the bases of
separate convictions. We now reaffirm our holdings in Woofter and Raby.
1

In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979) (Biffath I), a prisoner relied on
Woofter to support his contention that a primary sentence and an enhanced sentence must be
treated as one sentence for purposes of computing statutory good-time credits. In deciding the
appeal, this court noted that read literally, NRS 193.165(1) purports to prescribe a separate
sentence for use of a firearm in the commission of a crime. . . . Id. at 263 n. 3, 593 P.2d at
52. However, this court was concerned that, if literally construed, such provision [of NRS
193.165(1)] would contravene fundamental double jeopardy guarantees against multiple
punishments for the same offense." Id. {emphasis added).
____________________

1
In dicta in Woofter, this court stated: It is also a fundamental concept expressed in criminal statutes
providing a single sentence of imprisonment for each distinct crime that a defendant may not be punished more
than once for the same offense. Id. at 758, 542 P.2d at 1397. To the extent that this language may be read to be
inconsistent with this opinion, it is expressly disapproved.
contravene fundamental double jeopardy guarantees against multiple punishments for the
same offense. Id. (emphasis added). This fundamental conception of the requirements of the
double jeopardy clause prompted this court to ignore the plain language of NRS 193.165, and
to conclude that the primary sentence and enhancement sentence must be treated as a single
sentence for purposes of awarding good-time credits. In Director, Prisons v. Biffath, 97 Nev.
18, 621 P.2d 1113 (1981) (Biffath II), relying on the same reasoning, this court held that a
primary sentence and an enhancement sentence must be treated as one sentence for purposes
of computing eligibility for parole.
2
Finally, in Kreidel v. State, 100 Nev. 220, 222, 678 P.2d
1157, 1158 (1984), this court reaffirmed the decision in Biffath II, and held that Biffath II
should be applied retroactively. The state and this court have since treated the primary and
enhancement sentences as one continuous sentence for all purposes.
3

In Missouri v. Hunter, 459 U.S. 359 (1983), the United States Supreme Court held that the
double jeopardy clause of the United States Constitution does not preclude a state legislature
from imposing cumulative punishments for a single offense. The Court stated: With respect
to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater punishment than the legislature
intended. Id. at 366. This court specifically recognized and followed the holding in Hunter
first in Koza v. State, 100 Nev. 245
____________________

2
The result of treating two consecutive sentences as one continuous sentence benefits a minority of prisoners
who have no prospect of being paroled. This is because more good-time credits may be earned in the fifth and
subsequent years of a sentence than in the first four years. See NRS 209.443. For the vast majority of prisoners,
however, the result is a significantly longer time behind bars, because prisoners serving multiple consecutive
sentences may be paroled from a prior sentence to a subsequent sentence, thus satisfying both sentences
concurrently.

3
Respondent notes that this court's opinions have held that a primary and enhancement sentence must be
treated as one sentence for purposes of awarding good-time credits and computing parole eligibility only.
Respondent correctly argues that no opinion of this court has yet determined that the primary and enhancement
sentences must be treated as one sentence for purposes of determining the date the sentence or sentences expire.
Respondent suggests that we could affirm the ruling of the district court by holding that the primary and
enhancement sentences must be treated as one continuous sentence for purposes of awarding good-time credits
and computing parole eligibility, but as two separate sentences for purposes of determining the date the
sentences expire. We see no logical reason for treating an enhanced sentence under NRS 193.165 differently in
the context of computing the final expiration date of a sentence than we did in the Biffath decisions, in the
context of parole eligibility or the awarding of good-time credits. Not only would such a holding be inconsistent
with our prior opinions, it would impose an unreasonable administrative burden on prison officials. We therefore
reject this suggestion.
100 Nev. 245, 681 P.2d 44 (1984), and again in Talancon v. State, 102 Nev. 294, 721 P.2d
764 (1986). Thus, the basis for this court's decisions in Biffath I, Biffath II and Kreidel, i.e.,
that the double jeopardy clause precluded the imposition of multiple sentences for a single
offense, was incorrect.
As noted above, NRS 193.165 clearly evidences a legislative intent to impose separate
penalties for a primary offense and for the use of a deadly weapon in the commission of the
offense. The statute imposes a separate term of imprisonment equal to and in addition to
the term of imprisonment imposed for the primary offense. This separate prison term must be
served consecutively to the term of imprisonment imposed for the primary offense, and the
legislature expressly declared that NRS 193.165(1) provides an additional penalty for the
primary offense. NRS 193.165(2). When the intention of the legislature is clear, it is the duty
of this court to give effect to such intention and to construe the language of the statute so as to
give it force and not nullify its manifest purpose. See Hughes Properties v. State of Nevada,
100 Nev. 295, 680 P.2d 970 (1984); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396
(1975). We conclude, therefore, that the penalty for a primary offense and the enhancement
penalty imposed pursuant to NRS 193.165 are separate and distinct, and the consecutive
sentences imposed must be treated as separate sentences for all purposes. Accordingly, we
hereby overrule Biffath I, Biffath II and Kreidel, and we affirm the decision of the district
court.
4

____________________

4
We note that, pursuant to our decision in Biffath II, the prison officials and parole board have been treating
the primary sentence and the enhanced sentence as one continuous sentence. Therefore, prisoners who have had
their sentences enhanced pursuant to NRS 193.165 have not been granted institutional paroles. The result of
converting these prisoners' sentences from a single sentence to separate consecutive sentences pursuant to this
opinion might be to lengthen the actual time these prisoners will spend in prison because they did not receive the
benefit of an institutional parole which would have allowed them to serve the bulk of their sentences
concurrently. Because this opinion is not foreseeable based on our prior opinions, we conclude that it would be
unfair to apply this decision retroactively to the detriment of any prisoner. Accordingly, this opinion shall be
applied retroactively to the extent possible, but in no case shall this opinion be applied to the detriment of any
prisoner sentenced before the date hereof.
____________
103 Nev. 482, 482 (1987) Chung v. Atwell
PAUL CHUNG and EDWARD JONG, Appellants, v. DAVID L. ATWELL, dba RESORT
PROPERTIES OF AMERICA, Respondent.
No. 16634
November 20, 1987 745 P.2d 370
Appeal from judgment awarding $100,000 for breach of contract. Eighth Judicial District
Real estate broker sued purchasers of certain property for their alleged breach of exclusive
dealing agreement. The district court entered judgment in favor of broker, and purchasers
appealed. The Supreme Court held that agreement between real estate broker and would-be
purchasers was not sufficiently definite to be enforceable against purchasers as exclusive
dealing agreement.
Reversed.
Keefer, O'Reilly & Haight, Las Vegas, for Appellant Paul Chung.
Robert E. Gaston, Las Vegas, for Appellant Edward Jong.
Robert M. Apple, Las Vegas, for Respondent.
1. Contracts.
Contract, to be enforceable, must be sufficiently definite.
2. Brokers.
Agreement between real estate broker and would-be purchasers of property, in which purchasers agreed
that any negotiations on property would be handled through broker, was not sufficiently definite to be
enforceable against purchasers as exclusive dealing agreement, where document did not disclose broker's
fees or commissions, did not specify what services broker was to perform, and was deceptively labeled as
offer for sale rather than as exclusive dealing agreement.
OPINION
Per Curiam:
This is an appeal from a district court judgment awarding respondent Atwell $100,000 for
appellants' breach of contract.
The Facts
Atwell is a licensed real estate broker doing business as Resort Properties of America.
Great Western authorized Atwell to offer the El Cid Hotel for sale for $3,600,000 and
promised him a $200,000 commission if he successfully arranged a sale.
Appellants Chung and Jong, interested in purchasing real property in Las Vegas, noticed a
newspaper advertisement, placed by Atwell, concerning hotel properties for sale. Chung met
with Atwell in response to this advertisement. During this meeting, Chung signed a document
prepared by Atwell. The document stated that it was an offer for sale of certain properties
and also contained a clause stating that the parties understood that any negotiations on the
properties will be handled through Resort Properties of America. At this time, Atwell
provided Chung with information about certain properties, including the El Cid.
Chung made an offer to Great Western, through Atwell, for the El Cid. Great Western
rejected the offer but made a counter-offer, which Chung and Jong never accepted. Chung
and Jong then became disenchanted with Atwell's services and sought another way to
purchase the El Cid.
Chung began negotiating a purchase of the El Cid through two other brokers, Johann and
Ungaro. As a result of successful negotiations through these brokers, Chung and Jong entered
a lease/purchase agreement with Great Western. Atwell then sued Chung and Jong for breach
of contract, alleging they had breached a contract to deal exclusively with him. The district
court held Chung and Jong jointly and severally liable for breach of contract and awarded
Atwell $100,000. Chung and Jong appeal from this decision.
Discussion
Atwell argues that the document, which he prepared, was an exclusive dealing contract
which was breached by Chung and Jong. We disagree. The document prepared by Atwell is
not an enforceable exclusive dealing contract. Atwell's putative contract provided:
This report is an offer for sale of the subject property.
The information in this report is based upon data obtained from sources we deem
reliable and is believed to be correct, but we assume no liability for accuracy, errors,
omission, changes, prior sales or leases, or withdrawal from the market without notice.
All information is given confidentially and with the understanding that any negotiations
on the properties will be handled through Resort Properties of America. . . . Valid for
one year.
Atwell contends that in exchange for the information on the properties, Chung and Jong
agreed to negotiate exclusively through him for a one-year period concerning any purchase of
the El Cid.
[Headnote 1]
However, even if we assume Atwell's document is an agreement, rather than an incomplete
offer to sell,
1
it would not be enforceable. A contract, to be enforceable, must be sufficiently
definite. De Remer v. Anderson, 41 Nev. 287, 301, 169 P. 737, 741 (1918); Restatement
(Second) of Contracts 33 (1981). In determining whether a contract or its terms are definite,
an important consideration is whether the court can determine [the putative contract's] exact
meaning and fix the legal liability of the parties. Pendleton v. Sard, 297 A.2d 889, 892 (Me.
1972) (quoting Corthell v. Thread Co., 167 A. 79, 81 (Me. 1933)).
[Headnote 2]
Atwell's document does not meet this standard, as it is materially deficient in detail. For
example, Atwell did not specify the service, if any, he would provide Chung and Jong in
exchange for their promise to use him exclusively. Moreover, Atwell's document does not
contain any information about fees or commission, if any, Chung and Jong were to pay for
Atwell's services. In addition, Atwell deceptively labeled the document a report or an offer
for sale. Rather than stating in plain language what Chung was giving up by signing the
document, the document provided, in an oblique manner, that Atwell was giving information
with the understanding that any negotiations on the property will be handled through Resort
Properties.
2

In accordance with the above observations, we conclude, as a matter of law, Atwell's
instrument was incomplete and unenforceable. The judgment of the lower court is therefore
reversed with direction to enter judgment for Chung and Jong.
____________________

1
Atwell labeled his document an offer for sale. Were we to characterize it as such, it would clearly not bind
Chung and Jong to Atwell's services. An offer and its terms are not binding until accepted by the offeree. Chung
and Jong never accepted this offer.

2
We also note that an argument could be made concerning the conscionability of the purported agreement.
Rather than providing meaningful, reciprocal consideration for Chung's promise to deal exclusively, Atwell
attempted to bind Chung to his services for one full year solely in exchange for information of questionable
value. We again emphasize the lack of definition and clarity in the document prepared by Atwell. Given the
language of this document, it is doubtful that an ordinary layman would realize what he was relinquishing in
return for what he was being granted, let alone Chung with his limited command of English. Henningsen v.
Bloomfield Motors, Inc., 161 A.2d 69, 92 (N.J. 1960).
____________
103 Nev. 485, 485 (1987) Georgeff v. Sahara Hotel
GERARD GEORGEFF, Appellant, v.
SAHARA HOTEL, Respondent.
No. 17775
November 30, 1987 745 P.2d 1142
Appeal from judgment of the district court reversing administrative decision; Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
Employee who suffered knee injury sought permanent partial disability. The district court
reversed Department of Administration Appeals officer's decision and order awarding
compensation, and employee appealed. The Supreme Court, Springer, J., held that appeals
officer properly made permanent partial disability award, though rating process was
conducted by physician other than one selected by insurer, where evidence was presented by
certified and qualified rating physician, and no request was made by insurer to postpone
hearing or defer decision until report of selected physician was available.
Reversed.
King, Clark, Gross & Sutcliff, Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondent.
Insurer acted properly in refusing to select physician to rate employee for permanent partial disability
where, on date when employee demanded that his claimed disability be rated, no physician had determined
that he was stable, and there was no information in insurer's file on claimant which indicated probability
that he had ratable impairment; claimant did not have absolute right to permanent partial disability
evaluation. NRS 616.605, subd. 2.
Appeals officer properly made permanent partial disability award, though rating process was conducted
by physician other than one selected by insurer, where evidence was presented by certified and qualified
rating physician, and no request was made by insurer to postpone hearing or defer decision until report of
selected physician was available. NRS 616.605, subd. 2.
OPINION
The district court reversed a department of administration appeals officer's decision and
order awarding appellant Gerard Georgeff permanent partial disability compensation.
Georgeff permanent partial disability compensation. Because we believe that, under the
circumstances of this case, the appeals officer did not exceed his jurisdiction, we reverse the
district court order and reaffirm the appeals officer's award.
On June 16, 1985, Georgeff suffered an injury to his knee while working for the Sahara
Hotel. After treatment by an orthopedist, Georgeff was released to return to work. On October
4, 1985, Georgeff, claiming permanent injury, made a request to the insurance administrator
of his self-insured employer, Sahara Hotel, that he be rated for a permanent partial disability
(PPD) award. Having only the treating orthopedist's report, which revealed no indication of a
claimed permanent back injury, the administrator refused to order a PPD evaluation.
Nevada Administrative Code 616.5545
1
specifies that when a designated panel physician
has determined that a claimant is stable, stationary or ratable and information in the insurer's
file on the claim indicates the probability that he has a ratable impairment, then the insurer
must comply with subsection 2 of NRS 616.605
2
by selecting a physician, from a panel
designated by the administrator, to evaluate the claimant.
It is clear that on October 4, 1985, the date on which Georgeff demanded that his claimed
disability be rated, no physician had, in accordance with NAC 616.5545. determined that
[the] claimant [was] stable, stationary, or ratable nor was there any information in the
insurer's file on the claimant [which] indicat[ed] the probability that he [had] a ratable
impairment. What information there was in the claimant's file showed that he was not
permanently disabled; and certainly there was no medical determination that his
condition was "stable, stationary or ratable."
____________________

1
NAC 616.5545 provides as follows:
1. When a physician appointed to the panel of physicians has determined that a claimant is stable,
stationary or ratable and information in the insurer's file on the claimant indicates the probability that he
has a ratable impairment, according to the American Medical Association's Guides to the Evaluation of
Permanent Impairment, the insurer shall comply with subsection 2 of NRS 616.605 by selecting a
physician, from a panel designated by the administrator, to evaluate the claimant and determine the extent
of any permanent impairment.
2. If the evaluating physician finds that the claimant has a ratable impairment, the insurer shall,
within 30 days after the physician's evaluation, offer the claimant the award to which he is entitled.

2
NRS 616.605(2) provides as follows:
2. The insurer shall select a physician from a group of rating physicians designated by the
administrator, to determine the percentage of disability in accordance with the American Medical
Association's Guides to the Evaluation to Permanent Impairment in the form most recently published and
supplemented before January 1, 1985. The department may supplement this publication by adopting
regulations for a supplemental guide.
permanently disabled; and certainly there was no medical determination that his condition
was stable, stationary or ratable.
On October 22, 1985, Georgeff appealed the insurer's refusal to select a physician to rate
him for permanent impairment. While the appeal was pending, Georgeff went to a Dr.
Vincent Cedarblade, who determined that Georgeff was in fact permanently impaired at the
level of six percent permanent partial disability.
When the appeal reached the hearing stage before a department of administration hearing
officer, the hearing officer accepted Dr. Cedarblade's report into evidence and in accordance
with the requirements of NRS 616.605(2) ordered the insurer to select a physician for rating
purposes as set out in the statute. The insurer complied and scheduled an examination with
Dr. Richard Kudrewicz for January 14, 1986.
Rather than permit the rating process to be carried out in the manner established by the
statute, Georgeff filed, on January 7, 1986, an appeal of the hearing officer's decision. No
stated basis for appealing the hearing officer's decision appears in the record, but Georgeff
apparently took the position that notwithstanding the language of NAC 616.5545, he has an
absolute and unqualified right to require his insurer to select a rating physician even though,
at the time of the request, there was no evidence of his being in a ratable condition.
After commencing the appeal process the claimant was examined by Dr. Kudrewicz. At
the appeals officer's hearing, Dr. Kudrewicz's report was not offered by the insurer and the
only evidence of impairment was Dr. Cedarblade's report. No request was made by the insurer
for additional time within which it could present the Kudrewicz report, and the appeals
officer's hearing resulted in a decision favoring Georgeff and awarding him a six percent PPD
award, based entirely on Dr. Cedarblade's report.
The insurer takes the position that Dr. Cedarblade's report will not support a PPD award
and that the district court was correct in invalidating the appeals officer's decision. The
claimant adopts the appeals officer's conclusion that the insurer's failure to select a physician
under NRS 616.605(2) within a reasonable period of time suspends the statutory scheme
delineated in NRS 616.605 and gives to the claimant (as stated in the appeals officer's
decision) the prerogative to seek an independent assessment of disability.
[Headnote 1]
With respect to the claimant's position, it is clear that neither this claimant, nor any
claimant, has the absolute right to a PPD evaluation. If this were the case, a claimant could
demand that the insurer select a physician to rate him or her long before the rating process
became reasonable and certainly before there was a physician's determination of
stability.3
rating process became reasonable and certainly before there was a physician's determination
of stability.
3

As indicated above, the insurer in this case did not act improperly in refusing, at the time it
did, to select a physician for rating purposes. If the insurer had information indicating the
probability that [Georgeff] ha[d] a ratable impairment, (NAC 616.5545) and had,
nonetheless, refused to select a rating physician, then a variety of compulsions and sanctions
might have been invoked.
4

Although the claimant's position is incorrect, as are the reasons in support of the claimant's
position given by the appeals officer, we do not think that, under the circumstances, the
appeals officer's PPD award in the amount of six percent on a body basis should be set aside
by the district court.
[Headnote 2]
The district court's decision to invalidate the appeals officer's decision is based on its
conclusion that the appeals officer could make a PPD award only on the basis of a rating
conducted by a physician selected by the insurer in the manner stated in NRS 616.605(2). At
first blush one would conclude that a PPD rating should not be upheld without the rating
process having been conducted by a physician "selected" by the insurer in the manner set
out in NRS 616.605{2).
____________________

3
A claimant has other remedies in a case where an insurer refuses to determine if a claimant's condition is
stable or ratable. These are clearly defined under NRS 616.5416(2). NRS 616.5416(2) provides:
2. If necessary to resolve a medical question concerning an injured employee's condition, the hearing
officer may refer the employee to a physician or chiropractor chosen by the hearing officer. If the medical
question concerns the rating of a permanent disability, the hearing officer may refer the employee to a
physician or chiropractor designated by the administrator. The insurer shall pay the costs of any medical
examination requested by the hearing officer.
In 1987, subsection three was added to NRS 616.5426 granting the same power to the appeals officer.

4
Had the insurer's refusal to select a physician been arbitrary or improper, thereby requiring the claimant to
incur unnecessary medical expenses, the hearing officer could have acted in the same manner as he did here and,
in addition, compelled the insurer to pay the costs of any medical examination requested by the hearing
officer. NRS 616.5416(2). Further, the insurer may be fined and/or prosecuted for failing to provide and secure
compensation for an employee. NRS 616.630(1) and (2) provides:
1. If any employer within the provisions of NRS 616.285 fails to provide and secure compensation
under the terms of this chapter, he shall be fined not more than $500 for each offense.
2. If the administrator or interested employee complains to the district attorney of any county that an
employer in his county has violated the provision of this section, the district attorney shall investigate the
complaint. If, after investigation, he finds that the complaint is well founded, he shall prosecute the
employer for the offense.
conducted by a physician selected by the insurer in the manner set out in NRS 616.605(2).
Under the circumstances of this case, however, where the processes of appeal and judicial
review have been completed, it seems idle to start all over again when we see that the appeals
officer had before him the report and recommendation of officially designated rating
physician Cedarblade and when no request was made by the insurer to continue the appeals
hearing until the report of selected physician Kudrewicz became available. Further we note
that the Kudrewicz report is not part of this record and that, more significantly, the insurer has
never taken the position that it was in any way prejudiced by the absence of evidence from
Dr. Kudrewicz. If the insurer were now before us asserting that a considered review of Dr.
Kudrewicz's opinion might well result in denial of the award, we might be inclined to look
more carefully at the insurer's position, but this is not the case.
In sum, we have here a decision of an administrative appeals officer who has the ultimate
right to determine facts de novo. Imperial Palace v. Dawson, 102 Nev. 88, 715 P.2d 1318
(1986). The only evidence of disability was that of Dr. Cedarblade, a certified and qualified
rating physician. No request was made by the insurer to postpone the hearing or defer the
decision until the report of selected physician Kudrewicz was available. Under these
circumstances we cannot hold that the appeals officer lacked the power to make a final
decision on the issue before him. Although we hold that the statutory selective procedure set
out in NRS 616.605(2) must be followed, we will not allow judicial intervention under the
narrow circumstances of this case where the award is fully supported by the opinion of a
designated rating physician and where the responsibility for failure to receive the input of a
selected physician must be borne by the opponent, the insurer Sahara, in this case.
The judgment of the district court is reversed, and the decision and award of the appeals
officer is reinstated.
____________
103 Nev. 490, 490 (1987) McKay v. Board of County Comm'rs
BRIAN McKAY, Attorney General of the State of Nevada, Appellant, v. BOARD OF
COUNTY COMMISSIONERS OF DOUGLAS COUNTY, NEVADA: HERBERT
WITT, ROBERT PRUETT, BARBARA COOK and ROBERT OSWALD, in Their
Capacity as Commissioners for the County of Douglas, and BRENT
KOLVET, in His Official Capacity as District Attorney of
Douglas County, Nevada, Respondents.
No. 17617
November 30, 1987 746 P.2d 124
Appeal from an order of the district court denying injunctive relief; Ninth Judicial District
Court, Douglas County; Lester H. Berkson, Judge.
Attorney General sought injunctive relief against violation of open meeting law by board
of county commissioners. The district court denied relief and Attorney General appealed. The
Supreme Court, Springer, J., held that there was no exception to the open meeting law for
discussions between county board and attorney concerning proposed settlement of claim.
Reversed.
Brian McKay, Attorney General, Scott W. Doyle, Deputy Attorney General, Carson City,
for Appellant.
Brent T. Kolvet, District Attorney, Stephen Balkenbush, Deputy District Attorney, Douglas
County, for Respondents.
1. Counties.
Closed meeting held by board of county commissioners to discuss proposed settlement of claim with its
attorney violated open meeting law. NRS 241.020, subd. 1.
2. Administrative Law and Procedure.
Authority to conduct closed meeting with legal counsel is not an implied and unstated provision of the
open meeting law. NRS 241.020, subd. 1.
3. Statutes.
It is not the business of the courts to fill in alleged legislative omissions based on conjecture as to what
the legislature would or should have done.
4. Witnesses.
Attorney-client privilege does not provide exception to open meeting law for discussions of public body
with its attorney. NRS 241.020, subd. 1.
There is a duty on all attorneys to keep client information to themselves and not to reveal professional
secrets. SCR 156, subd. 1.
OPINION
[Headnote 1]
Nevada's Open Meeting Law
1
requires all meetings of public bodies to be public
meetings except as otherwise specifically provided by statute. On December 6, 1984, the
Douglas County Board of County Commissioners, a public body, conducted a closed meeting
with its attorney. Since there is no statute which provides a specific exception permitting
public bodies to hold closed meetings simply because their attorneys are present, the meeting
was in violation of the open meeting law.
The closed meeting arose out of the following set of circumstances. During the afternoon
session of a regularly scheduled public meeting, the board's legal counsel brought up the
subject of a proposed settlement offer by the liability insurance carrier which was defending a
professional liability claim involving the county and an architecture firm. Two members of
the board had expressed dissatisfaction with the insurance carrier's settlement offer, and the
board had directed that the district attorney there and then discuss the matter further with the
insurance carrier. After meeting with representatives of the insurance carrier in a nearby room
the district attorney returned to the public meeting and requested that the board reconvene in a
closed, executive session in order to discuss the settlement matters. A representative of the
news media objected to the proposed closed meeting; whereupon the board nonetheless
passed unanimously a motion to convene for a closed executive meeting with the district
attorney and certain state and county employees. The closed session lasted approximately
twenty-five minutes, after which the board reconvened the regular public meeting and voted
to accept the original settlement proposal.
The law is clear: Absent a statute that specifically provided an exception for attorneys,
the meeting had to be open and public. There is no statutory exception specifically
providing public bodies with the privilege to meet in private just because they have their
attorneys present; hence, such meetings are prohibited. The idea that a public body can legally
hold a closed meeting with its lawyer in the face of the statutory prohibition can be
advanced only by accepting one or the other of the following propositions: {1) authority
to conduct a closed meeting with legal counsel is an implied and unstated provision of the
open meeting law which the legislature must have intended but for some unknown reason
failed to enact, or, {2) there is some kind of unspoken, constitutional, statutory, common
law or public policy consideration that supercedes and overcomes the language of the
open meeting law and permits public bodies to hold closed meetings if they include their
attorneys.
____________________

1
NRS 241.020(1) reads as follows:
1. Except as otherwise specifically provided by statute, all meetings of public bodies shall be open
and public, and all persons shall be permitted to attend any meetings of these bodies. Public officers and
employees responsible for these meetings must make reasonable efforts to assist and accommodate
physically handicapped persons desiring to attend.
meeting with its lawyer in the face of the statutory prohibition can be advanced only by
accepting one or the other of the following propositions: (1) authority to conduct a closed
meeting with legal counsel is an implied and unstated provision of the open meeting law
which the legislature must have intended but for some unknown reason failed to enact, or, (2)
there is some kind of unspoken, constitutional, statutory, common law or public policy
consideration that supercedes and overcomes the language of the open meeting law and
permits public bodies to hold closed meetings if they include their attorneys.
[Headnotes 2, 3]
Initially it is important to note with respect to the first proposition, the implied exception
argument, that it is not the business of this court to fill in alleged legislative omissions based
on conjecture as to what the legislature would or should have done. This is especially true
when the legislature has already stated in as unambiguous terms as can be imagined that if
there are to be any exceptions to the rule of publicity, they must be specifically provided by
statute. To imply an exception in the face of this straightforward language would be in direct
opposition to the expressed legislative intent.
When it has been deemed suitable to do so, the legislature has from time to time
specifically provided certain exceptions to the open meeting requirement. Exceptions
provided which permit closed meetings, for example, include questions of personal character,
misconduct, competence and health (NRS 241.030(1)). In addition to these exceptions, the
legislature, in other NRS chapters, has enacted a series of specific exceptions to the general
rule of publicity. (See NRS 281.511(9), 286.150(2), 288.220, 630.336, 392.467(3)). When the
legislature intends to make exceptions to the rule of publicity, it does so specifically by
statute. In view of the method which the legislature has followed with regard to the rule of
publicity, it is otiose to argue that the legislature really meant to include an attorney-client
exception in the open meeting law but did not get around to it.
2
Even if we were to believe
that the legislature had intended to enact such an exception, the wording of the open meeting
law requiring exceptions to be expressly enacted and "specifically provided" forecloses the
court from reading in or implying exceptions to the rule of publicity.
____________________

2
It appears that the legislature's intent was directly to the contrary. On a number of occasions the legislature
has seen fit to reject an attorney-client exception. Each of the following proposed statutes contained
unsuccessful amendments providing an express exception for public bodies to meet with their counsel: Assembly
Bill 437, 59th Sess., Journal of the Assembly, 1977, at 1311; Assembly Bill 57, 61st Sess., Assembly Committee
on Government Affairs, Feb. 17, 1981, at 6-10; Senate Bill 246, 62nd Sess., Journal of the Senate, 1983, at 307;
Assembly Bill 118, 63rd Sess., Journal of the Assembly, 1985, at 85; Assembly Bill 26, 64th Sess., Assembly
Daily History, 1987.
tions to be expressly enacted and specifically provided forecloses the court from reading in
or implying exceptions to the rule of publicity. As clearly as it possibly could, the legislature
has expressed its will: Meetings of public bodies shall be open and public, unless the
legislature subsequently enacts a statute specifically providing an exception to the rule of
publicity.
3

This court's position is squarely supported by Laman v. McCord, 432 S.W.2d 753 (Ark.
1968), in which the Supreme Court of Arkansas rejected a city's argument that an
attorney-client privilege should be judicially imposed so that the public body could prepare its
case without having to disclose its strategy and possible weaknesses to adversaries.
Essentially the same contention is advanced by the public body in the case before us. The
Arkansas court based its decision upholding the open meeting law upon a literal interpretation
of the statutory language, [e]xcept as otherwise specifically provided by law, all meetings . .
. of the governing bodies of all municipalities . . . shall be public meetings. (Emphasis in
original.) Reasoning that specifically meant explicitly, definitely, and in so many
words, the Arkansas Supreme Court rightly concluded that since the legislature did not
provide a specific exception for meetings of the city council and the city attorney, no
exception existed. See Neu v. Miami Herald Publishing Company, 462 So.2d 821 (Fla. 1985).
[Headnote 4]
Since no attorney-client privilege can be implied from the wording of Nevada's open
meeting law, we turn to the second possible argument, namely, that we should recognize
some independent, immutable right of private consultation between public boards and their
attorneys which supercedes the legislative power and which allows public bodies to hold
private meetings with their attorneys, without regard to the open-meeting legislation. This
second argument deals not with an implied exception, which is to say an exception inferred
from the nature and content of the statute itself; rather the issue now becomes whether some
independent, constitutional, statutory, common law or public policy consideration supercedes
and overcomes the language of the statute and permits private meetings between public
bodies and lawyers notwithstanding the mandate of openness contained in the open meeting
statute.
____________________

3
In an explicit expression of legislative intent, NRS 241.010 declares: In enacting this chapter, the
legislature finds and declares that all public bodies exist to aid in the conduct of the people's business. It is the
intent of the law that their actions be taken openly and that their deliberations be conducted openly. It is hard to
see how the legislature could have made this matter any clearer.
If such a superceding right to hold closed meetings were to be recognized, it would have to
be derived from either of two possible sources: the privilege of a client that an attorney not be
compelled to testify concerning confidential attorney-client communications, or, the ethical
imperative that an attorney not reveal a client's secrets.
The difference between these two possible sources of the claimed right to hold a private
meeting between a public body and its attorney has been expressed in the following terms:
The principle of confidentiality [between attorney and client] is given effect in two
related bodies of law, the attorney-client privilege in the law of evidence and the rule of
confidentiality established in professional ethics. The attorney-client privilege applies
in judicial and other proceedings in which a lawyer may be called as a witness or
otherwise be required to produce evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where evidence is sought from the
lawyer through compulsion of law.
4

Accepting this clear distinction, we can quickly eliminate discussion of the evidential
attorney-client privilege as a basis for the asserted exception. Because the question of a
lawyer's being called in judicial or other proceedings as a witness or otherwise being
compelled to produce evidence concerning a client is not presented here, the evidential
client-attorney privilege has no application in the case before us.
So turn we must from the substantive statutory privilege (NRS 49.095) to the area of
professional ethics and ask ourselves if there is anything in traditional or codified
professional ethics that might have the force to supercede and, in effect, annul the open
meeting law when public bodies meet with public lawyers.
[Headnote 5]
Nevada Supreme Court Rule 156(1), dealing with lawyers' ethical conduct, provides that a
lawyer shall not reveal information relating to representation of a client unless the client
consents after consultation, except for disclosures that are impliedly authorized in order to
carry out the representation. . . . The quoted rule imposes a duty on all attorneys to keep
client information to themselves and not to reveal professional secrets. The public attorney in
this case argues that his not being allowed to meet with the full county board at once in
private somehow forces him to reveal secret client information.
The answer to the district attorney's contention is simply that the open meeting law does
not require in any way that he betray his client's confidences.
____________________

4
Model Rules of Professional Conduct Rule 1.6 comment (1983).
the open meeting law does not require in any way that he betray his client's confidences. All
the law does is restrict his capacity to deal with his client in the usual and customary manner
when the public body he represents is meeting as a body. We can understand the district
attorney's frustration at not being able to deal quite as freely and privately in the board
meeting as is customary in other client-attorney dealings; but this is not the same as saying
that there is a compulsion to reveal secrets which, if yielded to, would result in a violation of
supreme court rules. If the attorney had proceeded with his business at the open meeting, he
certainly would not have been subject to disciplinary action for ethical violations. It would be
a broad reading of the cited ethical rule indeed if it were read to give a public attorney the
right to clear the press and public out of a public meeting room.
What the open meeting law is about is public meetings. A meeting is a gathering of
members of a public body at which a quorum is present to deliberate toward a decision. . . .
NRS 241.015 (emphasis added). A public body that meets as a body must met in public. This
does not mean that public lawyers are forced to reveal their public clients' secrets or that
public lawyers may not communicate with their public clients in confidence. Were the statute
in question to require by its terms disclosure of confidential client information or to forbid
any confidential communication between attorneys and public bodies or their members, we
should have to look at the statute in a different light.
5

The present law merely requires that a quorum of a board, even when attorney-client
business is being conducted, must hold open meetings. Although this requirement might
create some measure of frustration or inconvenience in the parties' legal dealings, it is
certainly not the kind of arrangement that can be said to destroy the relationship and make it
impossible for a public body to receive the legal advice necessary to carry out the public
business. Nothing whatever precludes an attorney for a public body from conveying sensitive
information to the members of a public body by confidential memorandum; nor does
anything prevent the attorney from discussing sensitive information in private with
members of the body, singly or in groups less than a quorum.
____________________

5
There is certainly a point at which legislation could be seen as an unwarranted intrusion into the judicial
process or into the attorney-client relationship. For example, a statute could not lawfully interfere with the right
of a criminally accused to meet privately with an attorney. Another example would be a law which prohibited all
confidential communications between members of public bodies and their attorneys. In the open meeting law
itself is a declaration that all public bodies exist to aid in the conduct of the people's business. A law which
substantially frustrates the ability of a public body to receive confidential communications from its attorney
would quite obviously limit the capacity of a public body to aid in the conduct of the people's business.
Confidentiality goes to the very heart of the advisor-advisee relationship, and there comes a point at which
mandatory disclosure of confidences or prohibition of all confidential communication could destroy the
relationship. This point, quite clearly, is not reached in the law as it is now written.
from conveying sensitive information to the members of a public body by confidential
memorandum; nor does anything prevent the attorney from discussing sensitive information
in private with members of the body, singly or in groups less than a quorum. Any detriment
suffered by the public body in this regard must be assumed to have been weighed by the
legislature in adopting this legislation. The legislature has made a legitimate policy
choiceone in which this court cannot and will not interfere.
It is not consistent with the legislature's expressed intent to say that a public board is
entitled, when it so chooses, to convene in closed meeting so long as it includes its attorney.
No common law principle or consideration of public policy requires that public bodies be
given this privilege in the face of the clear language of the open meeting law. The open
meeting law bans closed meetings in all cases not specially excepted. This case is not
specially excepted; hence, the meeting in question was in violation of Nevada Revised
Statutes Chapter 241. The judgment of the trial court denying the injunctive relief demanded
by the attorney general is reversed.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________
103 Nev. 496, 496 (1987) Nigro v. State Board of Cosmetology
FRANK NIGRO, Appellant, v. NEVADA STATE
BOARD OF COSMETOLOGY, Respondent.
No. 17959
November 30, 1987 746 P.2d 128
Appeal from order granting motion to quash petition for writ of mandate. Second Judicial
Inspector hired by State Board of Cosmetology to help enforce its regulations petitioned
for writ of mandate to contest his termination. The district court granted state's motion to
quash petition, and appeal was taken. The Supreme Court held that inspector was not
classified civil service employee, and thus was not entitled to claimed procedural
protections.
Affirmed.
Douglas Norberg, Reno, for Appellant.
Brian McKay, Attorney General, and Lin Ng, Deputy Attorney General, Carson City, for
Respondent.
1. Officers and Public Employees.
Inspector hired by State Board of Cosmetology to help enforce its regulations was not classified civil
service employee, for purpose of determining termination procedures, where inspector was hired as at will
employee, his name was not on classified service list, he was not hired through State Department of
Personnel, and he did not take civil service examination. NRS 284.150.
2. Mandamus.
Terminated state employee was not entitled to writ of mandamus, on ground that he was denied
procedural rights to which all classified state employees were entitled, where employee was not
classified, and other forms of redress existed.
OPINION
Per Curiam:
This case hinges on the question of whether an inspector hired by the Nevada State Board
of Cosmetology (the Board) to help enforce its regulations, is a classified civil service
employee under NRS Chapter 284.
On December 15, 1980, appellant Frank Nigro (Nigro) was hired by the Board pursuant
to NRS 644.150.
1
He was hired as an at will employee and was, therefore, not required to
take a state examination. Several years later, at a hearing before the Board concerning alleged
work-related indiscretions, Nigro was accused of unethical behavior including: having an
ownership interest in a beauty salon; maximizing his travel expenses; misusing his business
phone; and, being an active Board member in a cosmetologist association. The Board found
the indiscretions and conflicts of interest required termination and Nigro was fired.
On September 24, 1986, Nigro filed a Petition for Writ of Mandamus against the Board.
He alleged that he was entitled to back pay and reinstatement because he was denied
procedural rights to which all classified state employees are entitled. The Board filed a
motion to quash the writ arguing that Nigro was not a classified state employee entitled to
the protections under NRS Chapter 284 but an at will, unclassified employee. The district
Court granted the motion to quash on January 29, 1987.
Nigro raises two principal arguments on appeal. First, he argues that he was a classified
civil servant pursuant to NRS 28+.1S0{1) and that, therefore, he was entitled to certain
administrative and procedural safeguards contained in NRS Chapter 2S4.2 Secondly, he
argues that the district court improperly granted the Board's motion to quash appellant's
motion for a writ of mandamus.
____________________

1
NRS 644.150 reads:
The board may employ inspectors, investigators, advisers, examiners and clerks and secure the services
of attorneys and other professional consultants, but no part of the compensation of those persons or
reasonable expenses incurred by the board may be paid by the state.
284.150(1) and that, therefore, he was entitled to certain administrative and procedural
safeguards contained in NRS Chapter 284.
2
Secondly, he argues that the district court
improperly granted the Board's motion to quash appellant's motion for a writ of mandamus.
Neither claim has merit.
Nigro relies solely on his interpretation of NRS 284.150(1) in arguing that an inspector for
the Board is a classified state employee.
3
In order for one to be hired as a classified
employee, an examination must first be taken. NRS 284.150(2) provides that:
Appointments in the classified service shall be made according to merit and fitness
from eligible lists prepared upon the basis of examination, which shall be open and
competitive, except as otherwise provided in this chapter.
[Headnote 1]
Nigro admits that he was hired as an at will employee; his name was not on a
classified service list; he was not hired through the State Department of Personnel; and, he
did not take a civil service examination. Further, the Director of the State Department of
Personnel stated in his affidavit that the position of inspector was not a position in the
classified service and the Department of Personnel made no announcement of a vacancy for
the position of inspector at the State Board of Cosmetology. In sum, Nigro has not fulfilled a
single requirement that employees must undertake to become qualified for the classified
service of the state.
[Headnote 2]
Finally, Nigro alleges that the district court's order quashing appellant's writ of mandamus
was improper. In light of our findings that he was not a classified state employee, the
motion to quash the writ of mandamus was properly granted since other forms of redress
existed.
____________________

2
Negro alleges that numerous regulations under NRS 284 were violated with his termination. Specifically he
cites regulations concerning annual performance reports, notice of disciplinary proceedings, warning of
unsatisfactory performance prior to termination and NRS 284.150, the dismissal of classified employees.

3
NRS 284.150(1) provides that
The classified service of the State of Nevada is comprised of all positions in the public service now
existing or hereafter created which are not included in the unclassified service, and which provide
services for any office, department, board, commission, bureau, agency or institution in the executive
department of the state government operating by authority of the constitution or law and supported in
whole or in part by any public funds, whether the public funds are funds received from the Government
of the United States or any branch or agency thereof, or from private or any other sources.
to quash the writ of mandamus was properly granted since other forms of redress existed. See
generally County of Washoe v. City of Reno, 77 Nev. 152, 360 P.2d 602 (1961).
Appellant's remaining contentions are meritless, therefore, we affirm the order of the
district court.
____________
103 Nev. 499, 499 (1987) Loftin v. Estate of Loftin
V. TRUETT LOFTIN, LOFTIN ASSOCIATES, INC. and LOFTIN'S ORMSBY HOUSE,
INC., Appellants, v. THE ESTATE OF WOODROW W. LOFTIN, CLARK G.
RUSSELL, and ROBERT A. CASHELL, Respondents.
No. 18194
November 30, 1987 746 P.2d 130
Appeal from probate court order confirming sale of assets of respondent Estate of
Woodrow W. Loftin. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Appeal was taken from order of the district court confirming sale of estate's assets. The
Supreme Court held that probate court did not have jurisdiction to sell general partnership
interest following general partner's death without limited partner's waiver of its option to
purchase general partnership interest at book value.
Manoukian, Scarpello & Alling and John P. Springgate, Zephyr Cove; Beckley, Singleton,
DeLanoy, Jemison & List, Las Vegas, for Appellants.
Guild & Hagen and C. David Russell, Reno; Allison, MacKenzie, Hartman, Soumbeniotis
& Russell, Carson City, for Respondents.
1. Executors and Administrators.
District court sitting in probate lacks statutory authority to investigate and determine competing
ownership claims in estate property offered for sale before it. NRS 148.270.
2. Partnership.
Limited partnership agreement granted limited partner option to purchase general partner's interest,
although provision stated that rights created were rights of first refusal; provisions described option by
setting book value as price and specifying 90 days after death or withdrawal of general partner as time
right could be exercised.
3. Executors and Administrators.
Probate court did not have jurisdiction to sell general partnership interest following general
partner's death on petition for confirmation of sale, without limited partner's waiver
of its option to purchase general partnership interest at "book value."
interest following general partner's death on petition for confirmation of sale, without limited partner's
waiver of its option to purchase general partnership interest at book value.
OPINION
Per Curiam:
Woodrow W. Loftin and appellant Loftin's Ormsby House formed a limited partnership,
Best Investors, in 1981. Best Investors owns and operates the Mother Lode Hotel and Casino
in Carson City. Woodrow Loftin, as general partner, held a seventy-four percent interest in
Best Investors; Loftin's Ormsby House was a limited partner and held a twenty-six percent
interest. The Best Investors partnership agreement contains specific rights concerning the sale
of the partnership interests, the interpretation of which is the heart of the instant dispute.
Loftin Investment Corporation, whose sole owner was Woodrow Loftin, leased Lots 59
and 60 of the Sears, Thompson and Sears Division in Carson City to appellant Loftin
Associates. The leases granted Loftin Associates a first right of refusal if the properties were
sold. The lots were used as parking lots for Mother Lode and Ormsby House customers.
Loftin's Ormsby House is the wholly owned subsidiary of Loftin Associates. Appellant V.
Truett Loftin, Woodrow Loftin's son, is the president of Loftin Associates.
Woodrow Loftin died October 27, 1985. In March of 1987, respondents Clark G. Russell
and Robert A. Cashell offered to purchase the Best Investors partnership interest and the two
lots from the estate for $986,000.00. The co-executors of Woodrow Loftin's estate filed a
proper return of sale and petition for confirmation of sale with the First Judicial District
Court, sitting in probate on the matter.
On the morning of the probate court hearing to confirm the sale of the estate assets to
Cashell and Russell, March 17, 1987, V. Truett Loftin, Wilma Loftin, Loftin Associates and
Loftin's Ormsby House filed objections with the district court opposing the sale of the estate's
assets.
1
In those objections and at the confirmation of sale hearing, Loftin's Ormsby House
asserted that the Best Investors agreement gave the Ormsby House an option to purchase
Woodrow Loftin's Best Investors interest on written notice, which it had not yet received.
____________________

1
Loftin Associates and Loftin's Ormsby House also filed a civil complaint in the First Judicial District Court
on March 16, 1987, seeking damages from the estate for alleged loans made by them to Best Investors and
breach of contract for violating their rights under the Best Investors agreement. A preliminary injunction seeking
to halt the probate court's sale of the disputed assets is the subject of an appeal before this court, Docket Number
18254. We have dismissed that appeal as moot because of our resolution in the instant case.
that the Best Investors agreement gave the Ormsby House an option to purchase Woodrow
Loftin's Best Investors interest on written notice, which it had not yet received. After
conducting a public auction pursuant to NRS 148.240, the probate court confirmed the sale of
the estate's assets to Cashell and Russell over appellants' objections, for $1,016,000.00,
without explaining how the probate court interpreted the partnership rights and whether it was
acting in regard to those rights.
Appellants then brought this appeal, contending that the district court sitting in probate
lacks the jurisdiction to litigate conflicting property rights in assets owned by an estate, and
that by selling the partnership interest their alleged option rights had been litigated and
extinguished. Respondents contend that the probate court acted properly in not adjudicating
the alleged rights of first refusal and that appellants waived their rights by not exercising
them when afforded an opportunity to do so during the confirmation hearing.
[Headnote 1]
It is clear that a district court sitting in probate lacks the statutory authority to investigate
and determine competing ownership claims in estate property offered for sale before it. NRS
148.270 empowers the probate court, inter alia, to determine whether the sale's procedure
was proper and the bid fair. The statute does not allow the probate judge to investigate
competing ownership claims. See In re Devincenzi's Estate, 65 Nev. 158, 165, 190 P.2d 842
(1948); In re Singleton's Estate, 26 Nev. 106, 111, 64 P. 513 (1901). The probate court did
not state, as it could not state, whether it had interpreted the disputed Best Investors rights.
However, in selling the Best Investors' interest the probate court impliedly made a
preliminary determination of what those rights were and whether the court could in fact
proceed. If the Best Investors agreement created rights of first refusal then the probate court
could sell the assets subject to those rights. If the provision constituted an option then the
probate court was without jurisdiction to act because under its terms Loftin's Ormsby House,
as the surviving limited partner was accorded the right to purchase the Mother Lode at book
value. The determination of book value was not within the jurisdiction of the probate court.
Because this court has before it a record identical to that before the lower court, and the
probate court based its decision solely on its review of the Best Investors' agreement and not
on any testimony by a party, we are free to make a de novo review of the rights created by the
subject agreement. Bader Enterprises v. Becker, 102 Nev. 339, 339, 720 Nev. 1232 (1986);
Caldwell v. Consolidated Realty, 99 Nev. 635, 638, 668 P.2d 284 (1983).
[Headnote 2]
We hold that the Best Investors limited partnership agreement granted Loftin's Ormsby
House an option to purchase Woodrow Loftin's interest. While the pertinent provision states
that the rights created were rights of first refusal, the specific terms of the provision
describe rights which constitute an option. The provision creates an ascertainable price:
book value. It provides specific times when the right may be exercised; for ninety days after
written notice of the death or withdrawal of the general partner. The provision also specifies
how it can be waived. None of these elements typifies rights of first refusal. See In re Estate
of Quackenbush, 53 Cal.App.3d 753, 125 Cal.Rptr. 832, 835-36 (Cal.Ct.App. 1975); Cities
Service Oil Company v. Estes, 155 S.E.2d 59, 62 (Va. 1967); Black's Law Dictionary 986,
1191 (5th Ed. 1985).
[Headnote 3]
Because the contract right before the probate court constituted an option, no sale of the
Mother Lode could have been effectuated to parties other than the optionee without a formal
adjudication of waiver by the optionee. The probate court was without jurisdiction to make
such a determination. The probate court therefore erred when it proceeded with the sale
because the sale affected the Ormsby House's option rights. The probate court should have
deferred to the outstanding district court suit that concerned issues of book value, the
sufficiency of notice and the waiver of rights by the optionee. Because our decision turns on
the preliminary issue of the nature of Best Investor's rights, the sale is obviously invalid and
we need not consider any other issue raised by the parties. We therefore vacate the probate
court order confirming the sale of the assets of the estate of Woodrow W. Loftin and remand
the sale to the probate court for action consistent with this opinion.
This disposition requires that the estate resell Lots 59 and 60. Although there was evidence
that the lots had been valued separately within earlier offers, the probate court's order
confirming sale does not specify values for the two lots because Cashell and Russell offered
to buy the lots and the Best Investors' interest as a unit. Therefore the sale of these two lots
must be vacated and the estate must renew the sale procedure. Although burdensome to the
estate of Woodrow Loftin this action is mandated by the probate court's error in selling the
three estate assets as a unit. The probate court's joint sale affected differing contractual rights
held in specific properties. See Crow-Spieker v. Robinson, 103 Nev. 1, 731 P.2d 348 (1987).
On remand if the holder of the first refusal rights, Loftin Associates, is not the purchaser of
the two lots at the confirmation of sale hearing, the probate court should allow Loftin
Associates a reasonable time for the opportunity to exercise their first refusal rights.
allow Loftin Associates a reasonable time for the opportunity to exercise their first refusal
rights. See In re Estate of Quackenbush, 125 Cal.Rptr. 832 (Cal.Ct.App. 1975); Richfield Oil
Corp. v. Security-First National Bank, 323 P.2d 834 (Cal.Dist.Ct.App. 1958).
We therefore vacate the order confirming sale of the Best Investors limited partnership
interest and direct the probate court to stay any sale of the estate's assets until the parties
determine in a court of competent jurisdiction the issues of waiver, book value and notice
mentioned above. Once the parties' rights have been determined, the estate may petition the
probate court for such relief as will be appropriate.
____________
103 Nev. 503, 503 (1987) Ace Truck v. Kahn
ACE TRUCK AND EQUIPMENT RENTALS, INC.; SHELL RENTALS, INC.; WILLIAM
BERMAN, NANA BERMAN, CARL PECSON, and SHIRLEY PECSON, Appellants,
v. WILLIAM KAHN, CHRISTINE ELEANOR KAHN, JOHN D. KAHN, A-1
EQUIPMENT RENTALS, INC.; THOMAS E. PHELPS and ESTATE OF
BEN F. KRAFT, Deceased, Respondents.
No. 16350
November 30, 1987 746 P.2d 132
Appeal from a judgment of the district court awarding a decree of specific performance
and damages for fraud. Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Buyers and sellers of car rental business sued each other for specific performance, quiet
title, conversion, fraud, and damages. In bifurcated trial, the district court awarded decree of
specific performance and entered judgment on jury verdict for buyers for compensatory and
punitive damages. On appeal, the Supreme Court, Springer, J., held that punitive damage
awards totaling $800,000 were clearly disproportionate and would be reduced to half those
amounts.
Compensatory damage awards affirmed; punitive damage award modified;
attorney's fees disallowed.
Stanley H. Brown, Reno; Goebel, Shensa & Beale, San Diego, California, for Appellants.
Moran & Weinstock, Las Vegas; Samuel Anter, Las Vegas; Kelly Swanson, Las Vegas;
Clark Barret, San Mateo, California, for Respondents.
1. Damages.
In examining punitive damage awards, courts should focus on character of defendant's conduct rather
than on injuries suffered by plaintiff; proper end of punitive damages is to punish and deter culpable
conduct, and those damages need not bear any relationship to compensatory damage award. NRS
42.010.
2. Damages.
Amount of punitive damages appropriate to stated purpose of punishment and deterrence lies in
discretion of fact-finder. NRS 42.010.
3. Damages; Fraud.
Punitive damages are legally excessive when amount of damages awarded is clearly disproportionate to
degree of blameworthiness and harmfulness inherent in oppressive, fraudulent, or malicious misconduct of
tortfeasor under circumstances of given case, and if awarding jury or judge assesses more in punitive
damages than is reasonably necessary and fairly deserved in order to punish offender and deter others from
similar conduct, then award must be set aside as excessive. NRS 42.010.
4. Damages; Fraud.
Awards of $500,000 and $300,000 in punitive damages in breach of contract and fraud action against
sellers of car rental business were clearly disproportionate and would be reduced to half those amounts;
original awards, excluding reduction of assets by compensatory awards, represented approximately 30 to
40 percent of sellers' net worth. NRS 42.010.
OPINION
This opinion is principally concerned with appellants' contention that punitive damages
awarded against appellants Berman and Pecson were excessive as a matter of law.
Concluding that punitive damages were excessive, we state the rule applicable in such cases
and order punitive damage awards reduced as excessive. The compensatory damage awards
are affirmed.
The present controversy arose out of an agreement whereby Berman and Pecson sold a car
rental business to the Kahns. The Kahns sued, claiming breach of contract and fraud. The jury
awarded compensatory damages totalling $391,049.00 and punitive damages totalling
$800,000.00. The punitive award against Berman, who had a proven net worth of
$1,626,000.00, was $500,000.00. The punitive award against Pecson, who had a proven net
worth of $705,700.00, was $300,000.00
Facts
Early in 1978, the parties began negotiations which led to an agreement whereby the
Kahns would purchase from Berman and Pecson a business known as Ace Truck and
Equipment Rentals, Inc. The Kahns took possession of the business in March of 1978 under
an oral agreement of sale.
under an oral agreement of sale. The agreement was later reduced to a written document that
was never signed by the parties. The agreement provided for a cash payment of $102,000.00
with the Kahns additionally agreeing, as part of the purchase price, to assume payments
owing by the sellers on sellers' contract to purchase certain equipment.
After the Kahns took possession, they found that Berman and Pecson had been guilty of a
number of misrepresentations. The misrepresentations to the Kahns included the following: a
representation that the business was solvent when it was not; a representation that certain
vehicles and other equipment belonged to the sellers when they did not; a representation that
the accounts payable were approximately equal to the accounts receivable when in fact the
two differed by more than $32,000.00; a failure to disclose that three important customer
contracts had been lost prior to the consummation of the agreement; and, a false
representation of the amount of depreciation taken by the sellers on the vehicle fleet prior to
possession by the Kahns.
Additionally, the Kahns claimed that during the negotiation period Berman and Pecson
falsely represented that they possessed, as part of the business assets being sought, a written
option to purchase an adjacent, unimproved lot which was crucial to continued operation of
the business.
The unimproved lot was necessary for parking space for rental vehicles. Berman and
Pecson agreed that they would exercise the supposed option and then lease the lot back to the
Kahns. Berman and Pecson failed to produce the promised option and failed to purchase the
lot. The Kahns claimed that this defalcation made it necessary for them to gain possession of
the property on their own at a greater cost than if Berman and Pecson had conformed to their
agreement.
The parties to the contract sued each other. Each complaint included claims for specific
performance, quiet title, conversion, fraud, and damages. The district court consolidated the
two lawsuits and bifurcated the trial, trying first the equitable claims of the parties; thereafter,
the fraud and damages issues were tried before a jury.
1
Excessiveness of Punitive Damage
Awards

____________________

1
Appellants complain that by reason of the described procedures they were denied a jury trial. Since both
parties requested equitable relief, neither can be allowed to object to the equitable adjudication on the ground of
denial of a jury trial. See 5 J. Moore, Moore's Federal Practice, para. 38.21 (2d ed. 1986). Also, there is no
clearly refused demand for a jury trial appearing in the record. Although appellants expressed some displeasure
with bifurcation at the pre-trial conference, appellants ultimately acquiesced in the bifurcated proceeding
ordered by the district court. Having made no proper objection to the district court's procedural rulings, Berman
and Pecson are now precluded from arguing this point on appeal. See Johnston v. Rosaschi, 44 Nev. 386, 194 P.
1063 (1921).
Excessiveness of Punitive Damage Awards
NRS 42.010 authorizes an award of punitive damages where the defendant has been guilty
of oppression, fraud or malice. That an award of punitive damages is allowable on the basis
of fraud is not in dispute here. Although Berman and Pecson contend otherwise, we conclude
that the record displays sufficient evidence of fraud so as to justify an award of punitive
damages under NRS 42.010. The only cognizable question remaining is whether the amount
of this award is excessive.
[Headnote 1]
The proper end of punitive damages is to punish and deter culpable conduct. Midwest
Supply, Inc. v. Waters, 89 Nev. 210, 510 P.2d 876 (1973); Miller v. Schnitzer, 78 Nev. 301,
371 P.2d 824 (1962). Because the purpose of punitive damages is to punish and deter, the
courts in examining these awards should focus on the character of defendant's conduct rather
than on the injury suffered by the plaintiff. For this reason punitive damages are not, as in the
case of compensatory damages, awarded to compensate the plaintiff for harm incurred, New
Hampshire Ins. Co. v. Gruhn, 99 Nev. 771, 670 P.2d 941 (1983), and need not bear any
relationship to the compensatory damage award. Midwest Supply, above, 89 Nev. at 213, 510
P.2d at 879.
Punitive damages provide a means by which the community, usually through a jury, can
express community outrage or distaste for the misconduct of an oppressive, fraudulent or
malicious defendant and by which others may be deterred and warned that such conduct will
not be tolerated. The allowance of punitive damages also provides a benefit to society by
punishing undesirable conduct that is not punishable by the criminal law.
[Headnote 2]
The amount of punitive damages appropriate to the stated purpose of punishment and
deterrence lies in the discretion of the fact-finder. Midwest Supply, above, 89 Nev. at 213,
510 P.2d at 878-79. This does not mean, however, that a trial judge or jury should have
unbridled discretion in setting the amount of punitive damages. The threat that the
punishment inflicted will be excessive when compared to the wrong committed makes it
necessary for the courts to develop standards to determine the reasonableness of punitive
damages in a given case and thereby limit the upper amount that can be properly and justly
awarded as punitive damages. Several such standards have been considered and applied by
this court.
[Headnote 3]
A review of our cases dealing with excessiveness of punitive damages fails to reveal a
standard of universal application in ruling on this question.
damages fails to reveal a standard of universal application in ruling on this question.
The most frequently cited rule is that the amount of punitive damages assessed should be
sufficient to punish a wrongdoer and deter others from acting in a similar manner without
financially annihilating the defendant. Phillips v. Lynch, 101 Nev. 311, 704 P.2d 1083
(1985); Hale v. Riverboat Casino, Inc., 100 Nev. 299, 682 P.2d 190 (1984); Bull v.
McCuskey, 96 Nev. 706, 615 P.2d 957 (1980); Tahoe Village Realty v. DeSmet, 95 Nev.
131, 590 P.2d 1158 (1979); Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334
(1974); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962).
The financial annihilation rule is necessarily very restricted in its application because
punitive excessiveness must ordinarily and usually fall short of total annihilation of the
defendant. Obviously, a very wealthy defendant could be the subject of an unreasonable and
impermissibly excessive punitive award which represented an amount far below the point of
financial annihilation. This rule is available only in clear cases where the defendant is being
wiped out (as in Schnitzer, for example, where a defendant with a net worth of $51,000.00
was mulcted in the amounts of $45,000.00 compensatory damages and $50,000.00 punitive
damages) and is of little use as a rule of general application.
The other frequently recurring rule found in our cases is our holding that the amount of the
award is not excessive if it does not shock our conscience. Wilson v. Pacific Maxon, Inc., 100
Nev. 479, 686 P.2d 235 (1984), reh'g granted, modified, 102 Nev. 52, 714 P.2d 1001 (1986);
Phillips, 101 Nev. at 313, 704 P.2d at 1084; Tahoe Village, 95 Nev. at 135, 590 P.2d at 1162;
Caple, 90 Nev. at 345, 526 P.2d at 337. No effort has ever been made to define the judicial
conscience nor to describe how or under what circumstances it might be shocked.
The conscience rule differs from the annihilation rule and the passion and prejudice
rule, next discussed, in that it relates directly to the magnitude of the award as related to the
misconduct rather than to inferences to be drawn from external events (the financial effect
upon the defendants or the supposed impermissible passion and prejudice indulged in by the
jury). This is consistent with views herein expressed; however, in this opinion we seek to
formulate a more intelligible and less esoteric standard than one derived from a judicial
manifestation of that indistinct little voice, the inward monitor of right and wrong known as
conscience.
In Schnitzer, in addition to ruling the punitive award to be excessive because it was
financially annihilating, the court concluded also that the jury was to some extent, influenced
by passion and prejudice. . . ."
passion and prejudice. . . . Schnitzer, 78 Nev. at 311, 371 P.2d at 829-30. Although applied
in compensatory damage cases (see, e.g., Nevada Ind. Broadcasting v. Allen, 99 Nev. 404,
664 P.2d 337 (1983)), the passion rule has not been relied on in punitive damage cases other
than in Schnitzer. The rule is criticized in Schnitzer itself, wherein it was stated that one
cannot avoid thinking that the rule is tailored to fit [the court's] feeling about the particular
case before it. If that court does not approve the verdict it will state that the jury was
motivated by passion or prejudice. Schnitzer, 78 Nev. at 310, 371 P.2d at 829. The rule,
then, is meaningless. According to Schnitzer, the court, in following this rule, would first get
a feeling about the particular case, then arrive at a conclusion that the award is excessive,
and then, rather mechanically, attribute the excessiveness to jury passion and prejudice. This
does not appear to be a very satisfactory rule to follow. A defendant's being financially
annihilated or the jury's being improperly influenced by passion and prejudice are certainly
matters of concern to which the courts must be sensitive in reviewing punitive damages, but
neither consideration provides, in itself, a satisfactory rule to be followed generally in judging
the question of excessiveness.
Of late these rules of annihilation, conscience and passion have fallen into disuse. In our
last decision on the point, Kellar v. Brown, 101 Nev. 273, 274, 701 P.2d 359, 360 (1985),
$40,000.00 punitive damages was remitted to $7,500.00 on the ground that $7,500.00 was
the maximum amount that could be reasonably awarded under the circumstances. None of
the above-discussed rules was mentioned; there was simply a recognition that at a certain
point a punitive award becomes too much, unreasonable, disproportionate, excessive as a
matter of law. A similar unencumbered ruling is found in our case of Midwest Supply, Inc. v.
Waters, 89 Nev. 210, 313, 510 P.2d 876, 879 (1973), in which a punitive award was affirmed
on the simple, but appropriate, ground that under the circumstances of this case we do not
find the jury's award of punitive damages excessive.
We see merit in Kellar's and Midwest Supply's focus on the magnitude of the award itself
rather than on a more specific inquiry into how badly the defendant was injured financially or
how passionate or prejudicial the jury or fact finder might have been in arriving at the
punitive award. Although not spelled out in these cases, it is apparent that the determination
of excessiveness is based on a more general judgment as to the relationship of necessary
punishment and deterrence to the blameworthiness of the punishable conduct of the
defendant.
What the court did in Kellar was to make a judgment, a moral judgment if you will, that
$40,000.00 was too much punishment for what Mr.
for what Mr. Kellar did and that $7,500.00 was the most that could reasonably and legally be
assessed. With this in mind it would appear timely for this court to elaborate a rule or
standard based upon this process of judgmentthe evaluation of excessiveness on the basis
of the award's reasonable and proportional relationship to the guilt and culpability of the
tortfeasor.
Unreasonableness and disproportionality between punishable conduct and the amount of
the punitive award come forward as most viable concepts in establishing a workable standard
for judging excessiveness of punitive damages. The Wyoming Supreme Court in its opinion
in Cates v. Eddy, 669 P.2d 912 (Wyo. 1983), adopted a standard of obvious
disproportionality in judging questions of punitive excessiveness. The Wyoming court,
noting its faith in the jury system, and an extreme reluctance to modify jury verdicts,
recognized still that the jury is not free to award any sum it might choose, however large or
small. . . . Cates, 669 P.2d at 920. The Cates court went on to conclude that a punitive award
must be judicially modified [w]hen the verdict of the jury, at first blush, appears outrageous,
grossly excessive, or to be the result of passion, prejudice, mistake, or improper motive, so as
to be obviously disproportionate to the injury shown. . . . Id. at 920-21 (emphasis added).
Although the Wyoming rule characterizes an excessive award in terms of being
outrageous or the result of passion, prejudice, mistake or improper motive, the gist of this
rule is not the subjective estimation of the reviewing court's outrage or the mistake or
prejudice of the awarding judge or jury. The real gist of the rule is the ultimate evaluation of
the award itself as being clearly (at first blush) too much (grossly excessive), or
otherwise put, an evaluation as to whether the damage award inflicts more punishment than is
deserved under the circumstances.
Based on the foregoing considerations, we declare the following standard for evaluating
excessiveness of punitive damages: Punitive damages are legally excessive when the amount
of damages awarded is clearly
2
disproportionate to the degree of blameworthiness and
harmfulness inherent in the oppressive, fraudulent or malicious misconduct of the tortfeasor
under the circumstances of a given case. If the awarding jury or judge assesses more in
punitive damages than is reasonably necessary and fairly deserved in order to punish the
offender and deter others from similar conduct, then the award must be set aside as excessive.
____________________

2
We impose the clearly standard of review, as did Wyoming in the Cates case, out of deference to the
factfinder's prerogative. Findings of fact shall not be set aside unless clearly erroneous, . . . NRCP 52(a)
(emphasis
This rule makes it unnecessary for a reviewing court to make findings or judgments on
basically factual questions of financial annihilation or the supposed passion or prejudice
indulged in by the fact finder and permits the reviewing court to focus on a judicial
determination of what is fair, just, and reasonable as opposed to being disproportionate and
legally excessive. The concept of what is fair and just and reasonable is a sense that most of
us possess from childhood. Whereas we cannot get into the minds and hearts of jurors in
order to be able for example to get a feeling about the particular case, Schnitzer, above, 78
Nev. at 310, 371 P.2d at 829, we can certainly make some kind of reliable moral judgment
when it comes to unjust excessiveness of civil punishment and deterrence in the form of
punitive and exemplary damages.
In arriving at the ultimate judgment of where excessiveness begins, courts can legitimately
take into account any circumstances which relate to the limits of punishment and deterrence
that can be properly imposed in a given case. Relevant circumstances include such matters as
the financial position of the defendant, culpability and blameworthiness of the tortfeasor,
vulnerability and injury suffered by the offended party, the extent to which the punished
conduct offends the public's sense of justice and propriety, and the means which are judged
necessary to deter future misconduct of this kind.
3

As can be readily understood, these factors are largely common sense considerations
which relate in everyday terms to the judgment of what goes beyond fair and proportionate
punishment and reasonable deterrence under the circumstances. The ultimate question
remains the same: Whether the fact finder has clearly exceeded the reasonable bounds of
punishment due and justifiable deterrence as related to the acts complained of.
[Headnote 4]
If we apply the stated rule to the case before us, we readily conclude that the punitive
awards in the case at bar are clearly excessive.
____________________
added). Case law has long recognized the need for caution in setting aside tort damages in such cases. In 1763,
the Lord Chief Justice of England expressed the idea this way in Huckle v. Money, 95 Eng. Rep. 768, 2 Wils.
K.B. 205 (1763):
[I]t is very dangerous for the judges to intermeddle in damages for torts; it must be a glaring case indeed
of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to
grant a new trial for excessive damages.
(Emphasis added.)

3
See Comment, Punitive Damages: An Appeal for Deterrence, 61 Neb. L. Rev. 651 (1982).
The degree of fault or blame is not extravagant. This was a simple business sales
transaction in which the plaintiffs accused the defendants of misrepresentation and fraud.
Although the record supports liability for fraud and consequent punitive damages, the
conduct of defendants can probably be said to be toward the lower end of the spectrum of
malevolence found in punitive damage cases.
The record shows that the Kahns may have suffered considerable inconvenience and
annoyance as a result of appellants' fraud, but again this is not high on the scale of severity of
harm done when compared to the general run of malicious and oppressive acts which make
up the bulk of punitive damage cases. In any event, the business is still in operation and
appears to have survived the defendants' misdeeds. The Kahns are not seen to be highly
vulnerable victims in this case. From our view of the record the Kahns appear to be
business people of normal and expected wisdom and sophistication in making this
transaction.
On the question of the tortfeasors' financial position, we compute that the punitive award
(excluding a reduction of assets by the $391,049.00 compensatory award) against Berman is
approximately thirty percent of his net worth and against Pecson is about forty-two percent of
his net worth. Each award appears to be depleting the defendants' assets in an amount and in a
proportion far in excess of that which can be said reasonably necessary to punish either
defendant or to deter others from similar fraudulent conduct.
The compensatory award, quite large under the circumstances, reduces the estate of each
defendant substantially. If Berman and Pecson each had to pay half of the $391,049.00
compensatory award, then the punitive award against Berman would be calculated at
forty-three percent of his assets, and the punitive award against Pecson would be calculated at
seventy percent of his assets. These are indeed excessively and disproportionately punitive
under the circumstances. We hold the awards to be clearly excessive and disproportionate as
a matter of law.
Modification and Reduction of Award of Punitive Damages
and Disallowance of Attorney's Fees
Under the specific circumstances of this case we see the award as being disproportionate
and have concluded that neither individual deserved punishment nor deterrence which would
justify the amounts awarded. As noted, this is particularly true in view of the fact that their
proven net assets of $1,626,000.00 and $705,700.00 will be substantially reduced by payment
of compensatory damages to the plaintiffs. Subjective as it may necessarily be, we set as the
upper limit of just deserts, proportionate punishment, and justifiable deterrence the sum of
250,000.00 punitive damages in the case of Berman and the sum of $150,000.00 in the
case of Pecson.
punishment, and justifiable deterrence the sum of 250,000.00 punitive damages in the case of
Berman and the sum of $150,000.00 in the case of Pecson. We judge these awards to be the
maximum amount that could be reasonably awarded under the circumstances. Kellar, 101
Nev. at 274, 701 P.2d at 360.
As to compensatory damages, the judgment of the trial court is affirmed. As to punitive
damages, the award against Berman is reduced to $250,000.00, and the award against Pecson
is reduced to $150,000.00. Attorney's fees awarded to the Kahns are disallowed.
4
Other
claims of error have been considered and found to be without merit.
____________________

4
This court has consistently held that absent a rule, statute or contract which authorizes an award of attorney's
fees, such fees may not be allowed. Lubritz v. Circus Circus Hotels, Inc., 101 Nev. 109, 693 P.2d 1261 (1985).
There is no contractual basis for the award of attorney's fees. Likewise, the facts of this case do not fall within
any other rule or statute which would justify an award of attorney's fees. We conclude, therefore, that the award
of attorney's fees to the Kahns was error and must be stricken from the judgment. See NRS 18.010.
____________
103 Nev. 512, 512 (1987) Allan v. State
GEORGE LAVERN ALLAN, Appellant, v. THE
No. 17970
November 30, 1987 746 P.2d 138
Appeal from judgment of conviction upon a jury verdict for two counts of possession of a
firearm by an ex-felon. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt,
Judge.
Parolee was convicted in the district court of two counts of illegal possession of firearm,
and he appealed. The Supreme Court held that: (1) warrantless search of parolee's home was
justified, and (2) parolee's inconsistent videotaped statements could be admitted for limited
purpose of impeachment, even assuming they were obtained in violation of Miranda.
Affirmed.
Rick Lawton and Ed Irvin, Fallon, for Appellant.
Daniel L. Papez, District Attorney, and Mark L. Gentile, Deputy District Attorney, White
Pine County, for Respondent.
103 Nev. 512, 513 (1987) Allan v. State
1. Pardon and Parole.
Parole officer must have reasonable grounds to believe violation of parole agreement has occurred to
justify warrantless search. U.S.C.A.Const. Amend. 4.
2. Pardon and Parole.
Warrantless search of parolee's home was justified by credible information given to parole officer that
parolee was in possession of firearms, notwithstanding parolee's claim that search was ruse to gain legal
admission into his home to search for recovered pornographic materials. U.S.C.A.Const. Amend. 4.
3. Witnesses.
Parolee's inconsistent videotaped statements could be admitted in criminal prosecution against parolee for
limited purpose of impeachment, even assuming statements were taken in violation of Miranda.
OPINION
Per Curiam:
Appellant George Lavern Allan (Allan), an ex-felon, was convicted of two counts of
illegal possession of a firearm. NRS 202.360.
1
Allan raises two issues on appeal: First, he
alleges that the search of his home, to procure illegally possessed weapons, was conducted to
secure evidence in connection with a pending sex investigation. Allan alleges that the items
seized from the house should be suppressed because the search was in violation of his parole
agreement.
Secondly, Allan alleges that the district court erred when it allowed the State to introduce
evidence of a statement taken in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 694
(1966). The statement taken was admitted for the limited purpose of impeachment. The
United States Supreme Court held in the case of Harris v. New York, 401 U.S. 222 (1971),
that such a statement is admissible. We follow that ruling.
THE FACTS
On September 1, 1986, acting on an informant's tip that Allan was in possession of two
weapons, Allan's parole officer, a detective, and two officers, proceeded to Allan's home to
conduct a search.
____________________

1
NRS 202.360 states:
1. A person who has been convicted of a felony in the State of Nevada, or in any one of the states of
the United States of America, or in any political subdivision thereof, or of a felony in violation of the
laws of the United States of America, unless he has received a pardon and his right to bear arms was
specifically restored, shall not own or have in his possession or under his custody or control any firearm.
2. Any person who violates the provisions of this section shall be punished by imprisonment in the
state prison for not less than 1 year nor more than 6 years, and may be further punished by a fine of not
more than $5,000.
103 Nev. 512, 514 (1987) Allan v. State
detective, and two officers, proceeded to Allan's home to conduct a search. Among the items
seized were two rifles, and a large quantity of homosexual pornography. Allan was arrested
and advised of his constitutional rights.
Allan was interviewed on the afternoon of his arrest. When the interviewing detective was
reading Allan his Miranda rights, Allan interrupted the officer saying, I knew I shouldn't
have had them, referring to the guns seized at his home. The statement was recorded on
videotape.
Prior to trial, a suppression hearing was held concerning the admission of the videotape.
The district court ordered the tape suppressed. The court ruled that the statements were taken
in violation of Allan's Miranda rights. Later, during trial, Allan gave testimony directly
contradicting statements on the videotape. The State, then, over Allan's objection, introduced
that part of the videotape which was inconsistent with Allan's statements. Allan was
thereafter found guilty on both counts. This appeal followed.
DISCUSSION
Allan argues that the district court erred by denying his pretrial motion to suppress all
evidence seized in the predawn search of his home. Allan suggests that the search to procure
the guns, was a ruse to gain legal admission into his home to search for the recovered
pornographic materials. Allan's assertion is meritless.
[Headnotes 1, 2]
A parole officer must have reasonable grounds to believe a violation of a parole agreement
has occurred to justify a warrantless search. Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979).
In this case, the parole officer was given credible information that Allan was in possession of
firearms, a direct violation of the parole agreement. The parole officer, accompanied by other
law enforcement personnel, searched Allan's home for the guns. Two high-powered rifles
were retrieved and Allan was tried and convicted pursuant to NRS 202.360. There is no
reason to disturb that conviction.
[Headnote 3]
Allan also alleges that his statement, I knew I shouldn't have had them [the guns] was
erroneously admitted at trial to impeach his testimony because the statement was taken in
violation of his Miranda rights. We have not had previous occasion to decide whether an
otherwise inadmissible statement, taken in violation of Miranda, may be admitted for the
limited purpose of impeaching a defendant's testimony. The United States Supreme Court has
addressed this issue in the case of Harris v. New York, supra. In Harris, a case involving a
defendant charged with two counts of selling heroin, the Supreme Court held that an
otherwise inadmissible statement may be received in evidence for the limited purpose of
impeachment.
103 Nev. 512, 515 (1987) Allan v. State
counts of selling heroin, the Supreme Court held that an otherwise inadmissible statement
may be received in evidence for the limited purpose of impeachment. The court reasoned that:
Every criminal defendant is privileged to testify in his own defense, or to refuse to do
so. But that privilege cannot be construed to include the right to commit perjury. See
United States v. Knox, 396 U.S. 77 (1969); cf. Dennis v. United States, 384 U.S. 855
(1966). . . . The shield provided by Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of confrontation with prior inconsistent
utterances. 401 U.S. at 225-26.
Even assuming appellant's statement was elicited in a manner that offended Miranda, an
assumption we do not necessarily endorse, we find the court's reasoning in Harris compelling
in the present case. Allan made statements at trial which directly contradicted his statements
previously made to the police. He sought to deny responsibility for those statements by
invoking Miranda. The shield of Miranda is not a license for perjury.
Accordingly, we find that the district court did not err by admitting Allan's inconsistent
videotaped statements for the limited purpose of impeachment. Therefore, the multiple
convictions of Allan on both weapons counts are hereby affirmed.
____________
103 Nev. 515, 515 (1987) Lee v. Verex Assurance Inc.
WAY W. LEE, PRISCILLA D. LEE and BRYAN D. LEE, Appellants, v. VEREX
ASSURANCE, INC., and MISSOURI SAVINGS ASSOCIATION, Respondents.
No. 17818
December 3, 1987 746 P.2d 140
Appeal from deficiency judgment. Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Borrowers appealed from deficiency judgment entered by the district court following
foreclosure sale on condominium units. The Supreme Court held that: (1) decision to value
condominium development as a whole was proper, and (2) valuation of condominium units at
the fair market value at the time of foreclosure sale was proper even though lender had
voluntarily funded the loan at a higher value based on the expected market value of the
condominiums two years earlier.
Affirmed.
Thomas J. Hall, Reno, for Appellants.
Bible, Hoy, Miller, Trachok & Wadhams, Reno, for Respondents.
1. Mortgages.
Determination, in action for deficiency judgment to value condominium development as a whole when
sold at foreclosure sale rather than valuing units individually was supported by evidence of the dismal sales
record of the development, making it unlikely that all of the remaining units would have been sold
individually at foreclosure action, and fact that all individual notes and deeds of trust on unsold units were
subject to cross default provision.
2. Mortgages.
Court did not err in valuing condominium units at $42,500 per unit, the fair market value at the time of
the trustee sale, even though the sole bidder at the trustee sale was the lender which had voluntarily funded
the loan two years earlier at $60,000 per unit; burden of loss is not placed on lender who overvalues
property when loan is made, purchase property for its actual value at foreclosure sale, and then seek
deficiency judgment.
OPINION
Per Curiam:
In 1979 appellants Way W. Lee, his wife, Priscilla D. Lee, and his brother, Bryan D. Lee,
began a joint venture to construct an eighty-four unit condominium complex in Reno. After
construction difficulties, the Lees arranged for a loan through respondent Missouri Savings
Association in the sum of $3,942,374.26 in May of 1982. As part of the loan package the
Lees purchased loan insurance from respondent Verex Assurance.
The complex, initially known as Summersnow condominiums and later as Alpine Vista
condominiums, experienced poor sales from a depressed local housing market and other
unknown factors. The Lees sold thirty-one condominiums in just over two years, but only
with large financial incentives and without profit for the Lees. Missouri Savings instituted
nonjudicial foreclosure proceedings on the fifty-three unsold condominiums after the Lees
stopped making payments in March of 1983. Missouri Savings, the sole bidder on
foreclosure, paid $2,271,050.00 for the fifty-three units on March 14, 1984.
1

Missouri Savings and Verex instituted an action for a deficiency judgment on May 29,
1984. Verex's appraiser found fair market value for the fifty-three units sold in gross to be
$2,250,000.00, or about $42,500.00 per unit. The appraiser found that the individual unit's
market value on March 14, 1984, was closer to $60,000.00, but that no market existed for
the condominiums and that the best method for sale on foreclosure would be as a whole.
____________________

1
Missouri Savings managed to sell another nine units after foreclosure but before trial. The remaining
forty-four foreclosed condominiums were apparently later sold at public auction for $30,000.00 to $39,000.00
per unit.
was closer to $60,000.00, but that no market existed for the condominiums and that the best
method for sale on foreclosure would be as a whole. The Lees presented no evidence of
Alpine Vista's appraised value that satisfied NRS 40.459.
2
After a bench trial the district
court found that the value of the complex was $2,250,000.00 Given a stipulated indebtedness
of $3,001,652.36, the court entered a deficiency judgment for $730,653.36. The Lees appeal
the amount of the judgment, contending that the court erred in its valuation of Alpine Vista.
District court findings that are based on substantial evidence will not be disturbed on
appeal. NRCP 52(a); Leonard v. Stroebling, 102 Nev. 543, 728 P.2d 1358, 1361-62 (1986);
Burroughs Corp. v. Century Steel, 99 Nev. 464, 470, 664 P.2d 354, 357 (1982). Because the
district court decisions to sell the fifty-three units of Alpine Vista as a block and to value the
complex at the appraised values are supported by substantial evidence, we affirm the district
court order.
[Headnote 1]
The Lees contend that the district court decision to value Alpine Vista as a whole was
improper, and that sale as individual condominiums would have brought a greater return.
However, given the dismal sales record of Alpine Vista it appears unlikely that all fifty-three
units would have been sold at a foreclosure auction, at least at the price paid by Missouri
Savings. The loans involved eighty-four promissory notes, deeds of trust and closing costs
and fees. Although the loan was structured so the individual condominium buyer would
assume a mortgage only on the purchased unit, all individual notes and deeds of trust on
unsold units were subject to a cross-default provision and there is no evidence that the Lees
objected to the group foreclosure until after the sale to Missouri Savings. The district court
decision to confirm the sale of the complex as a whole is based on substantial evidence, and
we affirm that decision on appeal.
[Headnote 2]
The Lees' second contention on appeal is that the district court assigned an erroneous value
to Alpine Vista. The Lees argue that Missouri Savings voluntarily funded the loan in 1982 at
$60,000.00 per unit based on the expected market value of the complex, but when Missouri
Savings acquired the units at the trustee's sale two years later they only paid $42,500.00 per
unit. Appellants urge us to place the burden of loss on lenders who overvalue property when
a loan is made, purchase the property for its actual value at the foreclosure sale and then
seek a deficiency judgment to cover their initial error.
____________________

2
For deficiency judgment suits, NRS 40.459 sets fair market value as of the date of sale. The Lees presented
two appraisal figures, but the appraisals had been done seventeen and twenty-six months before the trustee's sale,
and the appraisals had valued a single unit for FHA and VA loan purposes. Appellants have retained different
counsel on appeal.
overvalue property when a loan is made, purchase the property for its actual value at the
foreclosure sale and then seek a deficiency judgment to cover their initial error. See Rainier
Mortg. v. Silverwood Ltd., 209 Cal. Rptr. 294 (Cal.Ct.App. 1985). We decline the invitation
to apply California's definition of fair market value and fair value and their allocation of risks
between borrower and lender as Nevada's statute and our case law provide a sufficient basis
for our decision.
NRS 40.459 provides, in pertinent part, that: The court shall not render judgment for
more than: 1. The amount by which the amount of the indebtedness which was secured
exceeds the fair market value of the property sold at the time of sale. . . . (Emphasis
supplied.) This court has defined fair market value as the price which a purchaser, willing
but not obligated to pay, would pay an owner willing but not obligated to sell, taking into
consideration all uses to which the property is adopted and might in reason be applied.
Unruh v. Streight, 96 Nev. 684, 686, 615 P.2d 247, 249 (1980). The district court exercised
its discretion in determining fair market value and when that determination is supported by
substantial evidence, we will not disturb the determination on appeal. Halfon v. Title Ins. &
Trust Co., 97 Nev. 421, 423, 634 P.2d 660, 661 (1981); Tahoe Highlander v. Westside Fed.
Sav., 95 Nev. 8, 11, 588 P.2d 1022, 1024 (1979).
The district court found an appraised value on March 14, 1984, for the Alpine Vista
condominiums of $42,500.00 per unit. The court based its determination on the only
competent appraisal before it. The district court apparently considered Reno's depressed
housing market in 1984, the fact that only thirty-one units sold in two years,
3
and that the
thirty-one units sold for an average price of $64,000.00, which included an average of
$12,000.00 in financial incentives.
4

It would not be sound to base fair market value on the properties' value at the time the loan
was made. Economic conditions and property values change, especially in markets sensitive
to the economy, like housing. If we were to hold that the value assigned to Alpine Vista on
foreclosure should be that established by the parties as of the date of the loan, we would act
contrary to NRS 40.459 and discourage investment in real estate projects; we would also
undoubtedly force lenders to secure higher equity margins in project loan approvals. Our
holding today puts the risk on both borrower and lender: in loan initiation, both must
carefully valuate economic and other conditions in assigning loan to project value ratios
and in the unfortunate instance of default and foreclosure, both must provide competent
appraisal evidence.
____________________

3
The Lees purchased nine of the thirty-one units sold and seventeen others were purchased by partnerships
created to take advantage of tax write-offs and investments. Therefore only five individual consumers were
willing to purchase Alpine Vista condominiums in two years.

4
Because the Lees paid an average of $11,000.00 in interest on each unit before its sale the Lees lost money
every time they sold a unit.
on both borrower and lender: in loan initiation, both must carefully valuate economic and
other conditions in assigning loan to project value ratios and in the unfortunate instance of
default and foreclosure, both must provide competent appraisal evidence. See Carillo v.
Valley Bank, 103 Nev. 157, 734 P.2d 724 (1987).
It was not erroneous for the district court to value the foreclosed condominiums at
$42,500.00 per unit. We therefore affirm the district court decision to value Alpine Vista as a
complex rather than as fifty-three individual condominiums and also to value the project as of
the date of the nonjudicial foreclosure sale at $2,250,000.00. Having perceived no error, we
affirm the deficiency judgment entered by the district court.
____________
103 Nev. 519, 519 (1987) Bennett v. State Bar
In re Application of ROBERT J. BENNETT, ELIZABETH WEBB BEYER, MARI KAY
BICKETT, JOHN S. BODGER, RICHARD BJUR, JUDITH H. BRAECKLEIN,
BONNIE BRAND, ROBERT H. BROILI, KARLA K. BUTKO, DENNIS CAMERON,
CELESTE CARTER, KATERI CAVIN, DEANNA J. CONKLIN, WALDO DE
CASTROVERDE, MARILYN CRAIG, CHARLES C. DIAZ, PAUL E. FERGUSON,
WALTER B. FEY, BARBARA K. FINLEY, JOHN GAVIN, DON GISH, GREGORY
F. GLODOWSKI, VALERIE GRUBIC, HERMAN G. HERBIG, GERALDINE K.
HUGHES, DAVID HUMKE, GARY L. KENDRICK, BRADY W. KERESEY, JAMES
KLABER, JEFFREY M. LAQUAGLIA, MICHAEL C. LEHNERS, PAUL E. LOOMIE,
CUTHBERT E. A. MACK, ANN P. McCARTHY, WILLIAM J. McNULTY, MARY
LOU McSWEENEY-WILSON, JOSEPH D. MERKIN, PHYLLIS MOEN,
CHRISTOPHER MUMM, RANDAL MUNN, JERRY P. NIMS, KATHLEEN F.
NONEMAN, WILLIAM B. NORK, JUDITH A. OTTO, JAMES P. PACE, RICHARD
PRATO, BELINDA B. QUILICI, JAMES T. RICHARDSON, FLORENCE
SCHROEDER, ROGER M. SHERMAN, MURIAL SKELLY, LYNN L. STEYAERT,
ERIC A. STOVALL, DONNA M. SWEGER, RUTH J. TABOR, CATHERINE B.
THAYER, LORNA L. WARD, KENT WOOD, KIMBERLY WOOD, and FRANK
YEAMANS, Petitioners, v. THE STATE BAR OF NEVADA, Respondent.
No. 18400
December 3, 1987 746 P.2d 143 Petition for waiver of SCR 51{3).
Petition for waiver of SCR 51(3).
Law school graduates petitioned for admission to State Bar. The Supreme Court,
Gunderson, C. J., held that record as a whole demonstrated that education received at
unaccredited law school was substantially similar or functionally equivalent to that provided
at American Bar Association-accredited school, and, thus, waiver of law school accreditation
requirement was appropriate.
Petition granted.
Bible, Hoy, Miller, Trachok & Wadhams, Reno, for Petitioners.
Samuel S. Lionel, Chairman, Board of Bar Examiners; Ann Bersi, Executive Director;
John E. Howe, Bar Counsel, for Respondent.
Record as a whole demonstrated that education received at unaccredited law school was substantially
similar or functionally equivalent to that provided at American Bar Association-accredited school, and,
thus, waiver of law school accreditation requirement was appropriate as to recent graduates seeking
admission to State Bar. SCR 51, subd. 3.
If applicant proves that education received at law school not accredited by American Bar Association is
functionally equivalent to education provided at ABA-approved school, and if applicant has otherwise
complied with all requirements for admission to State Bar, objective of school accreditation requirement
has been met and waiver of rule may be appropriate. SCR 51, subd. 3.
OPINION
The petition before us seeks a waiver of SCR 51(3) and requests this court to allow
petitioners to be admitted as members of the State Bar of Nevada. Petitioners graduated from
the Nevada School of Law (the school), formerly Old College School of Law, in 1985, 1986
and 1987, and all but one have successfully completed the Nevada bar examination since
graduation. The Board of Governors of the State Bar of Nevada does not oppose the petition.
In 1984, the Nevada School of Law sought a waiver of SCR 51(3) which requires that an
applicant for examination for a license to practice as an attorney in this state have received a
law degree from an institution accredited by the American Bar Association (ABA). In
January, 1985, this court denied the request for a general waiver or modification of SCR
51{3).
a general waiver or modification of SCR 51(3). Nevertheless, we granted conditional relief to
graduates of the school based upon our findings and conclusions. Specifically, based upon the
record and our inspection of the school, we determined that despite its inauspicious
beginnings and initial shortcomings, the school had made impressive strides toward academic
credibility. Moreover, the school represented to the satisfaction of the court that it would have
its physical plant, library, faculty, student admission practices, and student support services in
condition to enable it, in good faith, to apply for ABA provisional accreditation by the fall of
1985. Accordingly, this court ordered that in the event the school achieved ABA provisional
accreditation by August 31, 1988, such accreditation would be accepted as proof that any
student graduating before accreditation has received an education functionally equivalent to
that provided by an ABA-accredited school. Additionally, pending the granting of such
accreditation, the court allowed the school's graduates to sit for the bar examination,
conditioned upon the completion of certain corrective courses on or before the time of the
school's accreditation. The successful examinees' admission to the State Bar of Nevada,
however, was to be deferred until the ABA granted provisional accreditation to the school.
The school subsequently took various steps to overcome the deficiencies identified in our
1985 order. In September, 1986, the school applied to the ABA for provisional accreditation.
An ABA inspection team examined the school during the week of November 15, 1986, and
reported its findings to the Accreditation Committee for the Section of Legal Education and
Admissions of the ABA (the Committee) on March 19, 1987. On April 28, 1987, the
Committee denied the school's application for provisional accreditation.
[Headnote 1]
In May, 1987, the school's trustees attempted to donate the school and its assets to the
University of Nevada. Unable to convince the University to accept the gift or to overcome the
school's substantial operating debt, the school's trustees voted to close the school after a
ten-month wind-down period. Consequently, petitioners will be unable to satisfy the
condition precedent to their admission to practice law in Nevada, i.e., that the school achieve
ABA provisional accreditation by August 31, 1988. Petitioners now contend that waiver of
SCR 51(3) is appropriate, in spite of the ABA's denial of accreditation to the school, since the
record as a whole demonstrates that the education received at the school was substantially
similar or functionally equivalent to that provided at an ABA-accredited school. We agree.
[Headnote 2]
The purpose of the educational requirement embodied in SCR 51(3) is to promote high
standards of competence among members of the State Bar of Nevada. In re Nort, 96 Nev. 85,
605 P.2d 627 (1980). To evaluate an applicant's legal education effectively and expeditiously,
without imposing an excessive burden on our resources, this court has elected to utilize the
accreditation resources of the ABA. On the other hand, we must ensure that applicants are
treated fairly and that any qualification for admission to the bar must have a rational
connection with the applicant's fitness or capacity to practice law. Id. at 89, 605 P.2d at 631.
Accordingly, we have recognized exceptions and waived the application of SCR 51(3)
whenever it can be demonstrated that the rules operate in such a manner as to deny
admission to a petitioner arbitrarily and for a reason unrelated to the essential purpose of the
rule. Id. at 96, 605 P.2d at 635. See, e.g., In re Burleigh, Supreme Court Docket No. 6874
(1972) (SCR 51(3) waived where applicant graduated from an institution not accredited by
the ABA, and lack of accreditation was not related to the quality of legal education provided,
but due to the geographical location of the school in Cambridge, England, outside the area
encompassed by ABA accreditation activities); In re Herring, Supreme Court Docket No.
9738 (1977); In re Hope, Supreme Court Docket No. 10677 (1978); in re Bernard, Supreme
Court Docket No. 10721 (1978) (SCR 51(3) waived in these three unreported cases where
sole reason asserted for lack of accreditation was the proprietary status of the schools). Stated
another way, if an applicant proves to this court that the education received at a law school
not accredited by the ABA is nonetheless functionally equivalent to an education provided at
an ABA-approved school, and the applicant has otherwise complied with all requirements of
the law relative to admission to the State Bar of Nevada, the objective of SCR 51(3) has been
met and a waiver of the rule may be appropriate.
In the present case, the Nevada School of Law took several steps since 1985 to improve
the legal education offered and to overcome the deficiencies identified in our previous order.
Specifically, the school provided supplemental courses to its graduates, extensively improved
its facilities, increased its library collection from 34,000 hardbound volumes to 71,853
hardbound and microform volumes, hired a full-time library director holding J.D. and M.L.S.
degrees, increased its full-time faculty to twelve, and established an employment placement
office. The only deficiency identified in our order of 1985 which has not been remedied is the
achievement of financial stability.
The report issued by the ABA's Accreditation Committee likewise recognizes several
noteworthy achievements. Indeed, in critical areas, the Committee's report can be read to
support the proposition that the education received by petitioners was functionally
equivalent to an education offered at an ABA-accredited school.
critical areas, the Committee's report can be read to support the proposition that the education
received by petitioners was functionally equivalent to an education offered at an
ABA-accredited school. We note that the Committee's report encompasses far more than just
educational factors.
1
Indeed, in determining whether the school could operate in the future as
a viable law school, the Committee directed its inquiry for the most part to financial and
budgetary considerations. Ten of the fifteen findings and conclusions of the Committee focus
primarily on the lack of financial stability and on factors related indirectly, at best, to the
quality of the legal education offered.
2
Of the remaining five findings, No. 6 concerns the
calibre of students admitted in the fall of 1986. This finding, however, is immaterial to this
petition since these students are not presently before the court. Moreover, the remaining four
findings, Nos. 4, 8, 9 and 10, do not conclusively demonstrate that the education received by
petitioners was not functionally equivalent to that received at an ABA-accredited institution.
____________________

1
The Committee's report set forth the following fifteen findings and conclusions: (1) The site evaluation team
could not determine whether the educational policy and program of the Law School were under the direction of
the Dean and faculty. (2) The financial stability of the school was in doubt. (3) The College and Law School
administration have been characterized by significant turnover in deans and College leadership. (4) The
school's current budget and projected budgets for the next five years were unlikely to provide for adequate
faculty salaries, experienced faculty, staff support, library funding, and student scholarships. (5) By 1990-91, the
school projected that thirty percent of tuition income would go to overhead charges in the face of significant
needs in the Law School. (6) The admissions standards did not assure admission only of students who have a
reasonable chance of success, in light of plans to increase the size of the entering class. (7) The administrative
staff was inadequate, i.e., the law school did not have a full-time admissions director, the registrar's office served
the admissions function for both the Law School and the humanities school, and the Law School's placement
program was operated by the Dean's secretary. (8) The overall academic rigor was perceived as low in light of
admissions qualifications and the low rate of attrition, and in light of no firm attendance rule. (9) The graduates'
performance on the 1985 and 1986 bar exams was mediocre and compared unfavorably to the nearest accredited
law school in California, i.e., McGeorge School of Law, in Sacramento. (10) The faculty salaries were low, and
there were no apparent plans to try to attract senior faculty. (11) The school had a history of inadequate library
funding in its early years of operation, and long-range projections may have proven inadequate for anticipated
growth. (12) The library had experienced rapid staff turnover. (13) The library had no significant retrospective
collection of texts and treatises, has an inadequate card catalog for use in locating library sources, a weak
general reference collection, and an inadequate access to microforms. (14) The physical facility was inadequate
for future library growth. (15) The current physical facilities were rapidly becoming inadequate.

2
These ten findings include Nos. 1, 2, 3, 5, 7, 11, 12, 13, 14 and 15. See, footnote 1, supra.
Finding No. 4 concerns the perceived inability of the school to attract full-time professors
based on the current budget and the projected budgets for the next five years. This finding,
however, looks mainly to the future. With respect to the current faculty, the inspection team's
report notes: The educational credentials of the current faculty are good in terms of academic
background, representing a number of excellent law schools. The professional experience of
some of the current faculty is broad. Similarly, although Finding No. 8 indicates that
overall academic rigor had been low, the Committee concludes that [c]lassroom teaching
was judged by the site team to range from good to marginal. None of the teaching observed
by the on-site inspection team was unacceptable. Although the teaching may not have been
exceptional, it was in every respect adequate.
Finding No. 9 states that [b]ar results have been mixed. The Committee notes that the
pass rate of Old College graduates on the Nevada bar exam has been about 69 percent . . .
well below the 91 percent pass rate of the nearest California law school. This finding, more
than any other, is subject to varied interpretations depending on the utilization and application
of the variables. Broken down by year, the school represents that 67% passed in 1985, 77% in
1986, and 71% in 1987. Moreover, the school correctly suggests that it is misleading to
compare the school's pass rate with the pass rate of the McGeorge School of Law only. We
are not convinced that the pass rate of graduates of McGeorge School of Law, whose
graduates historically have performed exceptionally well on both the California and Nevada
bar examinations, is uniquely representative or standard of an acceptable pass rate. Indeed, we
are persuaded that comparing Nevada School of Law to McGeorge, in support of denying
accreditation to Nevada School of Law, was patently inappropriate. In this regard, we note
that the Nevada School of Law's pass rate compared favorably with the pass rate for graduates
from four ABA-approved California law schools commonly attended by Nevada students:
University of San Diego (73%); California Western (63%); Loyola of Los Angeles (60%);
and Whittier (28.5%). Indeed, the school's pass rate exceeded the pass rate for twenty-seven
other ABA-accredited schools whose graduates sat for the same bar examinations. Thus,
while the school's pass rate may not compare favorably with that of McGeorge School of
Law, it nonetheless evidences that petitioners received an education sufficient to enable them
successfully to pass the bar, and to practice law and advise clients as capably as graduates
from many schools accredited by the ABA.
Finding No. 10 concludes that the school's conditions were inadequate to attract and retain
a competent faculty. This finding, however, is based on the unproven assumption that funding
would have remained unavailable in the future.
have remained unavailable in the future. Further, it does not negate the inspection team's and
the Committee's findings that the current faculty are good in terms of academic background
. . . and that their teaching was good to marginal.
We note that the Committee's criticism of the school's law library, contained in Finding
Nos. 11, 12, 13, and 14, is primarily directed at anticipated future needs. For example,
Finding No. 11 concludes that [l]ong-range projections [of funding] may prove inadequate
for anticipated growth in the collection. . . . Similarly, Finding No. 14 concludes, inter alia,
that the high ratio of occupied to unoccupied shelving, together with the anticipated rapid
growth of the collection which will likely produce full capacity within one year . . . suggests a
library that will soon be facing a physical plant crisis. The Committee's findings, however,
do not indicate that the library was inadequate, in light of the size of the school and its
particular needs, during the period of time petitioners attended the school.
3

With respect to placement services, the inspection team noted that the placement program,
operated by the dean's secretary, had achieved commendable results in placing many
graduates. Specifically, we note that certain petitioners have been and are currently employed
as law clerks with Nevada district court judges, a United States district court judge, the
Attorney General of Nevada, the United States Attorney, the Washoe and Pershing County
District Attorneys, the Washoe County Public Defender, and several private law firms.
Without exception, these employers have indicated that the performances of these individuals
were at least equal to the performances of graduates from ABA-accredited schools. In many
instances, the employers found that their performances exceeded that of their ABA
counterparts. In any case, again, whether or not a law school is well organized in placing its
graduates would not seem to indicate with any strength the quality of education that a student
receives while in residence.
Based upon the evidence in the record as a whole and our personal knowledge of the
operation of the Nevada School of Law, we conclude that the education received by
petitioners has been functionally equivalent to that received at schools accredited by the
ABA. See Nordgren v. Hafter, 789 F.2d 334 (5th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct.
177 (1986) (Mississippi legislature constitutionally allowed graduates of a
non-ABAaccredited Mississippi law school to sit for the bar examination, while precluding
graduates from out-of-state non-ABA-accredited schools, where the legislature and
Mississippi Supreme Court were familiar with the unaccredited school in question).
____________________

3
In this regard, we note that the Nevada School of Law's library collection (71,800 volumes) exceeded the
holdings of the Washoe County Law Library (approximately 33,708 volumes), the Nevada Supreme Court Law
Library (approximately 70,000 volumes), the National Judicial College Library (approximately 63,000
volumes), and the Clark County Law Library (approximately 33,616 volumes).
accredited Mississippi law school to sit for the bar examination, while precluding graduates
from out-of-state non-ABA-accredited schools, where the legislature and Mississippi
Supreme Court were familiar with the unaccredited school in question).
Finally, although it does not oppose the granting of this petition, the Board of Governors
of the State Bar of Nevada contends that any relief granted to petitioners must preserve the
integrity of SCR 51(3). Specifically, the Board expresses concern that the granting of this
petition may open the floodgates to unqualified graduates of inferior law schools, which are
not accredited by the ABA, who might seek admission to the State Bar of Nevada, thereby
adversely affecting the quality of the Bar. We are not persuaded that this order will produce
or encourage such an effect. Petitioners correctly note that we addressed this issue in the case
of In re Nort, 96 Nev. 85, 605 P.2d 627 (1980). In Nort, the petitioner sought a waiver of
SCR 51(3) on the ground that he had attended Western State University College of Law, a
non-ABA-accredited law school. Mr. Nort contended that since we had previously granted a
waiver of SCR 51(3) to other Western State graduates, he was similarly entitled to a waiver.
The former applicants had demonstrated that Western State had not been accredited by the
ABA solely because it was operated for profit. We noted, however, that since the granting of
the previous petitions, the ABA had allowed proprietary schools to seek provisional
accreditation, and that Western State had declined to do so. Therefore, we were unable to
determine whether Western State could have substantially complied with the other ABA
requirements for accreditation, and we denied Mr. Nort's petition. See In re Nort, 96 Nev. at
94, 605 P.2d at 634 (quoting Application of Hansen, 275 N.W.2d 790, 795-796 (Minn. 1978),
appeal dismissed, 441 U.S. 938 (1979)). Moreover, we concluded that we had not created a
constitutional right to practice law without compliance with the state's admission
requirements merely because a wholly and expressly discretionary state privilege has been
granted generously in the past. 96 Nev. at 95, 605 P.2d at 634 (citing Leis v. Flynt, 439 U.S.
438, 444 n.5 (1979)). Therefore, under the rule announced in Nort, a rule consistently adhered
to by this court, any future applicants who have graduated from a non-ABA-accredited law
school must similarly demonstrate, as have petitioners in the present case, that they have
received an education which is functionally equivalent to an education received at an
ABA-accredited school.
4
As we state in Nort: This court will continue to exercise its
inherent and exclusive power to control admissions to the professional bar of this state,
see Feldman v. State Board of Law Examiners, 43S F.2d 699 {Sth Cir.
____________________

4
Significantly, we note that in the unreported case of In re Fihn, Supreme Court Docket No. 14809, this court
waived SCR 51(3) in 1983 where the individual applicant made a detailed, prima facie showing that, at the time
of
This court will continue to exercise its inherent and exclusive power to control
admissions to the professional bar of this state, see Feldman v. State Board of Law
Examiners, 438 F.2d 699 (8th Cir. 1971), so as to provide relief from the operation of
the rules of admission whenever it can be demonstrated that the rules operate in such a
manner as to deny admission to a petitioner arbitrarily and for a reason unrelated to the
essential purpose of the rule. Absent such a showing, we will not entertain such
petitions.
96 Nev. at 96, 605 P.2d at 635.
Based on the foregoing, we conclude that petitioners are entitled to relief. Accordingly, we
hereby waive the requirements of SCR 51(3) as to the above-named petitioners who have
successfully passed the bar examination and otherwise complied with the rules for admission
of the Supreme Court of Nevada.
IT IS HEREBY ORDERED that petitioners will be admitted as members of the State Bar
of Nevada with all privileges relating thereto, upon complying with any and all remaining
requirements of law relative to such admission.
5

Steffen, Young, Springer, and Mowbray, JJ., concur.
____________________
his graduation from law school, the ABA denied accreditation based on the propriety status of the school, a
reason unrelated to the quality of education.

5
It has come to our attention that at least one of the petitioners has not passed the Nevada bar examination.
Moreover, some of the petitioners apparently have not taken or passed the Multistate Professional Responsibility
Examination. With respect to these petitioners, we direct the Executive Director of the State Bar of Nevada to
prepare a report detailing the names of such petitioners and, as to each, specifying any requirements which have
not yet been met.
____________
103 Nev. 527, 527 (1987) McDowell v. State
ROY McDOWELL, Appellant, v. THE
No. 17453
December 4, 1987 746 P.2d 149
Appeal from judgment of conviction upon jury verdicts of guilty of two counts of murder
with use of a deadly weapon, one count of robbery with use of a deadly weapon, and three
counts of conspiracy. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
Defendant was convicted of two counts of murder with use of deadly weapon, one count of
robbery with use of deadly weapon, and three counts of conspiracy, by jury before the
district court and defendant appealed.
and three counts of conspiracy, by jury before the district court and defendant appealed. The
Supreme Court held that: (1) statements by co-conspirators were admissible as nonhearsay,
and (2) defendants were not entitled to motion to sever trial.
Affirmed.
George Carter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Las Vegas,
James Tufteland, Deputy District Attorney, and Daniel M. Seaton, Deputy District Attorney,
Las Vegas, for Respondent.
1. Criminal Law.
In determining admissibility of extrajudicial statements made by co-conspirators, slight evidence
standard is used by court to determine whether conspiracy in fact existed; federal preponderance of
evidence standard, while mandated by Federal Rules of Evidence, was statutory requirement, not
constitutionally mandated one. Fed. Rules Evid. Rule 104(a), 28 U.S.C.A.
2. Criminal Law.
Out-of-court statements by murder co-conspirators, made during course and in furtherance of conspiracy,
were admissible as nonhearsay in trial against another co-conspirator, even though defendant had not yet
been member of conspiracy at time statements were made. NRS 51.035, subd. 3(e).
3. Criminal Law.
Murder co-conspirator was not entitled to severance of trial from other co-conspirators, where defense
raised by one co-conspirator was that of coercion, and defense raised by other co-conspirator was
exculpation, as it was possible for jury to believe both co-conspirator's defenses.
OPINION
Per Curiam:
1

McDowell was convicted of two counts of murder with use of a deadly weapon, one count
of robbery with use of a deadly weapon, and three counts of conspiracy. He was sentenced to
life imprisonment with the possibility of parole. The evidence at trial established that after
more than a month of planning, McDowell and his co-conspirators went to the home of Carl
and Colleen Gordon. The Gordons were the grandparents of one of the co-conspirators, Dale
Flanagan. McDowell, along with other co-conspirators, entered the Gordon residence through
a window.
____________________

1
This appeal was previously decided on the merits in an unpublished order of this court. Pursuant to
respondent's request, we have determined that our decision should be issued in a published opinion.
Accordingly, we hereby issue this opinion in place of our order filed October 19, 1987.
While McDowell ransacked the house, the Gordons were murdered by his cohorts pursuant to
the overall plan.
[Headnote 1]
McDowell was tried with his co-conspirators and found guilty by overwhelming evidence
of the crimes charged. The most damaging of the overwhelming evidence admitted were the
various co-conspirator out-of-court declarations. In determining the admissibility of the
extra-judicial statements, the district court properly found the existence of a conspiracy by
slight evidence as required in Nevada. See Fish v. State, 92 Nev. 272, 549 P.2d 338 (1976);
NRS 51.035(3)(e).
2
Application of a higher standard of proof for preliminary questions of
fact, such as the preponderance standard urged upon this court by McDowell, is not
constitutionally mandated by the sixth amendment's Confrontation Clause. Although the
United States Supreme Court has applied the preponderance standard to the preliminary fact
finding process when determining the admissibility of co-conspirator hearsay statements
pursuant to the federal rules of evidence, such an application is merely the result of statutory
interpretation.
3
That is, preliminary facts, like the existence of a conspiracy required to be
found pursuant to Federal Rules of Evidence 801(d)(2)(E), must be found by a preponderance
according to Federal Rules of Evidence 104(a).
4
See Bourjaily v. U.S., 107 S.Ct. 2775
(1987). Hence, there being no constitutional reason for this court to ignore stare decisis, we
decline to do so. The preliminary question of the existence of a conspiracy for purposes of
NRS 51.035(3)(e) need only be established, as properly found by the district court in the
instant case, by slight evidence.
[Headnote 2]
According to NRS 51.035(3)(e), an out-of-court statement of a co-conspirator made during
the course and in furtherance of the conspiracy is admissible as nonhearsay against another
coconspirator.
____________________

2
NRS 51.035(3)(e) defines as nonhearsay any statement offered to prove the truth of the matter asserted
where such statement is offered against a party and was uttered by a co-conspirator of that party during the
course and in furtherance of the conspiracy.

3
The co-conspirator exception set forth in the Federal Rules of Evidence at Rule 801, states in relevant part:
(d) A statement is not hearsay if . . .
(2) The statement is offered against a party and is . . .
(E) a statement by a coconspirator of a party during the course and in furtherance of the
conspiracy.

4
Federal Rule of Evidence 104 provides, in relevant part:
(a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of
subdivision (b). . . .
conspirator. Pursuant to this statute, it is necessary that the co-conspirator who uttered the
statement be a member of the conspiracy at the time the statement was made. It does not
require the co-conspirator against whom the statement is offered to have been a member at
the time the statement was made.
The federal position is consistent with our interpretation. In construing Federal Rule of
Evidence 801(d)(2)(E), which is analogous to NRS 51.035(3)(e), the federal courts have
consistently held that extra-judicial statements made by one co-conspirator during the
conspiracy are admissible, without violation of the Confrontation Clause, against a
co-conspirator who entered the conspiracy after the statements were made. See U.S. v.
Gypsum, 333 U.S. 364 (1948); U.S. v. Davis, 809 F.2d 1194 (6th Cir. 1987).
It was not necessary for the district court to explicitly rule as to the time when McDowell
entered the conspiracy, and hence we decline to require such a ruling. By joining the
conspiracy, McDowell implicitly adopted all of his fellow co-conspirators' prior acts and
declarations in furtherance of the conspiracy. See U.S. v. Badalamenti, 794 F.2d 821 (2nd Cir.
1986). Therefore, the district court's handling of the evidentiary matter was proper.
[Headnote 3]
The trial court's denial of McDowell's motion to sever was sufficiently justified and hence
proper. There is no showing that the jury was confused by the joint trial. Nor did the defense
presented by co-conspirator Johnny Luckett force McDowell to defend against more than one
prosecutor. The defense raised by co-defendant Luckett, that of coercion, was not mutually
exclusive nor irreconcilable to McDowell's claim of total exculpation. That is, it was possible
for the jury to believe Luckett's defense while at the same time giving credence to
McDowell's defense. Moreover, Luckett's allegedly prejudicial testimony would not
necessarily have been inadmissible in a severed trial. For instance, the prosecution might have
offered the testimony concerning coercion under the guise of specific acts used to prove
motive, intent or common plan. Consequently, the district court did not abuse its discretion
when it denied McDowell's motion to sever.
We have considered the remaining contentions and we conclude they lack merit.
Accordingly, we affirm the judgment of conviction.
____________
103 Nev. 531, 531 (1987) Hillis v. State
GARY W. HILLIS, Appellant, v. THE
No. 16563
December 10, 1987 746 P.2d 1092
Appeal from judgment of conviction for trafficking in cocaine and possession of
marijuana, Fourth Judicial District Court, Elko County; Llewellyn A. Young, Judge.
Defendant was convicted in the district court of trafficking in cocaine and possession of
marijuana. Defendant appealed. The Supreme Court held that: (1) state was justified in luring
defendant into the state for the purpose of arresting him; (2) trial court was not required to
instruct jury on lesser included offenses; and (3) procuring agent defense should have been
given but trial court's failure to do so was harmless error.
Affirmed.
Barbara Byrne, Public Defender, Elko, for Appellant.
Brian McKay, Attorney General, and David F. Sarnowski, Deputy Attorney General,
Carson City, for Respondent.
1. Criminal Law.
Entrapment is affirmative defense which, if it does not clearly appear on record as matter of law,
defendant must prove.
2. Criminal Law.
Entrapment cannot ordinarily be raised for first time on appeal.
3. Criminal Law.
Defendant failed to assert entrapment defense at trial, and hence, defense was waived and would not be
considered on appeal.
4. Criminal Law.
Constitutional questions may be reviewed on adequate record despite failure to raise issue below.
5. Criminal Law.
Governmental conduct in luring defendant into state for purpose of obtaining arrest may be so outrageous
as to bar conviction when arrest serves no legitimate state interest.
6. Criminal Law.
State had interest in effecting defendant's arrest, as required to justify luring defendant into the state for
the purpose of arresting him, where defendant voluntarily and knowingly brought large amount of cocaine
into state only because informant indicated that group of car dealers wanted to make purchase, and
defendant had previously brought cocaine into state.
7. Criminal Law.
Trial court was not required to instruct jury that sale of a controlled substance and possession of a
controlled substance for the purpose of sale were lesser included offenses of trafficking; evidence did
not show sale, since no money or drugs had actually changed hands at time of arrest, but evidence
showed that defendant possessed over 2S grams of cocaine at time of his arrest, in
contravention of trafficking statute.
hands at time of arrest, but evidence showed that defendant possessed over 28 grams of cocaine at time of
his arrest, in contravention of trafficking statute. NRS 453.3395.
8. Criminal Law.
When there is no evidence at trial tending to reduce greater offense, instruction on lesser offense may be
properly refused.
Even simple possession of cocaine in requisite amount can subject person to prosecution under
trafficking statute. NRS 453.336, subd. 2.
10. Criminal Law; Drugs and Narcotics.
Procuring agent defense instruction should have been given, where defendant admitted sale of cocaine
was contemplated and merely claimed to have acted as buyer's agent but trial court's failure to do so was
harmless error, since the weight of evidence indicated association with supplier in the sale.
If person acting solely as agent of buyer is not seller, neither does he possess controlled substance for
purpose of selling it.
Even when possession of controlled substance for sale is not specifically alleged, procuring agent
instruction may be required where possession was clearly incidental to contemplated sales transaction
initiated by informant.
Procuring agent defense applies only when defendant obtains controlled substance from person with
whom he was not associated in selling drugs.
OPINION
Per Curiam:
Gary Wayne Hillis was convicted of trafficking in cocaine in violation of NRS 453.3395
and possession of marijuana in violation of NRS 453.336. Hillis contends his convictions
should be reversed for various reasons stemming from the circumstances of his arrest and for
the trial court's refusal to instruct the jury on certain lesser-included offenses and on the
procuring agent defense.
Ed Knotts thought volunteering as a confidential informant might improve his chances of
being hired by the Sheriff's Department. Elko authorities accepted his services and allowed
him to choose his own targets. Knotts thought of Gary Hillis whom he had known in Utah
when they worked at neighboring gas stations. Knotts had reason to believe Hillis sold small
amounts of cocaine at a Salt Lake City bar. Hillis had also offered Knotts cocaine while on a
visit to Wendover.
In October, 1984, Knotts called Hillis in Utah and asked him to obtain an ounce of
cocaine. He telephoned Hillis numerous times in a two-week period. Finally, Hillis agreed to
meet Knotts in Wendover with the cocaine.
Wendover with the cocaine. He arrived at the Nevada Crossing Casino with Brent Barns and
two women. In Barns' automobile, Barns and Knotts proceeded to a hotel room. Inside the
room, Hillis showed Knotts a large packet of cocaine and they both ingested a quantity of the
substance. Knotts announced he only had half the purchase price and suggested they divide
the cocaine. Hillis was arrested as he and Knotts left the hotel room to obtain scales. A search
of his person yielded one heat-sealed packet of cocaine weighing 24.76 grams, two small
vials containing 1.81 grams, a larger vial containing 3.13 grams, and a small quantity of
marijuana. Nine other bags of marijuana were found in Barns' car. Hillis was charged with
trafficking in cocaine and possession of marijuana for sale. The jury convicted him of
trafficking in cocaine and simple possession of marijuana.
[Headnotes 1-3]
First, Hillis contends he was entrapped as a matter of law because police had no reason to
believe he was predisposed to sell cocaine. In Shrader v. State, 101 Nev. 499, 501-502, 706
P.2d 834, 836 (1985), we held the police must have reasonable cause to believe a specific
individual is predisposed to commit the crime before they can target him for an undercover
operation. However, entrapment is an affirmative defense which, if it does not clearly appear
on the record as a matter of law, the defendant must prove. Lisby v. State, 82 Nev. 183, 186,
414 P.2d 592, 594 (1966). It cannot ordinarily be raised for the first time on appeal. United
States v. Donell, 469 F.2d 85, 86 (9th Cir. 1972); United States v. Priest, 419 F.2d 570, 572
(10th Cir. 1970); DiNatale v. State, 260 A.2d 669, 671 (Md.App. 1970). Because the record
does not reflect Hillis ever asserted the entrapment defense below, we deem the point to have
been waived and will not be considered on appeal. Old Aztec Mining Co. v. Brown, 97 Nev.
49, 52, 623 P.2d 981, 983 (1981).
[Headnote 4]
Next, Hillis contends police conduct in luring him into the state for the purpose of
arresting him was so outrageous as to offend the due process clause of the 14th amendment.
Hillis also failed to make this argument to the trial court. However, constitutional questions
may be reviewed on an adequate record despite failure to raise the issue below. Wilkins v.
State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980).
In United States v. Russell, 411 U.S. 423, 431-432 (1973), the United States Supreme
Court commented it may some day be presented with a situation in which the conduct of law
enforcement agents is so outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a conviction."
to obtain a conviction. However, only the most egregious activity implicates constitutional
concerns. Governmental conduct is only constitutionally impermissible where shocking to
the universal sense of justice and violative of the fundamental fairness mandated by the due
process clause. Id. at 431. The Third Circuit has cautioned, We must necessarily exercise
scrupulous restraint before we denounce law enforcement conduct as constitutionally
unacceptable; the ramifications are wider and more permanent than when only a statutory
defense [entrapment] is implicated. United States v. Janotti, 673 F.2d 578, 607-608 (3d Cir.
1982).
[Headnotes 5, 6]
Governmental conduct in luring a defendant into the state for the purpose of obtaining an
arrest may be so outrageous as to bar conviction when the arrest serves no legitimate state
interest. In People v. Isaacson, 378 N.E.2d 78 (N.Y. 1978), the court reversed a conviction on
state due process grounds where a Pennsylvania resident agreed to procure cocaine for an
informant who had been brutalized by New York police, but did not consent to transporting
the contraband into New York. The defendant was present in New York only because of an
elaborate scheme that caused him to unwittingly cross the state border. By contrast, Hillis
voluntarily and knowingly brought a large amount of cocaine into the state only because the
informant indicated that a group of card dealers wanted to make a purchase. The record also
indicates he had previously brought cocaine into the state. Under these circumstances, we
cannot say the state had no interest in effecting his arrest. We perceive no constitutional
obstacle to the conviction.
Having decided the governmental conduct in this case did not offend the constitution, we
also reject Hillis' argument that evidence obtained pursuant to his arrest should have been
suppressed as the fruit of outrageous governmental behavior. We further note Hillis did not
object to admission of the evidence at trial.
[Headnotes 7-9]
Hillis also contends the trial court erred in refusing to instruct the jury that sale of a
controlled substance and possession of a controlled substance for the purpose of sale were
lesser-included offenses of trafficking. first, we note the evidence did not show a sale since
no money or drugs had actually changed hands at the time of the arrest. See Ward v. Sheriff,
90 Nev. 439, 440, 529 P.2d 798 (1974). The requested instruction on sale was not pertinent
and would have been erroneous if given. Lisby v. State, supra, 82 Nev. at 187, 414 P.2d at
959. Next, we disagree that Hillis was entitled to an instruction on the lesser offense of
"possession for the purpose of sale."
disagree that Hillis was entitled to an instruction on the lesser offense of possession for the
purpose of sale. The trafficking statute, NRS 453.3395, proscribes the possession of
Schedule II controlled substances in quantities of 28 grams or more. The uncontradicted
evidence in this case showed that Hillis possessed over 28 grams of cocaine at the time of his
arrest. When there is no evidence at trial tending to reduce the greater offense, an instruction
on a lesser offense may be properly refused. Lisby, supra. We are not persuaded by Hillis'
argument that he could not be convicted of trafficking if cocaine possessed for personal use
and cocaine possessed for sale together weighed 28 grams. Even simple possession of cocaine
in the requisite amount can subject a person to prosecution under the trafficking statute. See
NRS 453.336(2).
[Headnote 10]
Finally, Hillis contends he was entitled to an instruction on the procuring agent defense.
The rejected instruction was similar to that required in Roy v. State, 87 Nev. 517, 518, 489
P.2d 1158 (1971). In Roy, supra, we held a person who acts, not for the supplier, but solely
for the recipient cannot be guilty of selling a controlled substance. Id. at 519, 489 P.2d at
1159.
[Headnotes 11, 12]
The state argues the procuring agent defense is not applicable where the charge is
trafficking, rather than selling. The distinction is hypertechnical. Trafficking
encompasses selling when at least 28 grams of a controlled substance are involved. NRS
453.3395. The instant case involved 29.7 grams. We are not convinced the availability of the
defense should hinge on a matter of 1.7 grams. We do note Hillis was charged under the
possession provision of the statute, and not the sales provision. However, the principle
enunciated in Roy, supra, logically extends to the charge of possession for the purpose of
sale. If a person acting solely as an agent of the buyer is not a seller, neither does he possess
the controlled substance for the purpose of selling it. Cf. Roy, supra. Even when possession
for sale is not specifically alleged, the instruction may be required where possession was
clearly incidental to a contemplated sales transaction initiated by an informant. The entire
operation in this case centered on a sale. Knotts asked Hillis to obtain an ounce of cocaine.
The price was established at $2,000.00. Hillis traveled from Utah for the sole purpose of
bringing Knotts the cocaine. Hillis admitted a sale was contemplated; he merely claimed to
have acted as the buyer's agent. Under these circumstances, the procuring agent instruction
should have been given.
[Headnote 13]
However, we conclude reversal is not required because the error was harmless. The
procuring agent defense, as correctly stated in the rejected instruction, applies only when the
defendant obtains the controlled substance from a person with whom he was not associated in
selling drugs. Although Hillis denied being associated with the supplier, Barns, in selling
cocaine, the weight of the evidence indicates otherwise. The evidence shows Hillis, who
engaged in small cocaine transactions, was closely associated with Barns. He admitted being
privy to Barns' purchase of large quantities of cocaine. We do not think it probable that
omission of the procuring agent instruction affected the verdict.
We conclude appellants' contentions lack merit. Accordingly, we AFFIRM the judgment
of the district court.
1

Gunderson, C. J., and Steffen, Springer, and Mowbray, JJ., concur.
____________________

1
Notwithstanding the result we reach in this case, we do not wish to be understood as endorsing certain of the
practices employed herein. In particular, we do not endorse utilizing an untrained and unsupervised volunteer as
an undercover agent, whose hopes for employment as a regular officer turn upon producing arrests. We
particularly do not endorse allowing such a volunteer to establish his own targets, and to structure his own
investigative practicesincluding, if he desires, the ingestion of cocaine.
The Honorable Cliff Young, Justice, did not participate in the disposition of this appeal.
____________
103 Nev. 536, 536 (1987) Kroeger v. King
HENRY KROEGER and KATHRYN KROEGER, Appellants, v.
ALLAN KING and MICHAEL KING, Respondents.
No. 16956
December 10, 1987 746 P.2d 630
Appeal from judgment. Ninth Judicial District Court, Douglas County; Norman C.
Robison, Judge.
Purchasers of townhouse brought suit for defects against developers, real estate agent and
general contractor. Developers stipulated to entry of judgment, subject to condition, and the
district court entered judgment. Developers appealed. The Supreme Court held that: (1)
purchasers used due diligence to recover against real estate agent and contractor, as required
by stipulation of developers, and (2) stipulation required reduction of judgment to purchasers'
out-of-pocket expenses.
Milos Terzich, Gardnerville, for Appellants.
Feldman, Shaw & DeVore and Catherine L. DiCamillo, Zephyr Cove, for Respondents.
1. Stipulations.
Purchasers used due diligence to recover against real estate agent and contractor, as required by
stipulation of judgment against developers, when they obtained judgments against agent and contractor,
had judgments recorded, conducted asset searches, and scheduled debtor's examinations, despite failure to
execute on two parcels of real property, to levy on some personal property, to complete debtor's
examination by specified date, and to search for assets in state.
2. Contracts.
In interpreting contract, court should ascertain intention of parties from language employed as applied to
subject matter in light of surrounding circumstances.
3. Stipulations.
Stipulation providing for reduction in judgment against developers if purchasers obtained a judgment
against the other defendants for less than $11,000 was intended to limit developers' liability to purchasers'
out-of-pocket expenses and thus required reduction when judgment against defendant contractor was for
$8,159.81, reflecting amount of damages purchasers were able to prove at trial, even though defendant real
estate agent, against whom claims for fraud and punitive damages were asserted, stipulated to judgment for
$20,000.
OPINION
Per Curiam:
Appellants Henry and Kathryn Kroeger were the developers of Tahoe Village #2.
Respondents Allan and Michael King purchased a townhouse on Lot 16. The structure, which
was completed after title passed, contained numerous defects. Respondents brought suit
against appellants, the real estate agent and the general contractor. Appellants stipulated to
entry of judgment against them in an amount not to exceed $11,000.00, provided certain
conditions were met. The district court granted respondents' motion for entry of judgment in
the full amount. Appellants contend respondents were not entitled to entry of judgment. In the
alternative, they argue they were entitled to a reduction in the amount of the judgment.
By the terms of the stipulation, respondents were to use due diligence and all legal
remedies to collect on judgments obtained against the co-defendants by April 1, 1985. Any
sum collected would reduce the amount of the judgment against appellants. Appellants
contend respondents were not entitled to entry of judgment because they did not act with due
diligence. We disagree.
[Headnote 1]
Diligence is defined as a steady application to business of any kind, constant effort to
accomplish any undertaking.
kind, constant effort to accomplish any undertaking. The law does not require any unusual or
extraordinary efforts, but only that which is usual, ordinary and reasonable. Ophir Mining Co.
v. Carpenter, 4 Nev. 534 (1869). There is ample support for the court's finding of due
diligence. Respondents obtained judgments against realtor Jerry Alley and contractor Bert
MacMurray. They had judgment entered against Alley in California and recorded abstracts of
judgment in two counties. They obtained a real asset search and obtained a lot book guarantee
on one parcel thought to belong to him. After obtaining a verbal appraisal on the property,
respondents concluded Alley had no equity subject to execution. They hired a private
investigator who searched vehicle registration records and made a visual search for personal
property at the site of Alley's residence and former office. Finally, respondents scheduled a
debtor's examination, but were unable to serve Alley. It was discovered that his company had
declared bankruptcy. Respondents located MacMurray in Hawaii. They hired local counsel to
pursue the matter. An exemplified foreign judgment was filed and recorded with the Bureau
of Conveyances to create a lien on any real property. Garnishee summons were served on ten
major Hawaiian banks. A debtor's examination on April 23, 1985 revealed MacMurray was
retired, living on social security, and without substantial assets. Respondents spent $2,543.38
on these efforts.
The trial court's findings will not be disturbed if supported by substantial evidence.
Consolazio v. Summerfield, 54 Nev. 176, 179, 10 P.2d 629, 630 (1932). A rarely found
exception exists where it is clear the court reached a wrong conclusion. Id. Despite all the
evidence supporting the trial court's determination, appellants argue a wrong conclusion was
reached because respondents' failure to take certain steps precluded a finding of due
diligence. In view of all respondents' efforts, we disagree that any of the alleged shortcomings
in their collection strategy required the trial court to find due diligence was not exercised as a
matter of law.
Appellants question why respondents did not execute on the two parcels of property
revealed in the real asset search. Respondents concluded there was no equity subject to
execution in one. The other was listed on a computer print-out of information a year and a
half old. Although respondents did not document their subsequent discovery that the property
had been sold, there was also no evidence the Alleys still owned property. Appellants
challenge respondents' failure to levy on property seen near Alley's residence and business.
One truck was only leased to Alley. Another, registered in the name of Thunderbird
Helicopters, was valued at no more than $200.00. In a field near the business' former offices,
respondents' investigator spied a rotorless helicopter and three old white trucks that
appeared to have been parked there for some time.
rotorless helicopter and three old white trucks that appeared to have been parked there for
some time. In view of the condition of the equipment, the trial court could conclude due
diligence did not require respondents to incur further expenses pursuing this property of
unascertained ownership. Appellants argue respondents should have scheduled a debtor's
examination of Alley sooner. Respondents explained debtor's examinations are not the
preferred method of discovering assets because they alert the debtor. Appellants contend
respondents were required to complete a debtor's examination of MacMurray by April 1,
1985. We do not read the requirement that respondents use all legal remedies by April 1,
1985 as separate from the requirement of due diligence. Considering the amount of the
judgment against MacMurray, the expenses involved in pursuing the matter in Hawaii, and
respondents' simultaneous efforts to collect on the judgment against Alley, we cannot say that
failure to schedule a debtor's examination by April 1st constituted lack of due diligence as a
matter of law. For the same reason, respondents failure to search for assets in Nevada did not
render the trial court's conclusion erroneous. None of the facts brought to our attention
precluded a finding of due diligence. There was no clear error in the trial court's decision to
allow entry of judgment.
Appellants further contend the trial court erred in entering judgment for the amount of
$11,000.00. Paragraph 3C of the stipulation provided for a reduction in the judgment if
respondents obtained a judgment against the other defendants for less than $11,000.00.
Alley stipulated to entry of judgment for $20,000.00, to be partially reduced by any sum
collected from MacMurray. The case went to trial against MacMurray. The court rendered
judgment for respondents in the amount of $8,159.81, plus costs and interest. The trial court
found appellants were only entitled to a reduction in the judgment if the collective amount of
the judgments against the co-defendants was less than $11,000.00. Appellants argue they
were entitled to a reduction if judgment were rendered against any co-defendant for less than
$11,000.00.
[Headnotes 2, 3]
In interpreting a contract, a court should ascertain the intention of the parties from the
language employed as applied to the subject matter in light of the surrounding circumstances.
Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 112, 424 P.2d 101, 105 (1967). Reading the
stipulation as a whole, we are convinced that appellants' interpretation is correct. It was
clearly the intent of the parties to limit appellants' liability to respondents' out-of-pocket
losses. Paragraph 3A proportionately reduces the judgment if plaintiff's proof of
out-of-pocket expenses relating to building deficiencies to the Court" is less than
$11,000.00.
building deficiencies to the Court is less than $11,000.00. The judgment against MacMurray
reflects the amount of damages respondents were able to prove at trial, and hence, the limit of
appellants' liability under Paragraph 3A. Consistently, Paragraph C must mean appellants
were entitled to a reduction in the judgment if judgment were entered against any one
co-defendant for less than $11,000.00. In light of the expressed intent of the parties, it makes
no sense to hold appellants liable for the full $11,000.00 because Alley, against whom
respondents had also asserted a fraud claim and sought punitive damages of $1,000,000.00,
stipulated to entry of judgment for $20,000.00. Appellants were, therefore, entitled to have
judgment entered against them for $8,159.81, the amount of the judgment against
co-defendant MacMurray.
Accordingly, we reverse the judgment of the district court and remand the cause for entry
of judgment consistent with this opinion.
____________
103 Nev. 540, 540 (1987) Libro v. Walls
JOSEPH F. LIBRO, Appellant, v. ELEANOR M. WALLS, formerly known as ELEANOR
M. LIBRO, Respondent.
No. 17069
December 10, 1987 746 P.2d 632
Appeal from judgment. Second Judicial District Court, Washoe County; Deborah A.
Agosti, Judge.
Ex-wife brought action to reduce to judgment child support arrearages accrued under
divorce decree. The district court held that evidence of non-paternity proffered by ex-husband
was not a defense to motion seeking enforcement of divorce decree, and reduced the
arrearages to judgment. Ex-husband appealed. The Supreme Court held that ex-wife's failure
to disclose circumstances of child's conception to ex-husband, indicating that he might not be
the father, was extrinsic fraud, preventing ex-husband from having fair opportunity to
litigate paternity in divorce proceeding, and trial court abused its discretion in directing entry
of judgment for arrearages accrued under divorce decree.
Reversed.
C. B. Tapscott and Charlotte Hunter Arley, Reno, for Appellant.
Jack Grellman, Reno, for Respondent.
103 Nev. 540, 541 (1987) Libro v. Walls
Entry of judgment for child support arrearages is discretionary with the court, and, on motion, court may
enter judgment for all or none of the delinquent payments. NRS 125.180.
2. Judgment.
Where a fraud practiced by one litigant upon another is so successful that the other party is not even
aware that he has a claim or defense, it may be said that he had no reasonable opportunity to present the
claim or defense.
3. Judgment.
That which keeps one party away from court by conduct preventing a real trial on the issues is extrinsic
fraud and forms a sufficient basis for equitable relief from judgment.
4. Divorce.
Divorce decree was open to attack by independent action in equity on grounds of extrinsic fraud, based
on ex-wife's failure to inform ex-husband of circumstances of conception of child, indicating that
ex-husband might not be the father, and preventing him from litigating paternity in the divorce
proceedings; trial court therefore abused its discretion in directing entry of judgment against ex-husband
for child support arrearages accrued under divorce decree, based on preclusion of his proffered evidence of
non-paternity. NRS 125.180.
OPINION
Per Curiam:
Respondent Eleanor Walls made a motion to reduce child support arrearages to judgment.
Appellant Joseph Libro countered with evidence he was not the child's father. The district
court determined that non-paternity was no defense to a motion seeking enforcement of a
divorce decree.
Joseph and Eleanor married in 1967. Eleanor bore a child in 1976. In 1979, Eleanor filed a
complaint for divorce alleging the existence of a child of the marriage and praying for child
support. Joseph had no reason to doubt the truth of the allegation. He filed an appearance and
waiver consenting to entry of his default. The district court granted Eleanor the divorce,
custody, and child support of $150.00 a month.
Joseph made child support payments for thirteen months. In 1980, he came to suspect he
was not the child's father. Blood tests established it was impossible for Joseph who, like
Eleanor, had Type O blood to have fathered the child who had Type A blood.
In 1985, Eleanor sought to reduce the child support arrearages to judgment. The district
court ruled that Joseph could not raise non-paternity as a defense. We disagree.
[Headnote 1]
Entry of judgment for support arrearages under NRS 125.180 is discretionary with the
court. On motion, the court may enter judgment for all or none of the delinquent payments.
103 Nev. 540, 542 (1987) Libro v. Walls
judgment for all or none of the delinquent payments. Reed v. Reed, 88 Nev. 329, 331, 497
P.2d 896, 897 (1972). In Folks v. Folks, 77 Nev. 45, 47, 359 P.2d 92, 93 (1961), we approved
the district court's exercise of discretion not to enter judgment where the movant would not
have been benefitted by an uncollectible judgment, but the obligor would have been greatly
prejudiced in the eyes of his superiors in the military.
The issue is whether the district court abused its discretion by entering judgment on the
arrearages. The facts in this case are simple. The divorce decree required Joseph to pay child
support for a child that blood tests later established was not his. Joseph did not litigate the
obligation at the time of the divorce because he did not suspect the child born to his wife was
not his. Eleanor neither informed Joseph nor the court that he might not be the child's father.
Lulled by ignorance of the true facts, Joseph consented to have a default entered against him
and the court granted Eleanor's prayer for child support.
Under similar circumstances, we have held silence constituted fraudulent concealment. In
Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409 (1954), the decedent's widow received
distribution of the entire estate after persuading the named executor to relinquish his rights
and to allow her to be appointed administratrix. It was later discovered that her marriage to
the decedent was invalid because a prior marriage had never been terminated. The court
concluded the widow's failure to disclose the fact of her other marriage amounted to
fraudulent concealment,
Even in the absence of a fiduciary or confidential relationship and where the parties are
dealing at arms length, an obligation to speak can arise from the existence of material
facts peculiarly within the knowledge of the party to be charged and not within the fair
and reasonable reach of the other party. Under such circumstances the general rule is
that a deliberate failure to correct an apparent misapprehension or delusion may
constitute fraud. This would appear to be particularly so where the false impression
deliberately has been created by the party sought to be charged.
Id. at 467-468, 273 P.2d at 414-415.
The facts are more egregious in this case because the parties had a marital relationship.
Eleanor had peculiar knowledge of the circumstances of the child's conception. This
information was outside the reach of Joseph. Eleanor, in seeking to impose a child support
obligation on Joseph, had a duty to disclose to him and to the court that he might not be the
child's father.
[Headnotes 2, 3]
Where the fraud is so successful the other party is not even aware he has a claim of
defense, it may be said he had no reasonable opportunity to present it. Id. at 471, 273
P.2d at 416.
103 Nev. 540, 543 (1987) Libro v. Walls
aware he has a claim of defense, it may be said he had no reasonable opportunity to present it.
Id. at 471, 273 P.2d at 416. That which keeps one party away from court by conduct
preventing a real trial on the issues is extrinsic fraud and forms a sufficient basis for equitable
relief from the judgment. Id.; Savage v. Salzman, 88 Nev. 193, 195, 495 P.2d 367, 368
(1972); Colby v. Colby, 78 Nev. 150, 153-154, 369 P.2d 1019, 1021 (1962); Murphy v.
Murphy, 65 Nev. 264, 271, 193 P.2d 850, 854 (1948).
[Headnote 4]
Eleanor's omission prevented Joseph from having a fair opportunity to litigate paternity in
the divorce proceedings. The divorce decree is thereby open to attack by an independent
action in equity on the grounds of extrinsic fraud. Under these circumstances, we conclude
the district court abused its discretion in directing entry of judgment for child support
arrearages accrued under the decree.
Accordingly, we hereby reverse the judgment of the district court.
1

____________________

1
We note that Eleanor may be entitled to seek enforcement of her claim in an independent action. Folks v.
Folks, supra, 77 Nev. at 48, 359 P.2d at 94. We do not venture to express any opinion on the merits of such an
action. Nor do we decide whether an independent action in equity to set aside the divorce decree would be
successful under all the facts of this case.
____________
103 Nev. 543, 543 (1987) SIIS v. Harrison
Appellant, v. RONALD A. HARRISON, Respondent.
No. 17724
Appellant, v. RONALD A. HARRISON, Respondent.
No. 17931
December 10, 1987 746 P.2d 1095
Consolidated appeals by State Industrial Insurance System from district court judgment
and order granting mandamus. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Worker sought judicial review of workmen's compensation award, and later petitioned for
mandamus to compel use of higher wage base. The district court ruled for worker in both
proceedings. The State Industrial Insurance System appealed. The Supreme Court held that:
{1) infection and amputation of leg constituted new injury rather than recurrence of
earlier fracture injury, and benefit rate should be based on date of new injury; and {2)
benefits should be based on maximum wage base at time of new injury, even though
actual earnings may have been much lower.
Supreme Court held that: (1) infection and amputation of leg constituted new injury rather
than recurrence of earlier fracture injury, and benefit rate should be based on date of new
injury; and (2) benefits should be based on maximum wage base at time of new injury, even
though actual earnings may have been much lower.
Affirmed.
[Rehearing denied April 28, 1988]
Pamela Bugge, Carson City, and Virginia Hunt, Las Vegas, for Appellant.
Johns & Johns, Las Vegas, for Respondent.
Infection at site where leg had been fractured eight years earlier, and resulting amputation of leg,
constituted new injury rather than recurrence, and compensation should be based on rate in effect at time of
new injury.
When accident and disability do not occur simultaneously, wage base at time of disability, not accident,
should be used. NRS 616.625.
Worker who was earning well in excess of maximum wage base before accident eight years earlier, and
who but for that accident would have been earning in excess of maximum wage base at time of new injury,
should receive compensation based on earnings equal to maximum wage base at time of new injury, even
though actual earnings may have been much lower.
OPINION
Per Curiam:
In these consolidated appeals the State Industrial Insurance System (SIIS) challenges a
district court judgment establishing a 1983 permanent total disability rate for calculating
respondent Ronald A. Harrison's benefits. SIIS also contends that the district court erred in
granting mandamus to compel the agency to use a maximum 1983 wage base in calculating
Harrison's benefits. Our review of the record and the law reveals no basis for reversal.
On January 10, 1975, Harrison sustained a compensable industrial injury when he fell
from a ladder and fractured his left tibia and fibula. After operations and treatment, SIIS rated
Harrison as having a 34 percent permanent partial disability. Because of the severity of his
injury, Harrison was unable to work for a long period after his accident.
In 1983, Harrison underwent emergency surgery consisting of an above-the-knee
amputation of his left leg. The amputation was necessary because of a serious infection
which had developed at the site of the 1975 leg injury.
necessary because of a serious infection which had developed at the site of the 1975 leg
injury. SIIS re-opened the case and re-rated Harrison as having a permanent total disability.
SIIS informed Harrison that he would thereafter be provided with permanent total
disability benefits based on (1) his 1975 average monthly wage (wage base), and (2) the
1975 permanent total disability rate. The latter rate, in effect, was lower than the 1983 rate,
which, under NRS 616.580, was 66.67 percent. Harrison's 1975 wage base was $1,080,
which, at that time, exceeded by $352.52 the maximum wage base upon which benefits could
be calculated. Under NRS 616.580, the monthly benefit payment for permanent total
disability is calculated by multiplying the wage base by the disability rate.
Harrison appealed SIIS's determination to use 1975 figures, claiming that his benefits
should be based on 1983 figures. The appeals officer upheld the SIIS determination,
reasoning that because the amputation was a continuation of the 1975 injury, the 1975 wage
base and disability rates should be used in calculating Harrison's benefits. Thereafter,
Harrison successfully petitioned the district court for judicial review. The district court
reversed the appeals officer's decision and held that Harrison's 1983 infection and amputation
was an injury distinct from his earlier broken leg. The court ordered SIIS to pay benefits
based upon the date of the amputation.
SIIS then implemented the district court order by applying the 1983 permanent total
disability rate, 66.67 percent, to a 1983 average wage base of $500. SIIS used a $500 wage
base because Harrison allegedly earned $500 one month before the amputation.
Harrison filed a petition for writ of mandamus to compel SIIS to apply the 1983 disability
rate to the 1983 maximum wage base of $1,930.38. The district court granted the writ on the
basis that Harrison would have been earning in excess of the 1983 maximum wage base had
it not been for the 1975 industrial accident. The court noted that Harrison's earnings exceeded
the maximum wage base during the year of his accident and concluded there was no reason to
believe that his 1983 earnings would have been less than the maximum if his capacity to
work had not been destroyed by the 1975 injury. We agree.
Discussion
[Headnote 1]
NRS 616.625 provides Except as otherwise provided by specific statute, the amount of
compensation and benefits and the person or persons entitled thereto must be determined as
of the date of the accident or injury to the employee, and their rights thereto become
fixed as of that date."
date of the accident or injury to the employee, and their rights thereto become fixed as of that
date. On appeal, SIIS argues that the amputation resulted from the 1975 accident, and, under
NRS 616.625, a 1975 permanent total disability rate should have been used.
The lower court disagreed, determining that, under the statute, Harrison's infection and
amputation constituted a 1983 injury to be compensated according to the 1983 permanent
disability rate of 66.67 percent. We cannot say that his determination was erroneous.
1
Harrison's 1975 injury involved fractures that left his leg intact. The fractures, of course, were
disabling and an undoubted source of frustration for the injured workman. However, the 1983
infection with resulting amputation constituted an injury of an entirely new nature and
dimension. While the etiology of the infection may implicate the 1975 fractures, the nexus
between the fractures and an amputation occurring eight years later is of insufficient
magnitude and linkage to deprive Harrison of the benefits applicable to him as of the date of
the loss of his leg. Moreover, the court could have reasoned that two injuries resulted from
Harrison's 1975 industrial accident. The first injury was the broken leg. The second discrete
injury was the leg infection that was diagnosed and treated by amputation in 1983. Because
the second injury did not result until 1983, the right to claim permanent total disability did not
vest until 1983. Applying this reasoning under NRS 616.625, the statutory date of the . . .
injury to the employee was 1983 and Harrison's rights thereto [became] fixed as of that
date.
The lower court's decision also is compatible with this court's policy of construing the
workmen's compensation laws liberally in favor of worker protection. SIIS v. Weaver, 103
Nev. 196, 734 P.2d 740 (1987). Several other courts have ruled that when an industrial
accident and disability do not occur simultaneously, the rate in effect at the time the disability
arises, rather than at the time of accident, governs.
2
Therefore, the district court did not err
by holding that the 19S3 rate of 66.67 percent should be used in calculating Harrison's
permanent total disability benefits.

____________________

1
As we noted in SIIS v. Swinney, 103 Nev. 17, 731 P.2d 359, 361 (1987), successive accidental injuries
may be divided into three typesnew injuries, aggravations of a prior injury, and recurrences. We also noted
that how a subsequent injury is characterized depends on the facts, medical evidence and circumstances. An
appeals officer's determination [that an injury is a new injury, an aggravation, or a recurrence] may not be set
aside unless it is against the manifest weight of the evidence. After review of the record, we are convinced that
the appeals officer's determination that Harrison's infection and amputation was a recurrence, rather than a new
injury, was against the manifest weight of the evidence.

2
See Prescott v. United States, 523 F.Supp. 918, 926 (D.Nev. 1981) (when actual disability occurs after the
date of the accident . . . the law in effect at the date of the occurrence of the disability governs, and not the law at
the
Therefore, the district court did not err by holding that the 1983 rate of 66.67 percent
should be used in calculating Harrison's permanent total disability benefits.
[Headnotes 2, 3]
SIIS suggests that affirmance of the 1983 permanent total disability rate requires
application of the $500 wage base Harrison was allegedly earning in 1983. Although the
principle it asserts is correct,
3
the figure it uses is not. Even assuming that Harrison was
making $500 per month at the time of his amputation, his benefits should not be based on that
amount. Use of this wage base would penalize Harrison for obtaining employment with a
lower salary than he had when his disabling accident occurred.
Before his accident, Harrison was earning well in excess of the maximum wage base.
After examination of the record on appeal, we are in agreement with the trial court that but
for Harrison's industrial accident, he would have been earning in excess of the 1983
maximum wage base. Therefore, the lower court's decision that benefits must be based on
earnings equal to the hypothetical 1983 maximum wage base of $1,930.38 was not error.
For the reasons expressed above, the decisions of the district court in both of the
consolidated cases are affirmed.
4

____________________
date of the accident); Dickow v. Workmen's Compensation Appeals Bd., 109 Cal.Rptr. 317, 318 (Ct.App.
1973) (When [a] right comes into existence certain rates are applicable. It would seem that these are the rates
by which compensation should be payable.); Peters v. Chrysler Corp., 295 A.2d 702, 704 (Del. 1972) (The
governing statute is the one in effect at the time the disability becomes permanent, and not at the time of the
injury.); Allen v. Kalamazoo Paraffin Co., 20 N.W.2d 731, 732 (Mich. 1945) (rate at time of disability, not
accident, governs); Sherry v. Crescent Co., 226 A.2d 819 (R.I. 1967); cf. Wood v. J. P. Stevens & Co., 256
S.E.2d 692, 698 (N.C. 1979) (for occupational diseases, date of disablement determines which law applies);
Wyoming State Treasurer v. Barnes (In re Barnes), 587 P.2d 214, 219 (Wyo. 1978) (cause of action arises when
employee operated on, and not when accident occurred).

3
See Ranger v. New Hampshire Youth Dev. Center, 377 A.2d 132, 134 (N.H. 1977) (when accident and
disability do not occur simultaneously, wage base at time of disability, not accident, should be used).

4
SIIS argues that if every time a claim is reopened, SIIS must recalculate benefits based on rates in effect on
the date the claim is reopened, the system will be financially strained. However, our holding in this case only
governs those rare situations where a single industrial accident causes two distinct injuries, one of which arises
some time after the accident.
____________
103 Nev. 548, 548 (1987) Barr v. Gaines
SUSAN PATRICIA BARR, Appellant/Cross-Respondent,
v. BRUCE O. GAINES, Respondent/Cross-Appellant.
No. 17983
December 10, 1987 746 P.2d 634
Appeal and cross-appeal from a summary judgment. Eighth Judicial District Court, Clark
Motorist brought suit against father of driver of other car for injuries in automobile
collision. The district court granted summary judgment to father. Plaintiff appealed. The
Supreme Court held that father was not vicariously liable for son's negligence when he had
transferred his interest in vehicle to son prior to accident, even though vehicle was still
registered to father.
Affirmed.
Ward & Maglaras, Las Vegas, for Appellant/Cross-Respondent.
Edward J. Hanigan, Las Vegas, for Respondent/Cross-Appellant.
1. Judgment.
Whether registered owner of motor vehicle pursuant to registration statute is necessarily owner of vehicle
for purposes of vicarious liability is question of law and can be decided on motion for summary judgment.
NRS 41.440, 482.010 et seq.; NRCP 56(e).
2. Automobiles.
Definition of owner in chapter on motor vehicle registration requirements does not define owner of
the motor vehicle for purposes of vicarious liability. NRS 41.440, 482.085.
3. Automobiles.
Father of driver was not owner of vehicle according to registration statute, where he had transferred his
interest in vehicle to son and had no immediate right of possession, and thus, even assuming registration
statute was relevant, he was not vicariously liable for son's negligence.
4. Automobiles.
Failure of transferee of vehicle to comply with registration statute did not invalidate transfer of title or
render transferor the owner for purposes of vicarious liability. NRS 41.440, 482.400, subds. 1, 2.
OPINION
Per Curiam:
On May 21, 1986, the automobile driven by appellant collided with an automobile driven
by respondent's son. Appellant filed a complaint against respondent for the resulting
property damage and personal injuries.1 In the complaint, appellant alleged that
respondent, as the owner of the vehicle driven by his son, was vicariously liable for the
damages that resulted from his son's negligence.
103 Nev. 548, 549 (1987) Barr v. Gaines
complaint against respondent for the resulting property damage and personal injuries.
1
In the
complaint, appellant alleged that respondent, as the owner of the vehicle driven by his son,
was vicariously liable for the damages that resulted from his son's negligence. See NRS
41.440. Rather than answering the complaint, respondent filed a motion for summary
judgment. In the motion for summary judgment, respondent alleged that he was not
vicariously liable for his son's negligence because he had transferred his ownership interest in
the vehicle to his son prior to the date of the accident. In support of his motion, respondent
appended a bill of sale and a certificate of title both indicating that respondent had transferred
title to the vehicle to his son on March 20, 1986, two months prior to the accident.
Appellant opposed respondent's motion for summary judgment on the ground that the
records of the Nevada Department of Motor Vehicles indicated that respondent was the
owner of the subject vehicle on the date of the accident. Appellant argued that because, on the
date of the accident, respondent was the registered owner of the automobile pursuant to
chapter 482 of the Nevada Revised Statutes respondent was liable to appellant for damages as
an owner pursuant to NRS 41.440. Significantly, appellant did not contest respondent's
allegation that he transferred title to the automobile to his son prior to the accident, nor did
appellant attach any affidavits in support of her arguments as required by NRCP 56(e). The
district court granted summary judgment in favor of respondent.
[Headnote 1]
On appeal, appellant contends that the district court erred in granting summary judgment
because a genuine issue of fact remained as to whether respondent owned the motor vehicle
in question on the date of the accident. We disagree. The only question properly raised in
appellant's opposition to respondent's motion for summary judgment was whether the
registered owner of a motor vehicle pursuant to chapter 482 of the Nevada Revised Statutes is
necessarily the owner of that vehicle for purposes of the vicarious liability imposed by NRS
41.440. This question is purely legal. Appellant's opposition to respondent's motion did not
call the operative facts asserted by respondent into question. Thus, no genuine issue of fact
remained for trial, and the district court did not err in deciding the question presented as a
matter of law.
____________________

1
Although appellant's complaint also named respondent's son as a defendant, it does not appear that appellant
served the summons and complaint on the son. Consequently, the son, although a named defendant, was not a
party to the action below for purposes of NRCP 54(b), and he is not a party to this appeal. See Rae v. All
American Life & Cas. Co., 95 Nev. 920, 922, 605 P.2d 196 (1979).
103 Nev. 548, 550 (1987) Barr v. Gaines
law. See NRCP 56(e); Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975) (mere
allegations and denials in pleadings not supported by affidavits or other documentary
evidence are insufficient to raise a genuine issue of fact).
Any liability imposed upon a wife, husband, son, daughter, father, mother, brother,
sister or other immediate member of a family arising out of his or her driving and
operating a motor vehicle upon a highway with the permission, express or implied, of
such owner is hereby imposed upon the owner of the motor vehicle, and such owner
shall be jointly and severally liable with his or her wife, husband, son, daughter, father,
mother, brother, sister or other immediate member of a family for any damages
proximately resulting from such negligence or willful misconduct, and such negligent
or willful misconduct shall be imputed to the owner of the motor vehicle for all
purposes of civil damages.
Appellant contends that respondent's failure to comply strictly with the registration
requirements of chapter 482 of the Nevada Revised Statutes renders his transfer of title to the
vehicle to his son ineffective for the purpose of avoiding the liability imposed by NRS
41.440. Appellant argues further that the registration requirements should be strictly
construed in order to protect the interests of persons injured by motorists who have escaped
the mandatory insurance requirements by failing to register their vehicles in their own names.
Appellant's reliance on chapter 482 of the Nevada Revised Statutes is misplaced.
[Headnotes 2, 3]
NRS 482.085 defines the term owner for the purpose of chapter 482 only. NRS 482.085
provides:
Owner means a person who holds the legal title of a vehicle, or in the event a vehicle
is the subject of an agreement for the conditional sale or lease thereof with or without
the right of purchase upon performance of the conditions stated in the agreement and
with an immediate right of possession vested in the conditional vendee or lessee, or in
the event a mortgagor of a vehicle is entitled to possession, then such conditional
vendee or lessee or mortgagor shall be deemed the owner for the purpose of this
chapter.
(Emphasis added.) This section does not purport to define the phrase owner of the motor
vehicle for purposes of NRS 41.440. Assuming, however, that NRS 482.085 is relevant,
NRS 482.085 includes within the definition owner only those persons who hold the legal
title to the vehicle or, in the event the vehicle is subject to a sale or lease agreement, those
with an "immediate right of possession" to the vehicle.
103 Nev. 548, 551 (1987) Barr v. Gaines
immediate right of possession to the vehicle. Pursuant to NRS 482.090, a seller could
actually retain the certificate of title to a vehicle and not be the owner of the vehicle so long
as the conditional vendee had the immediate right of possession. In the instant case, there
were no allegations that respondent had any immediate right of possession; therefore, he
could not be an owner pursuant to NRS 482.085.
[Headnote 4]
Further, NRS 482.400(1) provides that upon transferring his interest in a motor vehicle,
the transferor must write his signature upon the certificate of ownership. No further obligation
is imposed on the transferor by NRS 482.400(1). Appellant suggests that respondent may be
held liable as an owner because respondent failed to comply with the registration
requirements of NRS 482.400(2). That section, however, imposes a duty on the transferee of
a motor vehicle to apply promptly for a new registration, and to pay the applicable privilege
taxes. There is no indication in NRS 41.440 that the legislature intended to shift the duty
placed by NRS 482.400(2) on a transferee to the transferor. Instead, NRS 41.440 simply
imposes vicarious liability on the true owner of a motor vehicle if a member of his immediate
family operates his automobile with his permission.
In Bly v. Mid-Century Ins., 101 Nev. 216, 698 P.2d 877 (1985), this court held that failure
to comply with Nevada's registration statute does not invalidate a conditional sales
transaction. Similarly, the failure of respondent's son to comply with Nevada's registration
statute did not invalidate the transfer of respondent's title to his son, nor did it render
respondent the owner of the vehicle for purposes of NRS 41.440. We conclude, therefore,
that respondent was entitled to judgment as a matter of law, and that the district court did not
err in granting summary judgment. See Bird v. Casa Royale West, 97 Nev. 67, 624 P.2d 17
(1981) (summary judgment is appropriate when moving party is entitled to judgment as a
matter of law).
In his cross-appeal, respondent argues that the district court incorrectly refused to award
attorney's fees pursuant to NRS 18.010(2)(b) and NRCP 11. The award of fees in such
instances is within the sound discretion of the district court and will not be disturbed upon
appeal absent manifest abuse of that discretion. County of Clark v. Blanchard Constr. Co., 98
Nev. 488, 653 P.2d 1217 (1982); Naimo v. Fleming, 95 Nev. 13, 588 P.2d 1025 (1979).
Based on our review of the record, we conclude that the district court did not abuse its
discretion.
For the above-stated reasons, we affirm the district court's judgment in all respects.
____________
103 Nev. 552, 552 (1987) State v. Autry
THE STATE OF NEVADA, Appellant, v. MICHAEL AUTRY aka
STEVE WEST aka BILL WINSLOW, Respondent.
No. 18414
December 10, 1987 746 P.2d 637
Appeal from an order of the district court granting respondent's petition for a pretrial writ
of habeas corpus. Eighth Judicial District Court, Clark County; James Brennan, Judge.
Petitioner sought pretrial writ of habeas corpus seeking dismissal of charges against him.
The district court granted petition. State appealed. The Supreme Court held that: (1) petitioner
failed to establish actual prejudice resulting from state's delay in filing criminal complaint,
and (2) evidence did not support district court's finding that state's delay was occasioned by
negligence.
Brian McKay, Attorney General, Carson City; Gregory J. Barlow, Deputy Attorney
General, Las Vegas, for Appellant.
Michael D. Davidson, Las Vegas, for Respondent.
1. Habeas Corpus.
Petitioner failed to establish actual prejudice resulting from state's delay in filing criminal complaint until
last day before expiration of statute of limitations, so as to warrant habeas corpus relief, in that petitioner
failed to demonstrate specifically how unavailability of any defendant or potential witness had prejudiced
his defense, or how testimony of absent witnesses or defendants would have benefited his defense. NRS
171.085, subd. 2.
2. Habeas Corpus
While events at trial may have revealed actual and specific prejudice resulting from state's delay in filing
criminal complaint, petitioner's assertions that, due to delay, he could not recall what happened on dates in
question, and that it would be nearly impossible for him to establish alibi, were speculative and
premature and did not constitute sufficient showing of actual prejudice, so as to warrant habeas corpus
relief.
State's failure to file criminal complaint until last day before expiration of statute of limitations did not
result from negligence, as would violate due process, but rather from complexities of case and ongoing
efforts of state to put together a meritorious case. NRS 171.085, subd. 2; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Respondent filed a pretrial petition for a writ of habeas corpus in the district court
seeking dismissal of the charges against him.
103 Nev. 552, 553 (1987) State v. Autry
in the district court seeking dismissal of the charges against him. Respondent asserted that the
state's delay in filing the criminal complaint would deprive him of his constitutional right to a
fair trial under the Fifth Amendment. The district court granted respondent's petition. For the
reasons set forth below, we conclude that the district court erred in issuing the writ of habeas
corpus. Therefore, we reverse and remand this case for further proceedings.
THE FACTS
On January 30, 1987, the state filed a criminal complaint charging respondent and three
other individuals with conspiring to present false claims for insurance benefits, filing false
claims for insurance benefits, and obtaining money by false pretenses, all felonies pursuant to
NRS 686A.291(2), NRS 686A.291(1), and NRS 205.380. A warrant for respondent's arrest
was issued the same day. The complaint, insofar as it related to respondent, Michael Autry,
charged that Autry committed the above-noted felonies on separate occasions on or about
January 30, 1984, and August 29, 1984.
Respondent subsequently was located and arrested in Dallas, Texas. He waived
extradition, and a preliminary hearing was held before the justice's court on May 28, 1987. At
the conclusion of the hearing, respondent moved to dismiss the complaint. Respondent noted
that the state delayed in filing the complaint and in seeking an arrest warrant until the last day
before the expiration of the statute of limitations for the criminal acts which allegedly
occurred on January 30, 1984.
1
See NRS 171.085(2) (an information or a complaint charging
the above-noted felonies must be filed within three years after the commission of the
offenses). Further, respondent asserted that the state's delay in filing the criminal complaint
had prejudiced his ability to defend against the charges because memories have slipped and
because after three years he had no knowledge of the whereabouts of some of the individuals
named in this case. Accordingly, respondent argued that the complaint should be dismissed
because the state's pre-arrest delay had violated his right to due process of law under the Fifth
Amendment. See United States v. Lovasco, 431 U.S. 783 (1977); United States v. Marion,
404 U.S. 307 (1971).
In response to an inquiry from the justice of the peace regarding why the state had waited
until the eve of the expiration of the statute of limitations to file the complaint, Deputy
Attorney General Barlow replied: "Your Honor, I would have to speak for [my]
predecessors in the office.
____________________

1
The state's complaint was filed approximately seven months before the expiration of the statute of
limitations for the criminal acts that respondent allegedly committed on August 29, 1984.
103 Nev. 552, 554 (1987) State v. Autry
General Barlow replied: Your Honor, I would have to speak for [my] predecessors in the
office. In my position I can't know but am given to understand they were still trying to put it
all together in a very complicated case.
After expressing some concern over respondent's delay in filing the complaint, the justice
of the peace denied respondent's motion to dismiss the complaint. The justice of the peace
reasoned that respondent had failed to present an affidavit or other evidence demonstrating
actual prejudice to his right to a fair trial resulting from the delay. Further, the justice of the
peace concluded that the state had presented sufficient evidence to establish probable cause to
bind respondent over for trial in the district court on one count of conspiracy to present a false
claim for insurance benefits, two counts of filing false insurance claims, and one count of
obtaining money by false pretenses.
On June 29, 1987, respondent filed a pretrial petition for a writ of habeas corpus in the
district court. Respondent again argued that the information should be dismissed because of
unjustified and prejudicial pre-arrest delay. Respondent asserted that the testimony of eye
witnesses at the preliminary hearing of May 28, 1987, demonstrated that the investigation
concerning respondent was completed long before the complaint was filed and the [arrest]
warrant was activated. Specifically, respondent cited the testimony of a claims adjuster for
Farmers Insurance Group, who stated that approximately three years ago she identified
respondent's picture in a photo lineup shown to her by someone from the attorney general's
office. The witness indicated that she identified respondent at that time as the individual who
had come to her office and filed one of the insurance claims which was the subject of the
criminal complaint. Similarly, another former claims adjuster testified at the preliminary
hearing that he had identified respondent from a photo lineup about a year and a half ago as
the individual who had filed the other false insurance claim.
The state filed a response and opposition to respondent's petition on July 10, 1987. On July
15, 1987, respondent supplemented the petition with his affidavit, indicating, inter alia, that
the passage of time since the alleged criminal acts occurred would render it nearly
impossible . . . to establish an alibi for my whereabouts on the dates in question. . . .
Respondent also asserted that any investigation by his attorney had been hindered because the
whereabouts of some of the defendants in this case are unknown. . . .
The district court conducted hearings on the petition on July 15 and July 22, 1987. On July
31, 1987, the district court granted the petition and dismissed all the charges against
respondent. This appeal followed.
103 Nev. 552, 555 (1987) State v. Autry
DISCUSSION
[Headnote 1]
In its order granting respondent's petition, the district court found that respondent had
demonstrated actual, material and substantial prejudice by reason of the lengthy delay in the
filing of charges. Our view of the record reveals, however, that substantial evidence does not
support the district court's finding in this regard. In particular, we observe that in his affidavit,
respondent asserted that the whereabouts of some of his co-defendants were unknown and
therefore his counsel's investigation of the case had been hindered by the passage of time.
Respondent, however, failed to demonstrate specifically how the unavailability of any
defendant or potential witness had prejudiced his defense, or how the testimony of the absent
witnesses or defendants would have benefited his defense. As the court stated in United
States v. Mays, 549 F.2d 670, 677 n. 12 (9th Cir. 1977):
[U]nless the defendant can make some showing as to what the testimony [of an
unavailable witness] would have been, or specifically how the witness could have
exonerated him, there is no way of knowing whether the defendant is merely
speculating as to the contribution of the witness to his defense or perhaps even
attempting to take advantage of the witness's unavailability to make a Due Process
claim when it is in reality unfounded.
See also Sheriff v. Berman, 99 Nev. 102, 108, 659 P.2d 298, 301 (1983) (general claims of
prejudice unsupported by offers of proof concerning testimony lost as a result of delay are
insufficient to establish the requisite prejudice).
[Headnote 2]
Additionally, respondent's assertions that, due to the delay, he could not recall what
happened on the dates in question, and that it would be nearly impossible for him to
establish an alibi, are speculative and premature, and do not constitute, at this juncture, a
sufficient showing of actual prejudice. See United States v. Golden, 436 F.2d 941 (8th Cir.)
(mere claim of general inability to reconstruct events of the period in question is insufficient
to establish the requisite prejudice), cert. denied, 404 U.S. 910 (1977). As the Supreme Court
observed in United States v. Marion, supra, although the possibilities that memories will dim,
witnesses will become inaccessible, and evidence will be lost are inherent in any delay, [i]n
light of the applicable statute of limitations, however, these possibilities are not in themselves
enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the
dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at
the present time appellees' due process claims are speculative and premature."
103 Nev. 552, 556 (1987) State v. Autry
the trial may demonstrate actual prejudice, but at the present time appellees' due process
claims are speculative and premature. United States v. Marion, 404 U.S. at 326 (emphasis
added). Similarly, in the instant case, we conclude that while events at trial may in fact reveal
actual and specific prejudice resulting from the state's delay, the present state of the record
reveals that respondent's claims of prejudice are speculative and premature at best.
Even assuming, however, that the district court properly found that respondent had shown
substantial prejudice, such a finding is not in itself sufficient to warrant a conclusion that
respondent's due process rights were violated and that the information should be dismissed.
For example, in United States v. Marion the Court observed that the applicable statute of
limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.'
Id. at 322, quoting United States v. Ewell, 383 U.S. 116, 122 (1966) (emphasis added). The
Court further concluded, however, that the statute of limitations does not fully define one's
rights and that
the Due Process Clause of the Fifth Amendment would require dismissal of the
indictment if it were shown at trial that the preindictment delay in this case caused
substantial prejudice to appellees' rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused.
United States v. Marion, 404 U.S. at 324 (emphasis added); see also Jones v. State, 96 Nev.
240, 607 P.2d 116 (1980) (to provide basis for dismissal an accused must show that the
preindictment delay prejudiced his right to a fair trial and that the government delayed to gain
a tactical advantage). Additionally, in Unite States v. Lovasco, 431 U.S. 783, 790 (1977), the
Court again emphasized that the Marion case makes clear that proof of prejudice is generally
a necessary but not sufficient element of a due process claim, and that the due process inquiry
must consider the reasons for the delay as well as the prejudice to the accused.
[Headnote 3]
In the instant case, the district court specifically found that the state's delay in the filing of
the criminal complaint was occasioned solely by reason of negligence. Our review of the
record reveals, however, that the only evidence presented below in explanation of the delay,
aside from the fact of the delay itself, was Deputy Attorney General Barlow's statement
during the preliminary hearing. As noted, Mr. Barlow indicated that although he did not have
personal knowledge of the reasons for the delay, he had been given to understand that his
predecessors in the office "were still trying to put it all together in a very complicated
case."
103 Nev. 552, 557 (1987) State v. Autry
sors in the office were still trying to put it all together in a very complicated case. Although
this explanation is less than complete, and no further evidence concerning the reason for the
delay appears in the record, we must assume that Mr. Barlow's representations were made in
good faith. See United States v. Lovasco, 431 U.S. at 796 (1977). Based on our review of the
record, we are simply unable to conclude that this evidence or any other evidence in the
record supports the district court's finding that the state's delay was occasioned by negligence.
To the contrary, taking Mr. Barlow's representations at face value, the evidence indicates that
the delay resulted not from negligence but rather from the complexities of the case and the
ongoing efforts of the state to put together a meritorious case.
2
Accordingly, we conclude
that substantial evidence does not support the district court's finding in this regard.
Moreover, as the Supreme Court has observed:
[I]nvestigative delay is fundamentally unlike delay undertaken by the Government
solely to gain tactical advantage over the accused, [citation omitted] precisely
because investigative delay is not so one-sided. [Footnote omitted.] Rather than
deviating from elementary standards of fair play and decency, a prosecutor abides by
them if he refuses to seek indictments until he is completely satisfied that he should
prosecute and will be able promptly to establish guilt beyond a reasonable doubt.
United States v. Lovasco, 431 U.S. at 795. In the instant case, the record does not support
respondent's assertions below that the investigation of this matter was completed long before
the state sought an arrest warrant. The mere fact that eyewitnesses had identified respondent
from a photographic lineup does not mean that the state had a sufficient quantum of evidence
to support a criminal conviction or that the state had completed its investigation against the
other suspects and alleged co-conspirators. Law enforcement officers are under no
constitutional duty to call a halt to a criminal investigation the moment they have the
minimum evidence to establish probable cause, a quantum of evidence which may fall far
short of the amount necessary to support a criminal conviction. Hoffa v. United States, 385
U.S. 293, 310 (1966). Under these circumstances, where no substantial evidence supports the
finding that the delay in filing the complaint was occasioned solely by reason of the state's
negligence, we conclude that the district court erred in issuing the writ of habeas corpus.
____________________

2
In this regard, we note that the criminal complaint implicated four individuals in two separate incidents,
respondent allegedly used aliases in carrying out the crimes, and that the two victims of the crimes resided
outside Nevada in Colorado. Thus, Deputy Barlow's assertions concerning the complexity of the case and the
investigative delay appear reasonable.
103 Nev. 552, 558 (1987) State v. Autry
was occasioned solely by reason of the state's negligence, we conclude that the district court
erred in issuing the writ of habeas corpus.
In light of our conclusion in this regard, it is unnecessary to reach the issue of whether
governmental negligence, without more, is sufficient to support a due process claim based on
pre-arrest delay. Nonetheless, because the question may arise again during the course of the
trial below, we note, for the future guidance of the trial court, that the cases in this area
strongly suggest that some showing must be made that the delay entailed intentional or
reckless disregard by the state of appreciable risks of impairment to an accused's defense. See
United States v. Lovasco, 431 U.S. at 795 n. 17 (governmental delay in reckless disregard of
circumstances, known to prosecution, suggesting an appreciable risk that accused's defense
would be impaired may amount to deprivation of due process of law); United States v.
Marion, 404 U.S. 307 (1971) (actual prejudice and a delay to gain a tactical advantage would
result in violation of due process clause); Jones v. State, 96 Nev. 240, 607 P.2d 116 (1980)
(this court, relying on Marion, concluded that an accused must show that government delayed
to gain a tactical advantage); see also Sheriff v. Berman, 99 Nev. 102, 659 P.2d 298 (1983)
(district court's order dismissing complaint reversed where no evidence existed in the record
to indicate that the state sought intentionally to hamper the defense through delay); Bailey v.
State, 94 Nev. 323, 579 P.2d 1247 (1978) (defendant was not deprived of his right to a speedy
trial where there was not prejudice and no evidence that the delay was intentional).
In light of the above, we conclude that the district court erred in issuing the writ of habeas
corpus. Accordingly, we reverse and remand this case for further proceedings.
3

____________________

3
In light of the above, we deny as moot appellant's motion regarding the record on appeal.
____________
103 Nev. 558, 558 (1987) Harrison v. Falcon Products
LAURIE HARRISON, Appellant, v. FALCON PROD-
UCTS, INC., a Foreign Corporation, Respondent.
No. 17856
December 10, 1987 746 P.2d 642
Appeal from order granting summary judgment in a products liability action, Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Restaurant customer brought products liability action against manufacturer of bench in
which customer's knee allegedly became wedged.
became wedged. The district court granted summary judgment in favor of manufacturer.
Customer appealed. The Supreme Court held that plaintiff was entitled to additional time for
discovery.
Terry & Harris and H. Lee Dove, Las Vegas, for Appellant.
Alverson & Taylor and Bryan K. Gould, Las Vegas, for Respondent.
Judgment.
Plaintiff was entitled to additional time for discovery in products liability action, and, thus, grant of
summary judgment less than two years after filing of complaint was abuse of discretion, where plaintiff was
not able to gather enough information to support claims and was not dilatory in conducting discovery.
NRCP 26(b)(1), 41(e), 56(f).
OPINION
Per Curiam:
This is an appeal from an order granting respondent's motion for summary judgment in a
products liability action. For the reasons set forth below, we reverse.
FACTS
Taken in the light most favorable to appellant, the record indicates the following facts. On
January 9, 1983, Laurie Harrison (Harrison) entered Chuck E. Cheese's Pizza Time Theatre
with her husband, her baby, and her mother-in-law. Harrison, seeing what she perceived to be
a booth, went over to claim the seat. Actually, the seating arrangement consisted of an
unattached bench and a backrest. Harrison kneeled against the bench, and her knee wedged in
between the bench and the backrest. The bench slid, and Harrison fell, sustaining injuries.
Harrison filed suit against the manufacturer of the bench, Falcon Products, Inc. (Falcon),
on January 8, 1985, alleging negligence, breach of warranties, and strict liability. In its
answer, Falcon denied liability. On October 24, 1986, Falcon moved for summary judgment
contending that it did not know the intended use of its bench nor did it have any responsibility
for the placement of the bench. In her opposition, Harrison sought additional time to conduct
discovery pursuant to NRCP 56(f). The district court refused to allow a continuance and
granted summary judgment on November 26, 1986. Harrison appeals the court's decision.
DISCUSSION
Preliminarily, we note that not even two years had passed since the filing of the complaint
until the time summary judgment was granted. The harsh result of granting summary
judgment is obvious when had a motion to dismiss been before the district court, the court
would not have had the power to dismiss the action. See NRCP 41(e).
Moreover, appellant's diligence in pursuing this action is reflected by her request for
additional time to take depositions and to seek admissions. A party is allowed to discover any
information that is reasonably calculated to lead to the discovery of admissible evidence.
See NRCP 26(b)(1). Therefore, Harrison was entitled to conduct such discovery. Further,
Nevada Rule of Civil Procedure 56(f)
1
provides that when the party opposing summary
judgment lacks supporting facts for his position, the district court may order a continuance.
From Harrison's affidavit it is apparent that she had not yet been able to gather enough
information to support her claims. Pursuant to NRCP 56(f) the district court had the
discretion to continue the hearing and allow more time for discovery. Because Harrison was
not dilatory in conducting discovery, we cannot agree with the district court that she should
not have been allowed additional time to do so. Under these circumstances, granting
summary judgment in this early stage of the proceedings was an abuse of discretion.
Accordingly, we reverse the order granting summary judgment and remand the case to the
district court for further proceedings.
____________________

1
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion
that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order as is just.
____________
103 Nev. 560, 560 (1987) Sheriff v. Anderson
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
PHILIP PRESTON ANDERSON, Respondent.
No. 16961
December 10, 1987 746 P.2d 643
Appeal from an order granting a petition for a writ of habeas corpus. Eighth Judicial
Petitioner sought habeas corpus relief from conviction for use of device to assist him in
playing blackjack. The district court granted petition.
granted petition. Appeal was taken. The Supreme Court held that prohibition against use of
any device for various gaming purposes was not unconstitutionally vague as applied to
petitioner wearing computer shoes.
Rex Bell, District Attorney, Las Vegas; James Tufteland, Deputy, Las Vegas; Michael J.
Amador, Deputy, Las Vegas, for Appellant.
Andrew S. Blumen, Las Vegas, for Respondent.
Brian McKay, Attorney General, Michael E. Wilson, Deputy Attorney General, Carson
City, for State of Nevada, as Amicus Curiae.
Lionel, Sawyer & Collins, Rodney M. Jean, Las Vegas, for Nevada Resort Association, as
Amicus Curiae.
Gaming.
Prohibition against use of any device for various gaming purposes was not unconstitutionally vague as
applied to petitioner wearing computer shoes to compute advantage or disadvantage with house in
blackjack game, to advise him of remaining cards in deck, and to signal whether to hit, stand, double down,
or split. NRS 465.075; U.S.C.A.Const. Amends. 1, 5, 14.
OPINION
Per Curiam:
The district court granted Anderson's petition for a writ of habeas corpus. The court found
that NRS 465.075 was unconstitutionally vague on its face and in its application; was
overbroad; and that it denied Anderson his First, Fifth and Fourteenth Amendment rights. We
disagree.
Anderson was charged with possession of a cheating device and entering a building with
intent to use a cheating device (burglary). He was arrested in the Westward Ho Casino after
he was observed using computer shoes while playing Blackjack. A casino surveillance
technician observed that Anderson exerted unusual toe movements while playing. He
observed that the toe movements corresponded with the appearance of certain cards on the
table.
Casino personnel confronted Anderson and explained that they suspected him of wearing
computer shoes. Anderson admitted using a hidden microcomputer to assist him in the
game.
Anderson wore shoes and socks. The socks were cut away in order that the bare toes
could input data into the computer.
order that the bare toes could input data into the computer. Switches were attached in the
shoes with velcro. Anderson would push up with his toes for one, down for two, up for eight,
down for four. These combinations permitted Anderson to add up to any number. Wires
extended up Anderson's legs to a battery pack located in his left rear pocket. The main portion
of the computer was strapped to his left calf. Inflated balloons kept the apparatus away from
the skin in order to prevent burns. The computer sent vibratory signals to a special receiver
located inside an athletic supporter. The signal told Anderson whether to hit, stand, double
down, or split. The computer calculated Anderson's advantage or disadvantage with the house
and advised him of the remaining cards in the deck.
Anderson was arrested and indicted. His pre-trial petition for a writ of habeas corpus was
granted. The writ was issued and deemed permanent. On appeal, it is argued that the district
court erred in finding that NRS 465.0751 was unconstitutional.
The statute prohibits the use of a device for various gaming purposes. Anderson argues,
and the district court found, that this term was unconstitutionally vague. We disagree. In
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982), the Supreme Court
established standards for evaluating vagueness. A person of ordinary intelligence must have a
reasonable opportunity to know what conduct is prohibited. Laws must also provide standards
for law enforcement personnel. 455 U.S. at 498. However, one who engages in clearly
proscribed conduct cannot complain of the vagueness of the law as applied to others. 455
U.S. at 495.
We hold that NRS 465.075 is not vague, at least as applied to Anderson. Use of a hidden
computer is precisely the type of conduct envisioned by the statute. While there may be
circumstances when the term device is vague, we are not confronted with such a case.
Whatever else it may include, the term certainly includes computers. No person of ordinary
intelligence could believe otherwise. If one did have some question as to whether or not the
statute prohibited the use of computers, then reference to any standard dictionary would
provide the answer.
____________________

1
NRS 465.075 reads:
It is unlawful for any person at a licensed gaming establishment to use, or possess with the intent to
use, any device to assist:
1. In projecting the outcome of the game;
2. In keeping track of the cards played;
3. In analyzing the probability of the occurrence of an event relating to the game; or
4. In analyzing the strategy or playing or betting to be used in the game, except as permitted by the
commission.
Respondent's other contentions have been considered. They are without merit.
____________
103 Nev. 563, 563 (1987) Collier v. State
GREGORY ALAN COLLIER, Appellant, v.
No. 17376
December 22, 1987 747 P.2d 225
Appeal from denial of motion to preclude the State from seeking the death penalty and
from judgment of sentence of death. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
Defendant was convicted of first degree murder with use of a deadly weapon and of
robbery with use of a deadly weapon, and sentenced to death following a penalty hearing.
Defendant appealed. The Supreme Court, 101 Nev. 473, 705 P.2d 1126, affirmed conviction
but set aside death penalty and remanded. On remand, the district court again imposed death
penalty following hearing, and defendant appealed. The Supreme Court held that: (1) State
was properly permitted to seek death penalty at new penalty hearing; (2) prosecution's
improper comments in seeking death penalty did not result in prejudice to defendant; and (3)
death sentence was not disproportionate to penalty imposed in similar cases.
Affirmed.
Morgan D. Harris, Public Defender, Terrence M. Jackson, Deputy Public Defender, and
Susan Deems Roske, Deputy Public Defender, Clark County, for Appellant.
Tufteland, Deputy District Attorney, Mel Harmon, Deputy District Attorney, and Carolyn
Ellsworth, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
State in murder prosecution was properly permitted to seek a death penalty at second penalty hearing
after death sentence which resulted from first penalty was set aside due to prosecutorial misconduct and
unreasonable time limitations on closing arguments, notwithstanding defendant's claim that prosecution
was both overreaching and intending to goad him into moving for a mistrial; although prosecutor's remarks
at first penalty hearing were egregious, there was no indication that prosecution was disposed to
seek a mistrial for its advantage.
cution was disposed to seek a mistrial for its advantage. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Although it was improper for prosecutor to equate murder defendant with mad dogs, disease, plague, or
pestilence in his recommendation that death penalty be imposed, and to directly tell jury that he was not
impartial, such comments did not result in prejudice to defendant.
3. Homicide.
Death sentence for defendant convicted of execution style murder of store employee was not
disproportionate to penalty imposed in similar cases.
OPINION
Per Curiam:
Earl C. Harris, an employee of the Stop N Go market in Las Vegas, Nevada, was found
dead in the market's cooler on June 4, 1981, his hands tied behind his back and two gunshot
wounds to the head. The fatal shotpassing through the brainwas probably fired from a
distance of eighteen to twenty-four inches from his head. Missing from the store and
allegedly taken by Collier were $300, ten cartons of cigarettes, and a calculator.
Gregory Alan Collier was convicted of first degree murder with use of a deadly weapon
and robbery with use of a deadly weapon on April 11, 1983. At his first penalty hearing, the
jury returned a verdict of death. Because of prosecutorial misconduct and unreasonable time
limitations on closing arguments, we set aside his death sentence and remanded the case for a
new sentencing hearing. Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985).
Collier now argues that the double jeopardy clause bars the State from seeking the death
sentence at the second penalty hearing, and that the district court's denial of his motion to
preclude the seeking of the death sentence was error. Collier was sentenced to death, again, at
this second penalty hearing. Collier also contends that there was repeated prosecutorial
misconduct and that the sentence was disproportionate.
DOUBLE JEOPARDY
Based upon the Fifth Amendment of the United States Constitution, Collier argues that the
district court erred by denying Collier's motion to preclude the State from seeking the death
penalty at the new penalty hearing. The double jeopardy clause was applied to sentencing
hearings in Bullington v. Missouri, 451 U.S. 430 (1981). The Court held the State was barred
from seeking the death sentence at the second penalty hearing which was granted by the trial
court. The Court stated that the statutory sentencing procedure resembled a trial on the
issue of guilt or innocence.1 At the first trial, the jury sentenced the defendant to life in
prison, effectively acquitting the defendant of whatever was necessary to impose the
death sentence.
sentencing procedure resembled a trial on the issue of guilt or innocence.
1
At the first trial,
the jury sentenced the defendant to life in prison, effectively acquitting the defendant of
whatever was necessary to impose the death sentence. A defendant cannot be retried on an
issue after a verdict of acquittal. United States v. DiFrancesco, 449 U.S. 117, 129-130 (1980).
Collier was not acquitted at his first penalty hearing as the jury sentenced him to death.
Therefore, Bullington is not factually analogous, and the district court was not required to
limit the jury's choice of sentence at the second penalty hearing.
We set aside the first penalty hearing and remanded for a second. It has long been held that
the double jeopardy clause does not bar retrial when a conviction is reversed on appeal.
United States v. Ball, 163 U.S. 662 (1896); United States v. Tateo, 377 U.S. 463 (1964).
There is an exception to this rule: when the defendant is granted a mistrial because of
prosecutorial or judicial overreaching and where the governmental conduct in question was
intended to goad' the defendant into moving for a mistrial, reprosecution will be barred.
United States v. Dinitz, 424 U.S. 600 (1976); Oregon v. Kennedy, 456 U.S. 667 (1982). This
exception has also been extended to cases in which the motion for mistrial was denied and the
judgment was subsequently reversed because of the prosecutorial misconduct which
precipitated the motion for mistrial. United States v. Rios, 637 F.2d 728 (10th Cir. 1980) (2-1
decision); Petrucelli v. Smith, 544 F.Supp. 627 (1982). Thus, Collier argues that the
prosecution was both overreaching and intending to goad him into moving for a mistrial.
2

In Melchor-Gloria v. State we stated:
The dispositive question is thus whether the prosecutor's conduct under the
circumstances of the instant case constitutes overreaching or harassment intended
to goad appellant into moving for a mistrial. In addressing this issue, we note the trial
court came to the conclusion that there was no prosecutorial overreaching. The court
made an express finding there was no intentional conduct on the part of the prosecutor
which could be classified as bad faith. The trial court also found that the prosecutor was
not guilty of gross negligence.
____________________

1
NRS 175.552 and NRS 175.554 are substantially similar to the then corresponding Missouri statutes
(Mo.Rev.Stat. 565.006, 565.012(2), (3) and (4)) which were the basis for the Court's statement that the
sentencing procedure resembled a trial on the issue of guilt or innocence.

2
The specific instances of misconduct are delineated in Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985).
negligence. These appear to represent findings of fact which must be sustained on
appeal unless clearly erroneous. See United States v. Green, 636 F.2d 925, 928 (4th Cir.
1980); United States v. Calderon, 618 F.2d 88, 90 (9th Cir. 1980).
99 Nev. 174 at 178, 660 P.2d 109 at 112 (appeal following declaration of mistrial without
prejudice).
[Headnote 1]
In the case at hand, the trial court made findings of fact in denying Collier's motion. The
court stated: But I find at this time that there is no evidence that such actions were done
in bad faith or to harass and prejudice the Defendant and the misconduct was not over
reaching. . . .
Although the prosecutor's remarks at the first penalty hearing were egregious, we did not
state in our prior opinion that there was an intention to goad the defense into moving for a
mistrial. The facts do not suggest that the prosecution was disposed to seek a mistrial for its
advantage, and the finding of the trial court cannot be said to be clearly erroneous. We
therefore affirm the district court's ruling upon Collier's motion to preclude the State from
seeking the death penalty.
PROSECUTORIAL MISCONDUCT
Collier has, once again, directed this court to alleged prosecutorial misconduct. We note
two statements made by the prosecutor during closing argument which merit our attention.
In justifying a sentence of death, the prosecutor stated of Gregory Collier:
He is a killer. Society has the right to protect itself from its enemies and Greg Collier
is certainly an enemy. We have the right to kill our enemies as we have the right to kill
mad dogs or to kill disease or plague or pestilence.
[Headnote 2]
Although we do not consider this statement to have been prejudicial under the facts of this
case, we disapprove of the manner in which the prosecution equated Gregory Collier with
mad dogs, disease, plague or pestilence in its recommendation that the death penalty be
imposed. Pacheco v. State, 82 Nev. 172, 179, 414 P.2d 100, 103-104 (1966).
Additionally, the prosecutor retorted during rebuttal:
Mr. Jackson tells you, quote, I'm biased. And ladies and gentlemen, I'm going to tell
you the same thing. The essayist and philosopher Goeth [sic] said many years ago, I
can promise you to be sincere but not impartial. And I tell you I am sincere, but I'm not
impartial. I don't like murder.
While we understand that this comment may have been intended simply as an oratorical
device, we direct all counsel to be mindful that they are officers of the court whom juries
have a right to regard as unprejudiced, impartial, and nonpartisan, and bent only on seeing
justice done and the law vindicated in accordance with the rules of law. . . . State v.
Rodriguez, 31 Nev. 342, 346, 102 P. 863, 864 (1909).
[Headnote 3]
Lastly, Collier contends that the death sentence is disproportionate to the penalty imposed
in similar cases. We have reviewed Collier's sentence in accordance with NRS 177.055(2),
and we conclude that it is not disproportionate. This execution style murder was violent and
unprovoked. The fact that the jury also found several mitigating circumstances does not
support a conclusion that the aggravating circumstances were actually outweighed by the
mitigating circumstances or that the sentence was disproportionate.
We have examined the remaining assignments of error and conclude they are without
merit. Accordingly, we affirm the sentence of death.
____________
103 Nev. 567, 567 (1987) Warpinski v. SIIS
JOSEPH WARPINSKI, Appellant, v. STATE
INDUSTRIAL INSURANCE SYSTEM, Respondent.
No. 17528
December 22, 1987 747 P.2d 227
Appeal from order affirming appeals officer's decision. Eighth Judicial Court, Clark
County; Earle W. White, Jr., Judge.
Claimant sought to reopen worker's compensation claim after suffering nonindustrial
aggravation of prior compensable injury. The Nevada Industrial Commission, appeals officer,
and the district court all agreed claim could not be reopened, and claimant appealed. The
Supreme Court held that claimant, who injured his back in course of his employment, and
thereafter required second discectomy as result of nonindustrial event, had suffered
aggravation to industrial injury and was entitled to have his claim reopened, regardless of
whether nonindustrial event involved claimant's feeling pain when he turned or gurney falling
against claimant's back.
Reversed.
Chris A. Beecroft, Las Vegas, for Appellant.
William A. Ziegler, Las Vegas, and Pamela Bugge, Carson City, for Respondent.
Where new injury is compensable industrial claim, original claim cannot be reopened, because employer
at time of subsequent injury is liable for all of claimant's benefits regardless of the prior injury's role in the
final condition; thus, aggravation of industrial injury by another industrial cause is a new claim under the
last injurious exposure rule.
2. Worker's Compensation.
Considerations that apply to preclude reopening of original industrial claim where new injury is
compensable industrial claimfreeing worker from burden of allocating responsibility for his condition
and providing for ease of administration and often higher level of benefits for injured workerare not
applicable when subsequent injury is nonindustrial.
Generally, every natural consequence of injury arising out of and in course of employment likewise arises
out of the employment, and so long as there is causal nexus between the final condition and the industrial
injury, employer remains liable.
Appropriate inquiry for determining whether nonindustrial event and prior industrial injury produce
compensable condition focuses on relationship between final condition and the industrial injury.
Compensable condition results from nonindustrial event following prior industrial injury when industrial
accident rendered claimant susceptible to the later nonindustrial injury; the employer remains liable for
compensation of subsequent injuries that would not have occurred had claimant's bodily efficiency not been
impaired in first industrial accident.
Individual, who had injured his back in the course of his work and after nonindustrial event sought to
reopen earlier claim, alleging he suffered aggravation of earlier industrial injury, was entitled to have his
claim reopened, regardless of exact manner in which later event occurred, whether it occurred with
individual feeling pain when he turned, or with individual being injured when gurney fell against him.
OPINION
Per Curiam:
Joseph Warpinski sought to reopen a worker's compensation claim after suffering a
non-industrial aggravation of a prior compensable injury. The Nevada Industrial Commission,
1
the appeals officer and the district court all agreed the claim could not be reopened.
Warpinski appeals.
In 1972, Warpinski experienced a sharp back pain while lifting equipment in the course
of his employment as a medical technician.
____________________

1
NIC has been reorganized and is now known as the State Industrial Insurance System.
equipment in the course of his employment as a medical technician. The injury was diagnosed
as a herniated nucleus pulposus at the L5-S1 level of the spine. Warpinski underwent surgery
to remove part of the intervertebral disk. He was compensated for the injury and the claim
was closed.
On April 23, 1980, Warpinski, then a medical student, was accompanying a patient and
several paramedics through Cannon International Airport when the gurney collapsed.
Warpinski contended he merely turned and felt pain. Other evidence indicated the gurney fell
against Warpinski's back. As a consequence of the incident, Warpinski required a second
discectomy at the L5-S1 level of his spine.
Warpinski sought to reopen his 1972 claim contending he suffered an aggravation of the
earlier injury. The appeals officer, who disbelieved Warpinski's version of the events,
characterized the reinjury as a new injury. He concluded an aggravation, if it constituted a
new injury, was not a change in circumstances that warranted reopening of a claim under
NRS 616.545. The appeals officer relied on the principle that a change in condition includes
aggravation of the first injury only under circumstances that would not amount to a new
compensable injury.
[Headnotes 1, 2]
The appeals officer stated the applicable rule when the latter injury is also industrial.
Where the new injury is a compensable industrial claim, the original claim cannot be
reopened because the employer at the time of the subsequent injury is liable for all of
claimant's benefits regardless of the prior injury's role in the final condition. SIIS v. Swinney,
103 Nev. 17, 731 P.2d 359, 361 (1987). Thus, an aggravation of an industrial injury by
another industrial cause is a new claim under the last injurious exposure rule. Id. This rule
frees the worker from the burden of allocating responsibility for his condition. Grable v.
Weyerhauser Co., 631 P.2d 768, 777 (Or. 1981). It also provides for ease of administration
and, in most cases, a higher level of benefits for the injured worker. Swinney, supra. These
considerations are inapplicable when the subsequent injury is non-industrial.
[Headnote 3]
The general rule is every natural consequence of an injury arising out of and in the course
of employment likewise arises out of the employment. 1 Larson Workmen's Compensation
Law 13 (1986). So long as there is a causal nexus between the final condition and the
industrial injury, the employer remains liable. This principle has been widely applied to allow
compensation when a non-industrial event and a prior industrial injury combine to produce
claimant's condition. See Dutton v. Industrial Commission of Arizona, 682 P.2d 453 (Ariz.
1984); Guidry v. J & R Eads Construction Co.,
Eads Construction Co., 669 S.W.2d 483 (Ark.App. 1984); Schaefer v. Williamston
Community Schools, 323 N.W.2d 577 (Mich.App. 1982); Medart Division of Jackes-Evans
Mfg. v. Adams, 344 So.2d 141 (Miss. 1977); Doty v. Aetna Life and Casualty, 350 N.W.2d 7
(Neb. 1984); Grable v. Weyerhauser Co., supra, 631 P.2d 768; Wilson v. Worker's
Compensation Commissioner, 328 S.E.2d 485 (W.Va.App. 1984).
[Headnote 4]
The appropriate inquiry focuses on the relationship between the final condition and the
industrial injury. The exact manner in which Warpinski's 1980 injury occurred is not
important. In Hughes v. General Motors Guide Lamp Division, 469 So.2d 369, (La.App.
1985), claimant contended her knee popped while other evidence indicated she slipped and
twisted the knee. The Louisiana court noted it was unnecessary to determine exactly how the
second injury occurred adding, The key question is the relationship between the second
injury and the initial injury. Id. at 373.
[Headnote 5]
It is enough that the industrial accident has rendered the claimant susceptible to later
injury. The employer remains liable for compensation of subsequent injuries that would not
have occurred had claimant's bodily efficiency not been impaired in the first accident. See
J.C. Atkinson v. Home Indemnity Co., 234 S.E.2d 359 (Ga.App. 1977); Kelly v. City of New
Orleans, 414 So.2d 770 (La. 1982); GTE Sylvania v. Workmen's Compensation Appeal
Board, 458 A.2d 1050 (Pa.Commw. 1983).
[Headnote 6]
The medical testimony indicated a probable relationship between Warpinski's 1972 and
1980 injuries. NIC's own medical advisor admitted there was probably some weakening of
the structures. Warpinski's treating physician, Dr. Harris, characterized the second injury as
an exacerbation and aggravation. The appeals officer, himself, adopted Dr. Harris'
conclusion that the 1980 injury was a new injury to an old problem. This finding recognizes
that the original injury was one factor in Warpinski's condition.
We conclude the appeals officer misconceived the requirements for reopening a claim
when a subsequent non-industrial injury was involved. Warpinski, having suffered an
aggravation to an industrial injury, was entitled to have his claim reopened. The
administrative decision was affected by error of law and should have been reversed by the
district court. NRS 233B.140(5)(d).
Accordingly, we reverse the order of the district court.
____________
103 Nev. 571, 571 (1987) Rosenstein v. Steele
LEONARD ROSENSTEIN, Appellant, v. J. RODMAN STEELE, JR., LEWIS F. GOULD,
JR., and HARVEY D. FRIED, STEELE, GOULD & FRIED, Respondents.
No. 18155
December 22, 1987 747 P.2d 230
Appeal from an order of the district court denying appellant's motion to set aside and to
stay the enforcement of a foreign default judgment. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Nevada resident moved to set aside and stay enforcement of Pennsylvania default
judgment. The district court denied the motion, and Nevada resident appealed. The Supreme
Court held that: (1) even assuming that Nevada resident had established his neglect was
excusable under NRCP, district court was constitutionally precluded by full faith and credit
clause from setting aside Pennsylvania default judgment unless Nevada resident also
demonstrated that default judgment was invalid due to fraud, lack of jurisdiction, or lack of
due process in rendering court; (2) Nevada resident was subject to jurisdiction of
Pennsylvania court; and (3) Nevada resident was not deprived of due process by entry of
default judgment.
Affirmed.
Lovell, Bilbray & Potter, Las Vegas, for Appellant.
Jack G. Perry, Las Vegas, for Respondents.
1. Judgment.
Full faith and credit clause of the Federal Constitution requires that final judgment entered in sister state
be respected by courts of Nevada absent showing of fraud, lack of due process, or lack of jurisdiction in the
rendering state. U.S.C.A.Const. Art. 4, 1; Amends. 5, 14.
2. Judgment.
Defenses for judgment debtor against whom default judgment has been entered in sister state preserved
by Nevada's Uniform Enforcement of Foreign Judgments Act and available under NRCP are limited to
those defenses that judgment debtor may constitutionally raise under full faith and credit clause that are
directed to validity of foreign judgment. NRS 17.330-17.400; NRCP 60(b); U.S.C.A.Const. Art. 4,
1; Amends. 5, 14.
3. Judgment.
Even assuming that defendant against whom default judgment had been entered in Pennsylvania had
sufficiently established excusable neglect under NRCP, Nevada district court would be constitutionally
precluded by full faith and credit clause from setting aside Pennsylvania judgment unless defendant also
demonstrated that the default judgment was invalid due to fraud, lack of jurisdiction, or lack of due process
in rendering court. NRCP 60(b); U.S.C.A.Const. Art. 4, 1; Amends. 5, 14.
4. Courts.
Nevada resident was subject to jurisdiction of Pennsylvania court which entered default judgment against
him; judgment creditors presented affidavit from member of law firm setting forth specific averments that
Nevada resident had orally promised creditors he would pay legal fees in question, that he visited law firm
in Pennsylvania on three occasions in connection with litigation, that he remitted four checks to creditors
totalling $14,000 as partial payment for their legal services, and that Nevada resident acted for corporate
client in conducting Pennsylvania litigation for all practical purposes, thus setting forth sufficient evidence
to establish that Nevada resident's business activities within Pennsylvania forum subjected him to
jurisdiction of Pennsylvania court. 42 Pa.C.S.A. 5322.
Nevada resident was not deprived of due process by entry of Pennsylvania default judgment against him;
Nevada resident was aware of need to obtain Pennsylvania counsel to respond adequately to complaint, and
presented no reasonable excuse for his failure to do so, and Nevada resident received adequate notice and
warning of pendency of action against him and that judgment creditors would be entitled to enter default
judgment against him if timely and legally sufficient response were not forthcoming. U.S.C.A.Const.
Amends. 5, 14.
Assuming that Nevada resident had sufficiently appeared in Pennsylvania action for purposes of NRCP
entitling party who has appeared in action to service of written notice of application for default judgment at
least three days prior to hearing on such application, compliance with NRCP was irrelevant to validity of
Pennsylvania default judgment entered against Nevada resident; appropriate inquiry into validity of
judgment was whether judgment creditors had sufficiently complied with notice provisions required by
Pennsylvania rules to afford Nevada resident due process of law. NRCP 55(b)(2); U.S.C.A.Const.
Amends. 5, 14.
Supreme Court will affirm order of district court if district court reached correct result, although for
different reasons.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's motion to set aside
and to stay the enforcement of a Pennsylvania default judgment. For the reasons set forth
below, we affirm the order of the district court.
In July of 1986, respondent obtained the entry of a default judgment against appellant, a
Nevada resident, in the Pennsylvania Court of Common Pleas, and thereafter duly registered
the judgment in Nevada pursuant to the Nevada Uniform Enforcement of Foreign Judgments
Act (UEFJA). See NRS 17.330-17.400. In December of 1986, appellant filed a motion in the
Nevada district court seeking to set aside the judgment and to stay its enforcement pursuant
to the provisions of NRCP 55{b), NRCP 60{b){1), and NRS 17.350.1 The court below
entered an order denying appellant's motion on February 26, 19S7.
its enforcement pursuant to the provisions of NRCP 55(b), NRCP 60(b)(1), and NRS 17.350.
1
The court below entered an order denying appellant's motion on February 26, 1987. This
appeal followed.
[Headnotes 1-3]
Appellant contends that the district court abused its discretion by denying his motion on
the ground that appellant had failed to demonstrate excusable neglect under NRCP 60(b)(1).
We need not consider appellant's contention in this regard. The full faith and credit clause of
the United States Constitution requires that a final judgment entered in a sister state must be
respected by the courts of this state absent a showing of fraud, lack of due process or lack of
jurisdiction in the rendering state. See U.S. Const., art. IV, 1; Morris v. Jones, 329 U.S. 545,
551 (1947); Phrases v. Nutter, 609 P.2d 561 (Ariz. 1980); Miller v. Eloie Farms, Inc., 625
P.2d 332 (Ariz.App. 1980); Data Management Systems, Inc. v. EDP Corp., 709 P.2d 377
(Utah 1985). Consequently, the defenses preserved by Nevada's Uniform Enforcement of
Foreign Judgments Act and available under NRCP 60(b) are limited to those defenses that a
judgment debtor may constitutionally raise under the full faith and credit clause and which
are directed to the validity of the foreign judgment. See Data Management Systems, Inc. v.
EDP Corp., supra; Miller v. Eloie Farms, Inc., supra; cf. Farnham v. Farnham, 80 Nev. 180,
391 P.2d 26 (1964) (district court's refusal to enforce foreign money judgment was improper
where foreign judgment was not challenged on grounds of fraud or lack of jurisdiction and
where there was no merit to the debtor's due process challenge). Therefore, even assuming
that appellant had sufficiently established below that his neglect was excusable under NRCP
60(b)(1), the district court would have been constitutionally precluded from setting aside the
Pennsylvania judgment unless appellant had also demonstrated that the default judgment was
invalid due to fraud, lack of jurisdiction or lack of due process in the rendering court. Having
reviewed the record, we conclude that appellant's motion below did not demonstrate that the
Pennsylvania judgment was invalid or otherwise subject to attack based upon fraud, lack of
jurisdiction, or lack of due process.
[Headnote 4]
First, we observe that appellant did not allege, nor do the facts suggest, that the default
judgment was procured as a result of fraud upon the Pennsylvania court.
____________________

1
NRS 17.350 provides in part that a foreign judgment registered in Nevada pursuant to the UEFJA is subject
to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a district
court of this state.
fraud upon the Pennsylvania court. Second, to the extent that appellant's motion below may
have challenged enforcement of the Pennsylvania judgment on the ground of lack of
jurisdiction, our review of the record reveals sufficient unrefuted evidence to establish that
appellant was subject to the jurisdiction of the Pennsylvania court. See Union Nat. Bank of
Pittsburgh v. L.D. Pankey, 426 A.2d 624 (Pa.Super.Ct. 1980) (Pennsylvania may exercise in
personam jurisdiction over non-resident defendant where (1) defendant purposefully availed
himself of acting within the state; (2) the cause of action arises from defendant's activities
within the forum; and (3) defendant has a substantial enough connection with Pennsylvania to
make the exercise of jurisdiction reasonable). Specifically, we note that respondents
presented an affidavit below from a member of respondents' firm. The affidavit set forth
specific averments that appellant had orally promised respondents that he would pay the legal
fees in question, that appellant visited the law firm in Pennsylvania on three occasions in
connection with the litigation, that appellant remitted four checks to respondents totaling
$14,000 as partial payment for their legal services, and that, for all practical purposes,
appellant acted for the corporate client in conducting the litigation. Accordingly, respondents
set forth sufficient evidence below to refute appellant's conclusory allegations respecting
jurisdiction, and to establish that appellant's business activities within the forum subjected
him to the jurisdiction of the Pennsylvania court. See 42 Pa. Cons. Stat. Ann. 5322 (Purdon
1981); Union Nat. Bank of Pittsburgh v. L.D. Pankey, supra.
[Headnotes 5, 6]
Third, our review of the record reveals no support for appellant's assertion that he was
deprived of due process of law by the entry of the default judgment. To the contrary, the
record reveals that appellant was aware of the need to obtain Pennsylvania counsel to respond
adequately to the complaint, that he presented no reasonable excuse for his failure to do so,
that he received adequate notice and warning of the pendency of the action against him, and
that respondents would be entitled to enter a default judgment against him if a timely and
legally sufficient response was not forthcoming.
2
Under these circumstances, we conclude
that appellant received all the notice that is constitutionally required.
____________________

2
In this regard, appellant complains that respondents failed to provide him with the notice that is required
under the Nevada Rules of Civil Procedure. See NRCP 55(b)(2) (a party who has appeared in an action is
entitled to service of written notice of an application for a default judgment at least three days prior to the
hearing on such application). Even assuming that appellant sufficiently appeared in the Pennsylvania action for
the purposes of NRCP 55(b)(2), we note that respondents' compliance with NRCP 55(b)(2) is irrelevant to the
validity of the Pennsylvania judgment. The appropriate
that appellant received all the notice that is constitutionally required. See Mullane v. Central
Hanover Trust Co., 339 U.S. 306, 313-314 (1950) (notice must be reasonably calculated to
apprise an interested party of the pendency of the action and to afford him an opportunity to
present his objections to the court); see also Griffin v. Griffin, 327 U.S. 220 (1946).
[Headnote 7]
Although the court below apparently denied appellant's motion on the sole ground that
appellant had not demonstrated excusable neglect, this court will affirm the order of the
district court if it reached the correct result, albeit for different reasons. See Burroughs Corp.
v. Century Steel, 99 Nev. 464, 664 P.2d 354 (1983). In light of the above, we affirm the
judgment of the district court.
___________________
inquiry is whether respondents sufficiently complied with the notice provisions required by the Pennsylvania
rules so as to afford appellant due process of law. See Data Management Systems, Inc., v. EDP Corp., 709 P.2d
at 380. Absent a showing that appellant was deprived of due process of law by inadequate notice, the
Pennsylvania judgment is entitled to full faith and credit by the Nevada courts.
____________
103 Nev. 575, 575 (1987) Cuzdey v. State
JOHN JOSEPH CUZDEY, Appellant, v. THE
No. 17681
December 22, 1987 747 P.2d 233
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of second
degree murder with use of a deadly weapon. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted of second degree murder with use of deadly weapon, and he
appealed. Due to severity of conviction and sentences and complexity of appeal, appeal was
remanded for appointment of counsel to represent defendant on appeal. On remand, the
district court appointed counsel and appeal procedure was initiated. On filing of appeal, the
Supreme Court held that inadequacy of appointed counsel's three page opening brief, and
counsel's failure to file any brief in response to State's answer, required removal of appointed
counsel and remand for another appointment, as well as imposition of sanctions against
appointed counsel.
Remanded for appointment of new counsel on appeal.
LePome, Willick & Associates, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, and James
Criminal Law.
Due to inadequacy of appointed counsel's opening brief on appeal of murder conviction, and counsel's
failure to file any brief in response to State's answer, appointed counsel was removed and, in addition to
imposition of $1,000 sanction, order was entered requiring return of all fees received during representation
of defendant and recommending one year removal of appointed counsel's firm from list of attorneys
eligible to accept appointments to represent indigent criminal defendants; despite trial record in excess of
700 pages, opening brief was only three pages long, with statement of facts consisting of only one-half
page, and argument in first of two inadequately presented issues failed to provide any citations to record on
appeal or trial transcript. U.S.C.A.Const. Amend. 6; NRAP 28(a)(4); SCR 150, 151.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
second degree murder with use of a deadly weapon. Appellant received a life sentence in
prison with the possibility of parole for the second degree murder conviction, and a
consecutive life term for the use of a deadly weapon. Twelve witnesses testified at appellant's
six day jury trial. The trial transcript is 705 pages in length, and the complete record on
appeal consists of six volumes.
Because of the severity of appellant's conviction and sentences, the apparent complexity of
the appeal, and the length of the record, on November 19, 1986, this court remanded this
matter to the district court for the appointment of counsel to represent appellant in this appeal.
On January 16, 1987, this court was notified that the firm of LePome, Willick & Associates
had accepted the appointment.
On May 8, 1987, after the opening brief was one week overdue, this court issued an order
directing appellant either to file the opening brief within 15 days or to show cause why the
appeal should not be dismissed. Counsel for appellant subsequently moved for an extension
of time within which to prepare the opening brief. Counsel (Robert LePome) stated that
prior to my appointment from the Court, I undertook certain cases, including a criminal case
which is now in jury trial, which case requires approximately 12 hours of my time per day,
and that it was not possible for counsel to prepare the opening brief and do a competent job
prior to June 15, 1987. Accordingly, counsel requested an extension of time to and including
June 15, 1987, within which to file the opening brief.
within which to file the opening brief. This court subsequently granted counsel's motion, and
allowed appellant an additional two weeks, to and including June 30, 1987, within which to
file the opening brief.
On June 30, 1987, this court received appellant's opening brief. Respondent's answering
brief was filed shortly thereafter, and appellant's counsel did not file a reply brief. Having
preliminarily reviewed the briefs and the record on appeal, we conclude that the opening brief
is seriously deficient in several respects. First, we note that the opening brief is only three
pages in length. Despite the fact that the trial transcript in this appeal is over 700 pages long,
the statement of facts in appellant's opening brief consists of only one-half page. The entire
statement of facts reads:
At trial, the State of Nevada presented eye-witness identification of the Appellant
which was not 100% certain. ROA 375. It was quite dark at 4:50 A.M. on April 4,
1986. The street lights were just gong off. ROA 746, ROA 807. There was other
circumstantial evidence such as blood on the sneakers of the Appellant, ROA 869 and
blood on the trousers that Appellant may have been wearing, ROA 874, and blood on
some wooden boards which may have been used in the murder, ROA 963. The State
could not show that the blood was that of the alleged victim, Mickey DeJegger, ROA
870.
The prosecution in its argument, suggested that Appellant had some obligation to
ask certain questions, ROA 1043, and made disparaging remarks about Appellant's
counsel, ROA 1048, and again commented upon the failure of Appellant to present
evidence, ROA 1052. The jury was initially deadlocked (ROA 1067, 1068) but after
Court prompting, returned a verdict.
Clearly, this statement does not summarize the testimony or evidence presented at trial. As
noted above, twelve witnesses testified, yet not a single witness's testimony is described in
appellant's brief.
Second, appellant's brief raises two issues on appeal: (1) whether the evidence was
sufficient to support the findings of guilty of murder in the second degree; and (2) whether
prosecutorial misconduct deprived appellant of a fair trial. The brief does little more,
however, than state these issues. Indeed, the entire argument section of the brief consists of
the following:
1. SUFFICIENCY OF THE EVIDENCE
The evidence was not sufficient. The jury was split (ROA 1067 and 1068). In view
of the above, we must carefully examine whether there was sufficient evidence.
examine whether there was sufficient evidence. The record does not support any more
than a conjecture that Defendant committed the murder. The standard of review is
whether the jury, acting reasonably, could have been convinced of Defendant's guilt
beyond a reasonable doubt by the evidence that it had a right to consider.
State v. Rhodig, 101 Nev. 608 at 610 (1985); Citing Wilkins v. State, 96 Nev. 367,
609 P.2d 309 (1980).
The eye witnesses were not certain and the blood could have come from anyone with
a similar type as the alleged victim.
2. PROSECUTORIAL MISCONDUCT
The prosecutor in his closing argument repeatedly tried to shift the burden of proof,
ROA 1043, ROA 1068 and made disparaging remarks about Appellant's counsel, ROA
1048. Such conduct warrants reversal. McGuire v. State, 100 Nev. 153, 677 P.2d 1060
(1984). The effect of prosecutorial misconduct on a close case such as this was to
deprive appellant of his right to a fair trial. The conviction must be reversed.
Clearly, these statements are conclusory, and are unsupported by any argument, reasoning, or
application of the law to the facts. Additionally, despite the clear mandate of NRAP 28(a)(4),
appellant's argument on the first issue fails to provide any citations to the six volume record
on appeal or the 700 page trial transcript.
1
Moreover, although the state's answering brief
directs our attention to various portions of the record, counsel for appellant failed to file a
reply brief to distinguish the state's arguments or to otherwise rebut them. Although there may
have been overwhelming evidence of appellant's guilt presented during the trial below, we
simply cannot discern from the opening brief presently on file whether there are any issues of
arguable merit in this appeal.
We have previously stated that we expect that all appeals brought in this court will be
pursued in a manner meeting high standards of diligence, professionalism, and competence.
See State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 676 P.2d 1318 (1984). When attorneys
fail to brief a case adequately, this court is forced to divert its limited resources to the task of
compensating for counsel's derelictions in order to reach and resolve the merits of the appeal
properly. Because the purpose of briefing is to inform this court of all authorities relevant
to the issues raised in the appeal, a deficient performance by counsel may alter the
outcome of an appeal.
____________________

1
Appellant's only citation to the record in support of his representation that the jury was split is incorrect.
Although the jury initially returned a split verdict, we note that a unanimous verdict of guilty was returned after
the district judge instructed the jury to deliberate further.
to inform this court of all authorities relevant to the issues raised in the appeal, a deficient
performance by counsel may alter the outcome of an appeal. See State, Emp. Sec. Dep't v.
Weber, supra. Moreover, a defendant in a direct appeal from his judgment of conviction has a
constitutional right to the effective assistance of counsel. See Evitts v. Lucey, 469 U.S. 387
(1985). In light of the above, we conclude that counsel's performance in the present case
could arguably give rise to future claims of ineffective assistance of appellate counsel.
The rules of professional responsibility governing the bar require an attorney to provide
competent representation to a client. SCR 151 explains that [c]ompetent representation
requires the legal knowledge, skill, and preparation reasonably necessary for the
representation. As noted in SCR 150, the comments to the ABA Model Rules of
Professional Conduct may be consulted for guidance in applying our professional rules. The
comment to SCR 151 states:
Competent handling of a particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods and procedures meeting
the standards of competent practitioners. It also includes adequate preparation. The
required attention and preparation are determined in part by what is at stake; major
litigation and complex transactions ordinarily require more elaborate treatment than
matters of lesser consequence.
As noted above, this appeal challenges a serious criminal conviction. Appellant was
sentenced to two life terms in the Nevada State Prison. Important individual rights and
liberties are thus at stake in this appeal. Consequently, this case warrants more elaborate
treatment than appellant's counsel accorded it.
Accordingly, we remand this matter to the Eighth Judicial District Court with instructions
that the firm of LePome, Willick & Associates be removed as counsel of record for appellant.
The district court shall appoint new counsel to represent appellant within fifteen (15) days
from the date of this opinion. The clerk of the district court shall immediately inform the
clerk of this court of the appointment, and new counsel shall promptly enter an appearance
with this court. In light of the delay that has occurred in the processing of this appeal, we
request that in reappointing counsel, the district court ensure that new counsel will be in a
position to prosecute this appeal expeditiously. New counsel shall have forty (40) days from
the date of appointment within which to file an opening brief.
2
Respondent shall have thirty
(30) days thereafter within which to file an amended answering brief.
____________________

2
The clerk of this court shall strike the opening brief presently on file.
thereafter within which to file an amended answering brief. The reply brief, if any, shall be
filed within thirty (30) days thereafter.
Finally, in view of the lack of diligence and professional competence demonstrated by the
firm of LePome, Willick & Associates and attorney Robert C. LePome in prosecuting this
appeal, we conclude that sanctions are warranted. Accordingly, we hereby order the firm of
LePome, Willick & Associates to pay the Clark County Law Library Book Fund the sum of
one-thousand dollars ($1,000.00). This sum shall be paid within thirty (30) days of the date of
this opinion, and attorney LePome shall provide the clerk of this court with proof of such
payment promptly thereafter. Further, the firm of LePome, Willick & Associates and Robert
C. LePome shall within thirty (30) days of the date of this opinion return to Clark County any
and all sums received by the firm as expenses and fees incurred in representing appellant.
Finally, we advise the firm of LePome, Willick & Associates that we are hereby informing
the Chief Judge of the Eighth Judicial District Court of the lack of diligence and
professionalism demonstrated by attorney Robert C. LePome and his firm in prosecuting this
appeal. We strongly urge the Eighth Judicial District Court to remove the firm of LePome,
Willick & Associates from its list of attorneys eligible to accept appointments to represent
indigent criminal defendants for a period of one year from the date of this opinion.
____________
103 Nev. 580, 580 (1987) Sengbusch v. Fuller
JACK C. SENGBUSCH, Appellant, v. DIANE FULLER, and HAROLD FULLER, Husband
and Wife, Doing Business as CAVE ROCK COURT, Respondents.
No. 17924
December 22, 1987 747 P.2d 240
Appeal from judgment awarding damages to appellant. Ninth Judicial District Court,
Douglas County; Norman C. Robison, Judge.
Tenant in mobile home park brought action against landlord for wrongful termination of
tenancy. The district court entered judgment for tenant and tenant appealed amount of
damages. The Supreme Court held that statute providing in part, that if landlord of mobile
home park unlawfully terminated tenancy, tenant could recover not more than six months
periodic rent allowed, but did not require tenant be awarded at least six months periodic rent.
Affirmed.
David G. Pumphrey, Minden, for Appellant.
Manoukian, Scarpello & Alling and John P. Springgate, Zephyr Cove, for Respondents.
Statute providing, in part, that if landlord of mobile home park unlawfully terminated tenancy, tenant
could recover not more than six months periodic rent allowed, but did not mandate payment to tenant of
award of at least six months periodic rent. NRS 118B.230.
2. Statutes.
May in statute is to be construed as permissive, unless clear intent of legislature is to contrary.
In absence of trial transcript in record, Court of Appeals was required to assume that evidence supported
finding that tenant was entitled to award of $113.33 plus interest for wrongful termination of his tenancy
under statute dealing with mobile home parks. NRS 118B.010 et seq., 118B.230.
OPINION
Per Curiam:
Appellant Jack C. Sengbusch leased a space for his mobile home at the Cave Rock Court
Mobile Home Park at Lake Tahoe in Douglas County, Nevada, under a monthly tenancy
agreement entered into on October 1, 1984. Cave Rock was owned and operated by
respondents Diane and Harold Fuller. Following some disagreements with Sengbusch, the
Fullers delivered to him a document dated June 19, 1985, and entitled Notice to Terminate
Tenancy, demanding he leave the park by July 20, 1985. Sengbusch moved his mobile home
from the park on June 29, 1985. He brought an action against the Fullers on November 1,
1985.
The case proceeded to trial solely upon the issue of whether Sengbusch should be awarded
damages under NRS Chapter 118B, the Nevada statute dealing with mobile home parks. In a
judgment dated December 2, 1986, the jury found that Sengbusch's tenancy had been
wrongfully terminated and awarded him $113.33 plus interest.
[Headnotes 1, 2]
The jury instruction on damages quoted NRS 118B.230, which reads as follows:
If a landlord unlawfully terminates a tenancy, the tenant may recover not more than 6
months' periodic rent or actual damages for the injury or loss sustained by him,
whichever is greater.
We reject Sengbusch's arguments that the word may in this statute should be construed
as mandatory and that tenants are entitled to an award of at least six months' periodic rent
under the statute. "May" is to be construed as permissive, unless the clear intent of the
legislature is to the contrary. See Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 100
{19S3); Thomas v. State, SS Nev. 3S2, 3S4, 49S P.2d 1314, 1315 {1972); Ewing v. Fahey,
S6 Nev. 604, 607, 472 P.2d 347, 349 {1970). "May" is defined as permissive in Nevada
Supreme Court Rule 2{9) and Nevada District Court Rule 2{6).
entitled to an award of at least six months' periodic rent under the statute. May is to be
construed as permissive, unless the clear intent of the legislature is to the contrary. See
Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 100 (1983); Thomas v. State, 88 Nev. 382, 384,
498 P.2d 1314, 1315 (1972); Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970).
May is defined as permissive in Nevada Supreme Court Rule 2(9) and Nevada District
Court Rule 2(6). Furthermore, it is clear that NRS 118B.230 provides for a maximum but not
for a minimum penalty. We see no error in the jury's interpretation of the statute.
[Headnote 3]
Sengbusch also argues that the jury award is too small in view of his moving expenses and
other costs. This court will not reverse a trial court's determination of fact unless it is clearly
erroneous or not based on substantial evidence. Kockos v. Bank of Nevada, 90 Nev. 140, 143,
520 P.2d 1359, 1360-61 (1974). Since the trial transcript is not in the record, we must assume
the evidence supports the lower court's findings. Id. at 1361. Accordingly, the district court's
judgment is affirmed.
____________
103 Nev. 582, 582 (1987) Domino v. Gaughan
THELMA DOMINO, Appellant, v. JOHN D. GAUGHAN and ROBERTA GAUGHAN dba
GOLD SPIKE HOTEL AND CASINO, Respondents.
No. 18033
December 22, 1987 747 P.2d 236
Appeal from an order of the district court dismissing appellant's complaint without
prejudice for failure to effect service of summons and complaint. Eighth Judicial District
Court, Clark County; Stephen L. Huffaker, Judge.
Casino customer brought action for injuries sustained while staying at casino. The district
court dismissed complaint without prejudice for failure to effect service of summons and
complaint, and customer appealed. The Supreme Court held that customer demonstrated good
cause for failure to effect timely service.
Sabbath and Christensen and Kurt D. Anderson, Las Vegas, for Appellant.
Alverson and Taylor and David J. Mortensen, Las Vegas, for Respondents.
Process.
Plaintiff demonstrated good cause for her failure to serve process within 120 days of filing of complaint,
given plaintiff's difficulties in retaining Nevada counsel. NRCP 4(i).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellant's complaint
without prejudice for failure to effect service of summons and complaint within 120 days
pursuant to NRCP 4(i). Because we conclude that appellant demonstrated good cause for her
failure to effect timely service, we reverse the order of the district court.
On June 27, 1986, appellant filed a complaint against respondents alleging that she had
been injured while staying at respondents' casino on June 30, 1984. Appellant did not effect
service of process until November 5, 1986, nine days after the expiration of the 120 days
allotted for service in NRCP 4(i).
1
On December 12, 1986, respondents moved to dismiss
appellant's complaint for failure to effect timely service of process. Appellant opposed
respondents' motion; however, on January 22, 1987, the district court dismissed appellant's
complaint. Although the dismissal was without prejudice, it was, in effect, a dismissal with
prejudice because the applicable statute of limitations had run.
In the instant case, our review of the record reveals that appellant's counsel agreed to file
the complaint at the request of, and as a favor to, appellant's California counsel with the
express understanding that California counsel would arrange to have different Nevada
counsel handle the remainder of the litigation. With this in mind, appellant's Nevada counsel
returned appellant's case file to California counsel. Evidently, in the three months that
California counsel retained the file, California counsel could not arrange for the substitution
of Nevada counsel. Consequently, California counsel asked Nevada counsel, an admittedly
inexperienced, young attorney, to effect service of process.
2
California counsel returned the
file to Nevada counsel ten days before the expiration of the 120-day time limitation.
____________________

1
NRCP 4(i) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the
filing of the complaint and the party on whose behalf such service was required cannot show good cause
why such service was not made within that period, the action shall be dismissed as to that defendant
without prejudice upon the court's own initiative with notice to such party or upon motion.

2
Appellant's Nevada counsel was admitted to the Nevada Bar on October 1, 1984.
ten days before the expiration of the 120-day time limitation. Due to a combination of
apparent difficulties with the summons, difficulty in communications with California counsel,
and the absence of Nevada counsel from his office in part due to illness, service was not
attempted until October 27, 1986. Counsel did, however, attempt to serve process within the
time allowed, and service was repeatedly attempted until counsel successfully served process
upon respondents nine days later. Further, we note that the delay in service occasioned no
prejudice to respondents. Under the particular facts and circumstances of this case, appellant
demonstrated good cause for her failure to serve process within the 120 days mandated by
NRCP 4(i). Accordingly, we conclude that the district court abused its discretion in
dismissing appellant's complaint. See Whale v. United States, 792 F.2d 951 (9th Cir. 1986)
(the decision to dismiss a complaint for failure to effect timely service of process is one that
lies within the sound discretion of the district court).
Because we have concluded that appellant demonstrated good cause for her failure to
effect timely service of process, we need not decide whether the district court erred in failing
to grant an enlargement of time within which to effect service pursuant to NRCP 6(b). For the
reasons expressed above, we reverse the order of the district court and remand this matter for
____________
103 Nev. 584, 584 (1987) Yohey v. State, Dep't Motor Vehicles
MICHAEL GARTH YOHEY, Appellant, v. THE STATE OF NEVADA, DEPARTMENT
OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.
No. 18109
December 22, 1987 747 P.2d 238
Appeal from an order of the district court affirming the revocation of appellant's driver's
license. Third Judicial District Court, Churchill County; Mario G. Recanzone, Judge.
The Department of Motor Vehicles and Public Safety revoked the driver's license of a
motorist who was convicted in the justice's court for driving under the influence of
intoxicating liquors, based on two convictions within a seven year period. The motorist
petitioned the district court for judicial review. The district court affirmed the hearing
officer's determination, and the motorist appealed. The Supreme Court held that: (1) justice
court's treatment of motorist's second conviction as a first offense on grounds that the prior
conviction was constitutionally insufficient was not binding on the Department in license
revocation proceeding, and {2) revocation of motorist's driver's license did not constitute
an enhancement of the penalty imposed pursuant to conviction of driving under the
influence of intoxicating liquor.
cient was not binding on the Department in license revocation proceeding, and (2) revocation
of motorist's driver's license did not constitute an enhancement of the penalty imposed
pursuant to conviction of driving under the influence of intoxicating liquor.
Affirmed.
Paul A. Richards, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Neil H. Friedman, Deputy Attorney
General, Las Vegas, for Respondent.
1. Judgment.
A justice court's treatment of a motorist's second conviction for driving under the influence of
intoxicating liquor as a first offense, based on the district attorney's determination that a prior conviction
was constitutionally insufficient because the motorist was not represented by counsel during the
proceedings, was not binding on the Department of Motor Vehicles and Public Safety in license revocation
proceedings. NRS 483.460, 483.460, subd. 1(b)(5), (c), 484.379.
2. Automobiles.
Department of Motor Vehicles and Public Safety was required to revoke motorist's driver's license for
one year upon receipt of valid records of conviction for driving under the influence of intoxicating liquor
which showed two convictions within seven years, and did not have any express or implied authority in
revoking the driver's license. NRS 483.460, subd. 1(b)(5).
3. Automobiles.
The revocation of a driver's license by the Department of Motor Vehicles and Public Safety was not an
enhancement of the penalty imposed by the court which convicted defendant of the offense of driving
under the influence of intoxicating liquor. NRS 483.460.
4. Automobiles.
The Department of Motor Vehicles and Public Safety, as an administrative agency, lacks the expertise to
assess the constitutional validity of a motorist's prior conviction for driving under the influence of
intoxicating liquors and thus has no obligation or authority to assess validity of a motorist's prior
convictions. NRS 483.460.
OPINION
Per Curiam:
On November 2, 1979, appellant was convicted in the justice's court for driving under the
influence of intoxicating liquor (DUI) in violation of NRS 484.379. Appellant did not appeal
this conviction. Approximately six years and four months later, on March 8, 1986, appellant
was again arrested for DUI. At trial, however, the district attorney did not introduce evidence
of appellant's 1979 conviction based on his determination that the 1979 conviction was
constitutional insufficient because appellant was not represented by counsel during the
1979 proceedings.
not represented by counsel during the 1979 proceedings. Consequently, on September 10,
1986, appellant was convicted in the justice's court for first offense DUI. Appellant, again,
did not appeal this conviction.
Subsequent to appellant's conviction, the justice's court officially notified the Department
of Motor Vehicles and Public Safety (the department) of appellant's 1979 and 1986
convictions. On November 17, 1986, the department held a hearing regarding the revocation
of appellant's driver's license. Appellant contended at the hearing that the department should
treat appellant's 1986 conviction as a first DUI conviction within seven years, as the justice's
court had, and accordingly revoke his driving privilege for only 90 days. See NRS
483.460(1)(c). The hearing officer was not persuaded. On November 20, 1986, the hearing
officer revoked appellant's driver's license for one year, based on appellant's two convictions
within a seven-year period. See NRS 483.460(1)(b)(5). Appellant petitioned the district court
for judicial review, and the district court affirmed the hearing officer's determination. This
appeal followed.
[Headnotes 1, 2]
Appellant first contends that the justice's court's treatment of his second (1986) conviction
as a first offense is binding on the department in its license revocation proceedings. This
contention is without merit.
NRS 483.460 provides in pertinent part:
1. Unless otherwise provided by statute, the department shall revoke the license . . .
of any driver upon receiving a record of his conviction of any of the following offenses,
when that conviction has become final . . .
. . . .
(b) For a period of 1 year if the offense is:
. . . .
(5) A second violation within 7 years of NRS 484.379. . . .
(Emphasis added.) The statute quoted above is clear and unambiguous. It imposes upon the
department a mandatory duty to revoke an individual's driver's license for one year upon the
existence of three factors: (1) the department must receive valid records of conviction; (2)
these records must show that the individual was convicted twice within seven years for
violating NRS 484.379 (DUI); and (3) the convictions must be final. All three elements were
satisfied in the present case. Specifically, we note that the justice's court forwarded to the
department documents indicating that appellant had been convicted for DUI on November 2,
1979 and September 10, 19S6.1 Upon receipt of these records the department was
required to revoke appellant's driver's license for one year.
November 2, 1979 and September 10, 1986.
1
Upon receipt of these records the department
was required to revoke appellant's driver's license for one year. Nothing in the statute grants
the department, expressly or impliedly, any discretion in revoking a driver's license. Once the
department received and determined the authenticity of appellant's conviction records, it
performed a purely ministerial function in revoking appellant's driver's license. See, e.g.,
Paterson v. Department of Motor Vehicles, 217 Cal.Rptr. 881 (Cal.Ct.App. 1985) (mandatory
suspension by the Motor Vehicle Department, without hearing, of driver's license upon third
drunk driving conviction did not violate due process; in such a case the facts have already
been determined in a criminal proceeding and revocation constitutes ministerial rather than
quasi-judicial action); Comeaux v. Department of Public Safety, 311 So.2d 61, 62
(La.Ct.App. 1975) (pursuant to Louisiana statutes, the department properly revoked
petitioner's license for one year when he [had] been convicted twice of that offense,
irrespective of the fact that his second conviction was not based on a charge of being a second
offender). We conclude that the department properly revoked appellant's driver's license for
one year under the clear mandate of NRS 483.460(1)(b)(5).
[Headnotes 3, 4]
Appellant next contends that the revocation of his driver's license constitutes an
enhancement of the penalty imposed pursuant to conviction. Consequently, appellant
maintains that the department should have reviewed his 1979 conviction to determine
whether it was constitutionally valid. We disagree. The objective of administrative revocation
of a driver's license under NRS 483.460 is not to impose additional punishment but to protect
the unsuspecting public from irresponsible drivers.
The revocation of driver's license or driving privilege is not a part of the penalty
provided for violation of the statute. The deprivation of the driving right or privilege is
for the protection of the public, and is not done for the punishment of the individual
convicted. Moreover, the revocation is not by the court in which the conviction occurs,
but is by the commissioner of law enforcement, in pursuance of regulations and
conditions imposed upon the exercise of the driving right or privilege, under the police
power of the state.
State v. Parker, 336 P.2d 318, 320 (Id. 1959). The reasoning of Parker is equally applicable
to the case at hand.
____________________

1
These documents consisted of misdemeanor citations (complaints) and records of conviction made upon
forms furnished by the department, consistent with NRS 483.450(2).
Parker is equally applicable to the case at hand. The revocation of a driver's license by the
department, rather than the court of conviction, is not an enhancement of the penalty imposed
by the court of conviction. Moreover, NRS 483.460 neither obligates nor authorizes the
department to assess the validity of prior convictions. Indeed, the department, as an
administrative agency, lacks the expertise to assess the constitutional validity of prior
convictions. Therefore, we conclude that the district court properly affirmed the revocation of
appellant's driver's license for one year.
Accordingly, the judgment of the district court is affirmed.
____________
103 Nev. 588, 588 (1987) Hotel Employees v. State, Gaming Control Bd.
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, a Foreign Labor Organization, Appellant, v. STATE ex rel. NEVADA
GAMING CONTROL BOARD and NEVADA GAMING COMMISSION,
Administrative Agencies of the State of Nevada, Respondent.
No. 17168
December 29, 1987 747 P.2d 878
Appeal from judgment denying declaratory and injunctive relief. Eighth Judicial District
International union sought injunctive and declaratory relief challenging validity of Gaming
Commission regulation. The district court denied the relief. The union appealed. The
Supreme Court held that Commission regulation requiring international unions to file
personnel information with the Commission exceeded authority of the Commission.
Reversed.
Pearson and Patton, and George W. Foley, Jr., Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, Mark Lerner, Deputy Attorney General, and
Dan Reaser, Deputy Attorney General, Las Vegas, for Respondent.
1. Statutes.
When either of two interpretations of statute profferred by parties can be reasonably drawn from language
of statute, statute is ambiguous and plain meaning rule has no application.
2. Gaming.
Gaming Commission regulation requiring international unions to file personnel information with
Commission exceeded the Commission's authority; regulation was promulgated to implement statute setting
forth process for determining suitability of persons who performed key functions in representation of
gaming employees but that statute was not intended to apply to international unions which did not
represent employees in collective bargaining. NRS 463A.010 et seq.
3. Statutes.
An ambiguous statute can be construed in line with what reason and public policy would indicate the
legislature intended.
OPINION
Per Curiam:
This appeal challenges the validity of the Nevada Gaming Commission's Regulation 19, as
applied to an international labor union. The Hotel Employees and Restaurant Employees
International Union appeals from denial of injunctive and declaratory relief by the district
court.
Regulation 19.040 requires the international union to file personnel information with the
Nevada Gaming Commission, and presumably subjects international union personnel to
disqualification under NRS 463A.040. Not only is the union required to file detailed
information about personnel who have been directly or indirectly involved with Nevada
gaming employees but it must also give information about all its officers and policy makers.
1
Persons listed by the union are required to file detailed information about past labor activities,
occupational history, past licensing, criminal record, and any subpoenas to appear before an
investigative body. Reg. 19.050. It is mandatory that the president and secretary-treasurer of
the international comply with the personal reporting requirement. Reg. 19.060. Other policy
makers who have had nothing to do with Nevada gaming employees, as well as clerical and
ministerial employees, can be exempted from the personal reporting requirement if the union
files a certified list. Id. Failure to comply with reporting requirements is grounds for
disqualification. Reg. 19.050(3).
____________________

1
Regulation 19.040(1) provides:
Each international labor organization shall provide the following information on its list filed with the
board:
. . . .
. . . .
(c) With respect to international labor organization personnel, those individuals who perform or who
have performed any of the functions set forth in Regulation 19.020(1) with respect to Nevada gaming
casino employees or advised or consulted with a local labor organization
Regulation 19 was promulgated in 1985 to implement NRS 463A which sets forth a
process for determining the suitability of persons who perform key functions in the
representation of gaming employees. The international union contends Regulation 19 exceeds
the authority of the Gaming Commission because NRS 463A was not intended to apply to
international unions. We agree.
Under the statutory scheme, every labor organization which represents gaming casino
employees in the state is required to file a list of persons whose suitability is to be
scrutinized. These include (1) persons directly involved in employer-employee relations, i.e.,
persons who adjust grievances or negotiate or administer wages, hours, working conditions or
conditions of employment, (2) persons who solicit or collect money for the organization, and
(3) persons in supervisory or policy making positions. NRS 463.030(1). Listed persons are
required to file fingerprints and a personal history with the Commission. NRS 463A.030(2).
The Commission may disqualify any person from his labor organization functions for crimes
of moral turpitude, dishonesty in connection with the filing, questionable integrity, or
association with criminal elements. NRS 463A.040. A labor union that allows a disqualified
person to continue in his position may be enjoined, fined, or disqualified. NRS 463A.250.
The international union argues that Regulation 19.040 exceeds the scope of NRS 463A
because the requirement that every labor organization which represents gaming casino
employees in this state file is directed only at organizations that represent employees in
collective bargaining, and not the international unions.
2
The Gaming Commission argues
international unions that are "labor organizations" within the meaning of the statute are
subject to the requirement because the word "represents" is only part of a clause limiting
the geographical scope of the legislation.3 Alternatively, the Commission argues
"represents" should be given the broad meaning of "spokesman for."
____________________
concerning one or more of such functions with respect to Nevada gaming casino employees or who act or
have acted as officers, members of the governing body, or in any other policy making position in the
international labor organization within the 12 months immediately prior to filing the list:
(1) Full name, including any known alias or nickname;
(2) Title or other designation in the labor organization;
(3) A brief description of the duties and activities of each individual;
(4) Business address and telephone number of each individual; and
(5) Annual compensation including salary, allowances, and other direct or indirect disbursements
(including reimbursed expenses).

2
Under provisions pertaining to local unions, international union personnel who are involved with Nevada
gaming employees are subject to regulation. The local organization is required to provide information about
persons from the international who have either performed key functions described in NRS 463A.030, or have
advised or consulted with the local union on the performance of such functions. Reg. 19.030. International union
personnel listed by the local union are required to make a personal filing. These provisions are not challenged in
this appeal.
that are labor organizations within the meaning of the statute are subject to the requirement
because the word represents is only part of a clause limiting the geographical scope of the
legislation.
3
Alternatively, the Commission argues represents should be given the broad
meaning of spokesman for. Oxford American Dictionary (1980).
[Headnote 1]
Words in a statute should be given their plain meaning unless this violates the spirit of the
act. McKay v. Board of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). When a
statute is clear on its face a court may not go beyond the language of the statute in
determining the legislature's intent. Id. However, both parties make plausible arguments
about the meaning of represents. When either of the interpretations proffered by the parties
can be reasonably drawn from the language of the statute, the statute is ambiguous and the
plain meaning rule has no application. Id., 730 P.2d at 442.
[Headnote 2]
Legislative intent can be determined by looking at the entire act and construing the statute
as a whole in light of its purpose. Colello v. Administrator, Real Estate Division, 100 Nev.
344, 347, 683 P.2d 15, 16 (1984). The expressly stated purpose of the statute is a factor to be
considered. Id. The legislative findings state that a procedure for determining the suitability of
any person who performs certain significant functions in the representation of gaming casino
employees was necessary to insure that licensed gaming be conducted freely and honestly
and to protect the welfare of employees because the relationship which exists between a
labor organization and the employees whom it represents in collective bargaining is such that
it may significantly affect the conduct of a gaming operation by an employer. (Emphasis
added.) NRS 463A.010. The use of represents in conjunction with collective bargaining
in the stated purpose of the statute indicates the international's interpretation of represents is
correct.
[Headnote 3]
Pursuant to another rule of statutory construction, an ambiguous statute can be construed
in line with what reason and public policy would indicate the legislature intended. McKay
v. Board of Supervisors, supra, 102 Nev. at 644, 730 P.2d at 442.
____________________

3
NRS 463A.020(4) provides:
Labor organization' means an organization of any kind, or any agency or employee representation
committee or plan, which exists for the purpose, in whole or in part, of dealing with employers of gaming
casino employees concerning grievances, labor disputes, wages, rates of pay, hours of employment or
conditions of work of gaming casino employees.
of Supervisors, supra, 102 Nev. at 644, 730 P.2d at 442. While we note the legislature found
it necessary to monitor persons capable of asserting influence on Nevada gaming licensees,
we cannot agree the scope of NRS 463A authorizes the Gaming Commission to inquire into
matters concerning international union personnel who have nothing to do with Nevada
gaming employees. We do not think the legislature intended that expense reimbursements
made to these persons be a matter of concern to the Commission. See Reg. 19.040(1)(c)(5).
In seeking guidance to legislative intent, we have reviewed the public legislative records
on file in the research library of the Legislative Counsel Bureau. See Industrial Commission
v. Milka, 410 P.2d 181, 183-84 (Colo. 1966); State ex rel. Strykowski v. Wilkie, 261 N.W.2d
434, 441 (Wisc. 1978). The subject of the bill's application to international unions arose twice
during the committee hearings. LEGISLATIVE COUNSEL BUREAU, LEGISLATIVE
HISTORY 75-19: S.B. 614 OF THE 58TH SESSION at 33, 66 (1975). Both times, the
Gaming Commission's representative disclaimed any intent to attach the international unions.
Id. At his suggestion, the committee eliminated a specific reference to international unions
from the bill draft. Id. at 33. When Mr. Ashleman, the union representative, expressed
concern about regulations that might license everyone in the international organization who
has some control over the organization, Senator Dodge, a sponsor of the bill, assured him,
He [Mr. Hannifin of the Gaming Control Board] indicated that as far as he's concerned
he didn't want to be involved with anybody except those directly on the scene here in
Nevada, and I think his analogy was to the corporate licensing act where we don't go to
the stockholders that are all over the world. We direct our attention to the Nevada
corporation and the regulation of that corporate personnel.
Id. at 66. No legislative intent to bring international unions within the purview of the statute
appears from the record.
All the methods we have looked to for guidance to legislative intent lead us to conclude
the legislature did not intend to subject international labor organizations to reporting
requirements. We hold that Regulation 19, as applied to international unions, exceeded the
authority of the Nevada Gaming Commission. The district court erred in determining the
regulation was valid. Accordingly, we hereby reverse the judgment of the district court.
____________
103 Nev. 593, 593 (1987) Wyatt v. Bowers
OSCAR WYATT, JR., Appellant, v. JOHN A. BOWERS,
and FREDERICK T. BOULWARE, JR., Respondents.
No. 17692
December 29, 1987 747 P.2d 881
Appeal from a judgment arising out of an indemnification agreement. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Indemnitees brought action against investor for corporation's breach of medical equipment
lease. The district court entered judgment finding investor personally liable, pursuant to
written indemnity agreement, for breach of lease, and awarded attorney fees to indemnitees,
and investor appealed. The Supreme Court held that: (1) indemnities lacked standing to seek
relief against investor for breach of investor's promise to indemnitor to execute whatever
personal liability documents were necessary to guarantee corporation's lease obligations; (2)
investor was not corporation's alter ego so as to be personally liable for corporation's lease
obligations; and (3) indemnitees were not entitled to award of attorney fees against investor.
Reversed.
B. Mahlon Brown, Las Vegas, for Appellant.
Hardy & Hardy; Gordon C. Richards, Las Vegas, for Respondents.
1. Contracts.
Indemnitees lacked standing to seek relief against investor for breach of promise made to indemnitor to
execute whatever personal liability documents were necessary to guarantee equipment lease obligations of
corporation; indemnitees' remedy was against indemnitor for breach of indemnity agreement.
2. Contracts.
Indemnitees that indemnitor agreed to indemnify for any and all past and future liabilities incurred
pursuant to corporation's equipment lease obligation were not third-party beneficiaries of Master
Agreement between investor and indemnitor, absent clear showing in Master Agreement that investor
intended to benefit indemnitees when agreement was entered.
3. Corporations.
Merely influencing and governing corporation does not necessarily demonstrate unity of interest and
ownership resulting in requisite inseparability of corporation and shareholder for application of alter ego
doctrine.
4. Corporations.
Application of alter ego doctrine requires proof by preponderance of evidence that corporation is
influenced and governed by person asserted to be its alter ego, that there is such unity of interest and
ownership that one is inseparable from the other, and that adherence to fiction of
separate entity would, under circumstances, sanction fraud or promote injustice.
one is inseparable from the other, and that adherence to fiction of separate entity would, under
circumstances, sanction fraud or promote injustice.
5. Corporations.
Even if investor influenced corporation's operations and was confidant of corporation's officers and
directors, investor was not corporation's alter ego so as to be personally liable for corporation's lease
obligation; investor's personal funds and assets were never commingled with corporation's, corporate funds
and assets were not diverted to investor and there was no showing that investor treated corporate assets as
his own individual holdings.
6. Costs.
Absent specific statutory or contractual provision for attorney fees, indemnitees were not entitled to
award of attorney fees in action against investor for corporation's breach of medical equipment lease;
investor was not personally liable for corporation's breach of lease.
OPINION
Per Curiam:
Oscar Wyatt, Jr., appeals from a judgment against him which is based largely on a finding
by the trial court that he had assumed an indemnification agreement pertaining to, among
other things, liability under a medical equipment lease. At trial the district court found Wyatt
personally liable, pursuant to a written indemnity agreement, for the breach of a medical
equipment lease (the AVCO lease). The finding of personal liability was founded
alternatively upon either of two theories: (1) Wyatt assumed the outstanding obligations
associated with the equipment lease assets taken as part of a business combination, or (2)
Ancillary Service Corporation (Ancillary), which was also liable on this obligation, was the
alter ego of Wyatt, thereby justifying the piercing of Wyatt's shield of limited liability
protection under Ancillary's corporate veil. In addition, the district court awarded attorney's
fees to the respondents, John Bowers and Frederick Boulware, Jr.
Wyatt contends that neither of the alternative grounds for liability set forth by the district
court is supported by substantial evidence. He maintains that because of some of the
foundational findings of fact supporting the conclusions of personal liability are clearly
erroneous, the district court erred and that the judgment should be reversed. We agree.
Assumption of the Indemnity Agreement
The district court's finding of direct personal liability on Wyatt's part is not supported by
substantial evidence. The district court found that one Phillip Taylor executed indemnity
agreements with respondents Bowers and Boulware under which Taylor agreed to indemnify
Bowers and Boulware for any and all past and future liabilities incurred pursuant to the
AVCO equipment lease obligation.
lor agreed to indemnify Bowers and Boulware for any and all past and future liabilities
incurred pursuant to the AVCO equipment lease obligation. Next, the trial court found that
Ancillary Service Corporation became obligated to assume Taylor's agreement to indemnify
Bowers and Boulware. The trial court also found that Wyatt had promised Taylor in writing
that he would execute whatever personal liability documents that might be necessary for him
to guarantee equipment lease obligations for the benefit of Ancillary. Wyatt failed to execute
a personal indemnity for the AVCO lease obligation agreements. On these facts the trial court
came to the conclusion that Wyatt's promise to Taylor created a liability on his part to Bowers
and Boulware. Apparently, the court reasoned that since the indemnity agreements were
considered an obligation associated with Ancillary's equipment leases and since Wyatt had
promised to execute whatever personal liability documents were necessary to guarantee such
obligations, Wyatt should be held personally liable as an indemnitor.
[Headnote 1]
A review of the record does not reveal that the district court's conclusions were founded
upon substantial evidence. The district court's finding of Wyatt's liability is premised upon
some kind of implied assumption by Wyatt of an obligation to indemnify Bowers and
Boulware. The district court apparently based its finding against Wyatt upon Wyatt's promise
to Taylor personally to guarantee the Ancillary lease obligations, implying from this promise
a general assumption of the indemnity agreements that ran to Bowers and Boulware. On
review of the record, we cannot find, implied or otherwise, any assumption by Wyatt of the
indemnity agreements.
Wyatt's promise to execute personal liability documents guaranteeing obligations
associated with Ancillary equipment leases was made to Taylornot to either Bowers or
Boulware. Any breach of that covenant can only be raised by Taylor, the recipient of such
promise. Bowers' and Boulware's proper avenue for relief is against Taylor for breach of the
indemnity agreements. We realize that for all practical purposes such an avenue forecloses
relief to Bowers and Boulware. Nonetheless, Wyatt should not be made to suffer for Taylor's
breach of his agreements with the respondents.
[Headnote 2]
Bowers and Boulware also argued on appeal that they were third-party beneficiaries of the
Master Agreement between Taylor and Wyatt. As such, they insist they are entitled to seek
remuneration from Wyatt pursuant to rights arising out of the Master Agreement. We
disagree. It cannot be clearly discerned from the Master Agreement that Wyatt intended to
benefit Bowers and Boulware when the Master Agreement was entered into with Taylor.
and Boulware when the Master Agreement was entered into with Taylor. See Lipshie v. Tracy
Investment Co., 93 Nev. 370, 566 P.2d 819 (1977). Rather, the covenant in the Master
Agreement was intended to benefit Taylor. Consequently, Bowers and Boulware were at best
incidental beneficiaries without the right to claim relief under the Master Agreement
provision.
We hold the district court's finding of direct personal liability on Wyatt's behalf to be
clearly erroneous.
Alter Ego Doctrine
[Headnotes 3-5]
At trial, the district court found Ancillary to be Wyatt's alter ego and thereby pierced
Wyatt's shield of limited liability protection under Ancillary's corporate veil. Wyatt contends
that the district court erred in its finding because established case law does not support the
court's finding. We agree.
As set forth in Rowland v. Lepire, 99 Nev. 308, 316-17, 662 P.2d 1332, 1337 (1983),
In order to apply the alter ego doctrine, the following requirements must be met: (1)
the corporation must be influenced and governed by the person asserted to be its alter
ego; (2) there must be such unity of interest and ownership that one is inseparable from
the other; and (3) the facts must be such that adherence to the fiction of a separate entity
would, under the circumstances, sanction a fraud or promote injustice.
(Citations omitted.) It is clear from a review of the record on appeal that the Rowland test has
not been met in the present case.
The requisite unity of interest and ownership between Wyatt and Ancillary does not exist.
Ancillary was formed as an investment for Wyatt. Adequate funds were injected into the
company for capitalization purposes. Wyatt was neither a director nor an officer of the
company. Wyatt's personal funds and assets were never commingled with those possessed by
Ancillary. There were no diversions of corporate funds or assets out of Ancillary and into the
pockets of Wyatt. No evidence can be found in the record which would indicate that Wyatt
treated the corporate assets as his own individual holdings. These factors weigh heavily
against the application of the alter ego doctrine.
Although it is possible that Wyatt influenced Ancillary operations, it cannot be said that he
governed the business. In addition, little evidence exists in the record to support the district
court's finding that Wyatt exercised complete management . . . over the business affairs of
Ancillary. . . . The mere fact the officers and directors of Ancillary were confidants of Wyatt,
while relevant, is insufficient without more to show that Ancillary was Wyatt's alter ego.
ego. Moreover, merely influencing and governing a corporation does not necessarily
demonstrate the unity of interest and ownership resulting in the requisite inseparability of a
corporation and shareholder. North Arlington Medical Building, Inc. v. Sanchez Constr. Co.,
86 Nev. 515, 471 P.2d 240 (1970). Sufficient evidence justifying the finding of a disregard
for the corporate entity, which must be proven by a preponderance of the evidence, cannot be
found in the record.
Finally, to adhere to the fiction of a separate entity would not act to sanction fraud or
promote injustice. Wyatt did what he could to keep Ancillary afloat. Bowers and Boulware,
on the other hand, jumped ship to cut their losses, as indicated by their indemnity agreement
with Taylor. If injustice exists, it appears related to Taylor and not to Wyatt.
As noted in the past, the corporate cloak will not be lightly cast aside. Baer v. Walker, 85
Nev. 219, 452 P.2d 916 (1969). We decline, in this instance, to toss aside that corporate cloak
because the elements required to invoke the alter ego doctrine have not been properly
established. The district court's determination that Wyatt was personally liable for the AVCO
lease obligation upon application of the alter ego doctrine was in error, and we thereby
reverse.
Attorney's Fees Award
[Headnote 6]
Wyatt's final contention of error concerns the district court's award of attorney's fees to
respondents, Bowers and Boulware. The court's award was grounded in the written
indemnification agreements assumed by Wyatt. As such, the award would be proper pursuant
to Rowland v. Lepire, 99 Nev. 308, 662 P.2d 1332 (1983), which permits the award of
attorney's fees where such an award is provided by contract provision.
On appeal, however, we have recognized that Wyatt is not subject to the provisions of the
indemnification agreements. Consequently, the attorney's fees award cannot be founded upon
such agreement. Since the award of attorney's fees in this instance is not specifically provided
for by statute, and there exists no agreement to base such an award upon, it was error for the
district court to award attorney's fees to Bowers and Boulware. Accordingly, we reverse the
award.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant Wyatt has demonstrated error in this appeal. Accordingly, we reverse the
decision of the district court in its entirety and order that judgment be entered in favor of
Wyatt.
____________
103 Nev. 598, 598 (1987) Polaris Industrial Corp. v. Kaplan
POLARIS INDUSTRIAL CORPORATION, dba DAYTON WIRE PRODUCTS,
Appellant, v. MICHAEL KAPLAN, and JEROME KAPLAN, Respondents.
No. 16574
December 29, 1987 747 P.2d 884
Appeal from judgment. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Promisee brought action on promissory note against original corporate promisor,
corporation that assumed promisor's obligation, and corporations' two shareholders officers,
who were alleged to be alter egos of corporations. Following summary judgment for promisee
against corporations, promisee amended complaint to add as defendants third corporation and
salesman, alleging they, too, were alter egos of promisor corporations. After third corporation
and one shareholder officer defaulted, the district court entered judgment for salesman and
remaining shareholder officer, and promisee appealed. The Supreme Court, held that: (1)
salesman who never had interest in or influence over promisor corporations was not
corporations' alter ego so as to be be liable for corporations' debt, and (2) findings that
shareholders officers cashed numerous unnumbered counter checks for their personal benefit,
that these withdrawals further thinned capitalization of corporation at time when corporation's
obligation on promissory note was not being paid and that corporation had little real assets
and negative net worth mandated conclusion that remaining shareholder officer was
corporation's alter ego personally liable for corporation's obligation on promissory note.
Chris A. Beecroft, Las Vegas, for Appellant.
Brown, Wells, Beller & Kravitz, Las Vegas, for Respondents.
Judgment based on conflicting evidence will not be disturbed when supported by substantial evidence,
unless wrong conclusion was clearly reached.
2. Corporations.
Alter ego doctrine only applies when corporation is influenced and governed by person asserted to be
alter ego, there is such unity of interests and ownership that one is inseparable from other and facts are such
that adherence to corporate fiction of separate entity would, under circumstances, sanction fraud or
promote injustice.
3. Corporations.
Party seeking application of alter ego doctrine need not prove actual fraud, but rather, that recognition of
two entities as separate would result in injustice.
4. Corporations.
Absent evidence that salesman ever had any interest in or influence over corporations, salesman was not
corporations' alter ego liable for corporations' obligation on promissory note.
5. Corporations.
Co-mingling of funds, under capitalization, unauthorized diversion of funds, treatment of corporate assets
as individual's own, and failure to observe corporate formalities may indicate existence of alter ego
relationship between corporation and shareholder, but such factors are not conclusive.
6. Corporations.
There is no litmus test for determining whether corporate fiction should be disregarded; result depends on
circumstances of each case.
7. Corporations.
Actions pointing to coimmunity of interest between individual and corporation must also be cause of
plaintiff's injury and must have sanctioned fraud or promoted injustice before corporate veil can be pierced
and individual held liable for corporation's obligation to plaintiff.
8. Corporations.
Notations on unnumbered counter checks charging withdrawal of corporate funds to employee
advances supported trial court's finding that corporation's shareholders officers cashed numerous
unnumbered counter checks for their personal benefit.
9. Evidence.
Auditor's opinions that corporation would have had funds to pay debt if withdrawals by shareholder
officers had not further thinned capitalization of corporation and that corporation had few real assets
because accounts receivables carried on its books were uncollectable were sufficient to sustain trial court's
finding that shareholders' payments to themselves prevented corporation from paying its debt.
10. Corporations.
Trial court's findings that corporation's two shareholder officers cashed numerous unnumbered counter
checks for their personal benefit, that these withdrawals further thinned capitalization of corporation at time
when corporation's debt on promissory note was not being paid and that corporation had little real assets
and negative net worth mandated conclusion that shareholder officer was corporation's alter ego personally
liable for corporation's debt on promissory note.
OPINION
Per Curiam:
This case arises from a promissory note originally issued by National Marketing Services
(NMS), a now-defunct Nevada corporation, to appellant Polaris Industrial Corporation for
amounts owing on an account. The note was later assumed by Commercial Resources, Inc.
(CRI), another Nevada corporation no longer in existence. In 1979, Polaris brought an action
on the note against both corporations and their two shareholders and officers, Bob Davis and
respondent Michael Kaplan. Polaris alleged Davis and Kaplan were the alter egos of NMS
and CRI.
Kaplan were the alter egos of NMS and CRI. Summary judgment was entered for Polaris
against the corporations. Polaris then amended its complaint to add as defendants Cambist
Corporation and respondent Jerome Kaplan alleging they, too, were the alter egos of NMS
and CRI. Cambist Corporation and Bob Davis defaulted. The case proceeded to trial against
respondents Michael and Jerome Kaplan. The district court concluded Polaris had not borne
its burden of proof in demonstrating the Kaplans were the alter egos of NMS and CRI.
Judgment was entered for the defendants. Polaris appeals.
Polaris was an Ohio corporation that custom manufactured wire products. Beginning in
1976, Polaris sold wire display racks to NMS. Initially, NMS paid for the goods in advance.
Later, payment was made on delivery. Eventually, NMS requested a thirty-day account. By
March 1978, NMS owed Polaris $50,560.16 and was behind on payments. NMS then issued
the promissory note that is the basis of this suit.
NMS sold toy distributorships. It was originally a sole proprietorship owned by Michael
Kaplan. NMS incorporated in 1976 soon after its first contact with Polaris. Bob Davis and
Michael Kaplan were the sole shareholders and officers of the corporation. In its most
lucrative year, 1977, NMS realized a profit of about $500,000.00. It ceased to do business the
following Spring. The corporate balance sheet reflected a negative equity of $154,144.00
indicating the stockholders had taken out more than they had put in.
Davis and Kaplan formed a new corporation, CRI, to sell health and beauty aid
distributorships. They were again the sole shareholders and officers. CRI did business in the
same location as NMS and used the same bank. It also took assignment of NMS's assets and
assumed NMS's liabilities. CRI informed Polaris it had assumed NMS's note. Thereafter,
Polaris received only one payment. Both NMS and CRI were sold to a party in Missouri after
the institution of this suit.
The district court made a number of findings that indicated Kaplan and Davis did not
always follow normal corporate procedures. Both NMS and CRI paid the personal obligations
of the officers. Unnumbered counter checks were often issued to Davis and Kaplan.
1
There
was no evidence that capital contributions had actually been made or that stock certificates
had been issued. The only evidence of corporate meetings consisted of minutes that generally
ratified all previous decisions of the prior year. Despite these findings, the court concluded
Polaris had not shown an alter ego relationship between Kaplan and the corporations.
____________________

1
The counter checks were blank checks obtained at the bank.
Jerome Kaplan was Michael Kaplan's brother. He was a salesman for CRI, but never had
any interest in the corporation. In July 1979, Jerome formed Cambist Corporation to sell
sporting goods distributorships. Cambist shared offices with CRI and paid the rent in return
for use of office furniture. Cambist ceased doing business in March 1980. The district court
also concluded that Jerome Kaplan was not an alter ego of CRI.
[Headnote 1]
Polaris contends the district court reached the wrong conclusion. The general rule is that
where the evidence is conflicting and there is substantial evidence to support the judgment, it
will not be disturbed. Consolazio v. Summerfield, 54 Nev. 176, 179, 10 P.2d 629, 630
(1932). But there is an exception when it is clear that a wrong conclusion has been reached.
Id. Our task on appeal is to determine whether the trial court's findings in this case mandated
a contrary conclusion.
[Headnotes 2, 3]
There are three general requirements for application of the alter ego doctrine: (1) the
corporation must be influenced and governed by the person asserted to be the alter ego; (2)
there must be such unity of interest and ownership that one is inseparable from the other; and
(3) the facts must be such that adherence to the corporate fiction of a separate entity would,
under the circumstances, sanction fraud or promote injustice. McCleary Cattle Co. v. Sewell,
73 Nev. 279, 282, 317 P.2d 957, 959 (1957). It is not necessary that the plaintiff prove actual
fraud. It is enough if the recognition of the two entities as separate would result in an
injustice. Gordon v. Aztec Brewing Company, 203 P.2d 522, 527 (Cal. 1979) quoted in
McCleary, supra.
[Headnote 4]
It is admitted that Michael Kaplan, along with Bob Davis, wholly owned and controlled
NMS and CRI. However, there is no evidence Jerome Kaplan ever had any interest in or
influence over these two corporations. Hence, this appeal fails as to Jerome Kaplan.
[Headnotes 5, 6]
In determining whether a unity of interest exists between the individual and the
corporation, courts have looked to factors like co-mingling of funds, undercapitalization,
unauthorized diversion of funds, treatment of corporate assets as the individual's own, and
failure to observe corporate formalities. See North Arlington Medical Building, Inc. v.
Sanchez Construction Co., 86 Nev. 515, 522 n. 8, 471 P.2d 240, 244 (1970). These factors
may indicate the existence of an alter ego relationship, but are not conclusive.
conclusive. See id. There is no litmus test for determining when the corporate fiction should
be disregarded; the result depends on the circumstances of each case. Mesler v. Bragg
Management Co., 702 P.2d 601, 606 (Cal. 1985).
[Headnote 7]
The district court found that the corporation paid Kaplan's personal obligations, that
Kaplan made withdrawals of funds for his own use without following corporate procedures
and that certain corporate formalities were not observed. These findings point to a unity of
interest between the individual and the corporation. However, these actions must also be the
cause of Polaris's injury and must have sanctioned a fraud or promoted an injustice before the
corporate veil can be pierced. See North Arlington Medical Building, supra.
The record does not reflect how failure to issue stock or keep proper corporate minutes
sanctioned a fraud or promoted an injustice to Polaris. It also does not establish that an
injustice necessarily resulted from the corporation's payment of Kaplan's personal debts.
Kaplan testified the payments were in lieu of salary. We also note the district court did not
specifically find that the corporations were undercapitalized.
[Headnotes 8-10]
We are, however, troubled by the district court's conclusion in light of its findings that
Davis and Kaplan cashed numerous unnumbered counter checks for their personal benefit and
that these withdrawals further thinned the capitalization of CRI which, according to another
finding, had little real assets and a negative net worth.
On July 20, 1979, the same day that Polaris served Kaplan and Davis with its complaint,
Kaplan withdrew $12,500.00 by unnumbered counter check. A notation on the check charged
the withdrawal to Account 140, revealed at a trial to be Employee Advances. From August
1979 to October 1979, Kaplan and Davis made numerous payments to themselves, Jerome
Kaplan and McKenzie Davis.
2
CRI's bookkeeper was not apprised of the withdrawals by
unnumbered checks.
____________________

2
The record shows these payments:
July 20, 1979 Michael Kaplan $12,500.00*
August , 1979 Bob Davis 5,000.00
August 7, 1979 Michael Kaplan 4,700.00
August 10, 1979 Jerome Kaplan 2,000.00
August 14, 1979 Michael Kaplan 2,500.00
August 16, 1979 McKenzie Davis 1,500.00
August 21, 1979 Bob Davis 1,750.00
August 20, 1979 Cash 4,000.00*
August 30, 1979 Michael Kaplan 1,500.00*
October 15, 1979 Cashier's checks (Michael Kaplan, Jerome
Kaplan and CRI)
24,863.84*
*Unnumbered counter checks
withdrawals by unnumbered checks. Kaplan admitted Davis took funds from the corporation
to support his gambling habit. He, himself, claimed to have made temporary withdrawals to
protect corporate funds from Davis. However, the district court found the funds were taken
for the personal use of both officers. This finding is supported by notations on the checks
charging them to employee advances. R. Craig Bird, an auditor retained by Polaris, opined
that CRI would have had the funds to pay its debt if the withdrawals had not further thinned
the capitalization of the corporation. He also stated that CRI had few real assets because the
accounts receivable carried on its books were uncollectable. The district court was entitled to
accept his opinion. Our review of the record shows the district court's findings concerning the
unnumbered counter checks and their effect on the corporation are supported by substantial
evidence. They will, therefore, not be disturbed on appeal, Ivory Ranch v. Quinn River
Ranch, 101 Nev. 471, 472, 705 P.2d 673, 675 (1985).
In light of the findings, it becomes clear that CRI's officers treated corporate funds as their
own by making ad hoc withdrawals at the bank in the form of advances to themselves at a
time when the corporation's debt to Polaris was not being paid, and that Polaris was damaged
because these actions left the corporation without funds to repay the debt. The essence of the
alter ego doctrine is to do justice. Mesler v. Bragg Management Co., supra, 702 P.2d at 607.
We are compelled to recognize that the district court clearly reached a wrong conclusion in
determining that Michael Kaplan had not been shown to be the alter ego of NMS and CRI.
Accordingly, we affirm the judgment of the district court as to Jerome Kaplan, and reverse
the judgment as to Michael Kaplan.
3

____________________

3
Appellant named National Marketing Services, Commercial Resources, Inc., Cambist Corporation, Bob M.
Davis, Michael Kaplan and Jerome Kaplan as respondents. However, appellant obtained judgments against all
the parties except Michael and Jerome Kaplan, the only respondents to appear in this appeal. Hence, the names
of the other parties have been deleted from the caption of this appeal.
____________
103 Nev. 604, 604 (1987) Knorr v. State
DAVID PETER KNORR, Appellant, v. THE
No. 17672
December 29, 1987 748 P.2d 1
Appeal from a judgment of conviction of two counts of attempted sexual assault and two
counts of sexual assault. Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
Defendant was convicted of sexual assault and attempted sexual assault by jury in the
district court and he appealed. The Supreme Court held that: (1) defense counsel's inability to
properly present evidence of good character seriously hampered defendant's defense, and (2)
defendant was also prejudiced by improper prosecutorial comment through question which
appeared to be deliberately phrased in a manner calculated to prejudice the jury against
defendant.
Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland and David Barker, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Sexual assault defendant was entitled to introduce evidence of his good moral character to rebut state's
attempt to show that he had a specific emotional propensity for sexual aberration through testimony of one
witness.
2. Criminal Law.
Defense counsel rendered ineffective assistance to sexual assault defendant through his inability to phrase
his questions to witnesses so as to elicit proper responses to his attempt to rebut state's inference that
defendant had propensity for sexual aberration, particularly as question of defendant's guilt was by no
means certain and his character was directly in issue. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Sexual assault defendant was prejudiced by prosecutorial comment during cross-examination, asking
whether reason that former wife divorced defendant was because defendant was running around with a
teenage girl, where question was not relevant to any proper line of inquiry at trial and was not supported by
admissible evidence, and teenage girl referred to was apparently a young adult, thus making it apparent that
question was deliberately phrased in manner calculated to prejudice jury against defendant.
4. Criminal Law.
Counsel's inability to properly present evidence of sexual assault defendant's good character, which
seriously hampered his defense, and prejudice caused by improper prosecutorial questioning
was reversible error in case which rested almost entirely on credibility of two
complaining witnesses who admittedly hated defendant, their stepfather, without
apparent cause.
103 Nev. 604, 605 (1987) Knorr v. State
prejudice caused by improper prosecutorial questioning was reversible error in case which rested almost
entirely on credibility of two complaining witnesses who admittedly hated defendant, their stepfather,
without apparent cause.
OPINION
Per Curiam:
Appellant David Peter Knorr appeals from a judgment of conviction of two counts of
attempted sexual assault and two counts of sexual assault. We conclude that defense counsel's
ineffectiveness coupled with the state's misconduct, deprived appellant of a fair trial. We,
therefore, reverse appellant's conviction and remand the case to the district court or a new
trial.
THE FACTS
Appellant was the stepfather of the alleged victims in this case, Amy and Jesse. Amy,
eleven years old at the time of trial, testified to a continuing pattern of sexual abuse by
appellant spanning the nine-month period from September, 1984, to May, 1985. Because
appellant worked nights, he was frequently left home alone with Amy and Jesse after their
mother left for work. Amy alleged that the sexual assaults took place on school mornings
after Amy would exit the shower in the master bedroom. On these occasions, appellant
allegedly would perform cunnilingus upon Amy and would force Amy to perform fellatio
upon him. In addition, Amy testified to one specific incident wherein she claimed that
appellant called both her and Jesse into the master bedroom and directed Amy to perform
fellatio upon appellant. According to Amy, appellant then had Amy perform an act of fellatio
upon Jesse. Finally, appellant directed Jesse to perform an act of cunnilingus upon Amy.
Jesse, nine years old at the time of trial, corroborated Amy's version of this incident.
However, when Amy first reported the incident to the police, she denied that any sexual act
took place between her and Jesse. Amy instead reported that she and Jesse ran from the room
when appellant left the room.
The state, over appellant's objection, also presented the testimony of another young girl,
Bridgette. Bridgette, a friend of Amy's, alleged that on four separate occasions, appellant
conducted a sex school with Bridgette and Amy. On each occasion, Bridgette claimed that
appellant directed Amy and Bridgette to perform fellatio upon him, he performed cunnilingus
on each girl, and appellant also had sexual intercourse with each girl. Although Bridgette
testified that Amy was present on all four occasions, Amy denied that any of the so-called
"sex school" sessions took place.1
103 Nev. 604, 606 (1987) Knorr v. State
occasions, Amy denied that any of the so-called sex school sessions took place.
1

Appellant adamantly and repeatedly denied sexually abusing Amy, Jesse or Bridgette, and
denied that any sex school sessions took place. Appellant maintained that he had virtually
no opportunity to molest Amy because he spent nearly every morning at his neighbor's home
drinking coffee until after Amy and Jesse had left for school. At trial, the neighbor
corroborated appellant in this regard. It was appellant's theory that Amy and Jesse had
fabricated the stories of sexual abuse in retaliation for appellant's disciplinary methods. There
was evidence adduced at trial to support this theory. For example, both Amy and Jesse
admitted on cross-examination that they hated appellant because, according to them, he yelled
at them and made them do their chores. More important, however, Amy admitted that,
approximately one month after she had reported the alleged abuse, when angered by a
neighbor, Amy told the neighbor that she had put one man away and she could do it
again. Finally, several defense witnesses testified that Amy and Jesse had poor reputations
for truth and veracity.
The jury found appellant guilty of all four counts, and the district court sentenced appellant
to serve twenty years on each of the two counts of attempted sexual assault and life with the
possibility of parole on each of the two sexual assault counts. The two twenty-year sentences
were to be served concurrently, and the life sentences were to be served consecutively to one
another and consecutively to the twenty-year sentences. This appeal followed.
DISCUSSION
Repeatedly during his case-in-chief, appellant attempted, through counsel, to elicit
evidence of his good moral character from defense witnesses. The state objected to this line
of questioning, and the district court sustained the objection each time. As a result, appellant
was precluded from bringing before the jury evidence of his good moral character. Appellant
contends that the district court erred in excluding such evidence. The state maintains that
appellant was not attempting to introduce evidence of good morality, but was instead
attempting to elicit the witnesses' opinions as to whether appellant committed the crimes with
which he was charged.
____________________

1
We note that Bridgette's testimony was highly suspect because the other alleged participants in the sex
school sessions, i.e., Amy and appellant, denied that any such sessions occurred. Thus, the probative value of
Bridgette's testimony is questionable.
103 Nev. 604, 607 (1987) Knorr v. State
[Headnotes 1, 2]
Through the testimony of Bridgette, the state attempted to show that appellant had a
specific emotional propensity for sexual aberration. See McMichael v. State, 94 Nev. 184,
577 P.2d 398 (1978), overruled on other grounds, Meador v. State, 101 Nev. 765, 711 P.2d
852 (1985). Thus, appellant was entitled to introduce evidence of his good moral character to
rebut that inference. Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983). Although appellant was
attempting to introduce such evidence, defense counsel, due to his ineffectiveness, was
unable to phrase his questions in such a manner as to elicit the proper responses.
2
Counsel's
ineffectiveness is apparent from the face of the record.
3
In a case such as this where the
question of appellant's guilt was by no means certain and appellant's character was directly in
issue, counsel's inability properly to present evidence of good character seriously hampered
appellant's defense.
[Headnote 3]
Appellant was also prejudiced by the following comment made by the prosecutor made
during cross-examination of appellant.
Q. [by the prosecutor]: You want to tell us why you and Karen Knorr got divorced?
A. [by appellant]: We had difficulties over religion, her folks, and me wanting to buy
my own truck and go over the road.
Q. Isn't the reason that Karen divorced you, because you were running around with a
teenage girl?
This question was not relevant to any proper line of inquiry at the trial, and was not supported
by any admissible evidence. Further, the teenage girl referred to above was apparently a
young adult. Thus, it appears that this question was deliberately phrased in a manner
calculated to prejudice the jury against appellant. Although the district court sustained
defense counsel's immediate objection, the damage had occurred with the asking of the
question. Any answer to the question would have made little difference. See State v. Bailey,
647 P.2d 170 (Ariz. 1982).
[Headnote 4]
The state argues that the errors of which appellant complains are harmless. We disagree.
The prejudice caused by the prosecutor's improper question, coupled with the prejudice
caused by defense counsel's inability to offer relevant and probative character evidence,
cannot be deemed harmless in light of the close question of appellant's guilt.
____________________

2
For example, rather than asking the proposed character witnesses for their opinions as to appellant's
reputation in the community for good morality, defense counsel repeatedly asked the witnesses whether they
believed appellant committed the crimes with which he was charged. Further, when objections to counsel's
questions were sustained, counsel did not attempt to rephrase his questions in a manner that would elicit
admissible evidence.

3
We note that appellant's present counsel did not represent appellant at trial.
103 Nev. 604, 608 (1987) Knorr v. State
tor's improper question, coupled with the prejudice caused by defense counsel's inability to
offer relevant and probative character evidence, cannot be deemed harmless in light of the
close question of appellant's guilt. We cannot say that, in the absence of error, the verdicts
would be the same. See Big Pond v. State, 101 Nev. 1, 692 P.2d 1288 (1985). Accordingly,
we reverse appellant's conviction and remand this case to the district court for a new trial.
____________
103 Nev. 608, 608 (1987) Driscoll v. Collins Home Mfg. Corp.
PATRICK DRISCOLL, Appellant, v. COLLINS HOME
MANUFACTURING CORPORATION, Respondent.
No. 17577
December 29, 1987 747 P.2d 888
Appeal from an order dismissing respondent with prejudice and from a certified judgment,
Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Party injured when winch flew off passing truck and smashed his windshield filed
complaint against named defendant and certain doe defendants. Injured party subsequently
filed second amended complaint seeking to add second named defendant. Second named
defendant moved to dismiss. The district court granted motion and injured party appealed.
The Supreme Court held that NRCP 10(a) did not allow addition of party defendant after
statute of limitations had run.
Affirmed.
Lyles, Austin & Burnett, John F. Haas and Nancy Savage, Las Vegas, for Appellant.
Barker, Gillock, Koning, Brown & Earley, Jerry S. Busby and James Chrisman, Las
Vegas, for Respondent.
1. Parties.
Proper test for evaluating propriety of substitution of named defendants for doe defendants has three
parts: whether proper defendant had actual notice of institution of action, whether it knew it was proper
defendant in action, and whether it was in any way misled to its prejudice. NRCP 10(a).
2. Limitation of Actions.
Under NRCP 10(a) allowing substitution of named defendants for doe defendants, injured plaintiff
was not entitled to add party defendant after statute of limitations had run; added party defendant had no
connection with original defendant, other than its purchase of four trucks from original defendant, had no
notice of action at time action was instituted, had no way of knowing it was proper
defendant in lawsuit, and was prejudiced by injured plaintiff's delay in filing second
amended complaint, in that it had dissolved as corporation, had sold trucks
purchased from original defendant, and no longer had records necessary to identify
who had driven trucks on day plaintiff was injured.
was instituted, had no way of knowing it was proper defendant in lawsuit, and was prejudiced by injured
plaintiff's delay in filing second amended complaint, in that it had dissolved as corporation, had sold trucks
purchased from original defendant, and no longer had records necessary to identify who had driven trucks
on day plaintiff was injured. NRS 11.190, subd. 4(3); NRCP 10(a).
OPINION
Per Curiam:
Appellant Patrick Driscoll was severely injured on July 10, 1982, when a tie-down winch
flew off of a passing truck and smashed his windshield. Driscoll sustained extensive injuries
to his face and head, with a resulting loss of memory.
Due to his injuries, appellant could not at first remember anything which would assist him
in identifying the proper defendants for his personal injury suit. After 1 1/2 years of
rehabilitative therapy, and after hypnosis, Driscoll claimed to recall that the winch had fallen
off of a truck bearing the name of Sproul Homes. His original complaint, naming Sproul
Homes and certain doe defendants, was filed on June 8, 1984, two days before the statute of
limitations expired. NRS 11.190(4)(e). Further investigation by the appellant revealed that
Sproul Homes had sold four of its trucks, equipped with tie-down winches, to respondent
Collins Home Manufacturing Corporation (Collins). Appellant did not file his second
amended complaint naming Collins until April, 1985, long after the statute of limitations had
run. Driscoll sought to bring Collins into the suit by invoking NRCP 10(a), which allows the
substitution of named defendants for doe defendants, relating back to the date of filing the
complaint.
1
Respondent Collins filed a motion to dismiss, contending that NRCP 10(a) does
not allow the addition of party defendants after the statute of limitations has run. After a
hearing, the district court granted the motion to dismiss.
[Headnote 1]
We have previously held that where the failure to name the correct party in the original
complaint is a mistake in nomenclature, subsequent amendments will be allowed to relate
back to the original date of filing. Jiminez v. State, Dep't of Prisons, 98 Nev. 204, 644 P.2d
1023 (1982). However, certain restrictions have been placed on the use of doe pleadings. See
Lunn v. American Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980). Lunn held that the
test used in Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 {1969) was also
the proper test for evaluating the substitution of named defendants for doe defendants.
This test has three parts: 1) Did the proper defendant have actual notice of the institution
of the action?, 2) Did it know it was the proper defendant in the action?, and 3) Was the
proper defendant in any way misled to its prejudice?
____________________

1
(a) Caption; Names of Parties. . . . A party whose name is not known may be designated by any name, and
when his true name is discovered, the pleading may be amended accordingly.
Nev. 371, 455 P.2d 621 (1969) was also the proper test for evaluating the substitution of
named defendants for doe defendants. This test has three parts: 1) Did the proper defendant
have actual notice of the institution of the action?, 2) Did it know it was the proper defendant
in the action?, and 3) Was the proper defendant in any way misled to its prejudice? We have
heretofore embraced this analysis in an attempt to avoid conflict between the basic purposes
of the statutes of limitation: plaintiffs should have a reasonable time to discover, but potential
defendants should be protected from stale suits and the loss of their defenses.
[Headnote 2]
Collins had no connection with Sproul Homes, other than the purchase of the trucks.
Therefore, it had no notice of the action at the time it was instituted. Neither did Collins have
any way of knowing it was the proper defendant in Driscoll's lawsuit. Finally, we note that
Collins was undoubtedly prejudiced by appellant's delay in filing his second amended
complaint. Before it was served with the complaint, Collins had dissolved as a corporation
and had sold the four trucks it bought from Sproul Homes. It no longer had the records
necessary to identify who had driven the trucks that day, or the roads on which the trucks had
been driven.
2
Appellant thus failed to meet the most critical criterion of the three-part test of
Servatius, and the district court did not err in granting respondent's motion to dismiss. Lunn,
supra, 96 Nev. at 790, 618 P.2d at 345.
We are mindful of the difficulties sometimes encountered by plaintiffs in their attempts to
identify proper party defendants. Driscoll cannot be blamed for his memory loss, since it was
the direct result of the tort committed upon him. In such a case we are reluctant to apply the
strict rule set by State ex rel. Dep't of Hwys. v. District Court, 95 Nev. 715, 601 P.2d 710
(1979). That case limited the application of NRCP 10(a) to a mere change in nomenclature of
a defendant, and refused to extend the concept of relation back to a defendant whose identity
was unknown. We question whether this narrow interpretation is in keeping with the
underlying purpose of the rule, and in an appropriate case, we may be disposed to reconsider
it. Upon the facts of this case, however, we are not convinced that the expansive
interpretation of NRCP 10(a) desired by the appellant should be applied.
We conclude the district court did not err in granting respondent Collins' motion to
dismiss.
____________________

2
Collins claimed it did have records which showed that none of its tie-down winches were reported lost at the
time of Driscoll's accident. While this fact is not dispositive, it does tend to show that Collins had no notice of a
possible lawsuit.
____________
103 Nev. 611, 611 (1987) Brooks v. State
PHILLIP LEE BROOKS, Appellant, v. THE
No. 16889
December 30, 1987 747 P.2d 893
This is an appeal from the judgment of conviction of one count of possession of a
controlled substance with intent to sell, Eighth Judicial District Court, Clark County; Thomas
A. Foley, Judge.
Defendant was convicted in the district court of possession of controlled substance with
intent to sell, and he appealed. The Supreme Court held that defendant was entitled to have
jury given requested instruction concerning mere presence defense to theory of aiding and
abetting.
Morgan D. Harris, Public Defender; Robert L. Miller, Deputy, Clark County, for
Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney; James
Tufteland, Deputy; Douglas Smith, Deputy, Clark County, for Respondent.
1. Criminal Law.
Defendant in criminal case is entitled to have jury instructed on his theory of case, no matter how weak or
incredible evidence supporting theory may appear to be.
2. Criminal Law.
Mere presence at scene of crime and knowledge that crime is being committed are not sufficient to
establish that defendant aided and abetted crime.
3. Criminal Law.
Aiding and abetting instruction given did not sufficiently cover defendant's mere presence defense, as
would excuse trial court's failure to give requested instruction that mere presence at scene of crime and
knowledge that crime was being committed were not sufficient to establish that defendant aided and abetted
crime.
4. Criminal Law.
Positive instruction as to elements of crime does not justify refusing properly worded negatively phrased
position or theory instruction.
Defendant in prosecution for possession of controlled substance was entitled to have jury instructed on
mere presence defense to charge of aiding and abetting; instruction requested by defendant correctly stated
law and was supported by testimony of defendant's brother, who had pled guilty to possession charge.
OPINION
Per Curiam:
The appellant was convicted of possession of a controlled substance with intent to sell. On
appeal the appellant complains that the district judge erred in refusing a proffered jury
instruction and that the district judge indirectly commented on the evidence during his
questioning of a defense witness. See Nev. Const. Art. VI, 12. We need not reach the latter
question because we agree that the instruction should have been given. We therefore reverse
and remand for a new trial.
Two uniformed police officers were in a high crime area of Las Vegas observing what they
believed to be narcotics transactions. They observed an Oldsmobile parked on the street. They
observed Keith Brooks, the appellant's brother, approach the Oldsmobile and engage in
conversation with the unidentified occupants of the car. They also saw a Volkswagen stop in
the same area. The appellant, Phillip Brooks, approached the VW and engaged the occupants
in conversation. The officers heard terms associated with narcotics used in the conversation.
Officer Montes came out of hiding and approached the appellant. The VW started to leave,
but Montes jumped in front of the VW and stopped it. He saw the appellant go behind the car,
bend down as though he had something in his hand, then stand back up. Montes went behind
the Volkswagen and found a brown container with a plastic top containing phencyclidine
(PCP), a controlled substance.
No illicit drugs were found in the appellant's actual possession. Nineteen PCP cigarettes
were taken from Keith Brooks by a police officer. Because he was found at the scene of the
crime, the appellant, Phillip, was charged with possession of the 19 PCP cigarettes as well as
the PCP in the plastic container.
The brothers were arrested and informed of their rights. The appellant initially stated to the
police that all of the narcotics, including the substance found in the container and the
cigarettes held by Keith, were his and that he had been selling them to make money. Keith
Brooks eventually pleaded guilty to possession. Appellant pleaded not guilty to possession
with intent to sell.
Keith testified at appellant's trial. He testified that he had been walking along the street
when he found all of the drugs. They had supposedly been dropped by another man. Keith
stated he was unaware until the arrival of the police that his brother, whom he had not seen in
ten months, was in the area.
Keith testified that when he saw the officers, he dropped the vial of narcotics to the ground
and kicked it. It was this vial that was found near Phillip.
was found near Phillip. Keith testified that Phillip was in no way involved and that he was
merely an innocent bystander.
Based on Keith's testimony that Phillip had nothing to do with the drugs, defense counsel
requested an instruction that mere presence is not sufficient to convict on an aiding and
abetting theory. The district judge felt that other instructions adequately covered the
substance of the instruction and thus refused to give it.
Phillip was convicted of possession with purpose to sell. He was sentenced to ten years
imprisonment. This appeal followed.
The defense theory of the case was that Phillip was not a participant in the crime. He was
engaged in a conversation with the occupants of the Volkswagen when Keith dropped a vial
of PCP and kicked it towards him. Ostensibly, neither brother was acting in concert with the
other. There was testimony to support that theory. Keith's testimony was that it was he who
held all the PCP, that it was he who intended to sell it, and that Phillip was not in any way
involved. To some, the testimony might seem implausible, but it could have been believed.
The jury was instruced it could convict Phillip if someone else (Keith) was in possession
with intent to sell, and Phillip aided and abetted the crime. The defendant, Phillip, offered the
following instruction to the effect that mere presence is not sufficient to support conviction
on the aiding and abetting theory:
Mere presence at the scene of the crime and knowledge that a crime is being committed
are not sufficient to establish that the defendant aided and abetted the crime, unless you
find beyond a reasonable doubt that the defendant is a participant and not merely a
knowing spectator.
[Headnote 1]
The proposed instruction correctly states the law. Winston v. Sheriff, 92 Nev. 616, 555
P.2d 1234 (1976). A defendant in a criminal case is entitled to have the jury instructed on his
theory of the case, no matter how weak or incredible the evidence supporting the theory may
appear to be. Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979). This proposed instruction was
supported by the evidence in the form of Keith Brooks' testimony.
The district court found the instruction did not need to be given because it incorrectly
stated the law and because it was properly covered by the aiding and abetting instruction. The
district court erred on both counts.
[Headnote 2]
The instruction correctly states the law. Winston, supra. The district court judge, in finding
otherwise, relied on Rowland v. State, 96 Nev. 300, 608 P.2d 500 (1980). The reliance is
misplaced.
placed. In Rowland, this court found that a charge of possession of a sawed-off shotgun could
be supported when the defendant was present and actively participated in the negotiations for
the sale of the gun. There was no dispute that the defendant was an active participant, nor was
there any issue presented regarding a mere presence instruction. In the instant case, there
was evidence by which the jury could infer that Phillip was a participant, but there was also
evidence, which could have been believed, to the effect that Phillip was merely present at the
scene without any involvement in Keith's crimes.
[Headnotes 3, 4]
The district judge also erred when he determined that the aiding and abetting instruction
sufficiently covered the mere presence theory. The instruction stated:
If you find from all the evidence in the case beyond a reasonable doubt that possession
of a controlled substance with intent to sell was committed by some person, and if you
further find that the defendant knowingly gave aid to that person who committed such
offense, then you may find the defendant guilty of possession of a controlled substance
with intent to sell.
In a similar case, the U.S. Court of Appeals for the Eighth Circuit held that refusal to give
the proposed mere presence instruction, when the defendant's theory of the case was that he
was an unwitting passenger, mandated a new trial even though the jury had been otherwise
properly instructed on possession of a firearm. United States v. Manning, 618 F.2d 45 (8th
Cir. 1980). The court stated that the defendant was entitled to a theory of defense or a
position instruction if he makes a timely request for the instruction. Manning at 47-48. This
court has also recognized that a defendant is entitled to a theory of defense instruction.
Adler v. State, supra. A positive instruction as to the elements of the crime does not justify
refusing a properly worded negatively phrased position or theory instruction. Manning,
supra.
[Headnote 5]
Phillip's position was that, because he was merely present, he did not knowingly aid his
brother in the commission of the crime. We conclude that it is error to refuse a proffered
theory of defense instruction that correctly states the law, and is supported by some evidence.
Keith Brooks' credibility was not for the court but for the jury to decide.
Our decision on the instruction issue makes a decision on the other issues presented
unnecessary. We therefore reverse and remand for a new trial.
____________
103 Nev. 615, 615 (1987) Mahaffey v. Investor's Nat'l Security
WARREN STUART MAHAFFEY and KRISTINA MAHAFFEY, Appellants, v.
INVESTOR'S NATIONAL SECURITY CO. and MORTGAGE
FINANCE CORP., Respondents.
No. 17143
December 30, 1987 747 P.2d 890
Appeal from judgment denying injunction against foreclosure of appellants' home, Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Assignee of note and deed of trust brought foreclosure action against homeowners who
refused to make payments on contract for insulation of house. The district court denied
injunction against foreclosure. Homeowners appealed. The Supreme Court held that: (1)
evidence supported conclusion that insulation contractor fraudulently induced contract; (2)
assignee was not holder in due course; and (3) homeowners were not equitably estopped from
asserting fraud and failure of consideration defenses.
Peter L. Flangas, Las Vegas, for Appellants.
Jolley, Urga, Wirth & Woodbury, and Troy E. Peyton, Las Vegas, for Respondents.
1. Contracts.
Evidence supported conclusion that insulation contractor fraudulently induced homeowners to sign
contract; salesman told homeowners that fuel consumption would be cut in half, that home would be used
for advertising and promotional purposes, that homeowners would be compensated for use, and that total
cost would be $5,289; none of these promises were ever fulfilled; and another salesman subsequently
pressured homeowners to sign completion certificate, note, and deed of trust.
2. Bills and Notes.
Assignee of note and deed of trust given by homeowners to insulation contractor was given notice of
possible claims and defenses and was not holder in due course, where contract plainly stated on its face that
any buyer of note took it subject to all claims and defenses available against seller. NRS 104.3302,
subd. 1(c), 104.3306; Truth in Lending Act, 102 et seq., 15 U.S.C.A. 1601 et seq.
3. Consumer Credit.
Truth in Lending Act applied to contract to insulate home. Truth in Lending Act, 102 et seq., 15
U.S.C.A. 1601 et seq.
4. Assignments.
Homeowners, who contracted with insulation company to insulate house, were not equitably estopped
from asserting defenses of fraudulent inducement and failure of consideration against company's assignee
of note secured by deed of trust; assignee was aware of unfinished condition of home before it bought note
and required full amount of back payment before it would complete repairs.
5. Estoppel.
Estoppel is equitable doctrine, can only be used to protect innocent, and cannot be used to uphold fraud.
6. Contracts.
Homeowners' contract with insulation company to insulate home was void due to failure of consideration;
company never finished insulation job, never delivered heater blanket and roof turbines, and never used
house for advertising and promotional purpose.
OPINION
Per Curiam:
This is an appeal from a district court judgment denying an injunction against foreclosure
of appellants' home.
Appellants Warren and Kristina Mahaffey entered into a home insulation contract in
March, 1980. The Mahaffeys agreed to pay for the work by means of installment payments.
The note which set out the schedule of payments was secured by a deed of trust on their
home. The insulation company, Five Star Solar Screens (Five Star), sold the note to
respondent Mortgage Finance Corp., a subsidiary of respondent Investor's National Security
Co. When Five Star failed to perform its duties adequately under the contract, the Mahaffeys
refused to make any payments. Foreclosure proceedings were then instituted by Mortgage
Finance Corp. to collect the money owed.
[Headnote 1]
The district court found that the signing of the contract was fraudulently induced.
Substantial evidence in the record supports this finding. A salesman from Five Star persuaded
the Mahaffeys to sign by making several false or misleading representations. He told them
their fuel consumption would be cut in half; their home would be used for advertising and
promotional purposes, and they would be financially compensated for such use; the first
payment would not be due until September; and finally, the total cost would be $5,289. Not
one of these promises was ever fulfilled.
Although the Mahaffeys rightfully had at least three days to rescind the contract,
1
Five
Star employees arrived at their home the next day and completed most of the work ever done.
The workmen left the job half completed, with large holes in the interior walls and
improperly installed solar screens on the windows and doors. One of the workmen falsely
assured Mr.
____________________

1
A minimum three-day rescission period is mandated by federal law. 15 U.S.C. 1635(a). Pursuant to
1638(a), Five Star was required to advise the appellants of the total finance charge and the annual percentage
rate of interest. The contract could have been rescinded at any time prior to the fulfillment of these disclosure
requirements. See 15 U.S.C. 1635(a).
Mahaffey that insulation had been poured into the walls from the attic. This was physically
impossible, since a solid block of wood was built into the top of each wall. This block of
wood is called a firebreak and is a normal part of home construction, a fact which should
have been well known to these professional insulation contractors. Additionally, the heater
blanket and roof turbines promised by the salesman were never delivered.
Despite this state of affairs, another Five Star salesman coerced the Mahaffeys into signing
a completion certificate, note, and deed of trust two weeks after they signed the initial bid
order. When the Mahaffeys resisted signing the documents, the salesman told them the
original contract was worthless, and threatened them with trouble and skyrocketing
interest rates unless they signed immediately. Under the pressure thus applied, they signed.
The next day, Five Star sold the contract to Mortgage Finance Corp. Five Star never finished
the job at the Mahaffey residence, and none of the promises made by the salesmen were ever
kept. In fact, it was later discovered that the insulation which had been installed was
completely inadequate. The net result was that the Mahaffeys received no benefit from the
agreement, which nevertheless obligated them to pay a total of $8,832.96.
[Headnote 2]
Upon these facts, we conclude that the district court was correct in finding that the contract
was fraudulently induced. We further agree with the district court's finding that the Mahaffeys
were entitled to assert any defenses against Mortgage Finance Corp. which they could have
asserted against Five Star. First, we note the contract plainly states on its face that any buyer
of the note takes it subject to all claims and defenses available against the seller.
2
Mortgage
Finance Corp. thereby had notice of possible claims and defenses, and was not a holder in due
course. NRS 104.3302(1)(c). Since it was not a holder in due course, the Mahaffeys could
assert any of their defenses, including fraudulent inducement and failure of consideration,
against payment of the note. NRS 104.3306.
[Headnote 3]
Additionally, we note that federal law also applies to this type of home improvement
contract. See Truth in Lending Act, 15 U.S.C. 1601 (1982); Engle v. Shapert Const. Co.,
443 F.Supp. 1383, 1385 (MDPA 1978). The notice of claims and defenses which appears on
the contract is mandated by federal law. 16 C.F.R. 433.2 (1987). This law was enacted by
Congress to protect ordinary homeowners from the disastrous effects of securing home
improvement contracts by trust deeds.
____________________

2
The following notice was printed on page 2 of the contract:
Notice: Any holder of this consumer credit contract is subject to all claims and defenses which the debtor
could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof.
protect ordinary homeowners from the disastrous effects of securing home improvement
contracts by trust deeds. We agree that such protection is necessary. When a fraudulent
contractor sells a note secured by a deed of trust on someone's home, and then goes into
bankruptcy, as happened in this case, the buyer of the note should not be protected by law
from its professed ignorance of the contractor's fraudulent scheme.
3

[Headnotes 4, 5]
In spite of the above findings, the district court ruled in favor of Mortgage Finance Corp.
on the basis of estoppel. We cannot agree with this decision, and therefore, reverse that part
of the judgment. Estoppel cannot be used to uphold a fraud. 3 Pomeroy's Equity
Jurisprudence, 8.13 (5th ed. 1941); Sanguinetti v. Strecker, 94 Nev. 200, 577 P.2d 404
(1978); Xanthos v. Board of Adjustment, 685 P.2d 1032 (UT 1984). It is an equitable
doctrine, and as such can only be used to protect the innocent. Newton v. Hornblower, Inc.,
582 P.2d 1136 (Kans. 1978). One who seeks equity must do equity, and we cannot agree that
the appellee has done equity in this case. The record reveals that Mortgage Finance Corp. was
made aware of the unfinished condition of the home before it bought the note. Its
representative vouched for the trustworthiness of Five Star, and assured the Mahaffeys that
the work would be completed. When further complaints were made, Mortgage Finance Corp.
refused to pursue recourse to Five Star on the paper, as it had the legal right to do; rather,
Mortgage Finance Corp. chose to institute foreclosure proceedings against the Mahaffeys.
Although it offered to make repairs, the offer was accompanied by a demand for the full
amount of back payments. This course of conduct, coupled with the underlying fraudulent
scheme, does not support a finding of equitable estoppel which would prevent the Mahaffeys
from asserting their substantial and fully supported defenses.
[Headnote 6]
We conclude that, by virtue of fraudulent inducement and failure of consideration, the
contract is null and void. We fully agree with the decision of the district court on the issue of
fraud, and with regard to the availability of defense. We must, however, reverse the judgment
in favor of respondent, because the same is premised on an insupportable finding of
equitable estoppel in favor of respondent Mortgage Finance Corp.
____________________

3
Five Star did not declare bankruptcy until some time in 1984. This was long after the suit was filed in April,
1981, putting Mortgage Finance Corp. on notice of serious problems with the Mahaffey job. At the hearing,
respondent admitted that the contract was purchased subject to recourse. In spite of its legal right to do so,
respondent did not require Five Star to repurchase the note. It thereby failed to pursue the substantial protection
made available to it by its own negotiations and commercial law. Instead, it proceeded against the appellants.
same is premised on an insupportable finding of equitable estoppel in favor of respondent
Mortgage Finance Corp. We therefore remand the matter to the district court with instructions
to enter a permanent injunction in appellants' favor, and to allow appellants any costs and all
further relief to which they may be entitled as prevailing parties.
Upon the filing of a timely and proper cost bill with the clerk of this court, appellants will
be allowed costs on appeal as provided in NRAP 39(c).
4

Gunderson, C. J., and Steffen, Young, and Springer, JJ., concur.
____________________

4
Mowbray, J., recused himself and took no part in the determination of this case.
____________
103 Nev. 619, 619 (1987) City of Sparks v. Armstrong
THE CITY OF SPARKS, Appellant/Cross-Respondent, v.
GEORGE ARMSTRONG, Respondent/Cross-Appellant.
No. 17729
December 31, 1987 748 P.2d 7
Appeal and cross-appeal from judgment in condemnation action. Second Judicial District
Court, Washoe County; Charles M. McGee, Judge.
Eminent domain proceeding was brought. The district court entered judgment, and appeal
and cross-appeal were taken. The Supreme Court held that: (1) taking occurred in 1972; (2)
undevelopable shape of taken property could be disregarded in determining its value; (3) it
was proper to consider expert valuation opinion which disregarded limitations stemming
from taking itself which impacted upon fair market value of condemned property; and (4)
award of pre-judgment interest was inadequate
Steven P. Elliott, Sparks City Attorney, Sparks, for Appellant/Cross-Respondent.
McAuliffe, White, Long and Guinan, Reno, for Respondent/Cross-Appellant.
1. Eminent Domain.
Consideration by district court of valuation factors relied upon in an inverse condemnation proceeding
did not work to impermissibly convert instant condemnation case into inverse condemnation case.
2. Eminent Domain.
Although mere planning of project is generally insufficient to constitute a taking, when precondemnation
activities of government become unreasonable or oppressive in such a manner that those activities
adversely affect market value of property, then property owner is entitled to compensation.
3. Eminent Domain.
Substantial evidence was presented to establish that actions of city in 1972 with regard to tentative
subdivision plan made it clear that future development on the land would not be permitted; therefore,
taking occurred in 1972.
4. Eminent Domain.
In determining value of taken property, impact upon taken parcels' fair market value which has resulted
from taking itself should be excluded from consideration.
5. Eminent Domain.
Property must be valued, for eminent domain purposes, as if government project that resulted in taking
was neither contemplated nor carried out.
6. Eminent Domain.
Undevelopable shape of taken property could be disregarded in determining its value in eminent domain
action since the shape was a direct result of city's precondemnation activities.
7. Evidence.
Triers of fact should not be limited in their exposure to expert opinion in eminent domain case where the
opinion may shed light on true value of condemned property.
8. Evidence.
Expert valuation opinion which disregarded limitations stemming from taking itself which impacted upon
fair market value of condemned property could be considered in eminent domain proceeding.
9. Eminent Domain.
The term just compensation includes interest from date of taking.
10. Eminent Domain.
Trial court's award of pre-judgment interest on eminent domain award was inadequate; pre-judgment
interest award was not statutorily limited, and thus, pre-judgment interest should have been computed from
the 1972 taking date. NRS 37.175.
OPINION
Per Curiam:
This is an appeal and cross-appeal arising out of condemnation proceedings brought by the
City of Sparks against George Armstrong. The issues on appeal concern the valuation of the
land parcels taken. On cross-appeal, the district court's pre-judgment interest award is
challenged.
Appeal
In determining the value of the land parcels taken by Sparks, the district court permitted
consideration of valuation factors used in the inverse condemnation case of County of Clark
v. Alper, 100 Nev. 3S2
used in the inverse condemnation case of County of Clark v. Alper, 100 Nev. 382, 685 P.2d
943 (1984). Sparks contends that application of the Alper's valuation factors converted the
case from a condemnation proceeding into an inverse condemnation case. For several
reasons, Sparks insists it was error for the district court to entertain an inverse condemnation
action.
[Headnote 1]
All of Sparks's claims of error premised upon the existence of an inverse condemnation
action must fail. In Alper, we said, Inverse condemnation proceedings are the constitutional
equivalent to eminent domain actions and are governed by the same rules and principles that
are applied to formal condemnation proceedings. Alper, 100 Nev. at 391, 685 P.2d at 949
(emphasis added). Hence, consideration by the district court of the valuation factors relied
upon in an inverse condemnation proceeding does not work to convert a condemnation case
into an inverse condemnation case.
Since we conclude the district court did not entertain or decide an inverse condemnation
action, Sparks's alternative claims, that it was error for the district court to consider such
action in light of: (1) the lack of pleadings, (2) the doctrine of equitable estoppel, and (3) the
application of a statute of limitations, are inappropriate.
Sparks also claims that the trial court's basis for finding a taking in 1972, which permitted
the court to disregard the current undevelopable shape of the property in assessing its value, is
faulty and results in a clearly erroneous valuation. Sparks argues that because the approved
tentative subdivision map, which included a condition prohibiting development on the taken
parcels, was abandoned by Armstrong, the condition that the subject parcels be reserved for
Sparks roadways terminated. Accordingly, Sparks argues that there is no basis for the court's
finding of a regulatory taking in 1972.
[Headnotes 2, 3]
Sparks fails to recognize the practical reality facing Armstrong as owner of the
once-restricted property. Substantial evidence was presented to establish that the 1972 Sparks
actions with regard to the tentative subdivision plan made it clear that future development on
such parcels would not be permitted. Although the mere planning of a project is generally
insufficient to constitute a taking, when precondemnation activities of the government
become unreasonable or oppressive in such a manner that those activities adversely affect the
market value of the property, then the property owner is entitled to compensation. See Sproul
Homes v. State ex rel. Dep't Hwys., 96 Nev. 441, 611 P.2d 620 {19S0).
(1980). Thus, it is clear the trial court was correct in finding that the taking occurred in 1972.
[Headnotes 4-6]
Sparks contends that the district court should have considered the undevelopable shape of
the subject parcel. In determining the value of taken property, the impact upon the taken
parcels' fair market value which has resulted from the taking itself should be excluded from
consideration. The property must be valued as if the government project that resulted in the
taking was neither contemplated nor carried out. Alper, 100 Nev. at 390, 685 P.2d at 948.
Applying the Alper doctrine to the instant case, we cannot say that the district court erred by
disregarding the undevelopable shape of the taken property in determining its value since
such shape was a direct result of the City of Sparks's precondemnation activities.
[Headnotes 7, 8]
The methods used to evaluate the worth of condemned property are not highly regulated. It
is a field dominated by expert opinion. Triers of fact should not be limited in their exposure
to such expert opinion where such opinion may shed light on the true value of the condemned
property. It is often appropriate to determine the fair market value of property which has no
relevant market by any method of valuation that is just and equitable. See Unif. Eminent
Domain Code, sec. 1(4), (1974). In addition, we have recognized cases which have said,
[A]ll elements that might affect the fair market value of the property, including such
elements that might influence a reasonably prudent person interested in purchasing it, [are]
held properly considered. Clark Co. School Dist. v. Mueller, 76 Nev. 11, 19, 348 P.2d 164,
168 (1960). Accordingly, it is proper to consider expert valuation opinion which disregards
limitations stemming from the taking itself which impact upon the fair market value of
condemned property.
Cross-Appeal
On cross-appeal, Armstrong insists that the district court's award of pre-judgment interest
is inadequate. We agree.
[Headnotes 9, 10]
Although the trial court's award was properly within the ambit of the NRS 37.175
mandate,
1
it was insufficient to meet the constitutional requirements of "just
compensation."
____________________

1
1. The plaintiff shall pay interest on the final judgment at the rate of 12 per cent per annum, but shall
not pay interest on any sum deposited pursuant to the provisions of NRS 37.100 or 37.170.
2. The interest runs from the date of entry of judgment or, if the plaintiff has occupied the property of
the defendant pursuant to the
constitutional requirements of just compensation. The term just compensation includes
interest from the date of the taking. Manke v. Airport Auth. of Washoe County, 101 Nev.
755, 710 P.2d 80 (1985). In Manke we said that if the condemned property is neither
unimproved, nor vacant, nor of value to the condemnee for purposes of investment or
development, the recipient of the condemnation award is only entitled to interest according to
NRS 37.175(2). Manke, 101 Nev. at 759 n. 6, 710 P.2d at 82 n. 6. Conversely, Armstrong's
parcels were vacant, unimproved, and held for investment purposes at the time of the taking,
September 11, 1972. Because Armstrong's pre-judgment interest award is not statutorily
limited by NRS 37.175(2) and because the term just compensation includes pre-judgment
interest from the 1972 taking date, we hold that the district court's award of pre-judgment
interest is inadequate.
The district court's award of pre-judgment interest should have included interest from
September 11, 1972, at the statutory rate accruing on the September 11, 1972, value of the
property. Consequently, we reverse the district court's award of pre-judgment interest and
remand to such court the pre-judgment interest issue to be determined in conformity with the
directives of this opinion.
____________________
provisions of NRS 37.100, from the date fixed by order on which the plaintiff was entitled to occupancy,
until the final judgment is satisfied.
____________
103 Nev. 623, 623 (1987) Blanton v. North Las Vegas Mun. Ct.
MELVIN R. BLANTON, Appellant, v. THE NORTH LAS VEGAS MUNICIPAL COURT,
NORTH LAS VEGAS, NEVADA, AND THE HONORABLE GARY DAVIS,
MUNICIPAL JUDGE THEREOF, Respondents.
No. 17940
JEANETTE HILTON, Appellant, v. THE CITY OF LAS VEGAS, COUNTY
OF CLARK, STATE OF NEVADA, Respondent.
No. 17976
SAMUEL RAY FLANAGAN, Appellant, v. THE HONORABLE A. LORING PRIMEAUX,
MUNICIPAL COURT JUDGE, IN AND FOR THE
CITY OF LAS VEGAS, Respondent.
No. 17997 PATRICIA ANN COLLIE, Appellant, v. THE HONORABLE A.
PATRICIA ANN COLLIE, Appellant, v. THE HONORABLE A. LORING
PRIMEAUX, MUNICIPAL COURT JUDGE, IN AND FOR THE
No. 17998
VINCENT H. WOODS, Appellant, v. THE HONORABLE A. LORING
PRIMEAUX, MUNICIPAL COURT JUDGE, IN AND FOR THE
No. 17999
JAMES ARCADE, Appellant, v. THE HONORABLE STEPHEN C.
WEBSTER, MUNICIPAL COURT JUDGE, IN AND FOR THE
No. 18000
CITY OF LAS VEGAS, NEVADA, AND A. LORING PRIMEAUX, JUDGE OF
THE LAS VEGAS MUNICIPAL COURT, Appellants, v. JOSEPH
M. FEELY, Respondent.
No. 18032
CITY OF NORTH LAS VEGAS, NEVADA, Petitioner, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
CLARK, AND THE HONORABLE ADDELIAR D. GUY, DISTRICT JUDGE,
Respondents. MARK D. FRALEY, Real Party in Interest.
No. 18065
CITY OF LAS VEGAS, NEVADA, AND STEPHEN WEBSTER, JUDGE OF THE
MUNICIPAL COURT, Appellants, v. JAMES P. CUNNINGHAM, SR., Respondent.
No. 18073
ANTHONY L. WILEY, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE STEPHEN L. HUFFAKER, DISTRICT JUDGE, Respondents. CITY OF
LAS VEGAS, LAS VEGAS MUNICIPAL COURT OF THE CITY OF LAS VEGAS,
THE HONORABLE A. LORING PRIMEAUX, JUDGE, Real Party in Interest.
No. 18092 TIMOTHY JOHN CAHALIN, Appellant, v. THE HONORABLE STEPHEN
WEBSTER, MUNICIPAL COURT JUDGE, IN AND FOR THE CITY
OF LAS VEGAS, Respondent.
No. 1S140
TIMOTHY JOHN CAHALIN, Appellant, v. THE HONORABLE STEPHEN
WEBSTER, MUNICIPAL COURT JUDGE, IN AND FOR THE CITY
OF LAS VEGAS, Respondent.
No. 18140
December 31, 1987 748 P.2d 494
Appeals from orders denying petitions for writs of mandamus, Eighth Judicial District
Court, Clark County; Hon. Michael J. Wendell, District Judge (17940); Hon. Donald M.
Mosley, District Judge (17976); Hon. John F. Mendoza, District Judge (17997, 17998,
18000); Hon. Carl J. Christensen, District Judge (17999); Hon. Earle W. White, Jr., District
Judge (18140).
Appeals from orders granting petitions for writs of mandamus, Eighth Judicial District
Court, Clark County; Hon. Addeliar D. Guy, District Judge (18032); Hon. Joseph S.
Pavlikowski, District Judge (18073).
Original petitions for writ of certiorari (18065), and writ of prohibition (18092).
Appeals were taken from orders of the district court entered on request for jury trial on
charges of driving while under the influence, and certiorari and prohibition were also sought.
The Supreme Court, Gunderson, C. J., held that there is no right to jury trial on charge of
driving while under the influence of alcohol.
Affirm Docket Nos. 17940, 17976, 17997, 17998, 17999, 18000 and 18140; reverse and
remand to the Eighth Judicial District Court Docket Nos. 18032 and 18073; grant
petition No. 18065; deny petition No. 18092.
Graves, Leavitt & Koch, and John G. Watkins, Las Vegas, for Appellant Melvin R.
Blanton.
Morgan D. Harris, Public Defender, Craig B. Davis, Deputy Public Defender, Clark
County, for Appellants Jeanette Hilton, Samuel Ray Flanagan, Patricia Ann Collie, Vincent
H. Woods, James Arcade and Timothy John Cahalin, and Petitioner Anthony L. Wiley.
George F. Ogilvie, City Attorney, and Nancy A. Becker, Deputy City Attorney, Las Vegas,
for Appellants City of Las Vegas, Hon. Stephen C. Webster and Hon. A. Loring Primeaux.
Roy A. Woofter, City Attorney, and Mark L. Zalaoras, Deputy City Attorney, North Las
Vegas, for Petitioner City of North Las Vegas.
George F. Ogilvie, City Attorney, Nancy A. Becker, Deputy City Attorney, and Lawrence
M. Moore, Deputy City Attorney, Las Vegas, for Respondents City of Las Vegas, Hon.
Stephen C. Webster and Hon. A. Loring Primeaux.
Roy A. Woofter, City Attorney, and Mark L. Zalaoras, Deputy City Attorney, North Las
Vegas, for Respondents City of North Las Vegas and Hon. Gary J. Davis.
Morgan D. Harris, Public Defender, and Craig B. Davis, Deputy Public Defender, Clark
County, for Respondents Joseph M. Feely and James P. Cunningham, Sr.
John G. Watkins, Las Vegas, for Real Party in Interest Mark D. Fraley.
Hon. Brian McKay, Attorney General, and James L. Rankl, Deputy Attorney General,
Carson City, for State of Nevada, Amicus Curiae.
1. Jury.
Right to trial by jury under the Nevada Constitution is coextensive with that guaranteed by the Federal
Constitution. U.S.C.A.Const. Amend. 6; Const. Art. 1, 3.
2. Jury.
Driving while under the influence is not a serious offense requiring jury trial. U.S.C.A.Const. Amend.
6; Const. Art. 1, 3.
3. Courts.
Decisions of federal district court and panels of the federal circuit court of appeals are not binding on
state Supreme Court.
OPINION
This court consolidated the instant appeals and petitions to consider two questions. First, is
NRS 266.550, which precludes jury trials in municipal courts, constitutional?
1
Second, does
either the United States Constitution or the Nevada State Constitution mandate that persons
charged in the municipal courts with driving under the influence of alcohol, a misdemeanor,
receive jury trials? Appellants Melvin R.
____________________

1
NRS 266.550 states:
The municipal court shall have such powers and jurisdiction in the city as are now provided by law
for justices' courts, wherein any person or persons are charged with the breach or violation of the
provisions of any ordinance of such city or of this chapter, of a police or municipal nature; but the trial
and proceedings in such cases shall be summary and without a jury.
Appellants Melvin R. Blanton, Jeanette Hilton, Samuel Ray Flanagan, Patricia Ann Collie,
Vincent H. Woods, James Arcade and Timothy John Cahalin were charged in the municipal
court with driving under the influence of alcohol (DUI), a misdemeanor.
2
See NRS 484.379
and 484.3792(1)(a) and (b). Each of these individuals filed a pretrial petition for a writ of
mandamus in the Eighth Judicial District Court challenging the denial by the municipal court
of his or her individual demand for a jury trial. The district court denied each petition, and
these appeals followed.
Respondents Joseph M. Feely and James P. Cunningham, Sr., were also charged in the
municipal court with misdemeanor DUI. Each of these individuals successfully prosecuted a
pretrial petition for a writ of mandamus challenging the denial by the municipal court of his
demand for a jury trial. The district court declared NRS 266.550 unconstitutional in those
cases, and directed that jury trials be set for Cunningham and Feely. The City of Las Vegas
appeals from those orders.
Real party in interest Mark D. Fraley was convicted in the municipal court of
misdemeanor DUI. Fraley appealed the conviction to the Eighth Judicial District Court; that
court declared NRS 266.550 unconstitutional and remanded the case for a jury trial. The City
of North Las Vegas subsequently filed in this court an original petition for a writ of certiorari
challenging the district court's decision.
Petitioner Anthony L. Wiley was charged in the municipal court with misdemeanor DUI.
Wiley filed in the Eighth Judicial District Court a petition for a writ of habeas corpus,
challenging the denial by the municipal court of his demand for a jury trial. The district court
denied relief on procedural grounds and Wiley's original petition in this court for a writ of
prohibition followed.
Statutory Grounds for Right to Jury Trial
NRS 266.550 provides municipal courts with the power and jurisdiction of justices' courts,
except that the statute precludes municipal courts from conducting jury trials. Until 1985,
each of the thirteen incorporated municipalities of this state had a provision in its charter
applying NRS chapter 266 to its municipal courts.
3
In 1985, as part of a legislative removal
of certain duplicative statutes, the legislature repealed those provisions from the charters
of the thirteen cities.4 The application of NRS chapter 266 to the municipal courts of
these cities is now governed by NRS 266.005, which states:
____________________

2
The amended complaint filed in the municipal court against appellant Woods charges Woods with driving
under the influence of both alcohol and a controlled substance.

3
See, e.g., North Las Vegas City Charter, 4.010 at 533 (1979) (There shall be a municipal court of the city
to which the provisions of chapter . . . 266 of NRS, relating to municipal courts, as amended from time to time,
shall apply).
duplicative statutes, the legislature repealed those provisions from the charters of the thirteen
cities.
4
The application of NRS chapter 266 to the municipal courts of these cities is now
governed by NRS 266.005, which states:
The provisions of this chapter shall not be applicable to incorporated cities in the State
of Nevada organized and existing under the provisions of any special legislative act or
special charter enacted or granted pursuant to the provisions of section 1 of article VIII
of the constitution of the State of Nevada.
Las Vegas and North Las Vegas, whose municipal courts are the subject of the instant
dispute, are incorporated cities existing under the provisions of special legislative acts. See
1983 Nev. Stat. Ch. 517 at 1391-1437; 1971 Nev. Stat. Ch. 573 at 1210-1229. Consequently,
the statutory prohibition against the holding of jury trials in the municipal courts, see NRS
266.550, does not apply to the cases presently before this court.
5
We therefore need not
reach the question in the instant cases of whether NRS 266.550 is constitutional.
Accordingly, we turn to the Nevada State and United States Constitutions to determine
whether individuals charged with misdemeanor DUI offenses in the municipal courts of this
state have a constitutional right to a jury trial.
Constitutional Grounds for Trial by Jury
[Headnote 1]
The various appellants, respondents and petitioners claim that their right to jury trials in
the municipal courts is guaranteed by the United States and Nevada State Constitutions.
Article I, section 3 of the Nevada Constitution, and the sixth amendment to the United States
Constitution, guarantee individuals a right to a jury trial.
6
Nevada's constitutional provision
has been construed as confirming and securing the right to a jury trial as it was understood at
common law. State v. Ruhe, 24 Nev. 251, 262, 52 P. 274, 277 (1898). Thus, the right to a
trial by jury under the Nevada Constitution is coextensive with that guaranteed by the
federal constitution.
____________________

4
1985 Nev. Stats. ch. 208, 12, 14, 16 and 19(2)-(12), at 674-677. NRS chapter 5, which applies to all
municipal courts in the state, does not contain a provision analogous to NRS 266.550.

5
The other cities with special charters are Boulder City, Caliente, Carlin, Carson City, Elko, Gabbs,
Henderson, Reno, Sparks, Wells and Yerington.
Only four cities incorporated under chapter 266 of the NRS (Ely, Fallon, Lovelock and Winnemucca) are
still statutorily authorized to deny requests for jury trials pursuant to NRS 266.550.

6
U.S. Const. amend. VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury. . . .
Nev. Const. art. I, 3: The right of trial by Jury shall be secured to all and remain inviolate forever. . . .
Nevada Constitution is coextensive with that guaranteed by the federal constitution.
It is well settled that the sixth amendment right of trial by jury does not extend to every
criminal proceeding. District of Columbia v. Clawans, 300 U.S. 617, 624 (1937). Almost one
hundred years ago, the United States Supreme Court stated that a jury trial is not required in
that class or grade of offences called petty offences, which, according to the common law,
may be proceeded against summarily in any tribunal legally constituted for that purpose. . . .
Callen v. Wilson, 127 U.S. 540, 557 (1888). Since the decision in Callen, the Supreme Court
has grappled with the problem of drawing a line between those criminal cases requiring a jury
trial, and those not included in the protections of the sixth amendment. For example, in
District of Columbia v. Colts, 282 U.S. 63 (1930), the Court considered the offense of
reckless driving at an excessive speed, for which the maximum punishment for a first
offender was a $100 fine and 30 days in jail. Although the penalty was not severe, the Court
thought the offense too serious to be regarded as petty. Id. at 73. Later, in District of
Columbia v. Clawans, 300 U.S. 617 (1937), the court concluded that the offense of peddling
without a license, which carried a maximum penalty of a $300 fine or 90 days in jail, was a
petty offense. In reaching that conclusion the Court noted that the offense was not a crime
at common law, and that the offense was relatively inoffensive. Id. at 625. The Court
added, however, the severity of the penalty [is] an element to be considered. Id. The Court
concluded that 90 days was not so severe a maximum penalty as to take the offense out of the
category of petty. Id. at 627.
In more recent cases, the Supreme Court has sought a more definite and workable standard
by which to decide the question of the scope of the right to trial by jury. Consequently, the
Supreme Court has increasingly relied on the severity of the maximum possible sentence
rather than relying on other criteria. The search for an objective criterion can be found in
Cheff v. Schnackenberg, 384 U.S. 373 (1966), where the court concluded that crimes carrying
possible penalties up to six months do not require a jury trial if they otherwise qualify as petty
offenses. The evolution continued in Duncan v. Louisiana, 391 U.S. 145 (1968), where the
Supreme Court more clearly emphasized the maximum authorized penalty over other criteria
in determining whether the crime is so serious as to require a jury trial. Id. at 159. In Duncan,
the Supreme Court stated that the penalty authorized for a particular crime is of major
relevance in determining whether it is serious or not and may in itself, if severe enough,
subject the trial to the mandates of the Sixth Amendment. Id. The Court stated that although
it is necessary to draw a line . . . separating petty from serious infractions," id. at 160-61,
under the facts of the case, it was "sufficient . . . to hold that a crime punishable by two
years in prison is . . . not a petty offense." Id. at 161-62.
a line . . . separating petty from serious infractions, id. at 160-61, under the facts of the case,
it was sufficient . . . to hold that a crime punishable by two years in prison is . . . not a petty
offense. Id. at 161-62. In Frank v. United States, 395 U.S. 147 (1969), the Court reiterated
the importance of the severity of the maximum sentence and disregarded the possibility of an
extended period of probation as a criterion for concluding that an offense was serious. The
Supreme Court concluded that, of the indicators capable of objective assessment, the most
important is the severity of the possible sentence.
Finally, in Baldwin v. New York, 399 U.S. 66 (1970), the Supreme Court established the
maximum penalty as the only objective criterion. Relying on Frank, Duncan and Clawans,
the Court examined the existing laws and practice throughout the nation and concluded:
This near-uniform judgment of the Nation furnishes us with the only objective criterion
by which a line could ever be drawnon the basis of the possible penalty
alonebetween offenses that are and that are not regarded as serious for purposes of
trial by jury.
399 U.S. at 72-73 (footnote omitted) (emphasis added). The court went on to draw a line
between serious and petty offenses:
One who is threatened with the possibility of imprisonment for six months may find
little difference between the potential consequences that face him, and the
consequences that faced appellant here. Indeed, the prospect of imprisonment for
however short a time will seldom be viewed by the accused as a trivial or petty matter
and may well result in quite serious repercussions affecting his career and his
reputation. Where the accused cannot possibly face more than six months'
imprisonment, we have held that these disadvantages, onerous though they may be, may
be outweighed by the benefits that result from speedy and inexpensive nonjury
adjudications.
Id. at 73. It thus appears that the Supreme Court has retreated from the position enunciated in
District of Columbia v. Colts, supra, that the nature of the offense is of primary importance,
and has instead adopted a more workable objective test based on the severity of the maximum
possible penalty alone.
In State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983), this court relied solely upon the
objective criterion of the maximum possible penalty in its characterization of driving under
the influence of alcohol as a petty offense. Respondent Smith was charged with DUI in the
justice's court. The justice's court denied Smith's demand for a trial by jury, and Smith sought
a writ of mandamus in the district court.
in the district court. The district court granted extraordinary relief, and ordered the justice's
court to grant Smith a jury trial. This court reversed, and concluded that a jury trial is not
constitutionally mandated:
Accordingly, we look to the criterion expressly established by the United States
Supreme Court: where the maximum possible penalty is six months imprisonment or
less, the offense is petty and the right to trial by jury does not attach. As NRS
484.379 provides a penalty of up to six months imprisonment for a first-time DUI
offense, there is no constitutional right to a trial by jury.
99 Nev. at 810, 672 P.2d at 634.
At the time of the alleged offense in Smith, the maximum punishment for a first-time DUI
conviction in Nevada was six months imprisonment or a fine of up to $1,000.00. Id. See 1983
Nev. Stats. ch. 426, 8, 9 and 10, at 1068-1071. In 1983, the legislature increased the
minimum penalties for misdemeanor DUI offenses. For example, the legislature increased the
minimum fine for a first offense from $100 to $200 and mandated a minimum mandatory jail
sentence of two days.
7
The maximum penalties, however, remain unchanged.
Although this court held in Smith that defendants charged in Nevada with misdemeanor
DUI offenses have no right to a jury
____________________

7
Specifically, the legislature increased the period within which a prior offense could be used to enhance a
subsequent offense from five years to seven years. The minimum fine for the first offense increased from $100 to
$200, in addition to the tuition fee for an alcohol education course the defendant must pay. The maximum fine
remains $1000. The legislature imposed a minimum, mandatory term of imprisonment of not less than 2 days or
the performance of 48 hours of community service while dressed in distinctive garb. 1983 Nev. Stats. ch. 426,
10 at 1070. Additionally, suspension of the first offender's driver's license is no longer within the sentencing
court's discretion. NRS 483.460(1)(c) now provides for mandatory revocation of the offender's driver's license
by the Department of Motor Vehicles for a period of ninety days. See 1983 Nev. Stats. ch. 426, 22 at 1081.
After forty-five days a restricted license may be available. NRS 483.490(2).
Although the 1983 legislature did not increase the second-offender's jail time or fine (not less than 10 days
nor more than 6 months in jail . . . not less than $500 nor more than $1,000, see NRS 484.3792(1)(b)), it
increased the period of the second offender's driver's license revocation from six trial, a recent decision of
months to one year. 1983 Nev. Stats. ch. 426 22-23 at 1081-82. See NRS 483.490(2); 483.460(1)(b)(5) (no
restricted license is available).
Neither offense is subject to plea bargaining or probation. NRS 484.3792(3). First and second offenders who
elect to undergo at least one year of drug or alcohol counseling may receive reduced sentences. See NRS
484.3794.
Since 1983, these statutory provisions have not been amended in any material respect.
trial, a recent decision of the federal district court for the district of Nevada reached the
opposite conclusion. See Bronson v. Swinney, 648 F.Supp. 1094 (D.Nev. 1986). In Bronson,
the defendant was convicted of first offense DUI following a bench trial in the justice's court.
After pursuing his appeal to the state district court, the defendant petitioned the federal
district court for a writ of habeas corpus, asserting that he had been denied his constitutional
right to a jury trial. The federal district court examined the 1983 amendments to Nevada's
DUI statutes and enumerated the many collateral consequences that convictions for DUI
entail, such as mandatory revocation of the driving privilege, increased penalties for
subsequent offenses, and the publication in local newspapers of the names of those offenders.
Although the federal district court acknowledged that [t]he most important criterion in
determining the seriousness with which society regards an offense is the maximum authorized
penalty, 648 F.Supp. at 1097, the district court looked primarily to decisions of two
three-judge panels of the Ninth Circuit Court of Appeals, one a split decision, which held that
factors other than the maximum authorized penalty are relevant in determining whether an
offense is serious or petty. Specifically, the court relied on United States v. Craner, 652 F.2d
23 (9th Cir. 1981), in which a three-judge panel examined the collateral consequences of a
federal DUI conviction in concluding that DUI is a serious offense. The court also relied on
United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976), in which a panel, in a split
decision, concluded that misdemeanor conspiracy is a serious offense, reasoning that the
crime was indictable at common law, was itself morally offensive, and was malum in se.
8
The federal district court then concluded that the nature of the offense, the collateral
consequences of a conviction . . . and the fact that the penalty . . . includes mandatory
imprisonment are factors that reflect the seriousness with which society regards the offense of
driving while intoxicated. 648 F.Supp at 1098. Applying this analysis, the federal district
court reasoned:
In view of the automatic license revocation and mandatory jail sentence that
accompany a conviction for driving while intoxicated, in view of the system of
increasing minimum punishments for subsequent offenses, and in view of the
opprobrious nature of the offense, it is apparent that driving while intoxicated is an
offense regarded as serious by the people of the State of Nevada.
____________________

8
In contrast, the dissent in Sanchez-Meza, citing Baldwin v. New York, 399 U.S. 66 (1970), noted that the
Supreme Court recently has been focusing on the length of the potential sentence to determine whether an
offense is petty. 547 F.2d at 465. Consequently, the dissent concluded that because the defendant was subject to
a maximum penalty of only six months imprisonment, under the most relevant criterion announced by the
Supreme Court, the offense, as a misdemeanor, was petty with no entitlement to a jury. Id.
opprobrious nature of the offense, it is apparent that driving while intoxicated is an
offense regarded as serious by the people of the State of Nevada. It is an offense serious
enough to require a jury trial under the Sixth and Fourteenth Amendments to the United
States Constitution.
648 F.Supp. at 1100. The federal court distinguished our holding in Smith, noting that in
Smith this court considered the DUI penalties in effect in Nevada prior to the legislature's
1983 amendments. Id. Further, the federal court criticized the analysis in Smith as too
restricted, because in determining whether or not the offense was serious, this court looked
only to the maximum imprisonment authorized. Id. The federal district court concluded that
[t]he people of the State of Nevada, through their legislature and in other ways, have clearly
evinced a feeling that driving while intoxicated is a serious crime. Id.
[Headnote 2]
In the present case, the proponents of the position that DUI is a serious offense requiring
a jury trial argue that this court should adopt the reasoning of Bronson and overturn Smith.
We disagree.
[Headnote 3]
We note initially that the decisions of the federal district court and panels of the federal
circuit court of appeal are not binding upon this court. United States ex rel. Lawrence v.
Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970), cert. denied, 402 U.S. 983 (1971). Even an
en banc decision of a federal circuit court would not bind Nevada to restructure the court
system of this state. Our state constitution binds the courts of the State of Nevada to the
United States Constitution as interpreted by the United States Supreme Court. Nev. Const.
art. I, 2. See Bargas v. Warden, 87 Nev. 30, 482 P.2d 317, cert. denied, 403 U.S. 935
(1971). Further, we have respectfully concluded that Bronson, and the decisions of the 9th
Circuit panels upon which the federal district court relied, represent an unnecessary and
unwarranted expansion of the Supreme Court's holding in Baldwin.
As demonstrated above, the collateral consequences of a conviction have not been a
criterion relied upon in the recent decisions of the United States Supreme Court. See Baldwin
v. New York, 399 U.S. 66 (1970); Frank v. United States, 395 U.S. 147 (1969); Duncan v.
Louisiana, 391 U.S. 145 (1968); see also Taylor v. Hayes, 418 U.S. 488 (1974); Codispoti v.
Pennsylvania, 418 U.S. 506 (1974). Moreover, the Court's references to line drawing in
Duncan and Baldwin, and its increasing reliance upon the maximum punishment as the sole
criterion for characterizing offenses as serious or petty, suggest that only the maximum
punishment for an offense need be examined to determine whether a jury trial is
constitutionally mandated.
determine whether a jury trial is constitutionally mandated. Further, in Baldwin, the Supreme
Court specifically drew a line of demarcation between serious and petty offenses; if the
maximum authorized punishment is less than six months the offense is petty. 399 U.S. at
73. The maximum term of imprisonment possible in Nevada for a misdemeanor DUI offense
remains six months. The maximum possible fine remains $1000. Although the minimum
penalties have been increased, the maximum penalties remain the same. We conclude,
therefore, that the federal constitution does not require us to overturn our holding in Smith
that, under the statutory penalties for DUI in Nevada, the United States Constitution does not
guarantee the right to jury trials in misdemeanor DUI cases.
Several serious policy considerations reinforce our conclusion that we should not abandon
our holding in Smith. First, a non-jury trial in a misdemeanor case is speedy and inexpensive.
On the other hand, a decision of this court requiring jury trials in the prosecution of DUI
offenses in the municipal court would result in tremendous expense to the municipalities of
this state. For example, courtrooms would require renovation, and in some cases expansion or
replacement, in order to accommodate jurors. The increased time required to conduct jury
trials would in many instances occasion a need for municipalities to employ more judges and
more personnel, and to build still further courtrooms. These expenses would be exacerbated
because, in DUI cases, the prosecutor is prohibited by statute from engaging in plea
bargaining. See NRS 484.3792(3). The resulting expense to the municipalities may actually
deter the prosecution of DUI offenses. Thus, requiring jury trials in municipal courts for DUI
cases could mandate a lack of action against those who drink and drive. As a practical
matter, the lower courts are not going to try [DUI] cases if a jail sentence is involved. It is
difficult to justify a $500 to $1000 jury so that a defendant can spend [two days] in jail.
Economics will prevail over justice. Brenner v. City of Casper, 723 P.2d 558, 563-64 (Wyo.
1986) (Brown, J., dissenting).
In addition to the expense imposed upon the municipalities, a jury trial is not a cost-free
transaction to the jurors, their families and their employers, particularly in municipalities
where jurors may be called into service for as long as a year at a time. These burdens will
weigh heaviest upon the residents of the more rural areas, who may be forced to travel
excessive distances for service and who may be forced to serve with disproportionate
frequency due to the relatively few prospective jurors in these areas.
Nor are we persuaded that the current wave of public concern over the problem of
intoxicated drivers somehow converts misdemeanor DUI into a serious offense under the
federal constitution.
tion. While this court does not condone the commission of any crime, the offense of DUI is
no more opprobrious than other crimes over which the municipal court has jurisdiction, such
as indecent conduct or lewd behavior. See NRS 266.555(2). A decision giving individuals
charged with DUI in the municipal courts the right to a jury trial could arguably then be
extended to any offense currently the subject of a ground swell of public opinion.
Moreover, a decision of this court mandating jury trials in DUI cases would create
numerous unresolved administrative problems. Procedures for the summons and selection of
jurors in the municipal courts do not exist. A decision requiring jury trials in the municipal
courts could not be implemented until such procedures were developed. This court is not in a
position to legislate the procedures to be followed in such cases. Further, the legislature of
this state, which meets once every two years, is not presently in session to fill the void. Also
unresolved would be the issues of whether the proposed jury could be comprised of fewer
than twelve jurors, and whether the verdict must be unanimous. See Parham v. Municipal
Court, City of Sioux Falls, 199 N.W.2d 501, 508 (S.D. 1972) (Bielgelmeier, J., dissenting,
citing The Six-Man Jury, 17 S.D. Law Rev. 285). Presently, juries in criminal trials held in
the district courts of the State of Nevada are comprised of twelve jurors, who must reach a
unanimous verdict. If this court were to legislate a lower standard for municipal courts, we
are not convinced that a jury, comprised of a minimum number of members or required to
reach less than a unanimous verdict, would necessarily render a decision more reliable than
that of a judge. If some higher standard is required, then this court would be fixing greater
protections for violators of city ordinances than the United States Supreme Court requires
states to provide in felony prosecutions.
Finally, we note that in Nevada's outlying communities, due to the demographic and
economic realities of our rural areas, municipal courts have for the most part been staffed by
non-lawyer judges. Some of these judicial posts are part-time positions. Attorneys are scarce
and, historically, the few present have chosen to pursue other endeavorswith the result that
the lower judicial posts have devolved upon intelligent and popular laypersons.
In our view, as it has developed, Nevada's court system had been successful. Our
legislature has provided adequate funding for judicial education, and has mandated that all
non-lawyer judges must attend The National Judicial College, located in Reno. See NRS
5.025; 5.026. In addition, at least twice yearly, our court conducts seminars on continuing
legal education for such judges.
such judges. We also send a number of them out-of-state each year, for seminars of the
American Academy of Judicial Education and the American Judges Association, and for
other programs focused on the needs of non-lawyer judges. As a result, over time, Nevada has
developed a cadre of lay municipal court judges who, in this court's opinion, are
conscientious, well trained in the substantive law of the misdemeanor offenses that are within
their jurisdiction, and competent to conduct non-jury trials relating to such
offensesincluding DUI matters. In short, we believe Nevada's system works, and works
well.
Knowing our judges, however, we would be concerned about imposing upon all of our lay
municipal court judges such novel and additional burdens as supervising voir dire
examinations of jurors, ruling upon challenges for cause, safeguarding jurors against undue
publicity, and formulating written jury instructions to govern the various offenses within their
jurisdiction. The matter of jury instructions is particularly troubling. We think we can train,
and have trained, our lay municipal court judges to understand the legal precepts necessary to
manage the bench trials they conduct in DUI cases and other misdemeanor matters fairly.
However, as highly as Nevada's lay judges are regarded by this court and by the communities
they serve, we fear that the formulation of written jury instructions might require additional
linguistic and legal skills, beyond the background of some very effective judges now serving
in our smaller municipal courts. And, if imposing jury trials upon such courts ultimately
necessitated a change to a system of all law-school-trained judges, we are not at all persuaded
that the quality of justice in those courts would improve. Rather, the result might well be that
some very competent lay judges, well respected and accepted by their constituents, would be
replaced by persons who, though possessing law degrees and licenses, would not merely be
strangers to the communities they would come to serve. They also might be something less
than the better product of American law schools, and less than the persons they arrived in
town to replace.
These significant issues relating to serious financial, administrative, and policy concerns
should be resolved by the legislature, after it has conducted appropriate hearings and
investigations regarding the implications of the various alternatives. Judicial restraint is a
worthwhile practice when the proposed new doctrine may have implications far beyond the
perception of the court asked to declare it. Hamm v. Carson City Nugget, Inc., 85 Nev. 99,
101, 450 P.2d 358, 359 (1969). The position of the federal district court in Bronson, were it to
be adopted by this court today, would have just such far reaching implications. Our extension
of jury requirements to cases arising in the municipal court, when the current decisions of
the United States Supreme Court are contrary, would in our view impose upon the domain
of the legislature.
when the current decisions of the United States Supreme Court are contrary, would in our
view impose upon the domain of the legislature. Moreover, if such a drastic change in the
interpretation of the federal constitution is to be judicially mandated, such a decision must
come from the United States Supreme Court. While we have great respect for the federal
court that rendered the decision in Bronson, we are unwilling to impose upon the
municipalities of this state the burden of conducting jury trials based solely upon that court's
interpretation of the federal constitution, which we believe is at odds with the current
decisions of the United States Supreme Court.
Other jurisdictions have similarly concluded that the federal constitution does not
guarantee DUI defendants a right to jury trials in misdemeanor cases. Justiniano Matos v.
Gaspar Rodriguez, 440 F.Supp. 673, 677 (D.P.R. 1976) (the doctrine of District of Columbia
v. Colts, supra, wherein primary importance was given to the nature of the offense, is no
longer applicable); Hilliard v. City of Gainesville, 213 So.2d 689, 691 (Fla. 1968) (the
maximum penalty which can be prescribed by [the] Florida municipal [DUI] ordinance is
well below the petty offense maximum [of six months imprisonment] indicated by Cheff v.
Schnackenberg, supra); (State v. Young, 234 N.W.2d 196, 197 (Neb. 1975) (where the
maximum penalty for second offense DUI is three months, there is no entitlement to a jury
trial under the United States Constitution); Brenner v. City of Casper, 723 P.2d 558, 561
(Wyo. 1986) ([w]hile recognizing the standard utilized by the United States Supreme Court,
it is our conclusion that greater protection is afforded by the Wyoming Constitution). Those
states providing jury trials in misdemeanor DUI cases do so pursuant to express statutory
provisions or their own state constitutions.
9
Only one state arguably has interpreted the
federal constitution to require a jury trial in DUI cases where the maximum penalty does not
exceed six months imprisonment. See State v. O'Brien, 704 P.2d 883 (Haw. 1985). As noted
above, we believe the Supreme Court decisions interpreting the sixth amendment do not
require such a conclusion.
____________________

9
See, e.g., Rothweiler v. Superior Court of Pima County, 410 P.2d 479 (Ariz. 1966) (charge of DUI deemed
a criminal prosecution and therefore a right to jury trial exists under Arizona Constitution); Fisher v. State,
504 A.2d 626 (Md. 1986) (criminal defendant charged with offense for which the maximum penalty exceeds
ninety days is entitled to a jury trial under Maryland Constitution); Brown v. Multnomah County Dist. Court,
570 P.2d 52 (Ore. 1977) (charge of DUI deemed a criminal prosecution for purposes of determining right to a
jury trial under Oregon Constitution which guarantees jury trials in all criminal prosecutions); Brenner v. City
of Casper, 723 P.2d 558 (Wyo. 1986) (crime punishable by jail term, regardless of length, was serious crime for
which a jury trial is required under Wyoming Constitution).
In conclusion, absent an express pronouncement by the Supreme Court of the United
States, judicial restraint dictates that this court, in resolving the constitutional question before
us, decline to take guidance from the supreme courts of other states interpreting their own
state statutes and state constitutions, or from the lower federal courts who have, in our view,
extended the current decisions of the United States Supreme Court. Especially in view of the
substantial ramifications such a holding would entail, we consider it inappropriate to look
beyond the parameters currently defined by the United States Supreme Court and require jury
trials in misdemeanor DUI cases.
We therefore affirm the district court orders denying the petitions for writs of mandamus
in Docket Numbers 17940, 17976, 17997, 17998, 17999, 18000 and 18140. We reverse the
district court orders granting petitions for writs of mandamus in Docket Numbers 18032 and
18073, and remand these matters for further proceedings consistent with this opinion. We
grant the original petition for a writ of certiorari in Docket Number 18065, and instruct the
clerk of this court to issue a writ of certiorari, forthwith, compelling the district court to
vacate its order reversing Fraley's conviction and to enter a new order consistent with this
decision. We deny the original petition for a writ of prohibition in Docket Number 18092.
____________
103 Nev. 638, 638 (1987) Zamarripa v. District Court
MICHAEL E. ZAMARRIPA, Petitioner, v. FIRST JUDICIAL DISTRICT COURT,
Honorable Michael E. Fondi, Respondent.
No. 17374
December 31, 1987 747 P.2d 1386
Original petition for a writ of certiorari.
Defendant petitioned for writ of certiorari, contesting his district court conviction for
driving with revoked license. The Supreme Court, Young, J., held that: (1) conviction for
driving with revoked license requires at least constructive receipt of revocation order, and
thus knowledge or intent to drive with revoked license is necessary element of crime, and (2)
defendant received adequate notice of license revocation.
Petition denied.
[Rehearing denied February 25, 1988] Terri Steik Roeser, State Public Defender, and
Thomas E.
Terri Steik Roeser, State Public Defender, and Thomas E. Perkins, Special Deputy Public
Defender, Carson City, for Petitioner.
Brian McKay, Attorney General, Noel S. Waters, District Attorney, and Keith Loomis,
Deputy District Attorney, Carson City, for Respondent.
1. Certiorari.
Writ of certiorari is extraordinary remedy and decision to entertain petition for writ of certiorari lies
within discretion of state Supreme Court.
2. Certiorari.
Writ of certiorari is granted in all cases where inferior tribunal, board or officer exercising judicial
functions has exceeded its jurisdiction, and there is no appeal nor plain, speedy and adequate remedy; writ
may also be granted to review appeal from justice or municipal court to district court, where district court
has ruled on constitutionality or validity of statute. NRS 34.020, subds. 2, 3.
3. Automobiles.
Driving in Nevada is privilege extended only to those who are qualified to operate motor vehicle safely.
4. Automobiles.
Conviction for driving with revoked license requires at least constructive receipt of revocation order, and
thus knowledge or intent to drive with revoked license is necessary element of crime. NRS 483.560,
484.385, subd. 4.
5. Automobiles.
Defendant charged with driving with revoked license received adequate notice of license revocation
where revocation was sent to his last known address and he had failed to notify Department of Motor
Vehicles of his change of address as statutorily required, though he listed his correct address on arrest
report sent to Department in conjunction with his previous driving under the influence prosecution. NRS
482.285, 483.560, 484.385, subd. 4.
OPINION
By the Court, Young, J.:
On August 27, 1985, petitioner, Michael Zamarripa, was arrested for driving under the
influence in Washoe County. He gave his current address, 1011 S. Minnesota, Carson City, to
the arresting officer, who listed it on the notice of revocation which was sent to the
Department of Motor Vehicles (DMV). When Zamarripa appeared in justice court, he
tendered his license to the judge, who refused it and told him to keep his license pending
notification from the DMV.
On September 30, 1985, the DMV revoked Zamarripa's driver's license. The DMV sent the
revocation order to 1100 N.
Nevada Street, Carson City, Michael's former address. Zamarripa admitted that he had moved
four times since obtaining his driver's license but had not notified the DMV of his change of
address as required by NRS 483.390. On October 14, 1985, he was stopped and arrested by
the Carson City Sheriff's office for driving with a revoked license, NRS 483.560.
Zamarripa contends he did not have actual or constructive notice of the revocation and
therefore did not form the requisite criminal intent required by NRS 193.190. The justice and
district courts, however, found the violation of NRS 483.560 to be a malum prohibitum
offense requiring no criminal intent. The district court also held that the intent required by
NRS 193.190 was no more than the intent to drive a motor vehicle, not a conscious
wrongdoing. The court also determined that the mandatory minimum 30-day sentence
imposed for violation of NRS 483.560 did not take NRS 483.560 outside the realm of a
malum prohibitum offense. The justice court's judgment was affirmed and remanded for the
execution of the sentence.
[Headnotes 1, 2]
This case is before the court on a petition for a writ of certiorari. NRS 34.020. A writ of
certiorari is an extraordinary remedy and the decision to enterain a petition for a writ of
certiorari lies within the discretion of this court. See Schumacher v. District Court, 77 Nev.
408, 365 P.2d 646 (1961). A writ of certiorari is granted in all cases where an inferior
tribunal, board or officer exercising judicial functions has exceeded its jurisdiction and there
is no appeal nor plain, speedy and adequate remedy. NRS 34.020(2). The writ may also be
granted to review an appeal from the justice or municipal court to the district court, where the
district court has ruled on the constitutionality or validity of a statute. NRS 34.020(3).
Zamarripa argues that the lower court exceeded its jurisdiction by allowing him to be
convicted and sentenced for driving on a revoked license without proof of a criminal intent.
As a result, he contends that his constitutional rights of due process also have been violated.
Because the district court has final appellate jurisdiction in cases arising in the justice court,
there is no adequate remedy at law. Nev. Const. art. 6. 6. Therefore, Zamarripa has
presented an important issue for which an extraordinary writ of certiorari is properly before
this court.
Zamarripa contends that NRS 483.560 requires that the state prove that he was knowingly
driving with a revoked or suspended license. He claims that he did not receive notice of the
revocation and, therefore, did not know he was driving with a revoked license. Thus,
Zamarripa argues that he did not have the mens rea necessary for conviction.
A violation of Nevada's DUI statutes results in mandatory revocation of a person's driving
privileges for a specific period of time. NRS 483.460. In some situations a police officer will
immediately issue an order of revocation of the person's driver's license. NRS 484.385(1). In
situations like the present case, where an order of revocation has not been immediately served
but is appropriate, NRS 484.385(2), the Department of Motor Vehicles issues the order of
revocation by mailing the order to the person at his last known address. NRS 484.385(3)
provides that the order becomes effective five days after mailing.
1

It is a misdemeanor to drive a motor vehicle after one's license has been revoked for
violating DUI statutes, and the legislature has mandated a penalty of imprisonment in jail for
not less than 30 days nor more than 6 months, and a fine of not less than $500.00 nor more
than $1,000.00.
2
NRS 483.560. NRS 483.560 does not expressly require the state to prove
criminal intent or knowing violation. Both the district court and justice court viewed NRS
483.560 as a malum prohibitum offense requiring no criminal intent. The district court held
that NRS 483.560 requires only the intent to do the act of driving, not conscious wrongdoing.
There is a wide split of authority on the question whether driving with a suspended license
requires proof of intent. Oregon, Kansas, Ohio, Nebraska and Indiana, for example, have held
that no criminal intent is necessary for conviction of driving with a suspended license.
3
Arizona, Alaska, Colorado and North Carolina, on the other hand, have all held that criminal
intent or knowledge is necessary for conviction.
4
California and Maine have statutes
requiring knowledge of driving with a suspended license. Cal. Vehicle Code 14601.2
(Supp. 1986); Maine Rev.Stat.Ann. title 29 2184.
____________________

1
Although the issue is not presented by this appeal, we note that NRS 484.385(3), in conjunction with NRS
178.482, provides that the order of revocation actually becomes effective eight days after mailing. Cf. Hardin v.
Jones, 102 Nev. 469, 727 P.2d 551 (1986) (although NRS 612.495(1) requires filing of administrative appeal
within ten days from the date of mailing of the notice of determination, NRCP 6(e) applies to provide an
additional three days because the notice of the agency's determination was mailed).

2
At least 23 other states impose mandatory minimum sentences for similar offenses. U.S.D.O.T., Drivers
License Laws Annotated, 6-303 (1980).

3
Grogan v. State, 482 N.E.2d 300 (Ind.Ct.App. 1985); State v. Jones, 644 P.2d 464 (Kan. 1982); State v.
Grotzky, 382 N.W.2d 20 (Neb. 1986); State v. Morrison, 442 N.E.2d 114 (Ohio Ct.App. 1982); State v. Buttrey,
651 P.2d 1075 (Or. 1982).

4
Gregory v. State, 717 P.2d 248 (Alaska Ct.App. 1986); State v. Jennings, 722 P.2d 258 (Ariz. 1986);
People v. Lesh, 668 P.2d 1362 (Colo. 1983); State v. Finger, 324 S.E.2d 894 (N.C.App. 1985).
[Headnote 3]
The standard for determining whether NRS 483.560 is a strict liability crime is whether
there is a clear legislative intent that the crime does not require any degree of mens rea. See
State v. Jennings, 722 P.2d 258, 262 (Ariz. 1986). NRS 483.560(1) provides: Except as
provided in subsection 2, any person who drives a motor vehicle on a highway or on premises
to which the public has access at a time when his driver's license has been canceled, revoked
or suspended is guilty of a misdemeanor. Subsection 2 imposes a mandatory 30-day to
six-month term of imprisonment if the license has been revoked for a DUI offense. This
statute does not state that intent or knowledge of the revocation is necessary in order to
violate the statute, and the legislative history does not reveal an intent to make NRS 483.560
a strict liability crime. Nevertheless, the legislature has made it clear that the drunk driver is
not wanted on the roads and highways of Nevada. Driving in this state is a privilege extended
only to those who qualified to operate a motor vehicle safely. McCharles v. State, Dep't of
Mtr. Vehicles, 99 Nev. 831, 833, 673 P.2d 488, 489 (1983). Nevada statutes provide that
persons convicted of driving while intoxicated forfeit their driving privilege. The legislature
has found it necessary to mandate the 30-day penalty for driving with a revoked license in
order to deter those who consciously ignore the penaltylicense revocationwhich was
imposed for driving under the influence.
In many cases, driver's license revocation is immediate, and there will seldom be a
situation where the driver is not aware the possibility of revocation is imminent. However,
the language of NRS 484.385, which establishes the method of driver's license revocation,
creates a troublesome problem. Did the legislature intend that actual or constructive notice of
revocation must be received? NRS 484.385(3) provides:
The department, upon receipt of such a certificate for which an order of revocation
has not been served, after examining the certificate and copy of the result of the
chemical test, if any, and finding that revocation is proper, shall issue an order revoking
the person's license, permit or privilege to drive by mailing the order to the person at his
last known address. The order must indicate the grounds for the revocation and the
period during which the person is not eligible for a license, permit or privilege to drive
and state that the person has a right to administrative and judicial review of the
revocation and to have a temporary license. The order of revocation becomes effective
5 days after mailing.
Notice of an order of revocation and notice of the affirmation of a prior order of
revocation or the cancellation of a temporary license provided in NRS 484.387 is
sufficient if it is mailed to the person's last known address as shown by any application
for a license. The date of mailing may be proved by the certificate of any officer or
employee of the department, specifying the time of mailing the notice. The notice is
presumed to have been received upon the expiration of 5 days after it is deposited,
postage prepaid, in the United States mail.
NRS 484.385(3) and (4) establish the contents of the revocation order, when revocation
becomes effective, the sufficiency of notice, and the method for proof of mailing. See also
note 1, supra. Except for the last sentence of NRS 484.385(4), it would appear that it is only
necessary to show that the revocation order was mailed to the last known address listed on the
license application formthat actual receipt of notice is not required. However, the last
sentence of NRS 484.385(4) raises a presumption that the notice was received. NRS
47.250(13) makes it a disputable presumption [t]hat a letter duly directed and mailed was
received in the regular course of mail. If the legislature did not intend to require actual or
constructive notice of the revocation order, there would be no need to allow the receipt of
notice to be disputed.
[Headnote 4]
The presumption is significant in situations where notice was mailed but was not received
through no fault of the accused. However, compliance with NRS 484.385 raises a prima facie
presumption that the defendant received the revocation notice and thereby acquired
knowledge of the suspension or revocation five days after the notice was mailed. The burden
of proof shifts to the defendant who must show that his failure to receive the letter was the
result of something other than his own culpable or dilatory conduct. Thus, NRS 484.385(4)
requires at least constructive receipt of the revocation order. Since driving with a suspended
license requires proof of license revocation, the knowledge or intent to drive with a revoked
license is a necessary element of NRS 483.560.
5
[Headnote 5]
[Headnote 5]
____________________

5
There are several ways of stating this element of intention or knowledge. Arizona employs a knew or
should have known standard while North Carolina and Colorado require actual or constructive knowledge.
See State v. Jennings, 722 P.2d 258, 262 Ariz. 1986); People v. Lesh, 668 P.2d 1362, 1366 (Colo. 1983); State
v. Finger, 324 S.E.2d 894, 897 (N.C. 1985).
[Headnote 5]
NRS 484.385(4) expressly provides that notice of the revocation is sufficient if it is sent to
the last known address shown on the license application. Zamarripa admits that he failed to
change his address, a misdemeanor violation of NRS 482.285, but he contends that the DMV
should have sent the notice to his present address because he listed his correct address on the
arrest report sent to the DMV. Thus, Zamarripa argues that violating one statute should
prevent his conviction under another. We hold that Zamarripa received notice deemed
sufficient under NRS 484.385(4); therefore, he cannot complain that his conviction under
NRS 483.560 violates his right of due process. See State v. Moffett, 728 P.2d 1330 (Kan.
1986).
Accordingly, for the reasons stated herein, we deny the petition for a writ of certiorari.
Gunderson, C. J., Steffen, Springer, and Mowbray, JJ., concur.
____________
103 Nev. 644, 644 (1987) Braham v. District Court
THOMAS EDWARD BRAHAM, Petitioner, v. FOURTH JUDICIAL DISTRICT
COURT, Honorable Joseph O. McDaniel, Judge, Respondent.
No. 18048
December 31, 1987 747 P.2d 1390
Original petition for a writ of certiorari.
Motorist filed petition for writ of certiorari contending that revocation of his license did
not become effective prior to his arrest for driving with revoked license. The Supreme Court,
Young, J., held that: (1) order of revocation of license becomes effective eight days after
mailing, and (2) motorist's arrest was premature.
Petition granted.
Thomas L. Stringfield, Elko, for Petitioner.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, Elko
County, for Respondent.
1. Certiorari.
A petition for writ of certiorari may be granted at the discretion of the court.
2. Certiorari.
Motorist, who was charged with driving with revoked driver's license but who claimed that he did not
receive notice of revocation, had no adequate remedy at law; therefore, his petition for writ
of certiorari was appropriately before the Supreme Court.
no adequate remedy at law; therefore, his petition for writ of certiorari was appropriately before the
Supreme Court. NRS 34.020.
3. Automobiles.
If order of revocation of driver's license is served by mail, revocation becomes effective eight days after
mailing. NRS 178.482, 484.385, subd. 3.
4. Automobiles.
Motorist's arrest for driving with revoked driver's license was premature; because Department of Motor
Vehicles attempted to notify motorist of revocation by mail, order of revocation could not become effective
until eight days after mailing, motorist was arrested on eighth day after mailing of notice, and order of
revocation was not effective until the following day. NRS 178.482, 484.385, subd. 3.
5. Certiorari.
Petitioner for writ of certiorari was required to pay for justice's court trial transcript. NRS 189.030,
subd. 1.
OPINION
On August 10, 1985, Thomas Braham was arrested for driving under the influence on the
Lamoille Highway near Elko, Nevada. He refused to take a breath or blood test. At that time,
Braham was given a notice of revocation of his driving privilege, which he appealed. The
hearing officer told Braham that he would give a written decision in a few days. The notice of
revocation was sent to Braham via certified mail and arrived in the Elko County post office
on or before April 29, 1986. A return receipt notice was allegedly placed in Braham's mailbox
on April 29, 1986, and May 5, 1986. The letter was not picked up, and the post office
returned the letter to the Department of Motor Vehicles (DMV) on May 14, 1986. Braham
and his wife testified that they did not receive the notice. On May 7, 1986, Braham was
stopped and informed that his driver's license had been revoked and that he should not drive
any further after reaching work. Braham was charged with driving with a revoked driver's
license. He was found guilty in justice court and sentenced to serve 30 days in jail, the
mandatory minimum sentence imposed for violation of NRS 483.560. The district court
affirmed. The district court found that the notice requirement of NRS 484.385 was met when
the DMV deposited the notice of revocation in the mail.
[Headnotes 1, 2]
A petition for a writ of certiorari may be granted at the discretion of the court. Schumacher
v. District Court, 77 Nev. 408, 365 P.2d 646 (1961). We find that Braham has no adequate
remedy at law and that Braham's petition for a writ of certiorari is appropriately before this
court.
appropriately before this court. NRS 24.020. See Zamarripa v. District Court, 103 Nev. 638,
747 P.2d 1386 (1987).
[Headnote 3]
Braham contends, among other things, that the revocation of his license by the DMV did
not become effective prior to his arrest on May 7, 1986. Consequently, he contends that his
arrest was premature. We agree. NRS 484.385(3) provides:
The department, upon receipt of such a certificate for which an order of revocation
has not been served, after examining the certificate and copy of the result of the
chemical test, if any, and finding that revocation is proper, shall issue an order revoking
the person's license, permit or privilege to drive by mailing the order to the person at his
last known address. The order must indicate the grounds for the revocation and the
period during which the person is not eligible for a license, permit or privilege to drive
and state that the person has a right to administrative and judicial review of the
revocation and to have a temporary license. The order of revocation becomes effective
5 days after mailing.
We also note that NRS 178.482 provides:
Whenever a party has the right or is required to do an act within a prescribed period
after the service of a notice or other paper upon him and the notice or other paper is
served upon him by mail, 3 days shall be added to the prescribed period.
We find no expression of legislative intent leading us to construe NRS 484.385(3) as
insulated from the general provision of NRS 178.482. Consequently, we hold that NRS
484.385(3), in conjunction with NRS 178.482, provides that if the order of revocation is
served by mail, the revocation becomes effective eight days after mailing. Cf. Hardin v.
Jones, 102 Nev. 469, 727 P.2d 551 (1986) (although NRS 612.495(1) requires filing of
administrative appeal within ten days from the date of mailing of the notice of determination,
NRCP 6(e) applies to provide an additional three days because the notice of the agency's
determination was mailed).
The postmark on the order of revocation sent to Braham was illegible; however, the letter
identified April 29, 1986, as the date of the first attempt to place a notice in Braham's
mailbox. This date was used to prove that Braham violated NRS 483.560 when he drove on
May 7, 1986.
[Headnote 4]
Because the DMV attempted to notify Braham by mail, the order of revocation could not
become effective until eight days after mailing.
after mailing. NRS 484.385(3) and NRS 178.482. Braham was arrested on May 7, 1986, on
the eighth day after the mailing of the notice. Because the order of revocation was not
effective until the following day, May 8, 1986, his arrest on May 7, 1986, was premature.
Therefore, the judgment of conviction cannot stand.
[Headnote 5]
Braham claims that the district court erroneously required him to pay for a transcript of the
justice's court proceeding. Concerning appeals from justice to district court, NRS 189.030(1)
provides: The justice shall, within 10 days after the notice of appeal is filed, transmit to the
clerk of the district court the transcript of the case, all other papers relating to the case and a
certified copy of his docket. However, NRS 4.410(2) provides: The fees for transcripts and
copies [of justice's court proceedings] must be paid by the party ordering them. In a civil case
the preparation of the transcript need not commence until the fees have been deposited with
the deputy clerk of the court.
The lower court did not err by requiring Braham to pay for the justice's court trial
transcript. NRS 189.030(1) establishes the time frame for transmitting transcripts of appealed
cases. It says nothing about costs. NRS 4.410(2) establishes who pays for the transcript.
Therefore, when a justice's court decision is appealed, the justice of the peace sends the case
to the district court within ten days and costs of transmission can properly be assessed to the
non-indigent appellant.
1

We hold that NRS 484.385(3), in conjunction with NRS 178.482, provides that an order of
revocation becomes effective eight days after mailing. Braham was arrested while driving
prior to the effective date of revocation. His conviction, therefore, must be vacated.
Accordingly, we grant the petition for a writ of certiorari. The clerk of this court shall issue a
writ of certiorari, forthwith, directing the respondent district court to vacate the conviction
and issue a new judgment consistent with this opinion.
Gunderson, C. J., and Steffen, Springer, and Mowbray, JJ., concur.
____________________

1
We express no opinion as to whether petitioner, as a prevailing party in this court, may recover the cost of
the transcript in the district court. Cf. NRAP 39(e) (costs on appeal taxable in the district courts).
____________
103 Nev. 648, 648 (1987) Fire Ins. Exchange v. Zenith Radio Corp.
FIRE INSURANCE EXCHANGE, Appellant, v. ZENITH RADIO CORPORATION,
a Delaware Corporation, CHARLESTON TV & APPLIANCE,
a Nevada Corporation, Respondents.
No. 17319
December 31, 1987 747 P.2d 911
Appeal from order of sanctions and summary judgment. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Insurer sought subrogation against manufacturer of television and retailer for fire in
insured's home, and manufacturer and retailer moved for sanctions against insurer, exclusion
of insurer's expert witness, and summary judgment. The district court ordered the exclusion
of insurer's expert witness and granted summary judgment, and insurer appealed. The
Supreme Court, Young, J., held that insurer was subject to sanction of exclusion of expert
witness for destruction of evidence.
Affirmed.
Simmons, Madson & Snyder, Las Vegas, for Appellant.
Johnson & Rosenberger, Las Vegas, for Respondents.
Generally, sanction may only be imposed where there has been willful noncompliance with the court's
order, or where the adversary process has been halted by the actions of the unresponsive party. NRCP
37(b).
Even where an action has not been commenced and there is only a potential for litigation, the litigant is
under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.
Finding that insurer was on notice of potential litigation prior to destruction of evidence and had power to
preserve that evidence was supported by testimony that within six days of the fire insurer made a
preliminary investigation which revealed potential subrogation claim, expert was hired to verify the
suspected cause of fire, and statements were taken in anticipation of litigation.
Where party is on notice of potential litigation, the party is subject to sanctions for actions taken which
prejudice the opposing party's discovery efforts. NRCP 37(b).
OPINION
The subject of this appeal is the sanction imposed by the district court under NRCP 37(b).
We find no abuse of discretion, and therefore, affirm the judgment of the district court.
Appellant, Fire Insurance Exchange, insured the home of Carmen and Fulvia Di Lorenzo,
which was destroyed by fire on July 30, 1980. The home was unoccupied at the time of the
fire; therefore, there were no eye witnesses to the ignition and spread of the fire.
Richard Whitaker, appellant's property claims representative, conducted a preliminary
investigation of the residence on the date of the fire. In the course of his investigation,
Whitaker looked for evidence supporting subrogation liability. Based upon his investigation,
Whitaker concluded the fire originated in the area of a television set, H.B.O. Converter, and
lamp. Thereafter, Whitaker told his supervisor of the potential subrogation claim against the
manufacturers of these products, and Fire Insurance Exchange retained Daniel J. Bowker, a
fire cause and origin expert, to investigate the cause of the fire.
Bowker accompanied Whitaker to the destroyed residence on August 4, 1980. Based upon
his observations, Bowker advised Whitaker that the fire had originated in the area of the
television set and H.B.O. Converter. Bowker later testified in his deposition that the fire
originated inside the television set. Although Bowker was not trained in electrical
engineering, or television set design and manufacturing, he took no steps to preserve the
television set because he felt the remains were insufficient to conduct tests that might
determine whether an electrical fault was the cause of the fire.
The residence remained in its damaged condition until approximately September 1, 1980,
when contractors were engaged by Fire Insurance Exchange to remove the debrisincluding
the television setfrom the home.
On December 9, 1982, over two years after the fire and the disposal of the television set,
Fire Insurance Exchange filed its complaint against Zenith Radio Corporation, the
manufacturer of the television set, and Charleston TV & Appliance Company, the retailer.
Respondents answered on April 22, 1983, and thereafter, discovery ensued.
On June 14, 1983, respondents served interrogatories on Fire Insurance Exchange.
Interrogatory No. 45 requested the following information:
State the present location of the television set described in Plaintiff's Complaint and
the name of the person or entity giving the address and telephone number of each
person or entity having possession and control of the television set or its component
parts.
giving the address and telephone number of each person or entity having possession and
control of the television set or its component parts.
No answer was provided until October 1983, when Fire Insurance Exchange evasively
answered the interrogatory as unknown.
A request for the production of the television set was filed by respondents on July 25,
1983. On May 7, 1984, the district court ordered Fire Insurance Exchange to produce the
television set.
Thereafter, respondents served supplemental interrogatories on June 8, 1984, inquiring:
What became of the television set at issue here?
(a) If you are not sure, who do you believe would have such knowledge?
(b) Was the television set at issue here destroyed? If so, why was it destroyed, who
destroyed it and explain any other details surrounding its destruction.
Fire Insurance Exchange failed to answer the supplemental interrogatories until November
1984, when it stated:
Dan BowkerBowker Fire Cause Consultants would be able to explain what
happened to the television set in question.
On September 12, 1985, respondents moved for sanctions pursuant to NRCP 37; or, in the
alternative, exclusion of the testimony of appellant's expert witness and motion for summary
judgment. Appellant replied, and the motions were subsequently argued on October 9, 1985,
before Judge Pavlikowski. The district court ordered that the testimony of appellant's expert
be excluded, and as appellant admitted to having insufficient evidence to prove its case in
absence of the expert testimony, the district court granted summary judgment in favor of
respondents.
Fire Insurance Exchange appeals from the judgment of the district court.
NRCP 37(a) authorizes the district court to issue orders compelling discovery when a party
fails to respond to a request for inspection submitted under NRCP 34. NRCP 34(a) states:
Any party may serve on any other party a request . . . to inspect and copy, test, or sample any
tangible things which constitute or contain matters within the scope of Rule 26(b) and which
are in the possession, custody or control of the party upon whom the request is served.
. . . (Emphasis added.) Fire Insurance Exchange argues: the television set was out of its
control prior to the issuance of this order; therefore, the order of the district court, which
supported the sanctions and which was based upon the discovery request under NRCP 34,
was invalid.
We are not persuaded by the narrow construction of the Nevada Rules of Civil Procedure
offered by Fire Insurance Exchange. It would be unreasonable to allow litigants, by
destroying physical evidence prior to a request for production, to sidestep the district court's
power to enforce the rules of discovery.
[Headnotes 1, 2]
Generally, sanctions may only be imposed where there has been willful noncompliance
with the court's order, Finkelman v. Clover Jewelers Blvd., Inc., 91 Nev. 146, 147, 532 P.2d
608, 609 (1975), or where the adversary process has been halted by the actions of the
unresponsive party, Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303, 511 P.2d 1053, 1054
(1973). See also Temora Trading Co. v. Perry, 98 Nev. 229, 645 P.2d 436 (1982); Kelly
Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 606 P.2d 1089 (1980). However, even
where an action has not been commenced and there is only a potential for litigation, the
litigant is under a duty to preserve evidence which it knows or reasonably should know is
relevant to the action. Wm. T. Thompson Co. v. General Nutrition Corp., 593 F.Supp. 1443,
1455 (1984); United States v. ACB Sales & Services, Inc., 95 F.R.D. 316, 318 (1982); United
Nuclear Corp. v. General Atomic Co., 629 P.2d 231, 309 (N.M. 1980).
We find that the judgment of the district court is clearly supported by the record. Mr.
Whitaker was looking for evidence which would support a subrogation claim in his initial
investigation of the destroyed residence. Thereafter, he reported positively on the potential of
a subrogation claim. Fire Insurance Exchange then retained Mr. Bowker, who investigated the
residence just five days after the fire. Based upon his investigation, he concluded the fire
originated inside the television set. Fire Insurance Exchange took the recorded statement of
the insureds, Carmen and Fulvia Di Lorenzo, on August 6, 1980, only two days after Mr.
Bowker's investigation. When the recorded statement was requested by respondents, Fire
Insurance Exchange replied that the statement had been taken in anticipation of the present
litigation.
It is evident from these statements that within six days of the fire, Fire Insurance Exchange
made a preliminary investigation which revealed a potential subrogation claim, an expert was
hired to verify the suspected cause and did in fact conclude that the fire started in the
television set, and statements were taken in anticipation of the litigation which was initiated
over two years later.
[Headnotes 3, 4]
Where a party is on notice of potential litigation, the party is subject to sanctions for
actions taken which prejudice the opposing party's discovery efforts. In each of the cases cited
above, the defendant was the party who impeded discovery.
defendant was the party who impeded discovery. In the case at hand, however, it was
plaintiff's actions which drew the sanctions of the court. The actions of Fire Insurance
Exchange had the effect of reserving to itself all expert testimony based upon examination of
the television set. Any adverse presumption which the court might have ordered as a sanction
for the spoliation of evidence would have paled next to the testimony of the expert witness.
The statements of Fire Insurance Exchange reveal that it was on notice of potential litigation
prior to the destruction of the television set, and Fire Insurance Exchange had the power to
preserve the remains of the television set. The fact that the complaint was not filed by Fire
Insurance Exchange until two years after the fire should not be held against respondents.
Accordingly, the district court's decision is affirmed in all respects.
____________
103 Nev. 652, 652 (1987) Royal West Airways v. Valley Bank
ROYAL WEST AIRWAYS, INC., and EDWARD S. COLEMAN, Appellants, v. VALLEY
BANK OF NEVADA, Respondent.
No. 17615
December 31, 1987 747 P.2d 895
Appeal from judgment against Royal West Airways, Inc. and Edward S. Coleman. Eighth
Judicial District Court, Clark County; Llewellyn A. Young, District Judge.
Creditor brought action to collect defaulted loan which was secured by airplane. The
district court entered judgment in favor of creditor for amount of loan default, and debtor
appealed. The Supreme Court held that creditor which obtained attachment of airplane in
which it had perfected security interest was not thereby relieved of its duty under UCC to use
reasonable care in custody of and preservation of collateral.
Marquis & Haney, Las Vegas, for Appellants.
Jones, Jones, Close & Brown and John E. Leach, Las Vegas, for Respondent.
Secured Transactions.
Creditor which obtained attachment of airplane in which it had perfected security interest was not thereby
relieved of its duty under Uniform Commercial Code to use reasonable care in custody of and preservation
of airplane. NRS 31.010, 104.9207, subd. 1, 104.9504, subd. 1.
OPINION
Per Curiam:
In December, 1980, respondent Valley Bank of Nevada (Valley Bank) financed the
purchase of a DC-3 airplane by appellant Royal West Airways, Inc. (Royal West) and
perfected a security interest in the airplane. Appellant Edward S. Coleman (Coleman)
signed a demand note both as President of Royal West and individually, and in February,
1981, executed a personal guaranty of the loan. Royal West and Coleman defaulted on the
loan during 1981.
In January, 1981, Valley Bank filed a complaint which alleged that it had a security
interest in and lien on the airplane, stated its intent to foreclose the lien, take possession of the
airplane pursuant to Article 9 of the Uniform Commercial Code and sell the plane pursuant to
court judgment. At the same time Valley Bank also caused an ex parte writ of attachment to
be issued pursuant to NRS 31.010. Royal West's attempt to dissolve the writ of attachment
was denied by the district court.
The Clark County sheriff took possession of the airplane and parked it in a dormant lot at
McCarran Airport for storage. When the sheriff attached the DC-3 in early 1982 its value was
about $150,000.00 and the outstanding debt was $140,300.00. At the time of trial in April,
1985, the airplane's estimated value was $20,000.00 and it was apparently sold in November
of 1986 for $26,000.00. The DC-3 declined in value because it had been left unattended and
exposed to the elements, causing corrosion, rust and tears to the control surfaces, metal
elements and engines.
The district court rendered judgment in favor of Valley Bank for the amount of the loan
default plus interest, costs and attorney's fees. The judgment totaled $235,000.00. The district
court concluded that the obligations imposed by the UCC on creditors to maintain secured
property in the creditor's possession, NRS 104.9202(1), and make a commercially reasonable
sale, NRS 104.9504(3), did not apply because Valley Bank chose to pursue a remedy from a
separate statutory scheme. We disagree with the district court's conclusions and remand for
further findings of fact.
This court has long recognized that the UCC provides cumulative remedies and duties
upon creditors and debtors. NRS 104.9501{1).
104.9501(1). The district court found that because Valley Bank chose a non-UCC remedy,
namely, the writ of attachment pending sale on the judgment, in collecting Royal West's loan,
the UCC duties should not apply. Valley Bank contends that attachment gave the sheriff
exclusive control over the airplane. Valley Bank suggests that the sheriff's alleged control
allows Valley Bank to deny responsibility for the decline in the airplane's value, justify its
failure to dispose of the collateral during the three years before trial, and claim the full value
of the deficiency judgment.
In the instant case, we hold that even though the sheriff attached the airplane pursuant to a
court-ordered writ of attachment, Valley Bank should be bound by its Article 9 obligation as
a secured party in possession of the security. Article 9 applies to security interests. The
documents which Valley Bank prepared in order to obtain attachment suggest that Valley
Bank sought its right of possession pursuant to Article 9. Valley Bank officials believed that
they controlled the airplane after attachment. Moreover, the record suggests that the existence
of an Article 9 security interest was one of the reasons the trial court issued a writ of
attachment. Valley Bank should not be allowed to have the benefit of a perfected security
interest and at the same time avoid the obligations which Article 9 imposes on a secured
creditor. The UCC clearly applies even though Valley Bank sought non-UCC remedies.
The UCC requires secured parties to use reasonable care in the custody of and
preservation of collateral in his possession. . . . NRS 104.9207(1). See Harris v. Bower, 295
A.2d 870, 876 (Md. 1972) (holding repossessed property without caring for it and allowing it
to depreciate at a ruinously progressive rate not reasonable). Also, under the UCC a secured
party seeking to dispose of security must do so in a commercially reasonable manner. NRS
104.9504(1). See Michigan National Bank v. Marston, 185 N.W.2d 47, 51 (Mich.Ct.App.
1970). The neglect of the airplane and the change in its market value indicate that Valley
Bank did not satisfy its duty to care for and dispose of the collateral.
The district court erred in not applying the UCC obligations to the instant case. We
therefore reverse and remand the case for further hearings. On remand the district court
should determine whether Valley Bank breached its duty to assure that the secured property
was properly preserved and that it proceeded in a commercially reasonable manner during the
period of attachment. A new judgment should be entered accordingly.
1

____________________

1
Counsel advised the court that they have no objections to The Honorable C. Clifton Young sitting in this
case because of personal association with the trial judge.
____________
103 Nev. 655, 655 (1987) McCrackin v. Elko Cty. School Dist.
PAMELA McCRACKIN, Appellant, v. THE ELKO COUNTY SCHOOL DISTRICT,
and DR. JOHN H. MARTIN, M. JEOFFREY DAHL, JAMES CONNELLEY,
JAMES V. MUTH, RALPH PAOLI, SHARON RHODES and ELDON
WESTLUND, in Their Capacities as the Board of Trustees of the
Elko County School District, Respondents.
No. 17812
December 31, 1987 747 P.2d 1373
Appeal from judgment dismissing complaint and finding that appellant's employment as a
teacher was properly terminated. Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Probationary teacher brought action claiming that school district had not complied with
relevant notice provisions in failing to renew her contract. The district court dismissed
complaint, and teacher appealed. The Supreme Court, Young, J., held that notice to
probationary teacher from principal on last permitted day, which stated that principal would
not recommend reemployment of teacher due to listed specific deficiencies in her
performance, was inadequate, where teacher was not given opportunity to improve her
performance in those areas.
Dyer and McDonald, Carson City, for Appellant.
Thomas L. Stringfield, Elko, for Respondents.
1. Schools.
Notice to probationary teacher from principal on last permitted day which stated that principal would not
recommend reemployment of teacher due to listed specific deficiencies in her performance was inadequate,
where teacher was given no chance to improve her performance in listed areas. NRS 391.3125, subds. 4,
6, 391.3197, subd. 2.
2. Schools.
School boards must follow procedures required by statute in nonrenewal or probationary teacher's
contract. NRS 391.3125, 391.3197, subd. 1.
OPINION
This is a case of first impression involving the 1985 amendments to the statutory
provisions addressing evaluation and reemployment of probationary teachers. Pamela
McCrackin appeals from the district court judgment that the Elko County School District
had properly determined not to renew her employment.
from the district court judgment that the Elko County School District had properly
determined not to renew her employment.
In the school year 1985-86 appellant McCrackin was employed by respondent Elko
County School District as a special education teacher at the Wells Junior-Senior High School.
She was on a second probationary, or trial year. Miss McCrackin held the same position as a
probationary teacher in the 1984-85 school year. That was her first year as a teacher. She was
not made a regular, postprobationary teacher because her handling of certain required
paperwork was not satisfactory. Miss McCrackin apparently corrected this problem; her
October and December 1985 evaluations rated her performance of the paperwork as
satisfactory. Neither evaluation gave Miss McCrackin any indication that she might not be
reemployed, and both noted that her performance in some areas had improved.
On February 20, 1986, Mr. Harold Ridgway, the Elko County School District Director of
Instructional Services, observed Miss McCrackin's classroom for fifteen minutes and
discussed the observation with her. On February 26, 1986, Mr. Ridgway delivered the formal
report of the February 20, 1986 observation to Miss McCrackin and discussed it with her. On
the afternoon of February 28, 1986, Mr. Weight, the school principal, discussed Mr.
Ridgway's observation with Miss McCrackin. At this time she was first informed that her
prospects for reemployment were not good.
On Monday, March 3, 1986, Mr. Weight presented Miss McCrackin a letter stating that he
would recommend to the school board that she not be reemployed due to inadequate
performance. He also gave her an evaluation report detailing deficiencies in her performance.
Mr. Weight advised Miss McCrackin to resign, and said her resignation would probably be
accepted. Charles Knight, Superintendent for the Elko County School District, informed Miss
McCrackin by a letter dated March 31, 1986, that he would recommend not reemploying her
to the school board. The Elko County School Board did not renew Miss McCrackin's
contract.
After completing her term, Miss McCrackin brought an action claiming that the school
district and its employees had not complied with the relevant statutory provisions. The district
court concluded that Miss McCrackin had received adequate notice under NRS 391.3125(4)
and that the observation and evaluation reports for the school year 1985-86 constituted
substantial compliance with NRS 391.3125(6). We disagree.
In 1985 the legislature amended the statutory provisions dealing with teacher contracts. A
new provision requires that probationary teachers either receive an admonition or, by March
1, receive notice that they may not be reemployed and the reasons for their potential
non-reemployment. NRS 391.3125(4). Enactment of the amendments followed this court's
ruling in Eureka County v. Holbo, 101 Nev. 372
ment of the amendments followed this court's ruling in Eureka County v. Holbo, 101 Nev.
372, 705 P.2d 640 (1984) that probationary teachers were not entitled to an admonition under
NRS 391.313 before non-renewal of their contracts.
All teachers must receive evaluations that include, if necessary, recommendations for
improvements in performance. A reasonable effort must be made to assist teachers in
correcting deficiencies. NRS 391.3125(6).
The statutory subsection addressing notice, NRS 391.3125(4), provides:
Whenever an administrator charged with the evaluation of a probationary employee
believes the employee will not be reemployed for the next school year, he shall bring
the matter to the employee's attention in a written document which is separate from the
evaluation no later than the third required evaluation. The notice must include the
reasons for the potential decision not to reemploy or refer to the evaluation in which the
reasons are stated. Such a notice is not required if the probationary employee has
received a letter of admonition during the current school year.
The parties agree that the date of the notice, Monday, March 3, was within the March 1
statutory decision deadline for the third evaluation, because March 1 was a Saturday.
The notice gave as the reason for non-renewal, inadequate performance in your position
as a teacher. Although the notice did not refer to it, Miss McCrackin received an evaluation
which listed specific deficiencies.
The notice stated, I am recommending . . . that you not be reemployed. The statute
speaks of a potential decision not to reemploy. Mr. Weight presented his decision as a final
determination, at least on his part. It is true that Mr. Weight's decision represents a potential
decision in the sense that the school board makes the final determination regarding
employment. However, Miss McCrackin's acceptance of Mr. Weight's decision as a final
determination of the matter seems justified by the written and oral communication she
received from him, which included his advice that she should resign.
[Headnote 1]
The March 3 notice and evaluation did not achieve the statute's purpose. Miss McCrackin
received notice of the deficiencies because of which she was terminated on the last permitted
day. However, she had no chance to improve her performance in those areas because her
principal, who would have had to recognize that improvement, presented his decision as a
final one.
Subsection six of NRS 391.3125 provides, in pertinent part: The evaluation of a
probationary teacher or a postprobationary teacher must, if necessary, include
recommendations for improvements in his performance.
The evaluation of a probationary teacher or a postprobationary teacher must, if
necessary, include recommendations for improvements in his performance. A
reasonable effort must be made to assist the teacher to correct any deficiencies noted in
the evaluation.
Miss McCrackin did not receive any assistance in improving her performance after
receiving the March 3 notice and evaluation. Mr. Weight, her principal, testified that he did
not give or offer her such assistance.
The evaluation which Miss McCrackin received on March 3, 1986, was phrased in terms
of the reasons for potential non-reemployment required by NRS 391.3125(4). Although it
could have been interpreted as also setting out recommendations for improvement, the
presentation of the decision as a final determination made efforts to improve on Miss
McCrackin's part seem futile.
Implicit in the NRS 391.3125(6) requirement that school districts make reasonable
efforts to assist teachers in correcting their deficiencies is a chance for the teachers to put
such assistance to use, a chance to improve. NRS 391.3125(4) requires that probationary
teachers be given notice of deficiencies so serious as to potentially cause their
non-reemployment. Such notice must be given by March 1, forty-five days before the April
15 deadline for giving probationary teachers notice of non-renewal of their contracts under
NRS 391.3197(2).
In determining the meaning of specific provisions of an act, the act should be read as a
whole and meaning given to all its parts. Nevada Tax Comm'n v. Bernhard, 100 Nev. 348,
351, 683 P.2d 21, 23 (1984). Courts will avoid an unreasonable result. Id. The legislature's
requirement that probationary teachers be given notice of a potential decision not to reemploy
them, and the reasons for such a decision, could serve no purpose if those teachers are not
also given a chance to respond to that notice. In the absence of language specifying the
contrary, the requirement that teachers be given recommendations for improvement and
assistance in correcting deficiencies applies also to deficiencies so serious as to potentially
cause non-reemployment. Miss McCrackin received neither a chance to correct the
deficiencies mentioned in the March 3 notice nor any assistance in correcting those
deficiencies.
[Headnote 2]
As a probationary teacher, Miss McCrackin has only a unilateral expectation of
employment and no claim or entitlement to it. NRS 391.3197(1), Holbo, 101 Nev. at 375-76,
705 P.2d at 642. However, school boards must follow the procedures required by statute in
the non-renewal of a probationary teacher's contract.
See, e.g., Dennis v. County School Bd. of Rappahannock Co., 582 F.Supp. 536 (W.D.Va.
1984). We find the district court's conclusion that the Elko County School Board's actions in
the non-renewal of Miss McCrackin's contract complied with the relevant provisions of NRS
391.3125 to be in error as a matter of law.
Accordingly, we reverse the district court's judgment and remand these proceedings to that
court for the fashioning of a remedy.
____________
103 Nev. 659, 659 (1987) Houk v. State
DELORES HOUK, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 18024
DELORES HOUK, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 18025
December 31, 1987 747 P.2d 1376
Appeals from judgments of conviction. First Judicial District Court, Carson City; Michael
R. Griffin, Judge.
Defendant was convicted in the district court of three counts of issuance of no account
check and two counts of uttering forged instrument, and she appealed. The Supreme Court,
Mowbray, J., held that imposition of five consecutive ten-year sentences was not excessive,
in light of numerous crimes defendant committed while out on bail, number of charges that
were either dismissed or not pursued, and defendant's prior record.
Affirmed.
Springer, J. dissented.
Lambrose, FitzSimmons & Perkins, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Noel S. Waters, District Attorney and
Lawrence J. Stratman, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Imposition of five consecutive ten-year sentences following defendant's convictions for three counts of
issuance of no account check, and two counts of uttering forged instrument did not violate
constitutional prescription against cruel and unusual punishment; defendant passed
numerous forged instruments using false identification and disguises, used
co-worker's stolen driver's license and check cashing card, and committed numerous
crimes while out on bail.
103 Nev. 659, 660 (1987) Houk v. State
two counts of uttering forged instrument did not violate constitutional prescription against cruel and
unusual punishment; defendant passed numerous forged instruments using false identification and
disguises, used co-worker's stolen driver's license and check cashing card, and committed numerous crimes
while out on bail. NRS 205.110, 205.130; U.S.C.A.Const. Amend. 8.
2. Criminal Law.
Test applied to determine whether there is only one offense for purposes of determining proportionality
of sentence is whether each count requires proof of additional fact which other does not.
3. Criminal Law.
Defendant arguing that sentence was disproportionately severe when compared with other crimes may not
bootstrap herself into avoidance of additional penalties by claiming that series of divisible acts, each of
which was committed with separate identifiable intent and objective, composed indivisible transaction.
OPINION
These are consolidated appeals from judgments of conviction, pursuant to guilty pleas, of
three counts of issuance of a no account check, and two counts of uttering a forged
instrument. NRS 205.130; 205.110. Appellant received three ten-year sentences on the
issuance charges, and two ten-year sentences on the uttering charges; all sentences are
consecutive. Appellant's sole contention on appeal is that her sentence of fifty years violates
the constitutional proscription against cruel and unusual punishment because it is grossly
disproportionate to the seriousness of her crimes. She therefore requests this court to reverse
her sentence under the rationale of Solem v. Helm, 463 U.S. 277 (1983).
Appellant Delores Houk, age 51 at sentencing, is a chronic gambler with a history of
fraudulent or insufficient funds check offenses dating back to 1959. Since that date, Houk has
been arrested eleven times, resulting in two felony and four misdemeanor convictions. The
instant charges in Docket No. 18024 arise from Houk's activities between May 17, 1985 and
June 18, 1985. During this one month period, Houk passed seventeen checks drawn on a
closed account, obtaining a total of $12,640 from the Ormsby House, the Carson Nugget, and
Lucky's Market. In early July 1985, the Carson City District Attorney's office received a
request for an arrest warrant for Houk on these seventeen checks. Houk contacted the district
attorney and asked for an opportunity to make restitution, which request was granted. Shortly
thereafter on July 20, 1985, Houk attempted to negotiate another check drawn on insufficient
funds at Lucky's Market.
103 Nev. 659, 661 (1987) Houk v. State
Market. Lucky's employees recognized Houk and immediately had her arrested for this
offense. She was released on $2,500 bail later that same day. (Docket No. 18025 concerns
this charge as well as two of the forgery charges described below.)
On July 24, 1985, the district attorney filed a complaint against Houk charging her with
seventeen counts of issuance of a no account check. A complaint charging her with attempted
issuance of an insufficient funds check was also filed against her the next day. On July 31,
1985, Houk was arrested on the issuance charges, and was subsequently released on a $5,000
bond. Houk again asked for and received time to make restitution, thus forestalling the
criminal proceedings against her.
While on bail for these offenses, Houk committed numerous uttering and issuance
offenses in Washoe, Clark, Mineral and Lyon Counties, as well as in Carson City. In October
1985, while working as a waitress in Yerington, Houk stole a co-worker's purse, including the
woman's check cashing card and driver's license. She then had 200 checks printed using her
co-worker's account number, and forged and uttered an additional forty checks amounting to
approximately $3,900. At least one of those checks was passed in Carson City, and is the
subject of one forgery count in Docket No. 18025. On January 3, 1986, the Yerington Police
Department arrested Houk on five felony charges stemming from this incident, at which time
Houk confessed to these crimes. Houk was later released on $15,000 bail.
In June 1986, Houk obtained a credit card in the name of Marie Taylor by using false
information. In August 1986, Houk, using an assumed name and a false social security
number, obtained false identification from the department of motor vehicles. With this false
identification, she first opened a checking account in the name of J & J Upholstery, a
nonexistent business, and successfully passed a check on this account in Carson City. She
also ordered 300 checks on the account of J & S Upholstery, a Carson City business, and
forged at least two checks on this account. Also in August of 1986, Houk obtained a check
from Robinson Street Properties, another Carson City business. Again she obtained false
identification from the motor vehicle department, had 500 additional checks printed up, and
began passing forged checks in Carson City and Reno. Between September 2nd and 8th,
1986, in Carson City alone, Houk wrote four checks on this account totaling approximately
$5,335.
The timing of Houk's other offenses while out on bail is not clear from the record. At some
time, however, Houk travelled to Hawthorne and passed abut $200 worth of bad checks.
Houk was arrested again. After being released on her own recognizance, Houk failed to
appear for arraignment on these charges.
103 Nev. 659, 662 (1987) Houk v. State
Houk also wrote numerous checks in Las Vegas and Reno totalling approximately $5,000.
On October 1, 1986, the Carson City District Attorney filed two complaints against Houk,
charging her with forgery of her co-worker's check and forgery of a check drawn on J & S
Upholstery's account. The Carson City Sheriff arrested Houk for these charges on October 3,
1986; bail was set at $25,000. Houk has been incarcerated since her arrest.
Houk caused her victims to lose approximately $35,000 during her check writing sprees.
Facing a total of twenty felony counts in Carson City, Houk agreed to plead guilty to three
counts of issuance of a no account check and two counts of uttering a forged instrument in
exchange for the dismissal of the other fifteen felony counts. Additionally, Carson City
agreed that it would not prosecute Houk on an additional seven felony counts arising from the
offenses described above. Houk's counsel below also successfully obtained assurances from
Washoe, Lyon, Clark and perhaps Mineral Counties that the charges pending against her in
those counties would not be pursued.
At sentencing, the district judge considered the presentence report, as well as the
representations of counsel, Houk's written and oral statements, and many letters from Houk's
former husband, his children, and friends of her former husband's family. These letters
stressed that Houk was not only a compulsive gambler, but an extraordinary con artist and
liar. The district judge accepted the plea bargain and sentenced Houk to five consecutive
ten-year sentences in the Nevada State Prison, primarily because she wrote numerous bad
checks while out on bail, and because he believed that she could not be trusted to be admitted
to probation due to a complete and total personal dishonesty that cannot be changed.
Appellant contends on appeal that her sentence of fifty years violated the constitutional
proscription against cruel and unusual punishment because it is grossly disproportionate to
the seriousness of her crimes, and therefore requests this court to reverse her sentence under
the rationale of Solem v. Helm, 463 U.S. 277 (1983). For the reasons set forth below, we
decline to overturn her sentence.
Appellant first argues that in comparison to the gravity of the offenses she committed, the
penalty she received is harsh. She does not support this argument with any authority, but
generally argues that a fifty-year sentence is extraordinary for any criminal, and that her
sentence amounts to in excess of one year in prison for each $1,000 stolen. She also makes
the bare allegation that white collar criminals who embezzle for greater sums from hundreds
of victims commonly receive either nominal prison terms or probation.
103 Nev. 659, 663 (1987) Houk v. State
[Headnote 1]
Appellant's argument is unconvincing. The maximum penalty for each felony count to
which she pleaded guilty is ten years and a $10,000 fine. See NRS 205.090, 205.130. The
district court sentenced her to ten years on each count, and ran the sentences consecutively.
Appellant was not simply writing insufficient funds checks on her own account. She ordered
checks under assumed names, and passed numerous forged instruments using false
identification and disguises. This occurred two different times with two different businesses
and false identification cards. She committed similar offenses using a co-worker's stolen
driver's license and check cashing card. Appellant's sentence does not appear harsh when
considered in light of the numerous crimes she committed while out on bail, the number of
charges that were either dismissed or not pursued, and appellant's prior record.
Appellant next argues that when her sentence is compared to sentences received for other
crimes in this jurisdiction, her sentence is disproportionately harsh. To highlight the
disproportionality of her sentence, appellant's brief includes a chart comparing her fifty-year
sentence and possible parole eligibility with the maximum sentences and parole eligibility for
crimes which she contends are more offensive than a string of bad checks. She argues that she
received a harsher sentence that that prescribed by law for all but the most serious cases of
murder, sexual assault with bodily harm, and kidnapping with bodily harmcrimes
punishable by life or, in the case of first degree murder, death. Additionally, she calculates
that she will not be eligible for parole until she has served 16 and 2/3 years, whereas one
convicted of first degree murder may receive parole after serving only ten years of a life
sentence.
[Headnotes 2, 3]
The major flaw in appellant's argument is that it assumes that her sentence was imposed
for a single offense, rather than five distinct crimes. Appellant characterizes her crimes as a
single course of conduct arising out of her chronic gambling. This is improper. The test
applied to determine whether there is only one offense is whether each count requires proof of
an additional fact which the other does not. See Woods v. State, 94 Nev. 435, 581 P.2d 444
(1978). A defendant may not bootstrap herself into avoidance of additional penalties by
claiming that the series of divisible acts, each of which had been committed with a separate
identifiable intent and objective, composed an indivisible transaction, Id. at 438, 581 P.2d at
446. Appellant's crimes involved at least five different checks uttered or forged under
differing circumstances, and thus obviously do not amount to a single offense. When
appellant's sentence is viewed as one sentence for one crime, it does indeed appear harsh.
103 Nev. 659, 664 (1987) Houk v. State
crime, it does indeed appear harsh. But, when her sentence is viewed as five separate
sentences for five separate crimes, it pales in comparison to the sentence available for five
counts of murder, for example.
Finally, in her reply brief, appellant argues that the district court abused its discretion by
considering inappropriate evidence contained in the presentence report. Specifically,
appellant contends that the letters submitted to the district court from her former husband and
members of his family were impalpable or highly suspect evidence. See Deveroux v. State, 96
Nev. 388, 610 P.2d 722 (1980). This court need not consider this contention. The questioned
evidence was received without objection and therefore the issue was not properly preserved
for review. See Mercado v. State, 100 Nev. 535, 688 P.2d 305 (1984).
1

Appellant's sentence, as noted above, was within the limits imposed by statute. Ordinarily,
a sentence of imprisonment that is within the statutory limits is not considered cruel and
unusual punishment. See Schmidt v. State, 94 Nev. 665, 584 P.2d 695 (1978). The sentencing
judge has wide discretion in imposing a sentence, and that determination will not be
overruled absent a showing of abuse of discretion. See Deveroux, 96 Nev. at 390, 610 P.2d at
723. Substantial deference must be accorded legislatures and sentencing courts when a
reviewing court conducts a proportionality analysis of a sentence. According the legislature
and the sentencing court the appropriate deference, we conclude that appellant's sentence is
proportionate to her crimes.
Appellant's other contentions lacking merit, we hereby affirm the judgments of conviction
and sentences.
Gunderson, C. J., Steffen and Young, JJ., concur.
My quarrel with the majority opinion is its failure to recognize the injustice of stacking
sentences for relatively minor property crimes to arrive at a punishment that far exceeds that
meted out for dreadful offenses like murder, armed robbery, arson, mayhem and sexual
assault. My point is simply that at some stage the piling of consecutive sentences becomes
excessive, unreasonable and unusual under the Nevada Constitution. That stage, the stage
of excessiveness, has clearly been reached in this casefifty years for five bad checks.
Although earlier release is possible, the sentence calls for imprisonment until the year
2037 when the convict is 101 years old. Other courts have recognized the absurdity of such
punishment for property offenses.
____________________

1
We note that counsel on appeal did not represent appellant in the proceedings in the trial court.
103 Nev. 659, 665 (1987) Houk v. State
ment for property offenses. For example, in Alaska a forty-six-year-old defendant was
sentenced to five years for seven bad checks, a total of thirty-five years. The Alaska Supreme
Court held that even though the sentence was within the limits set by the legislature, it was
constitutionally impermissible because the writing of bad checks was not of sufficient
gravity to justify imposing what amounts to a life sentence. Faulkner v. State, 445 P.2d 815
(Alaska 1968).
A sentence within statutory limits does not constitute cruel and unusual punishment unless
the sentence imposed is disproportionate to the crime in a manner that is shocking to the
conscience. Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978). Had the defendant in this case
been convicted on all of the bad check charges, she could have faced a penalty of 200 years,
and her sentence would still have been within the statutory limits. (Majority Opinion, p. 5.)
Surely, the majority would want to draw the line somewhere; at some point their consciences
must become shockable. I would draw the line here, at fifty years for five bad checks, at
what amounts to a life sentence. Faulkner, above.
I certainly am not saying that career criminals like appellant Houk should not be severely
dealt with. She clearly could have been prosecuted under Nevada's habitual criminal act and
lawfully sentenced to twenty years in prison, or, on subsequent convictions, to life
imprisonment. This kind of punishment was apparently not thought to be sufficient and was
not pursued.
The habitual criminal act was enacted for the purpose of ensnaring career criminals.
Long-term imprisonment is imposed under this act in order to punish, deter and segregate
those who persistently refuse to comply with the criminal law. Such prison terms relate not to
the commission of serial offenses, often fairly petty in nature, but to the status of the offender
as an incorrigible and demonstrably unredeemable societal nuisance. Had Houk been
convicted as an habitual criminal, I could not object to her receiving a twenty-year sentence
for being such; what I object to is a fifty-year sentence's being imposed for five acts of bad
check writing.
I should grant the appeal and have the appellant returned to the district court for imposition
of a reasonable sentence for writing five bad checks.
____________
103 Nev. 666, 666 (1987) Shapro v. Forsythe
ROBERT R. SHAPRO and PAULINE C. SHAPRO, Appellants, v. JAMES FORSYTHE,
M.D., EARLENE FORSYTHE, MERLE BRUCE, M.D., and
JOY BRUCE, Respondents.
No. 18151
December 31, 1987 747 P.2d 241
Appeal from summary judgment. Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Partner brought action claiming that other partners had wrongfully dissolved partnership,
wrongfully forced him to sign a promissory note, breached their fiduciary duties, and
intentionally interfered with his prospective economic advantage in continuing to use
business facilities after partnership had dissolved. The district court entered summary
judgment against partner, and he appealed. The Supreme Court held that genuine issues of
material fact existed as to validity of release signed by partner and remaining partners' right to
seek to wind-up affairs of partnership.
Ohlson & Edmiston, Reno, for Appellants.
Echeverria, Osborne & Jenkins, and Cathy Bradford, Reno, for Respondents.
Judgment.
Genuine issues of material fact existed as to validity of release signed by partner with respect to
partnership interest and remaining partners' right to seek to wind-up partnership affairs, thus precluding
summary judgment for partnership on partner's claims related to alleged wrongful dissolution of
partnership.
OPINION
Per Curiam:
This is an appeal from a summary judgment. Because we conclude that genuine issues of
fact remain for trial, we reverse.
Appellants Robert and Pauline Shapro filed a complaint in the district court stating four
causes of action against respondents. In the complaint, appellants alleged that Robert Shapro,
James Forsythe, Merle Bruce and their wives had formed a partnership in 1986 for the
purpose of operating a medical laboratory. Each couple had contributed $20,000 to the
partnership as initial capital. Robert Shapro had performed services over a
three-month-period for which he had been paid $15,000. Thereafter, the respondents
determined that Robert had been overpaid, and "forced" Robert to sign a promissory note in
the principal amount of $3,000.
forced Robert to sign a promissory note in the principal amount of $3,000. Appellants
alleged that (1) respondents had wrongfully dissolved the partnership and had converted the
partnership capital to themselves; (2) appellants were wrongfully forced to sign a promissory
note; (3) respondents had breached their fiduciary duties to appellants by diverting and
withholding appellants' investment; and (4) respondents had intentionally interfered with
appellants' prospective economic advantage by continuing to use the laboratory facilities after
the partnership had dissolved. Appellants sought a decree from the district court winding up
the affairs of the partnership, general and punitive damages and costs and attorney's fees.
Rather than answering the complaint, respondents moved for summary judgment.
Respondents contended that a release executed by Robert Shapro, which appellants had not
disclosed to the district court, released respondents from all claims, known or unknown,
which appellants had against respondents relating to the proposed creation of a medical
laboratory by the parties. Specifically, the release stated in part:
3. Work Product. Any work product, operating plan, contract rights, options,
business leases, or the like, which may have been generated by Shapro during the
foregoing period shall be held by him for the benefit of the proposed Vista Medical
Laboratory, to be the property of Shapro, Forsythe, and Bruce pursuant to future
agreements among them.
4. Release. Shapro does hereby release Forsythe and Bruce from any and all claims,
known or unknown, which he has or may have, and which in any way relates [sic] to
the actions of Shapro, Forsythe, and/or Bruce, related to the conception and creation of
the proposed medical laboratory and/or any discussions the parties may have had
among themselves regarding contracts relating to the ownership and operation of said
laboratory.
Respondents specifically argued that all of appellants' causes of action arose directly out of
the parties' negotiations to form the proposed medical laboratory. Thus, respondents
maintained that, pursuant to the release, they were entitled to judgment as a matter of law.
In opposition to the motion for summary judgment, appellants contended that the release
was invalid because (1) it was ambiguous on its face because it referred to possible future
agreements between the parties, thus leading Robert Shapro to believe that the partnership
would not be dissolved; (2) it was executed under duress and was induced by false promises
that the partnership would continue to pursue the organization of the medical laboratory; and
{3) it was not supported by any consideration.
tory; and (3) it was not supported by any consideration. In an affidavit in opposition to
respondents' motion for summary judgment, Robert Shapro asserted that Joy Bruce pressured
him into signing the release by threatening to call the entire deal off if he refused to sign.
Robert Shapro also stated that leasing agents were pressuring him to execute lease
agreements on behalf of the partnership, or they would lease the premises to another
company. Further, Shapro alleged that he received assurances from James Forsythe that the
partnership would continue if Shapro signed the release. Shapro swore that he did not
understand the document he signed.
In reply, respondents argued that the release was not ambiguous, but clearly released
respondents from all liability by its express terms. Respondents also argued that appellant's
assertions that he was pressured into signing the release did not constitute duress sufficient to
invalidate the release as a matter of law. Respondents also contended that the release had
been supported by adequate consideration because respondents orally promised not to pursue
various claims for fraud, misrepresentation and general incompetence which they believed
they could assert against appellants. Relying on these arguments, the district court granted
respondents' motion for summary judgment.
Summary judgment is appropriate only where no genuine issue of fact remains for trial and
one party is entitled to judgment as a matter of law. NRCP 56(c); see Zuni Constr. Co. v.
Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970). Further, it is well established that a
litigant has the right to a trial where the slightest doubt as to the facts exists. Nehls v.
Leonard, 97 Nev. 325, 630 P.2d 258 (1981). In addition, in deciding whether summary
judgment is appropriate, the evidence must be viewed in the light most favorable to the party
against whom summary judgment is sought, and the factual allegations of that party must be
presumed correct. See Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075
(1983). Finally, the burden of establishing the non-existence of any genuine issue of fact is on
the party moving for summary judgment. Hoffmeister Cabinets of Nev. v. Bivins, 87 Nev.
282, 486 P.2d 57 (1971).
Appellants' sole contention on appeal is that the district court erred in granting
respondents' motion for summary judgment based on the release signed by Robert Shapro,
because genuine issues of fact remain regarding the validity of release. We agree. Although
appellants' pleadings in the district court are not a model of clarity, we believe they
sufficiently raise issues of fact which should not have been determined in an order of
summary judgment. Specifically, appellants have alleged the existence of a business
relationship which respondents have allegedly wrongfully manipulated to the extreme
detriment of appellants. Appellants allege that the release agreement was not intended to
preclude appellants from seeking a proper winding-up of the alleged partnership, that it
was not supported by consideration, and was induced by coercion and false promises.
lants allege that the release agreement was not intended to preclude appellants from seeking a
proper winding-up of the alleged partnership, that it was not supported by consideration, and
was induced by coercion and false promises. We conclude, therefore, that genuine issues
remain for trial regarding the validity of the release and appellants' right to seek to wind up
the affairs of the partnership. Accordingly, we reverse the summary judgment entered by the
district court, and we remand this matter for further proceedings.
____________
103 Nev. 669, 669 (1987) Maresca v. State
JOSEPH LOUIS MARESCA, Appellant, v.
No. 17674
December 31, 1987 748 P.2d 3
Appeal from a judgment of conviction, following a jury trial, of one count each of murder
and attempted murder, and two counts of robbery with the use of a deadly weapon; Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted in the district court of murder, attempted murder, and two counts
of robbery with the use of a deadly weapon. Defendant appealed. The Supreme Court,
Gunderson, C. J., held that: (1) defendant failed to establish either exculpatory value of
evidence lost during five year period preceding his arrest or any prejudice resulting from such
loss; (2) prosecutor did not improperly comment on defendant's post-arrest silence; and (3)
error, if any, was harmless in prosecutor's questions of defendant regarding alleged flight
from Mafia immediately following crimes.
Affirmed.
Michael R. Specchio, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy G.
Randolph, Deputy, Washoe County, for Respondent.
1. Criminal Law.
Although certain police actions in throwing away evidence found at scene of murder and attempted
murder were less than appropriate, defendant who was arrested, tried, and convicted five years after crimes
were committed failed to establish either exculpatory value of unavailable evidence or prejudice resulting
from its loss; lost photographs used in photographic lineup were not exculpatory, in that attempted murder
victim was not able to identify defendant from lineup, and body temperature of
murder victim was not exculpatory, particularly in view of fact that attempted murder
victim survived.
victim was not able to identify defendant from lineup, and body temperature of murder victim was not
exculpatory, particularly in view of fact that attempted murder victim survived.
2. Criminal Law.
When defendant seeks reversal on basis of lost evidence, he must show either governmental bad faith,
connivance, or prejudice; moreover, defendant bears burden of proving that it could reasonably have been
anticipated that evidence sought would be exculpatory and material.
3. Criminal Law.
Prosecutor's questioning of defendant, as to whether it would have been easier if he had talked to police
on day of shooting rather than five years later, following his arrest, did not constitute improper comment
upon defendant's post-arrest silence; although question may have drawn attention to fact that defendant did
not talk to police, evidence of flight was properly before jury and thus jury was aware that defendant had
not talked to police without question being asked.
4. Criminal Law.
Defendant's right to remain silent was not violated when prosecutor asked defendant's girlfriend if she
had provided any information to police regarding defendant's whereabouts following crime; Fifth
Amendment rights are personal and questions to defendant's girlfriend could thus not violate defendant's
rights. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Although prosecutor's question about defendant's alleged flight from the Mafia immediately following
murder may not have been relevant and may have prejudiced defendant, issue was not adequately briefed
by defendant and thus was not reviewed by appellate court.
6. Criminal Law.
Even if attempted murder victim's statements following shooting did not constitute dying declaration,
they were admissible; victim was not involved in any way with either police or defendant and neither
victim nor police had any demonstrable motive either to inculpate or exculpate defendant. NRS 51.315,
subd. 1.
7. Criminal Law.
Error, if any, was harmless beyond reasonable doubt with respect to prosecutor's questions of defendant
regarding his alleged flight from the Mafia immediately after murder and related crimes were committed;
even if questions regarding alleged flight were improper, evidence of defendant's guilt was overwhelming.
OPINION
In February or March of 1981, appellant and his girlfriend moved to Nevada from Florida.
On May 18, 1981, appellant applied for a job at the Airbase Inn, near the Stead Air Force
Base outside Reno. Two days later he once again visited the Airbase Inn in the late evening.
The following morning, at approximately 3:30 a.m., the police were dispatched to the
Airbase Inn to investigate a shooting.
base Inn to investigate a shooting. The victims, owners of the Airbase Inn, were Vivian and
Dean Grady.
When the police arrived Vivian Grady was dead, and Dean Grady was seriously wounded,
both have been shot with .38 caliber bullets. Mr. Grady informed a paramedic at the scene
that Joe had shot him and his wife. Approximately two hours later, Grady gave the police a
statement in which he provided a detailed description of Joe.
1
Grady also stated that the
couple had been robbed while they were closing out the till and counting the coins used for
slot change. The police discovered that appellant, Joseph Maresca, was recently at the
Airbase Inn trying to sell his personal belongings, and that he had resorted to pawning some
items. Appellant's description found on the pawn shop tickets matched Grady's description of
the perpetrator, and thus the investigation focused on appellant. During a subsequent lawful
search of appellant's residence, the officers discovered a box containing nineteen .38 caliber
bullets and over $100 in change. Three of the five bullets found at the scene of the crime
spectrographically matched those in the box.
While the police were at appellant's trailer, he called by telephone to speak to his
girlfriend, and spoke to an investigating officer. He was made aware that he was under
suspicion, and he thereupon agreed to talk to the officers. Without keeping this promise,
however, appellant immediately fled this jurisdiction by bus, and returned to Florida where he
lived for five years under an assumed name. A few weeks after his flight, appellant's
girlfriend also disappeared from Nevada, and lived with appellant in Florida as his wife,
under an assumed name, until he was apprehended in January of 1986. Thereupon, he was
tried and convicted of murder, attempted murder, and two counts of robbery with the use of a
deadly weapon. He was sentenced to life without the possibility of parole for murder, plus
forty consecutive years for attempted murder, and two concurrent thirty-year terms for
robbery with a deadly weapon. Appellant appeals from said judgment and sentence.
[Headnotes 1, 2]
On appeal, appellant contends that numerous items of evidence were lost in the years
between the crime and his arrest, thereby depriving him of a fair trial.
2
We disagree. When a
defendant seeks reversal upon the basis of lost evidence, he must show either governmental
bad faith, connivance, or prejudice.
____________________

1
These two statements, and a third and fourth account by Grady, were admitted into evidence at trial.

2
Appellant also argues that State erred in not testing clothing for gunshot residue. We note that the clothing
itself was preserved and was available for testing; however, appellant failed to conduct any tests.
either governmental bad faith, connivance, or prejudice. Rogers v. State, 101 Nev. 457, 463,
705 P.2d 664, 669 (1985). The burden of proving that it could reasonably have been
anticipated that the evidence sought would be exculpatory and material rests with the defense.
Id. at 463, 705 P.2d at 669. Appellant does not argue, nor does the record reflect, that the
state acted in bad faith. Further, appellant has failed to show prejudice. The exculpatory value
of the evidence in dispute is not apparent. For example, appellant argues that the lost
evidence includes photographs used in a photographic lineup. The jury saw the picture of
appellant that was used in the lineup, however, and heard testimony that Grady was not able
to identify appellant from the lineup.
We also see no exculpatory value in evidence of the body temperature of the deceased
victim, particularly in the instant case where one victim survived the shooting. In addition, an
expert witness testified that even under ideal conditions he may not have been able to
determine the exact time of Vivian Grady's death. Finally, although we agree that certain
police actions (e.g., throwing away the contents of a glass found at the scene and taping over
a videotape of the scene) may not constitute exemplary investigative techniques, appellant has
not persuaded us either of the exculpatory value of the evidence, or of any prejudice resulting
from its loss. Therefore, appellant has failed to show that the absence of this evidence
deprived him of a fair trial.
[Headnotes 3, 4]
Second, appellant argues that the prosecutor perpetrated misconduct by commenting upon
appellant's post-arrest silence when he asked appellant if it would have been easier if
appellant had talked to the police on the day of the shooting rather than five years later. We
are not convinced that this was a comment on appellant's silence because, even though the
question may have drawn attention to the fact that appellant did not talk to the police,
evidence of flight was properly before the jury. Therefore, the jury knew that appellant had
not talked to the police or the prosecutor, without the question being asked. We also are not
persuaded that appellant's right to remain silent was violated when the prosecutor asked
appellant's girlfriend if she provided any information to the police regarding appellant's
whereabouts. Fifth amendment rights are personal; therefore, questions to appellant's
girlfriend could not violate his rights. Moreover, the questions have nothing to do with
appellant's silence.
[Headnote 5]
Third, appellant contends that the prosecutor committed misconduct by asking allegedly
irrelevant prejudicial questions about the mafia.
the mafia. Although we are concerned about the relevancy of the questions and the possibility
of prejudice, we note that the issue has not been adequately briefed. It is appellant's
responsibility to present relevant authority and cogent argument; issues not so presented need
not be addressed by this court. See Carson v. Sheriff, 87 Nev. 357, 360-61, 487 P.2d 334, 336
(1971); Freeman v. Town of Lusk, 717 P.2d 331 (Wyo. 1986).
[Headnote 6]
Finally, we note that there is overwhelming evidence of appellant's guilt. Grady stated
several times that Joe shot him, and he gave a detailed description of his assailant which
matches appellant's description. Appellant's counsel has not questioned the propriety of
admitting these statements. However, they undoubtedly figured heavily in the jury's
determination of guilt. While it might be argued that it was inappropriate for the district court
to assume that Grady embraced a fear of dying, and thus to admit the statements as dying
declarations,
3
these statements could certainly be admitted under NRS 51.315(1).
4
We have
previously held that a statement could be admitted under NRS 51.315 where the persons
making the statement had no involvement with the police, the defendant, or the victims;
where neither the declarants nor the police had any apparent motive to lie; where the
declarants were unavailable for trial; and where the statement, in its nature, was of a relatively
simple kind which could be recorded with little prospect of later misinterpretation. See
Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976); and see also Woods v. State, 101
Nev. 128, 696 P.2d 464 (1985). In the instant case, Grady had recently met appellant and did
not even know his last name. There are adequate assurances of accuracy because Grady was
not involved in any way with the police or appellant, and neither Grady nor the police had any
demonstrable motive either to inculpate or exculpate appellant. The information conveyed
was not complicated or susceptible of misinterpretation. The circumstances under which
these statements were made thus provide strong indicia of accuracy. Therefore, the district
court did not abuse its discretion, and the statements were properly admitted for consideration
by the jury.
____________________

3
NRS 51.335 states:
A statement made by a declarant while believing that his death was imminent is not inadmissable
under the hearsay rule if the declarant is unavailable as a witness.

4
NRS 51.315(1) states:
A statement is not excluded by the hearsay rule if:
(1) Its nature and the special circumstances under which it was made offer strong assurances of
accuracy; and
(b) The declarant is unavailable as a witness.
[Headnote 7]
In addition to Grady's statement, the record is replete with other evidence of appellant's
guilt. For example, it is well established that although evidence of flight is not in and of itself
sufficient to support a conviction, it is circumstantial evidence which can be considered with
other evidence in determining guilt. See Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974);
McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). The jury heard testimony that appellant
immediately fled after assuring the officers that he would talk to them. Thereafter, appellant
remained in hiding for five years. Testimony was also presented that bullets matching those
recovered from the crime scene were found in appellant's residence, along with a large
amount of unaccounted for loose change. Despite having this money, it was established that,
immediately prior to the crimes, appellant had been pawning and trying to sell personal
property. Therefore, even if the questions regarding appellant's alleged flight from the Mafia
were deemed error, the error, if any, is harmless beyond a reasonable doubt. The record
reflects highly substantial evidence of appellant's guilt, and we are satisfied that the
conviction would have resulted even absent any error. Pasgrove v. State, 98 Nev. 434, 651
P.2d 100 (1982).
We have considered appellant's remaining contentions, and conclude they are without
merit. Accordingly, we affirm the judgment of conviction and the sentence.
____________
103 Nev. 674, 674 (1987) Daniels v. National Home Life
SYLVIA DANIELS, Appellant, v. NATIONAL HOME LIFE ASSURANCE CO.,
a Pennsylvania Corporation, Respondent.
No. 17990
December 31, 1987 747 P.2d 897
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
After Pennsylvania insurer denied benefits under life policy issued to Nevada resident,
beneficiary brought action for breach of contract and for bad faith denial of her claim on
ground that cancellation of life policy was ineffective absent proper notice of termination for
failure to pay premium when due. The district court granted insurer's motion for summary
judgment, and beneficiary appealed. The Supreme Court held that: (1) policy was against
public policy of Nevada and unenforceable due to its failure to provide for notice prior to
termination for failure to pay premium when due, and {2) fact that master policy was
delivered in Missouri rather than Nevada did not prevent application of Nevada notice
requirement.
failure to provide for notice prior to termination for failure to pay premium when due, and (2)
fact that master policy was delivered in Missouri rather than Nevada did not prevent
application of Nevada notice requirement.
Wehrmeister & Gonzales, Las Vegas, for Appellant.
Edwards, Hunt, Hale & Hansen and Travis C. Williamson, Las Vegas, for Respondent.
1. Insurance.
Life policy purchased by Nevada resident from Pennsylvania insurer, which did not provide for notice
prior to termination for failure to pay premium when due, was against public policy of Nevada and
unenforceable, notwithstanding insurer's claim that policy was group policy which should be governed by
Missouri law, which was state in which master policy was delivered; although policy was available to
insured because he was a veteran, group policies are directed at limited number of persons affiliated with
employer or organization which can represent insureds' interests, and policy in question was more similar
to franchise insurance, which is to be treated as an individual policy to which Nevada notice requirement
applies. NRS 687B.320.
2. Insurance.
Fact that master life policy was delivered in Missouri rather than Nevada did not prevent policy from
being declared unenforceable under Nevada law for failing to provide for notice prior to termination for
failure to pay premium when due; Nevada insured received both certificate of coverage and copy of master
policy in Nevada, and thus Nevada notice requirement was applicable. NRS 687B.010, subd. 2,
687B.320.
OPINION
Per Curiam:
In February of 1983, William Daniels, a Nevada resident, mailed an application for life
insurance to the administrative offices of respondent National Home Life Assurance
Company (National) in Pennsylvania. Mr. Daniels, a veteran and retired postal worker,
apparently applied for the insurance in response to a nationally broadcast television
commercial advertising low cost life insurance to qualified veterans of the United States
armed forces. National approved his application for $30,000 in life insurance, and issued a
certificate to Mr. Daniels indicating coverage under a group term life insurance policy
effective May 1, 1983. Appellant Sylvia Daniels, William Daniels' wife, was the named
beneficiary.
National sent Mr. Daniels the certificate of coverage plus a copy of the master policy. The
policy specified that it was delivered in Missouri to the policyholder, United Missouri Bank
of Kansas City, N.A., Trustee for the Veterans Group Insurance Trust, with an effective
date of February 1, 1979.
of Kansas City, N.A., Trustee for the Veterans Group Insurance Trust, with an effective date
of February 1, 1979. The following language appeared on the front page of the policy in small
print: This Policy is delivered in the situs shown above and is governed by its laws.
Additionally, Mr. Daniels' certificate stated that he was insured subject to the timely
payment of premium[s], and provided for termination of coverage upon failure to make the
required premium payment, subject to a thirty-one day grace period.
Pursuant to the policy, Mr. Daniels began paying quarterly premiums of $133.38. On
November 8, 1983, Mrs. Daniels mailed National a check for a third quarterly premium
payment. The check was subsequently returned unpaid to National due to insufficient funds in
the Daniels' account. When National resubmitted the premium check, it was again dishonored
for insufficient funds. When the premium was not paid within the grace period, National
canceled the insurance without notifying the Daniels of either the termination of coverage or
the failure to pay the premium when due.
On January 4, 1984, Mr. Daniels was killed in a robbery/homicide in Las Vegas. Mrs.
Daniels promptly submitted a claim to National for benefits under the policy. In response, she
received a letter stating that her husband's policy had lapsed because the November premium
had not been paid. This was her first notice regarding the delinquent payment and
cancellation. National later mailed the premium check to Mrs. Daniels with a letter informing
her that the policy had been backdated to November 1, 1983. Both letters emanated from
National's administrative offices in Pennsylvania.
Mrs. Daniels subsequently commenced an action in Nevada against National. She alleged
claims for breach of contract and for bad faith denial of her claim on the basis that National's
cancellation of the life insurance was ineffective absent proper notice of termination of the
policy. National moved for summary judgment on grounds that the policy had lapsed due to
the nonpayment of premiums, and that, under the Missouri law governing the policy, no
notice of termination was required before cancellation of the policy became effective. The
district court granted the motion, and this appeal followed.
Mrs. Daniels contends that a genuine issue of fact precluded the district court from
entering summary judgment. Specifically, she argues that pursuant to Nevada's choice-of-law
principles, the district court could not give effect to the stipulation in the policy that Missouri
law governed without first deciding the factual question of whether Missouri had a substantial
relationship to the transaction between Mr. Daniels and National.
In Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270, 273 (1979), we
stated:
Under choice-of-law principles, parties are permitted within broad limits to choose the
law that will determine the validity and effect of their contract. . . . The situs fixed by
the agreement, however, must have a substantial relation with the transaction . . . and
the agreement must not be contrary to the public policy of the forum. (Citations
omitted.)
Because we decide that the insurance contract violates the public policy of Nevada, we need
not address the issues raised by Mrs. Daniels.
The legislature has expressly stated the purposes behind the enactment of the Insurance
Code. See NRS 679A.140. These purposes include protecting those with interests under
insurance policies, insuring that policyholders, claimants and insurers are treated fairly and
equitably, and preventing misleading, unfair and monopolistic practices in insurance
operations. Id. The provisions of the Insurance Code must be reasonably and liberally
construed in order to fulfill these purposes. NRS 679A.140(2).
[Headnote 1]
NRS 687B.320 is designed to protect individuals from the arbitrary actions of insurers
who cancel insurance policies without notice to their insureds.
1
By enacting this provision,
the legislature determined that individuals must be afforded notice that their insurance is
about to lapse, in order to avoid the tragedy that fell upon the Daniels here. This state's
overriding concerns of protecting its citizens and insuring that they are afforded fair and
equitable treatment by insurers, lead us to conclude that an insurance contract which does not
provide for notice prior to termination for failure to pay a premium when due, unless
expressly excluded by statute from the application of NRS 687B.320, is against the public
policy of Nevada and thus is unenforceable.
We are not persuaded by National's argument that the policy in question is a group policy
which should be governed by the law of Missouri, the state in which the master policy was
delivered.
____________________

1
NRS 687B.320 provides, in pertinent part:
1. No insurance policy that has been in effect for at least 70 days or that has been renewed may be
canceled by the insurer prior to the expiration of the agreed term or 1 year from the effective date of the
policy or renewal, whichever is less, except on any one of the following grounds:
(a) Failure to pay a premium when due; . . .
2. No cancellation under subsection 1 shall be effective until in the case of paragraph (a) of
subsection 1 at least 10 days . . . after the first class mailing or delivery of a written notice to the
policyholder.
of Missouri, the state in which the master policy was delivered. Although veterans may be a
group, group policies are directed at a limited number of persons affiliated with an
organization. See NRS 688B.030. The policy National issued to Mr. Daniels appears to be
franchise insurance, which is to be treated as an individual policy. See J. Appleman,
Insurance Law and Practice, 54 (1981); Wood v. New York Life Ins. Co., 336 S.E.2d 806
(Ga. 1985). Significantly, the cases National cites in support of its position do not involve
such a diverse group as veterans, but concern either employees of a single employer, or
recognized professional organizations such as the American Dental Association. In a typical
group policy made available through an employer as an employee benefit, the employer
provides a buffer between the insurer and the insured. The employer usually negotiates terms
for the group to lessen any arbitrary provisions in the master contract. Also, the employer
assures that the policy will remain in force, often provides information concerning coverage
to its employees, collects premiums, and resolves any disputes with the insurer. Where, as
here, there is no employer or organization to negotiate on behalf of the insured and provide a
buffer against overreaching by the insurer, it is all the more compelling to construe NRS
687B.320 in a manner which affords the greatest protection to the insured.
[Headnote 2]
National also argues that even if we apply Nevada law to the contract, it was not required
to give the Daniels notice of termination because the master policy was delivered in Missouri,
and not in Nevada. We disagree. NRS 687B.010(2) excludes from the application of NRS
Chapter 687B [p]olicies or contracts not issued for delivery in this state nor delivered in this
state. National sent to Mr. Daniels not only a certificate of coverage, but also a copy of the
master policy. A copy of an insurance policy which is mailed to this state is clearly delivered
in this state within the meaning of NRS 687B.010(2). If the statute under consideration is
clear on its face, we cannot go beyond it in determining legislative intent. See Cirac v. Lander
County, 95 Nev. 723, 602 P.2d 1012 (1979). Hence, NRS 687B.010 does not operate to
exempt the policy here in issue from the notice provisions of NRS 687B.320.
Reversed and remanded for further proceedings consistent with this opinion.
2

Steffen, A. C. J., and Young, Springer, and Mowbray, JJ., concur.
____________________

2
The Honorable E. M. Gunderson, Chief Justice, voluntarily disqualified himself from participation in this
case. Nev. Const., art. 6, 4.
____________
103 Nev. 679, 679 (1987) Barnes v. District Court
CARROLL E. BARNES, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE MIRIAM SHEARING, DISTRICT JUDGE, Respondent.
No. 17633
WILLIAM C. FRANKELL, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
No. 17872
WILLIAM M. DOYLE, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
No. 18044
JESUS LUERA, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE
MIRIAM SHEARING, DISTRICT JUDGE, Respondent.
No. 18362
December 31, 1987 748 P.2d 483
Consolidated petitions for writs of mandamus.
Petitions were filed for writs of mandamus challenging refusal of district court to file
complaints. The Supreme Court held that: (1) statute conditioning waiver of filing fees on
indigent's ability to obtain certificate of attorney that indigent's cause of action or defense had
merit violated equal protection guarantees contained in State and Federal Constitutions, and
(2) writ of mandamus would issue to compel district court to file prisoners' complaints and
motions to proceed in forma pauperis and to refrain from enforcing unconstitutional statute
conditioning waiver of filing fee on submission of certificate of attorney that indigent had
meritorious cause of action defense.
Petitions granted.
Carroll E. Barnes, William C. Frankell, William M. Doyle and Jesus Luera, In Proper
Person, Petitioners.
Brian McKay, Attorney General, and Page Y. Underwood, Deputy Attorney General,
Carson City; and Rex Bell, District Attorney, Clark County, for Respondent.
1. Mandamus.
Writ of mandamus is available to compel performance of act which law requires as duty resulting from
office, trust or station, or to control arbitrary or capricious exercise of discretion. NRS 34.160.
2. Mandamus.
Mandamus is extraordinary remedy, and decision as to whether petition will be entertained lies within
discretion of Supreme Court.
3. Mandamus.
Actions of Chief Judge of district court in refusing to allow filing of prisoners' pleadings were not
appealable determinations, and gravamen of petitions for writs of mandamus was that Chief Judge acted
arbitrarily and capriciously in refusing to allow filing of pleadings, so that prisoners were without plain,
speedy and adequate remedy in ordinary course of law to challenge refusal to file their pleadings, and Chief
Judge's actions would escape review if petitions were not entertained by courts, so that Supreme Court
would exercise its discretion and consider petitions for mandamus on merits. NRAP 3A(b); NRS
12.015, subd. 4.
4. Costs.
Although indigent has right of reasonable access to courts, right of access is not unrestricted.
5. Costs.
Because plaintiffs who are allowed to proceed in forma pauperis are not affected by economic deterrents
to filing frivolous lawsuits, courts may be justified in treating such actions differently from cases filed by
plaintiffs who had paid requisite filing fee.
6. Constitutional Law; Costs.
States are free to restrict right of indigent to waiver of court filing fee as long as case does not implicate
fundamental interest and litigant has some alternative course of action that is not conditioned on payment
of fee, although unreasonable restriction on ability of indigent to obtain waiver of filing fee may violate
equal protection clause of United States Constitution. U.S.C.A.Const. Amend. 14.
7. Costs.
Complaints which prisoners attempted to file in district court asserted causes of action for malpractice
against their attorneys in connection with their criminal proceedings, and thus complaints did not implicate
any fundamental right recognized by Federal Constitution, and inasmuch as complaints did not implicate
fundamental right, provision of statute requiring submission of affidavit of attorney to support motion to
proceed in forma pauperis would be held constitutional if classification scheme created by statute was
rationally related to furthering legitimate state interest. NRS 12.015.
8. Constitutional Law; Costs.
By conditioning waiver of filing fee on indigents ability to obtain certificates of attorneys that indigents'
causes of actions of defenses had merit, statute violated equal protection guarantees contained in State and
Federal Constitution; statute could operate to preclude filing of meritorious actions by indigent persons as
well as frivolous actions. U.S.C.A.Const. Amend. 14; NRS 12.015; Const. Art. 4, 21.
9. Constitutional Law; Costs; Mandamus.
Writ of mandamus would issue to compel district court to file complaints and motions to proceed in
forma pauperis and to refrain from enforcing statute conditioning waiver of filing fees on indigents' ability
to obtain certificates of attorneys that indigents' claims had merit; statute violated equal protection
guarantees contained in State and Federal Constitutions.
violated equal protection guarantees contained in State and Federal Constitutions. U.S.C.A.Const. Amend.
14; NRS 12.015; Const. Art. 4, 21.
OPINION
Per Curiam:
These proper person petitions for writs of mandamus challenge the refusal of the
respondent district court to file petitioners' complaints below. Because these petitions present
identical issues and similar facts, we have consolidated them for disposition. See NRAP 3(b).
1

THE FACTS
Petitioners Carroll Barnes, William Frankell, and Jesus Luera are prisoners who prepared
and attempted to file in the Eighth Judicial District Court complaints against their respective
attorneys for legal malpractice. The complaint prepared by Barnes alleged that an attorney
appointed to represent him in a post-conviction matter had represented him in a negligent
manner. Similarly, Frankell's complaint alleged that the court-appointed attorney who
represented him at his criminal trial did so in a negligent manner. Luera's complaint alleged
that Luera's privately retained counsel represented him negligently at his criminal trial.
The complaints were accompanied by motions to proceed in forma pauperis and were
mailed to the clerk of the Eighth Judicial District Court, who forwarded those documents to
respondent Shearing, who was then the Chief Judge of that district. Respondent, in letters to
the petitioners, denied the motions to proceed in forma pauperis because they were not
supported by the affidavit of an attorney stating that the complaints had merit as required by
NRS 12.015(1). Accordingly, respondent refused to allow petitioners' complaints to be filed.
In response to respondent's letter, Petitioner Barnes filed his petition for a writ of
mandamus in this court (Docket No. 17633). Petitioners Frankell and Luera, however, filed in
the federal district court civil rights complaints pursuant to 42 U.S.C. 1983. The federal
district court dismissed petitioner Frankell's action, ruling, inter alia, that respondent, as a
judicial officer, was immune from liability for money damages in that civil rights action, that
the complaint did not show that Frankell was deprived of any federal constitutional right, and
that Frankell had an adequate state law remedy available in the form of a mandamus
petition to this court.
____________________

1
In light of our prior consolidation of these matters, we deny as moot respondent's motion to consolidate.
an adequate state law remedy available in the form of a mandamus petition to this court.
After the federal district court dismissed his complaint, Frankell filed his petition for a writ
of mandamus in this court (Docket No. 17872). The federal court returned Luera's complaint
to him unfiled, and Luera then filed his petition for a writ of mandamus in this court (Docket
No. 18362).
On December 20, 1986, Petitioner William Doyle mailed a Petition for Writ of Habeas
Corpus or as an Alternative Writ of Mandamus to the Clerk of the Eighth Judicial District
Court. At that time, Doyle was a prisoner incarcerated at the Southern Desert Correctional
Center. Doyle's petition alleged that the Department of Prisons had acted arbitrarily and
capriciously when, in a disciplinary proceeding, it deprived him of certain accumulated
work-time credits. Doyle's petition, like the Barnes, Frankell, and Luera complaints, was
accompanied by a motion to proceed in forma pauperis. On December 26, 1986, respondent
sent Doyle a letter stating that he had failed to submit the affidavit of an attorney to support
his motion to proceed in forma pauperis as required by NRS 12.015. Therefore, respondent
refused to allow Doyle to file his pleadings. Doyle then filed his petition for a writ of
mandamus in this court (Docket No. 18044).
PROPRIETY OF EXTRAORDINARY RELIEF
[Headnotes 1, 2]
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 637 P.2d 534 (1981). Mandamus will not issue, however, where the petitioner has
a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. Further,
mandamus is an extraordinary remedy, and the decision as to whether a petition will be
entertained lies within the discretion of this court. See Poulos v. District Court, 98 Nev. 453,
652 P.2d 1177 (1982).
[Headnote 3]
In the present case, respondent's actions in refusing to allow the filing of petitioners'
pleadings are not appealable determinations. See NRAP 3A(b); NRS 12.015(4) (order
granting or denying a motion to proceed in forma pauperis is not appealable). Further, the
gravamen of these petitions is that respondent acted arbitrarily and capriciously when it
refused to allow the filing of the petitioners' pleadings. It appears that these petitioners are
without a plain, speedy and adequate remedy in the ordinary course of law to challenge
respondent's refusal to file their pleadings.
pleadings. Further, it appears that respondent's actions will escape review if these petitions
are not entertained by this court. Accordingly, we will exercise our discretion and consider
the merits of these petitions.
THE MERITS
Respondent's refusal to file the pleadings submitted by the petitioners was based on the
petitioners' noncompliance with the provisions of NRS 12.015(1), which provides:
1. Any person who desires to prosecute or defend a civil action may file an affidavit
with the court setting forth with particularity facts concerning his income, property and
other resources which establish that he is unable to prosecute or defend such action
because he is unable to pay the costs of so doing. The affidavit must be supported by the
certificate of an attorney that such person has a meritorious cause of action or defense.
If the judge is satisfied that such person is unable to pay such costs, he shall order:
(a) The clerk of the court:
(1) To allow such person to commence or defend such action without costs;
and
(2) To file or issue any necessary writ, process, pleading or paper without
charge.
(b) The sheriff or other appropriate public officer within this state to make personal
service of any necessary writ, process, pleading or paper without charge.
(Emphasis added.) Specifically, respondent based its actions on the fact that petitioners had
failed to submit the affidavit of an attorney stating that their actions had merit.
In their petitions for writs of mandamus, however, petitioners assert that, as prisoners, they
cannot afford to pay the costs necessary to obtain the required certificate of an attorney.
Petitioners therefore argue that the district court's application of NRS 12.015, supra,
unconstitutionally denied them their right to access to the courts.
[Headnotes 4-6]
Respondent, however, correctly notes that although an indigent has a right of reasonable
access to the courts, the right of access is not unrestricted. Because plaintiffs who are allowed
to proceed in forma pauperis are not affected by economic deterrents to filing frivolous
lawsuits, the courts may be justified in treating such actions differently from cases filed by
plaintiffs who have paid the requisite filing fee. See Franklin v. Murphy, 745 F.2d 1221, 1226
(9th Cir. 1984). Indeed, the states are free to restrict the right of an indigent to a waiver of
filing fees as long as the case does not implicate a fundamental interest and the litigant has
some alternative course of action that is not conditioned on the payment of a fee.
implicate a fundamental interest and the litigant has some alternative course of action that is
not conditioned on the payment of a fee. See Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.
1985). See generally Ortwein v. Schwab, 410 U.S. 656 (1973) (upholding filing fee required
as a precondition to obtaining judicial review of reductions in welfare payments); United
States v. Kras, 409 U.S. 434 (1973) (upholding the filing fee required as a precondition to
obtaining a discharge in bankruptcy); Boddie v. Connecticut, 401 U.S. 371 (1971)
(invalidating the filing fee required as a precondition to obtaining a divorce). An
unreasonable restriction on the ability of an indigent to obtain a waiver of filing fees may,
however, violate the equal protection clause of the United States Constitution. See Lindsey v.
Normet, 405 U.S. 56 (1972). Nevada's constitution also contains a guarantee of equal
protection.
2

[Headnote 7]
Respondent correctly asserts that the complaints which petitioners Barnes, Frankell and
Luera attempted to file below asserted causes of actions for malpractice against their
attorneys; thus, none of those complaints implicate any fundamental right recognized by the
United States Constitution. Because the complaints do not implicate a fundamental right,
NRS 12.015 must be held constitutional if the classification scheme created by that statute is
rationally related to furthering a legitimate state interest. See Vance v. Bradley, 440 U.S. 93
(1979); State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983). Legislative
classifications must apply uniformly to all who are similarly situated, and the distinctions
which separate those who are included within a classification from those who are not must be
reasonable, not arbitrary. State Farm, 99 Nev. at 225, 660 P.2d at 997.
[Headnote 8]
Respondent argues that the legislative purpose behind requiring an indigent litigant, as a
precondition to obtaining a waiver of filing fees, to obtain the certificate of an attorney that
the indigent's cause of action or defense has merit is to spare the state the burden of financing
frivolous lawsuits. Filing fees also assist in offsetting the operating expenses of the court
system. These are legitimate state interests. See Ortwein, 410 U.S. at 660; Piatt, 773 F.2d
1034-1035. Respondent further argues that petitioners have an alternative course of action
against their attorneys which is not conditioned on the payment of a filing fee. Specifically,
respondent urges that if petitioners believe that their former attorneys represented them
in an unprofessional manner, they could file complaints against those attorneys with the
State Bar of Nevada.
____________________

2
Article 4, section 21 of the Nevada Constitution requires that all laws be general and of uniform operation
throughout the State.
respondent urges that if petitioners believe that their former attorneys represented them in an
unprofessional manner, they could file complaints against those attorneys with the State Bar
of Nevada. Accordingly, respondent contends that because petitioners' complaints do not
implicate any fundamental rights and the petitioners have an alternate course of action that is
not dependent on the payment of a fee, NRS 12.015 is constitutional. We disagree.
The legislative purpose in enacting NRS 12.015 is to spare the state the expense of
financing frivolous lawsuits filed by indigent persons. However, the statute may also operate
to screen out meritorious actions that would otherwise be filed by persons who cannot afford,
or are otherwise precluded from obtaining, the required certificate of an attorney. See Lindsey
v. Normet, 405 U.S. 56 (1972) (Oregon statute requiring a tenant, as a precondition to
appealing an eviction order, to post a bond that was equal to double the amount of rent that
would accrue during the pendency of the appeal violated the equal protection clause because
it operated not only to screen out frivolous appeals, but also to bar nonfrivolous appeals by
those who could not afford to post the bond). Because NRS 12.015 may operate to preclude
the filing of meritorious actions by indigent persons, we conclude that the classification
scheme created by the statute is arbitrary and irrational. The statute is too broad in its sweep.
We conclude, therefore, that by conditioning the waiver of filing fees on an indigent's ability
to obtain the certificate of an attorney that the indigent's cause of action or defense has merit,
NRS 12.015 violates the equal protection guarantees contained in the Nevada and United
States Constitutions.
3
See Lindsey, 405 U.S. at 79.
As noted above, petitioner Doyle attempted to file in the district court a Petition for Writ
of Habeas Corpus or as an Alternative Writ of Mandamus challenging the actions of the
Department of Prisons, which allegedly deprived Doyle of some accumulated work-time
credits. Doyle's petition, like the complaints filed by Barnes, Frankell and Luera, was
accompanied by a motion to proceed in forma pauperis. Because the motion to proceed in
forma pauperis was not accompanied by an attorney's certification that Doyle's petition had
merit, respondent refused to allow the petition to be filed. See NRS 12.015(1).
NRS 19.013(4) states in part that [n]o fee may be charged for any services rendered [by a
county clerk] to a defendant . . . in any criminal case or in habeas corpus proceedings."
____________________

3
Because we have concluded that NRS 12.015 is not rationally related to a legitimate state interest, we need
not address the question of whether the commencement of disciplinary proceedings with the state bar is an
adequate alternative remedy available to these petitioners.
any criminal case or in habeas corpus proceedings. In the present case, Doyle's petition
requested relief through the issuance of a writ of habeas corpus. The clerk of the district court
was precluded from charging Doyle a fee to file his petition. See NRS 19.013(4).
Accordingly, we conclude that respondent erred when it refused to file Doyle's petition. See
also NRS 34.750; 177.345 (in post-conviction proceedings, the petitioner may allege that he
is unable to pay the costs of the proceedings and, if the district court determines that the
petitioner is indigent, the state shall pay the necessary costs).
[Headnote 9]
In light of the above, and in spite of our sympathy for the Chief Judge's frustration in these
matters, we conclude that these petitions for writs of mandamus should be granted.
Accordingly, the clerk of this court shall issue a writ of mandamus in each of the
above-entitled cases directing respondent to file petitioners' pleadings and to refrain from
enforcing NRS 12.015 insofar as that statute requires indigent persons to obtain, as a
condition to obtaining a waiver of filing fees, the certificate of an attorney that the indigent
has a meritorious cause of action or defense.
4

____________________

4
In granting these petitions, we express no opinion regarding the merits of the causes of action asserted in
petitioners' pleadings. Those pleadings remain subject to all of the defenses and procedural bars sanctioned by
the applicable Nevada Rules of Civil Procedure. We merely hold that arbitrary requirements for the waiver of
filing fees may not be imposed to preclude indigent persons from filing their pleadings so that they may make a
record of their claims or defenses before those matters are resolved by the district courts.
____________
103 Nev. 686, 686 (1987) Rust v. Clark Cty. School District
DAYLE K. RUST, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Governmental
Agency of Clark County; BOARD OF TRUSTEES OF CLARK COUNTY SCHOOL
DISTRICT, VIRGINIA BROOKS BREWSTER, DONALD R. FAISS, ROBERT FORBUSS,
BENDORF and SHIRLEY HOLST, in Their Capacities as School Board Trustees; ROBERT
WENTZ, in His Capacity as Superintendent of the Clark County Schools, Respondents.
No. 16338
December 31, 1987 747 P.2d 1380
Appeal from judgment dismissing petition for judicial review of an administrative
decision; Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
School principal was dismissed by school board on ground of insubordination for taking
leave of absence despite denial of request for leave. The district court affirmed dismissal.
Principal appealed. The Supreme Court, Mowbray, J., 100 Nev. 372, 683 P.2d 23, reversed
and remanded. School board reduced principal to assistant principal and imposed additional
penalty of suspension of pay and benefits during period between dismissal and reinstatement.
The district court stated intention to affirm. Principal petitioned for judicial review. The
Supreme Court, Springer, J., held that principal's notice of appeal was premature and failed to
vest jurisdiction in the Supreme Court.
Dismissed.
Mowbray, J., dissented.
Jones, Jones, Close & Brown, Las Vegas, and Will Kemp, for Appellant.
Thomas J. Moore, Las Vegas, for Respondents.
Generally, premature notice of appeal fails to vest jurisdiction in the Supreme Court. NRAP 4(a).
2. Courts.
Jurisdictional rules go to very power of court to act and must, accordingly, be clear and absolute in order
to give all fair notice of what is required to bring matter properly before the court.
3. Judgment.
Prior to entry of final judgment, district court remains free to reconsider and issue written judgment
different from its oral pronouncement.
Oral pronouncement of judgment is not valid for any purpose; therefore, only written judgment has any
effect, and only written judgment may be appealed. NRCP 58(c).
5. Schools.
District court's oral pronouncement from the bench affirming decision of school board to reduce principal
to assistant principal and imposing penalty suspension of pay and benefits during period between his
dismissal and his reinstatement, clerk's order, and even unfiled written order were ineffective for any
purpose and could not be appealed; accordingly, principal's notice of appeal was premature and failed to
vest jurisdiction in the Supreme Court. NRAP 4(a).
OPINION
This is the second time this case has come before this court on appeal. The facts of this
case are reported in our prior opinion in this matter.
this matter. See Rust v. Clark County School District, 100 Nev. 372, 683 P.2d 23 (1984). In
Rust, we concluded that, although appellant had been guilty of misconduct, the penalty
imposed for his single unexcused absence was so severe that it amounted to an abuse of
discretion. We therefore reversed the prior judgment of the district court, and remanded the
case to the Board of Trustees for imposition of a penalty consistent with the views expressed
in [our prior] opinion. Id. at 376, 683 P.2d at 26. On remand, the Board of Trustees
reinstated appellant, but reduced him from a principal to an assistant principal. The Board
imposed an additional penalty of suspension of his pay and benefits during the period
between his dismissal and his reinstatement. Appellant petitioned the district court for
judicial review of the Board's decision.
On January 11, 1985, following a hearing, the district court stated its intention to affirm
the decision of the Board of Trustees and also announced that it would not file a written
decision. Appellant filed a notice of appeal on January 16, 1985. Thereafter, on March 6,
1985, the district court entered a written judgment affirming the decision of the Board of
Trustees. Respondents served written notice of entry of this judgment on appellant on March
21, 1985. Appellant, however, failed to file a new notice of appeal. Respondents contend,
therefore, that appellant's notice of appeal was premature, and that the premature notice failed
to vest jurisdiction in this court. We agree.
[Headnotes 1-3]
Generally, a premature notice of appeal fails to vest jurisdiction in this court. See NRAP
4(a); Hill v. Warden, 96 Nev. 38, 604 P.2d 807 (1980); Paradise Palms v. Paradise Homes, 93
Nev. 488, 568 P.2d 577 (1977); Elko-Tuscarora Co. v. Wines, 24 Nev. 305 (1898). There are
sound reasons for this rule. First, the proper and timely filing of a notice of appeal is
jurisdictional. See Mahaffey v. Investor's Nat'l Security, 102 Nev. 462, 725 P.2d 1218 (1986);
Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). Jurisdictional rules go to the very power
of this court to act. They must, accordingly, be clear and absolute in order to give all fair
notice of what is required to bring a matter properly before this court. Indeed, a timely notice
of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court. See
Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964). Prior to the entry of a final
judgment the district court remains free to reconsider and issue a written judgment different
from its oral pronouncement. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981);
Lagrange Constr. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967); see also Rae v.
All American Life & Cas. Co., 95 Nev. 920, 605 P.2d 196 (1979). The point at which
jurisdiction is transferred must, therefore, be sharply delineated.
which jurisdiction is transferred must, therefore, be sharply delineated.
[Headnotes 4, 5]
Appellant contends that the district court misled appellant and induced him to file a
premature notice of appeal by announcing that it did not intend to enter a written judgment,
and that respondents caused confusion by causing a written judgment to be entered. This
argument is unpersuasive. An oral pronouncement of judgment is not valid for any purpose,
NRCP 58(c); therefore, only a written judgment has any effect, and only a written judgment
may be appealed. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981); Fitzharris v.
Phillips, 74 Nev. 371, 333 P.2d 721 (1958). The district court's oral pronouncement from the
bench, the clerk's minute order, and even an unfiled written order are ineffective for any
purpose and cannot be appealed. See Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964);
Musso v. Triplett, 78 Nev. 355, 372 P.2d 687 (1962). Appellant, rather than filing a
premature notice of appeal, should have requested a written judgment from the district court.
At the very least, appellant should have filed an amended notice of appeal after the written
judgment was entered on March 6, 1985. Further, we are not persuaded that counsel for
respondents acted improperly in any way by seeking a written order from the district court.
Nothing precluded appellant from filing an amended notice of appeal after written notice of
entry of the written judgment was served on him. See Stoermer v. Edgar, 472 N.E.2d 400 (Ill.
1984).
Finally, it has been suggested that appellant's premature notice of appeal should be
excused as a technical defect pursuant to Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983).
We disagree. Unlike the circumstances present in Knox, this case involves a notice of appeal
that is truly premature. There is nothing technical about it. In Knox, a written judgment was
appealed in a timely fashion; there was nothing wrong with the judgment other than the fact
that the district court had not certified it as final pursuant to NRCP 54(b). Also, the judgment
in Knox was unquestionably certifiable as final pursuant to NRCP 54(b). We concluded,
therefore, that the prematurity of the notice of appeal in that case was purely technical.
Contrarily, in this case, no written judgment was entered by the district court; and,
consequently, there was no judgment to appeal from at the time appellant's notice of appeal
was filed. As a result, appellant's premature notice of appeal did not divest the district court
of jurisdiction to act at that time. See Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302
(1964).
Allowing a premature notice of appeal to be valid under the facts of this case would
impose an unnecessary burden on this court to determine on an ad hoc basis whether we
have power to act and would so obscure rules of jurisdiction as to be detrimental to the
judicial process.
court to determine on an ad hoc basis whether we have power to act and would so obscure
rules of jurisdiction as to be detrimental to the judicial process. For example, if notices of
appeal filed after the oral rendition of judgment, but before a final written judgment is
entered, are held to be valid, it would become difficult, if not impossible, to determine when
or if a final oral judgment has been rendered. Under such circumstances, this court would be
required to issue numerous orders, and to grapple with fine and nonexistent distinctions
between valid and invalid premature notices of appeal. Also, it would be difficult to
determine when the thirty-day appeal period began to run under NRAP 4(a), whether
post-judgment motions were timely and whether they would toll the appeal period that may or
may not have commenced to run. Such a rule would render uncertain the validity of findings
of fact, conclusions of law and a written judgment filed after a timely notice of appeal had
been filed. Also, such a rule would ignore the possibility (and the possibility is not remote)
that no judgment would ever be properly entered. In addition, questions would arise as to
when a notice of cross-appeal would be due under such a flexible rule of jurisdiction. In light
of these and other considerations, we decline to adopt such a rule in this state.
Other states have held that a premature notice of appeal is ineffective to vest jurisdiction in
an appellate court to review a subsequently entered final judgment.
1
See Stoermer v. Edgar,
472 N.E.2d 400 (Ill. 1984); Mangus v. Progress Quarries, Inc., 622 P.2d 319 (Or. 1981);
Glass v. Windsor Navigation Company, 504 P.2d 1135 (Wash. 1973); Vassallo v. Texaco,
Inc., 422 NYS.2d 747 (N.Y.App.Div. 1979). Also, in analogous cases, where a notice of
appeal was filed during the pendency of a timely post-trial motion, the notices have been held
to be premature and of no effect. See Pessolano v. George R. Price & Associates, 283 S.E.2d
317 (Ga.App. 1981); Rutledge v. Vonfeldt, 564 P.2d 350 (Wyo. 1977); see also Gulf Oil Co.
v. Mantegna, 307 S.E.2d 732 (Ga.App. 1983); Blanchette v. Martell, 368 N.E.2d 458
(Ill.App. 1977). We conclude that the result of these authorities is sound.
____________________

1
The dissent has suggested that the federal courts, under similar rules of procedure, have treated this type of
premature filing as a technical defect not affecting the substantial rights of the parties. In support of this
proposition, the dissent cites Forman v. Davis, 371 U.S. 178 (1962); Hodge v. Hodge, 507 F.2d 87 (3rd Cir.
1975); and Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011
(1967). We note that Hodge and Ruby have not been cited since they were decided. We also noted that Hodge
and Ruby relied for authority on Lemke v. United States, 346 U.S. 325 (1953). Lemke was a criminal matter
which presented issues completely foreign to the civil matter now before this court. We note further that the
federal rules in effect at the time Hodge and Ruby were decided were
We conclude that we lack jurisdiction to entertain this appeal. Accordingly, we dismiss
this appeal.
2

Gunderson, C. J., and Young, J., and Zenoff, Sr. J., concur.
Mowbray, J., dissenting:
Respectfully I dissent.
This appeal is focused on the 1979 dismissal of appellant Dayle K. Rust, a longtime Clark
County School District employee and a principal of over twenty years satisfactory service.
The School District dismissed Rust for insubordination. That insubordination consisted of
visiting Rust's son who was completing a two-year religious mission in Europe. Rust's plans
to visit his son were known to and approved by the School District. They were predicated
upon a standard policy of the School District which allowed liberal use of earned leave days.
Rust had first discussed his trip with the School District's Associate Superintendent for
Personnel eight months before his departure. Rust spent many evenings and numerous
weekends making the necessary arrangements for the trip so that his school would run
smoothly during his absence. The school did so.
Sixteen days before Rust's scheduled departure on October 3, 1979, the School District
changed its leave policy. It limited administrators' use of earned leave to no more than five
school days per year, or two days in succession except in cases of an emergency. Rust had
accumulated over forty days of leave. He had sought to use ten of those forty days on his trip
to see his son. Rust's request for leave was denied by his supervising administrator on
September 25th. Rust indicated that he nevertheless intended to fulfill his commitment to his
son by completing the trip as he had planned.
On October 3rd Rust left for Europe. When he returned on October 18th he was served
with a Notice of Suspension remov-
____________________
not substantially similar to our present rules of procedure. In particular, FRCP 73(a) then provided that the
period for filing a notice of appeal could be extended on a showing of excusable neglect. See Plant Economy,
Inc. v. Mirror Insulation Company, 308 F.2d 275 (3rd Cir. 1962). Contrarily, NRAP 3(a) expressly makes the
timely filing of a notice of appeal mandatory. Finally, the technical defect found not to be jurisdictional in
Forman did not concern the timeliness of a notice of appeal. Instead, the Forman court refused to read the text
of a timely notice of appeal restrictively. Indeed, two notices of appeal were filed in Forman, and the first one
was held to have been premature and of no effect. We have similarly upheld the validity of a poorly drafted, but
timely, notice of appeal. See Ross v. Giacomo, 97 Nev. 550, 635 P.2d 298 (1981).

2
The Honorable David Zenoff, Senior Justice, was appointed to participate in this case in the place of The
Honorable Thomas L. Steffen, who voluntarily disqualified himself. Nev. Const. art. 6, 19; SCR 10.
ing him immediately from his position as principal and as an administrator with the Clark
County School District. After a hearing, the School District dismissed Rust from its employ.
The district court affirmed the ruling of the School District. On appeal from the district
court's ruling, we held that the penalty imposed by the School District was excessive and we
reversed and remanded the case with instructions to return the proceedings to the School
District for the imposition of a new penalty consistent with the views expressed in our
opinion. Rust v. Clark County School District, 100 Nev. 372, 683 P.2d 23 (1984). The School
District reinstated Rust, reducing him, however, to an assistant principal commencing
October 15, 1984. The School District also imposed on Rust a five-year suspension of Rust's
pay and benefits commencing October 18, 1979 through October 14, 1984, which was the
period of time covering Rust's initial appeal. Rust appealed that decision to the district court.
The district court affirmed the ruling of the School District.
THE JURISDICTION
As a threshold issue, the School District has urged dismissal of Rust's appeal for lack of
jurisdiction on the grounds that the appeal is premature. My brethren have agreed and have
denied Rust's appeal on that ground. I disagree. I would consider the appeal on its merits and I
would reverse the district court's ruling in favor of the School District, and remand with
instructions to enter a judgment in favor of Rust. The district court heard the case on January
11, 1985 and pronounced judgment in the School District's favor on that date. At the time the
district court pronounced and entered judgment on January 11th, the court stated that it would
not file a written decision. Rust filed his Notice of Appeal on January 16, 1985. Later, the
district court entered a written judgment on March 6, 1985. That Order of March 6th
expressly reflected the district court's earlier pronouncement and judgment of January 11,
1985.
It is true that counsel for Rust should have filed a second Notice of Appeal after the district
court filed its written judgment on March 6th, NRAP 3A(b)(1), because Rust's Notice of
Appeal filed on January 16th was technically premature.
The federal courts under similar rules of procedure have treated this type of premature
filing as a technical defect and not one affecting the substantial rights of the parties. See
Hodge v. Hodge, 507 F.2d 87, 89 (3rd Cir. 1975); Ruby v. Secretary of United States Navy,
365 F.2d 385, 389 (9th Cir. 1966), cert. denied, 386 U.S. 1011 (1967).
1
As Judge Van Dusen
said in Hodge:

____________________

1
This result has since been codified in Fed.R.App. P. 4(a)(2) (as amended 1979).
As Judge Van Dusen said in Hodge:
Notice of appeal to the court of appeals was filed in the district court on March 11,
1974. Judge Hoffman's written order was filed March 14, 1974. The appeal was thus
premature. See Moore, Federal Practice, Para. 204.14 at 981-82 (2d ed. 1973). So long
as the order is an appealable one and the nonappealing party is not prejudiced by the
prematurity, however, the court of appeals should proceed to decide the case on the
merits, rather than dismiss on the basis of such a technicality. Foman v. Davis, 371 U.S.
178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Hamilton v. Stillwell Van and Storage
Co., 343 F.2d 453 (3d Cir. 1965).
In Foman v. Davis, 371 U.S. 178, 181-182 (1962), Justice Goldberg, speaking for the U.S.
Supreme Court,
It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the basis of such mere
technicalities. The Federal Rules reject the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits. Conley v.
Gibson, 355 U.S. 41, 48. The Rules themselves provide that they are to be construed
to secure the just, speedy, and inexpensive determination of every action. Rule 1.
Our own Nevada Rules of Appellate Procedure also provide:
(c) Construction of Rules. These rules shall be liberally construed to secure the
proper and efficient administration of the business and affairs of the court and to
promote and facilitate the administration of justice by the court.
Rule 1.
For these reasons I disagree with the majority in denying Rust's appeal on the issue of
jurisdiction. There has been no showing of prejudice to the School District by Rust's
premature filing of his Notice of Appeal. There is not a scintilla of prejudice present in the
instant case resulting from the premature filing of Rust's Notice of Appeal. The prematurity
of the Notice of Appeal is a technical defect which does not affect the substantial rights of the
parties. I would therefore give Rust his day in court. I would consider the case on its merits.
THE SUSPENSION
In our first Rust opinion, we instructed the School District to impose a penalty consistent
with our decision. Rust, supra. In response, the School District imposed a suspension of all
pay and benefits for that period of time during which Rust exercised his legal right to
appeal the original decision of dismissal.
response, the School District imposed a suspension of all pay and benefits for that period of
time during which Rust exercised his legal right to appeal the original decision of dismissal.
Rust's right to appeal is statutory. NRS 391.3194(4). The School District may not
emasculate that right and penalize Rust for doing what he was lawfully entitled to do. Watson
v. Housing Authority, 97 Nev. 240, 627 P.2d 405 (1981). The right to a judicial review is a
substantial right. It is not a mere nominal or illusory right. I would not approve a result
whereby a School District effectually penalizes an appellant for prevailing upon an appeal.
Nor would I hesitate to step in when the decision of a School District is arbitrary, oppressive
and an abuse of discretion. State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973).
The imposition of the five year suspension of Rust's pay and benefits by the School
District was both arbitrary and capricious, and an abuse of discretion. The only wrong Rust
committed, after twenty years of faithful and dedicated service to the School District and to
those whom he served, was to visit his son at the conclusion of his son's missionary
assignment.
CONCLUSION
I would reverse the judgment of the district court and remand, with instructions to return
the case to the School District Board of Trustees so that Rust would receive reimbursement of
all salary and benefits, including pension rights, due to him from October 18, 1979 through
October 14, 1984 with interest thereon as provided in NRS 99.040; such sums should be
offset by any actual income earned by Rust during this period. I would further include in our
instructions that as Rust held the position of principal at the time of his suspension, his
reimbursement should be predicated upon his salary level and benefits at that time.
____________
103 Nev. 694, 694 (1987) Waters v. Barr
KERMITT L. WATERS, Petitioner, v. MICHAEL E.
BARR and STATE BAR OF NEVADA, Respondents.
No. 17384
December 31, 1987 747 P.2d 900
Original petition for writ of mandamus.
Petition for writ of mandamus was filed to compel former counsel for state bar to
investigate private complaint against two Assistant United States Attorneys, one of whom
was member of state bar, and other who was not. The Supreme Court held that: {1) state
Supreme Court had jurisdiction over Assistant United States Attorney who was member of
state bar, and {2) state Supreme Court had jurisdiction to discipline Assistant United
States Attorney who was not member of state bar, but who practiced law in federal courts
in Nevada.
103 Nev. 694, 695 (1987) Waters v. Barr
(1) state Supreme Court had jurisdiction over Assistant United States Attorney who was
member of state bar, and (2) state Supreme Court had jurisdiction to discipline Assistant
United States Attorney who was not member of state bar, but who practiced law in federal
courts in Nevada.
Petition denied.
Kermitt L. Waters, in Proper Person.
Michael E. Barr, former Bar Counsel, Las Vegas, and Ann Bersi, Executive Director, State
Bar of Nevada, Reno, for Respondents.
Nevada Supreme Court has inherent supervisory authority over state bar, and strong interest in assuring
that all members of state bar, and all its functionaries, perform their duties properly. SCR 39, 76, subd. 1.
State Supreme Court, when it exercises its supervisory authority over state bar, need not confine its
orders to entry of writ recognized at common law, but may structure relief appropriate to purpose at hand.
SCR 39, 76, subd. 1.
State bar counsel has responsibility to act in imminent good faith toward state Supreme Court in
performance of all of his functions.
Fact that Nevada attorneys have been functioning as Assistant United States Attorneys in federal courts
does insulate them from accountability for misbehavior if this is performed in Nevada and affects other
Nevada attorneys, or affects integrity of state bar, even if misbehavior in question is effectuated in whole or
in part to activities in federal courts. SCR 39, 76, subd. 1.
Attorney may be subjected to discipline from any bar association to which he is member.
State Supreme Court has jurisdiction to discipline Assistant United States Attorney who is not member of
state bar, but who practices law in federal courts within state. SCR 99, subd. 1.
OPINION
Per Curiam:
This petition for a writ of mandamus challenges the refusal of a former counsel for the
State Bar of Nevada to investigate a private complaint against two Assistant United States
Attorneys.
1
One of these attorneys is a member of the State Bar of Nevada; the other is
not.
____________________

1
We note that shortly after defending this petition ostensibly on behalf of the state bar, former bar counsel
resigned as bar counsel and accepted a position as an Assistant United States Attorney.
103 Nev. 694, 696 (1987) Waters v. Barr
these attorneys is a member of the State Bar of Nevada; the other is not.
Petitioner filed a complaint against the two attorneys in this court. In the complaint,
petitioner alleged that the two attorneys were guilty of several violations of the Nevada Rules
of Professional Conduct.
2
This court referred the complaint to former bar counsel for the
State Bar of Nevada for investigation. Instead of investigating the complaint, bar counsel
informed petitioner by letter that this court and the State Bar of Nevada lack jurisdiction over
Assistant United States attorneys, and that petitioner's complaint would therefore not be
investigated. This petition followed.
In support of is application for relief, petitioner contends that pursuant to SCR 202(1),
petitioner has a responsibility to inform this court of violations of the rules of professional
conduct, and that as an officer of this court, petitioner has an obligation to advise the court
that bar counsel has attempted to avoid his duties by incorrect representations concerning the
jurisdiction of this court. According to petitioner, bar counsel has an affirmative duty to act
properly, and mandamus is a proper remedy to compel the performance of his duties. See
NRS 34.160; State ex rel. List v. County of Douglas, 90 Nev. 272, 524 P.2d 1271 (1974);
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964). Former bar counsel has asserted on
various grounds that mandamus is an inappropriate remedy to compel the proper performance
of his duties.
[Headnotes 1, 2]
Assuming, arguendo, that mandamus is not an appropriate vehicle for bringing these
issues before the court, this court nevertheless has inherent supervisory authority over the
State Bar of Nevada, and a strong interest in assuring that not only bar counsel, but all
members of the State Bar of Nevada, and all its functionaries, perform their duties properly.
See SCR 39; SCR 76(1); Brown v. Board of Bar Examiners of the State of Nev., 623 F.2d
605 (9th Cir. 1980). To this end, this court need not confine its orders to the entry of writs
recognized at common law, but may structure relief appropriate to the purpose at hand. See,
e.g., In Re Breen, 30 Nev. 164 (1908); In Re Maestretti, 30 Nev. 187 (1908) (where district
attorney and district judge had engaged in misbehavior, Supreme Court of Nevada conducted
independent disciplinary proceedings and suspended Breen and Maestretti from the practice
of law in Nevada).
____________________

2
The United States District Court for the District of Nevada has adopted the Nevada Rules of Professional
Conduct as the standard of conduct for all members of the bar of that court. See D.Nev.L.R. 120-8.
103 Nev. 694, 697 (1987) Waters v. Barr
[Headnotes 3, 4]
As an employee of the State Bar of Nevada, which exists as an arm of this court in the
performance of our duty to regulate the attorneys of this state, bar counsel's ultimate
responsibility is to act in eminent good faith toward this court in the performance of all of his
functions. Therefore, we agree with petitioner that this court has jurisdiction to act in the
premises. We also agree with petitioner that the fact that Nevada attorneys have been
functioning as Assistant United States attorneys in the federal courts does not insulate them
from accountability for misbehavior if this is performed in Nevada and affects other Nevada
attorneys, or affects the integrity of the State Bar of Nevada, even if the misbehavior in
question is effectuated in whole or in part through activities in the federal courts. See SCR 39;
SCR 76(1); Brown v. Board of Bar Examiners of State of Nev., 623 F.2d 605 (9th Cir. 1980).
After occasioning this controversy by taking a position contrary to the foregoing, former bar
counsel, in pleadings filed in response to this petition, effectively acknowledged this court's
jurisdiction in this matter.
[Headnote 5]
Although former bar counsel originally asserted that this court had no jurisdiction over
United States attorneys, he later conceded that this court has jurisdiction to discipline the
Assistant United States attorney who is a member of the State Bar of Nevada. We agree.
There is no question that an attorney may be subjected to discipline from any bar association
to which he is a member. See Theard v. United States, 354 U.S. 278 (1957); In re Isserman,
345 U.S. 286 (1953); In re Sawyer, 260 F.2d 189 (9th Cir. 1958), reversed on other grounds,
360 U.S. 622 (1959). Thus, this court clearly has jurisdiction to discipline the Assistant
United States attorney who is a member of the State Bar of Nevada.
[Headnote 6]
Former bar counsel has contended, however, that his court lacks jurisdiction to discipline
the Assistant United States attorney who is not a member of the State Bar of Nevada. We
disagree. SCR 99.1 provides that this court has jurisdiction to discipline any attorney, whether
admitted to practice in Nevada or not, who practices law in this state. It cannot be disputed
that United States attorneys appearing on behalf of the government in the federal district
courts in Nevada are engaged in the practice of law in Nevada. Further, this state has a
compelling interest in regulating the legal profession within this state. The regulation of the
legal profession is a proper exercise of state power, and that power includes the authority to
impose sanctions for any misconduct of federal prosecutors practicing law within the state,
at least if the misconduct impacts improperly and adversely upon our courts or upon the
practicing bar of this state.
103 Nev. 694, 698 (1987) Waters v. Barr
duct of federal prosecutors practicing law within the state, at least if the misconduct impacts
improperly and adversely upon our courts or upon the practicing bar of this state. At this point
in time, we need not explore the nature and extent of the sanctions which we might deem it
within our power to impose. In an appropriate case, however, we think this court could
express its displeasure through censure or through a ruling that an offending attorney would
be precluded in the future from any privilege to practice before our courts.
Of course, we express no opinion on the questions of whether the Assistant United States
attorneys involved in this case have been guilty of unethical conduct or whether action on the
part of the state bar would be appropriate under the circumstances of this case. Because the
complaint has not yet been presented to the present counsel for the state bar, and the
complaint has not been investigated, we conclude that it is appropriate to allow current bar
counsel an opportunity to evaluate the facts of this matter, and to determine whether the facts
justify action. We therefore conclude that, because no actual controversy exists at this time,
our intervention by way of extraordinary relief is unwarranted. Accordingly, we deny this
petition.
____________
103 Nev. 698, 698 (1987) Riley v. Rockwell
MARJORIE R. RILEY; MICHAEL RILEY, Individually and as Guardian ad Litem of His
Minor Child, DYLAN MICHAEL RILEY; JUDITH RILEY HYLTON, Individually and as
Guardian ad Litem of Her Minor Child, JUSTINE HALLIDAY HYLTON, Appellants and
Cross-Respondents, v. LEON ROCKWELL, JR.; MARGARET ROCKWELL; and
ROCKWELL FAMILY LIMITED PARTNERSHIP, a Limited Partnership, Respondents and
Cross-Appellants, and BANK OF NEVADA, a Bank Association Organized Under the Laws
of the State of Nevada; FIRST NATIONAL BANK OF NEVADA, a Banking Association
Organized Under the Laws of the United States, and by Consolidation With BANK OF
NEVADA, a Banking Association Organized Under the Laws of the United States,
Respondents.
No. 16305
December 31, 1987 747 P.2d 903
Appeal and cross-appeal from final judgment. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Beneficiary of fractional interest land trust and her family brought action against brother,
another beneficiary who was also express trustee, and against trust and other trustee alleging
breach of fiduciary duties. The district court found that brother breached fiduciary duties.
Appeal and cross-appeal were taken. The Supreme Court, Steffen, J., held that brother did not
breach any fiduciary duty to sister by purchasing for himself another fractional interest in the
same property from his uncle.
Beckley, Singleton, DeLanoy, Jemison & List, Frances A. Forsman, Las Vegas, and
Holmes, De Franco & Schulte, Gile R. Downes, Portland, Oregon, for Appellants and
Cross-Respondents.
John Peter Lee, Las Vegas, for Respondents and Cross-Appellants.
Jolley, Urga, Wirth & Woodbury, R. Gardner Jolley, Jay Earl Smith, Las Vegas, for
Respondents.
1. Trusts.
Trustee should do everything in his power to avoid conflict of interest.
2. Trusts.
Express trustee-beneficiary of fractional interest land trust did not breach any fiduciary duty to other
beneficiary by purchasing for himself another fractional interest in the same property; property was not
susceptible to manipulation by any owner since it was involved in long term leases and served only as
source of income such that greater share in property created only greater share in income, and corpus of
trust had not been impaired.
3. Trusts.
Even if brother had acted as his sister's fiduciary in capacity as co-owner of property, business and
property manager, advisor, partner, agent, joint venturer, brother, and confidant and as executor of father's
estate, brother's obtaining option to purchase his uncle's interest in land part of which was corpus of trust
for brother and sister did not breach any fiduciary duty; the property in question was never involved in
those relationships.
4. Trusts.
Brother, who was express trustee of fractional interest land trust for himself and his sister, did not breach
any duty of loyalty owed sister when he obtained option to purchase uncle's fractional interest in land,
although sister claimed she did not know of option; sister and her attorney had sufficient facts to put them
on notice of existence of option and its terms, and that fact alone could have barred sister's action on
limitations grounds.
5. Trusts.
Brother, who was express trustee of fractional interest land trust with himself and his sister as
beneficiaries, did not breach any duty to sister to disclose offer to her when he took advantage of option to
purchase uncle's fractional interest; uncle only offered option to brother, and brother had neither duty nor
right to expand terms of uncle's offer.
6. Trusts.
Brother, who was express trustee of fractional interest land trust with himself and his sister as
beneficiaries, did not enhance his own interest to the detriment and at expense of his sister and trust when
he obtained option to purchase uncle's fractional interest in land; there was no showing that trust or sister
was injured in any way.
7. Trusts.
Children, to whom corpus of fractional interest land trust was to be distributed after death of their mother,
a beneficiary, lacked standing to maintain action against trustees for alleged breach of fiduciary duties.
OPINION
This is an appeal from the decision of the district court, finding that respondent Leon
Rockwell, Jr. (Leon, Jr.) breached numerous fiduciary duties to appellant Marjorie Riley
(Marjorie) in the acquisition of an option to a one-half interest in property located in Las
Vegas, Nevada. The court imposed a constructive trust in appellants' behalf. For the reasons
stated below, we affirm in part, reverse in part, and remand to the district court.
The property here at issue is subject to long-term leases and occupied by hotels. Thus, at
present it serves its owners only as a source of income. Through transactions which have not
been called into question in this action, ownership of the property (and, with it, the right to
receive the rental income) was divided. Richard Earl Rockwell (Earl) owned a one-half
interest; in 1963, he placed it in a revocable inter vivos trust, retaining the power to modify
that trust. Another one-quarter interest was placed in a separate trust in 1964, paying the
income to Leon, Jr. and Marjorie for their lives, with the corpus then to be distributed to their
children. The final one-fourth was also in trust for the benefit of Leon, Jr. and Marjorie;
however, in 1972 the trust terminated and each received an undivided one-eighth interest.
Each trust had two trustees: Leon, Jr. and one of the respondent banks.
1

The seeds of the present dispute were sown soon after the death of Earl's wife, Ida. Earl
was then elderly and did not expect to live many more years.
____________________

1
The banks have merged by consolidation and are now known as First Interstate Bank of Nevada.
live many more years. Contemplating remarriage, he desired to assure that his one-half
interest would remain in the family. After consulting his attorney, Earl concluded that he
should grant an option to purchase his interest; he offered that option to Leon, Jr.
2
The
option agreement was executed December 6, 1966, and recorded two days later; by its terms
it could be exercised only within ninety days after Earl's death, and could not be assigned out
of the family of Leon, Jr.
3

In 1972, Earl sought to cancel the option but Leon, Jr. refused. Litigation ensued, but was
dropped in 1977. Thereafter Earl sent a letter ratifying the option and instructing the trustee
bank to honor it. Earl died in 1980, and Leon, Jr. exercised the option. Marjorie and members
of her family filed suit in May, 1981, alleging a fraudulent breach of fiduciary duties and
seeking imposition of a constructive trust on the optioned property.
4
The judgment in
question, and this appeal, followed.
[Headnote 1]
The fiduciary obligations of a trustee are great. A trustee should do everything in his
power to avoid a conflict of interest. Bank of Nevada v. Speirs, 95 Nev. 870, 603 P.2d 1074
(1979). The district court stated that two types of relationships created the fiduciary
obligations of Leon, Jr. The first type of relationship identified is the role Leon, Jr. played as
express trustee. The second type of relationship assertedly arose from the different business
relationships Leon, Jr. and Marjorie had developed.
[Headnote 2]
An analysis of Leon, Jr.'s role as trustee shows that he did not breach any duty to Marjorie.
Part of Leon, Jr.'s duty as defined by the district court was not to compete with the trusts in
the acquisition of property or other assets related to or closely connected with property they
held, or which was reasonably related to the area of interest or expectation of the trusts.
This is a correct statement of the law, but the district court erred in applying a form of the
corporate opportunity doctrine to its conclusion that the property was of great, unique and
substantial value, and [was] closely and inseparably related to interests already held by
appellants and the trusts. In most cases, it is a breach of a trustee's fiduciary duty for the
trustee to become a co-owner with the trust.
____________________

2
Although Leon, Jr. had needled his father and Earl to create trusts in 1963, the record does not indicate
that he took any active part in instigating the plan to grant an option, or that he sought the offer.

3
The purchase price was set at $300,000; the property had been appraised at $264,500 in 1964.

4
Marjorie also sought compensatory and punitive damages and other relief.
breach of a trustee's fiduciary duty for the trustee to become a co-owner with the trust. This is
because when the trustee and the trust become co-owners, there is a greater tendency for
self-dealing on the part of the trustee. Bogert recognized the potential problems in the type of
situation here present:
If the fiduciary holds for his beneficiary merely a fractional interest in certain property,
is it a breach of his duty to buy for himself another fractional interest in the same res?
If, for example, as trustee he holds a one-fourth interest in an apartment house and the
remaining three-fourths interest is for sale, may the trustee buy it for himself without
running the risk of his interest being taken by the beneficiary on a constructive trust
theory? It would seem that his transaction ought to be discouraged, although not so
obviously a breach of duty as the purchase of some other competing interests, unless
the trust clearly lacks the funds to make the purchase. If the trustee makes himself a
co-owner with the trust, he automatically gives room for possible conflict and dispute.
9 G. Bogert, Trusts & Trustees 543(d) (rev. 2d ed. 1978) (emphasis added).
However, the case before us is unique. When Leon, Jr. purchased the option, he was
already a designated future co-owner with the trust.
5
Therefore, the potential for a conflict of
interest was inevitable in any event. Moreover, the property is not susceptible to manipulation
by any of its owners since it is involved in long-term leases under hotels in Las Vegas and
serves only as a source of income. A greater share in the property creates only a greater share
in the income. Therefore, Bogert's reasons for discouraging this type of transaction do not
apply. Thus, this case is analogous to Speirs, where we allowed a trustee to purchase an
additional interest in property in which he and the trust already held interests. Since the
corpus of the trusts has not been impaired, there is no evidence that Leon, Jr. breached any
fiduciary duty arising out of his position as trustee.
[Headnote 3]
The district court also found that Leon, Jr. had acted as Marjorie's fiduciary in the capacity
of co-owner, business and property manager, advisor, partner, agent, joint venturer, brother,
and confidant with respect to Marjorie's interests in all of the Rockwell family properties, and
as executor of Leon, Sr.'s estate.
____________________

5
Leon, Jr. purchased the option in 1966. His mother, Bessie, had passed away in 1962. She left one-eighth
interest in the property to each of her children and under the terms of her trust, the distribution was to be made
ten years after her death, in 1972. Leon, Jr., as trustee of Bessie's trust, knew its terms.
estate. The court went on to state that due to these fiduciary relationships, Leon, Jr. had an
obligation to: (1) make a full and fair disclosure of all facts which might materially affect
Marjorie's right and interest and which Marjorie might reasonably need to know to protect
and enhance her interests; (2) disclose and offer to appellants the chance to take advantage of
any opportunities related to, beneficial to, or in the area of interest of the expectation of
appellants; (3) avoid any conflict between his own interests and those of appellants and, in the
event of such conflict, place the interests of appellants before his own; and (4) avoid
competing with appellants in the acquisition of property or other assets related to or closely
connected with property held by appellants, or reasonably related to their area of interest or
expectation. The district court then went on to state that Leon, Jr. breached each and all of
those fiduciary duties. We disagree.
The district court names nine different business relationships that existed between Leon,
Jr. and Marjorie that created a fiduciary duty. It is true that each of these relationships would
serve as a basis for certain duties between the parties. However, those duties generally relate
to properties currently held within the relationship or anticipated by the relationship. The
property in question was never involved in the relationships identified by the district court.
Moreover, Earl was the sole owner of the property subject to the option and had the right to
dispose of it according to his own desires. That property was never within the contemplation
of the relationships listed by the district court. Additionally, both the Rileys and the
Rockwells admit that they were involved in independent investments. A business relationship
between two people does not, without more, preclude separate investments outside the
relationship. In Desantis v. Dixon, 236 P.2d 38 (Ariz. 1951), the Arizona Supreme Court
recognized that where one of two partners purchases a vacant lot in his own name and then
leases it to the partnership, the partner who buys a vacant lot is not a constructive trustee
merely by virtue of the partnership relation. Id. at 41-42. Moreover, although Leon, Jr. acted
as Marjorie's advisor with regard to certain properties, she did not consult him on all her
property investments. The record is clear that Marjorie relied, to a great extent, on the advice
and counsel of her attorney.
The relationships between Leon, Jr. and Marjorie were, in part, products of convenience.
Marjorie lived in Oregon and Leon, Jr. lived close to the property in question. The fact that
Leon, Jr. was willing to assist Marjorie in the management of the property does not create an
interest on her part in all his dealings. The district court creates very broad duties that Leon,
Jr. must live up toduties that we conclude are unrealistic.
[Headnote 4]
The first duty addressed by the district court, that of loyalty, was not breached. The record
indicates that, although Marjorie claims she did not know of the option, she and her attorney
had sufficient facts to put them on notice not only of the existence of the option, but also its
terms, at least by 1973. We also conclude that appellants were not diligent in discovery of
facts relating to the existence of the option. Indeed, on that basis alone, we could hold that
Marjorie's action, which was not filed until 1981, was time-barred.
[Headnote 5]
The second duty imposed on Leon, Jr. by the district court was to disclose and offer to
appellants and the trusts the chance to take advantage of the option. This is unsupportable.
The option was offered only to Leon, Jr.; he had neither the duty nor the right to expand the
terms of Earl's offer.
The next duty discussed by the district court is to avoid conflicts between Leon, Jr.'s own
interests and those of appellants and the trusts. This is a fair statement of the law. However,
we perceive no conflict between Leon, Jr.'s role as fiduciary and his receiving the option.
[Headnote 6]
The district court also states that Leon, Jr. personally competed with, profited from and
enhanced his own interests to the detriment and at the expense of the interests of appellants
and the trusts. We disagree. There is no showing that the trusts or the appellants were injured
in any way. The assets of the trusts have been maintained and their value has not been
diminished.
Appellants contend that the trusts granted the trustees substantial power and authority to
invest in opportunities such as the option in question. The district court agreed that this power
existed, but faulted only Leon, Jr. for failing to offer the option to the trusts. However,
respondent Bank also knew of the option due to its role as sole trustee over Earl's trust, and in
order for the trusts to have purchased the option, both Leon, Jr. and the Bank would have had
to have been involved.
[Headnote 7]
The district court also determined that the statute of limitations was tolled and did not
commence to run, as to the infant plaintiffs, Justine Halliday Hylton and Dylan Michael
Riley, prior to the commencement of this action. We conclude, however, that Justine Halliday
Hylton and Dylan Michael Riley are not proper parties to this action; as mere incidental
beneficiaries of the trust, they lack standing absent the death of their respective parents. On
remand, we direct the district court to dismiss this action as to Justine Halliday Hylton
and Dylan Michael Riley.
remand, we direct the district court to dismiss this action as to Justine Halliday Hylton and
Dylan Michael Riley.
Additionally, retention of the property covered by the option would not unjustly enrich
respondents Rockwell. The district court found that Leon, Jr., as nephew of Earl, was one of
the natural objects of Earl's bounty and as such, the Bank was not put on notice of any
improprieties motivating Earl to amend the trust. The record does not sustain the allegation
of improprieties referred to by the district court. The district court also found that Earl
Rockwell retained complete, unfettered control of the trust assets of Trust 600. In the
exercise of that control he elected to offer Leon, Jr. the opportunity afforded by the option.
While it may have been selfish and morally wrong not to at least ultimately provide a basis
for Marjorie to share in the ownership of the optioned property, such considerations do not
provide a legal foundation for relief.
We conclude that appellants have no legal access to any of the property covered by the
option. That portion of the judgment creating a constructive trust on behalf of appellants is
vacated. Appellants were not injured and are not entitled to damages. The district court also
erred in removing Leon, Jr. as trustee of all trusts of which appellants are beneficiaries and
we vacate that portion of the judgment. We perceive no error in relation to the findings that
pertain to the Bank and we affirm those portions of the judgment. Additionally, respondents
Rockwell and Bank are entitled to recover their costs of suit against appellants. Finally, upon
remand, we direct the district court to enter judgment consistent with this opinion.
6

Springer, J., with whom Gunderson, C. J., agrees, dissenting:
I would affirm the trial court's judgment as it stands except that I would remand so that the
trial court could make a definitive ruling on the issue of punitive damages.
The trial court found, as a matter of law, that respondent Leon Rockwell, Jr., was guilty of
breach of trust and fraud against the appellants. Under NRS 42.010 punitive damages could
have been awarded. The question of whether punitive damages should be awarded is left
solely to the discretion of the fact finder, Midwest Supply, Inc. v. Waters, 89 Nev. 210, 213,
510 P.2d 876, 879 (1973); however, as pointed out by appellants, the trial court did not in its
decision, findings, or judgment address or rule on this question.
____________________

6
Due to the disposition of this appeal, we conclude that it is unnecessary to consider appellants' assignments
of error.
question. Although it might be assumed that the trial judge's failure to address this question
means that he intended to deny punitive damages, I still think that the appellants are entitled
to a yea or nay on this question and would remand for this purpose.
I oppose the majority's granting of respondents' cross-appeal. I find more than ample
evidence to support the findings, conclusions, and judgment of the trial court.
The trial court found that Leon, whose testimony the trial court found to be less than
honest, was guilty of fraudulent concealment and breach of fiduciary relationships in two
different and independent respects: (1) in his capacity as a trustee for his sister Marjorie under
the written trust agreements and (2) in his capacity as a long-time business partner, confidant,
joint venturer, and paid business manager of his sister Marjorie Riley. Accepting the record in
the light most favorable to the Rileys, as we must, flagrant violations of both of the two
different kinds of fiduciary relationships have been demonstrated.
Breach of Written Trust Agreements
First, with regard to Leon's violation of his duty of good faith as Marjorie's trustee under
the written trust agreements, I observe that while Leon was trustee of a portion of the
property, he was stealthily dealing on his own account in trying to buy an added portion of the
trust corpus by talking his Uncle Earl into giving him for $1,000.00 an option to buy a
one-half interest in the property at what can be described as a bargain-basement price.
At Leon's urging (the word needling is used in the record), Marjorie's and Leon's Uncle
Earl apparently agreed in December, 1966, to give Leon an option to purchase an undivided
one-half interest in the property owned by Earl's trust. The option entitled Leon to buy the
property for $300,000.00, payable at $2,500.00 per month. At the time he got the option Leon
was aware that the property was then bringing in income of almost $5,000.00 per month.
Leon told his beneficiary, his sister Marjorie, nothing about his dealings with their uncle.
As stated in the majority opinion, Earl tried to cancel the arrangement in 1972 and filed
suit charging that Leon had obtained the option by fraud. This litigation was dismissed in
1977. Whether Leon defrauded his uncle or not (the purchase price is considerably less than
the value of the property at the time of the option), it is hard to deny that there is evidence of
his having defrauded his sister, for, as the trial court found, Leon worked systematically and
secretly to gain control of The Property and obtain an interest therein greater than Marge's.
There is no question in my mind concerning Leon's bad faith dealing with his sister. He lied
to her; he lied to the court. Both Leon and his wife testified that Leon had disclosed, as he
should have, the existence of the option.
wife testified that Leon had disclosed, as he should have, the existence of the option. They
claimed that Leon had told Marjorie orally and in writing about the option in 1970. This was
strongly denied by Marjorie, who testified that Leon had concealed the existence of the option
for over thirteen years and that Marjorie had no knowledge of the option transaction until
after Earl's death in 1980. The trial court rejected the testimony of Leon and his wife,
believed Marjorie, and expressly found that Leon was guilty of a deliberate, wilful, active
and fraudulent concealment of his secret acquisition of the option from the uncle.
The majority maintains that this stealthful and concealed acquisition of an additional share
of the trust corpus by Leon was perfectly legitimate because he was already a co-owner with
the trusts. I do not see how this makes any difference at all, and I agree with the statement of
Bogert, quoted in the majority, that where a beneficiary holds a fractional interest in property,
it is a breach of duty for him to buy for himself (without informing his beneficiaries) another
fractional interest in the same property. I also agree with Bogert that such transactions ought
to be discouraged even if they are not such obvious breaches of duties as the purchase of
some other kinds of competing interests.
The only qualification on the principle stated in Bogert's comment arises in cases in which
the trust lacks funds to purchase the interest. Such is not the case here.
Again, I agree with Bogert that if the trustee deals with himself as co-owner with the trust,
he automatically gives room for possible conflict and dispute; and, I agree with the trial
court when it found that while in a position of trust, Leon personally competed with and
profited from and enhanced his own interests to the detriment and at the expense of the
interests of the plaintiffs [appellants] and the trusts.
Because of what appears to me to be an obvious fraud and violation of the written trust
agreements by Leon, I agree with the trial judge's findings, conclusions, decision and
judgment on this point.
Brother as Partner,Confidant and Paid
Business Manager of Sister
I believe an even stronger case is made for the propriety of the trial judge's conclusion that
there was a breach of trust in Leon's activities when it comes to Leon's role as a trusted
partner and paid business manager and consultant of Marjorie's.
The trial court was certainly justified in finding, as it did, that Leon was, from the early
1960's, the manager of The Property and all other related Rockwell property in Las Vegas and
that his authority extended to negotiating sales and purchases of property for the trust. The
trial court was also justified in finding that because Marjorie had not lived in Las Vegas for
many years, she relied solely upon Leon to provide her with business information
concerning the property and "possibilities andJor potential for its expansion and
increased profitability."
because Marjorie had not lived in Las Vegas for many years, she relied solely upon Leon to
provide her with business information concerning the property and possibilities and/or
potential for its expansion and increased profitability.
The trial court also legitimately found that in all matters relating to the Rockwell interests
in Las Vegas, Leon had expressly promised to treat his sister fairly, unselfishly, honestly, and
that he would place her interest foremost. In telephone calls and correspondence with
Marjorie, Leon frequently referred to his sister and himself as partners, Leon and Marjorie.
For his services as a manager of the partnership Leon charged his sister at the same rate he
would have been compensated had he been employed in his profession as a dentist.
The majority says that the property in question was never involved in the partnership
relationship. It is true that The Property was never a partnership asset as such, but this
certainly does not mean that it could not have been within the expectation of partner Marjorie
that her brother, pledged to treat her fairly, honestly, unselfishly, and to place her
interest foremost, would go behind her back and secretly buy Uncle Earl's interest in the
trust corpus.
I would agree with the majority that when two people are in a business relationship, all
transactions of either party must not necessarily be for the benefit of the partnership. This is
not the point here. The point here is that the district judge had the opportunity to view first
hand the relationship and expectations of the parties. He did not think that Leon was honest
in his testimony, and he had sound reasons for concluding that Leon, in secretly purchasing
trust property on his own account, was violating his fiduciary duty as a partner, and as a paid
business and financial advisor to his sister, who invested her complete belief and trust in her
brother.
Reading this record I tend to be convinced that had the trial judge found that Leon had not
been guilty of fraud and breach of trust that such a conclusion should have to be set aside. In
light of the nature of the well-supported findings of fact in this case I cannot understand how
the majority can conclude, as a matter of law, that the trial court erred in finding no actionable
breach of trust in this case.
I would affirm the trial court in the manner stated at the commencement of this dissenting
opinion.
____________
103 Nev. 709, 709 (1987) Ries v. Olympian
NORMA RIES, aka NORMA PRESTA, Appellant, v.
OLYMPIAN, INC. and X. NEIL ROSS, Respondents.
No. 17386
December 31, 1987 747 P.2d 910
Appeal from involuntary dismissal, Eighth Judicial District Court, Clark County; Michael
J. Wendell, Judge.
Former wife of debtor filed action alleging that creditor had fraudulently induced district
judge to deny motion for an extension in an earlier case. The district court dismissed on
grounds that first district judge lacked jurisdiction to grant motion, and wife appealed. The
Supreme Court held that: (1) wife introduced evidence of all the elements of fraud and thus
involuntary dismissal was proper, and (2) first district judge could have issued discretionary
stay where creditor retained title and possession of collateral exceeding amount of judgment
and misrepresented to the court that the property had been sold at time former wife of
judgment debtor moved for extension.
[Rehearing denied March 30, 1988]
Gang & Berkley, Las Vegas, for Appellant.
George Graziadei and Scott Cantor, Las Vegas, for Respondents.
1. Torts.
Former wife of judgment debtor stated a claim for intentional misrepresentation against judgment creditor
by pleading that creditor intentionally misrepresented to court that property had been sold at time wife filed
motion for extension, in form of motion for an order to show cause, misrepresentation was made with intent
to induce judge to deny wife's motion so that creditor could keep land, and judge relied upon
misrepresentation in denying motion.
2. Torts.
Judgment creditor's misrepresentations in earlier case, that judgment creditor retained title and possession
of collateral greatly exceeding amount of judgment and intentionally misrepresented to court that property
had been sold, for the purpose of inducing the judge to deny judgment debtor's motion for stay, were
material and thus could support judgment debtor's subsequent action for fraud, which should not have been
dismissed. NRCP 62(a).
OPINION
Per Curiam:
This is a fraud action, in which appellant Ries presented evidence that X. Neil Ross had
fraudulently induced a district judge to deny a motion in an earlier case.
judge to deny a motion in an earlier case. The district court in the instant case, reasoning that
the first district judge had no jurisdiction to grant Ries's motion, ordered the matter dismissed
pursuant to NRCP 41(b). Ries has appealed.
Ries's former husband, Richard Presta, contracted with Olympian, Inc. to operate a tackle
shop in its sporting goods store. Olympian agreed to provide money to purchase inventory.
Presta agreed to convey a parcel of land as collateral for the advances. Ries and Presta
executed a deed to a lot they had purchased for $10,000.00 in 1971. The business
arrangement ended in litigation. Ries and Presta sued for cancellation of the agreement and
reconveyance of their land; Olympian counterclaimed for damages.
On February 20, 1976, the first district judge rendered judgment for Olympian in the
amount of $4,707.45. The judgment also provided that Ries and Presta could redeem the
property if they paid the judgment by April 8, 1976.
By April, Ries and Presta were in divorce litigation. Richard Presta failed to raise the
money to pay the judgment; however, Ries made arrangements to borrow from her mother
who had originally loaned her the down payment on the land. Ries asked her attorney to
secure an extension of time.
On Friday, April 9, 1976, X. Neil Ross, the president of Olympian, conveyed the lot to
Rodger Buffman. (In the instant action, Buffman testified that he had gratuitously agreed to
hold the land in his name until Ross requested reconveyance.) On Monday, April 12, 1976,
Ries filed a motion for an extension in the form of a motion for an order to show cause. The
matter was heard two days later. Ross then falsely told the court the property had been sold
and presented a bill of sale. Thus, the first district judge denied Ries's motion as moot.
Subsequently, Ries discovered that Buffman had reconveyed the property to Olympian, and
that Olympian had sold the property for $50,000.00
Ries brought this action, in which the first district judge testified he had been disposed to
grant the motion because he knew the property was worth much more than the amount of the
judgment. Despite this, the district court, in the instant action, concluded Ross's
misrepresentation of April 14th was immaterial, and granted dismissal. This appeal followed.
NRCP 41(b) provides an action may be dismissed at the close of the plaintiff's case on the
ground that upon the facts and law the plaintiff has failed to provide a sufficient case for the
court or jury. A defense motion for involuntary dismissal admits the truth of the plaintiff's
evidence and all inferences that reasonably may be drawn therefrom. Alford v. Harolds Club,
99 Nev. 670, 674, 669 P.2d 721, 724 (1983).
The elements of intentional misrepresentation are a false representation made with
knowledge or belief that it is false or without a sufficient basis of information, intent to
induce reliance, justifiable reliance, and damage resulting from the reliance. Lubbe v. Barba,
91 Nev. 596, 599, 540 P.2d 115, 117 (1975).
[Headnotes 1, 2]
Involuntary dismissal was improper since Ries has introduced evidence of all the elements
of fraud. In the first case, it appears Ross intentionally misrepresented to the court that the
property had been sold. The misrepresentation was made with the intent to induce the judge
to deny Ries's motion, so that Ross could keep her land. The judge relied on the
misrepresentation and thus denied the motion. We cannot agree that Ross's
misrepresentations were immaterial. Ries's motion for an extension of time was an
application for a stay. The district court had discretionary power to issue the stay on such
conditions for the security of the adverse party as are proper. NRCP 62(a). The first district
judge indicated he would have exercised his discretion to grant the extension. We think he
clearly could have issued a discretionary stay where, as here, the prevailing party retained title
and possession of collateral far exceeding the amount of the judgment. In these
circumstances, we find in NRCP 62(a) no limitation precluding the first district judge from
granting a stay on April 14, 1976.
Having concluded the district court erred in dismissing this action, we hereby reverse the
judgment of the district court and remand the cause for further proceedings.
____________
103 Nev. 711, 711 (1987) M & R Investment Co. v. Mandarino
M & R INVESTMENT COMPANY, INC., CHARLES COOPER, J. DILLY, ALVIN
ENGLETT, Appellants and Cross-Respondents, v. DANIEL MARK
MANDARINO, Respondent and Cross-Appellant.
No. 15652
December 31, 1987 748 P.2d 488
Appeal and cross-appeal from judgment and orders of the district court. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Gambler who was detained by casino personnel after gambler fled premises brought action
against owner of casino based on conversion, invasion of privacy, defamation, assault,
battery, false arrest, false imprisonment, intentional infliction of emotional distress and
outrage. On jury's verdict in favor of gambler on defamation claim and in favor of casino on
remaining claims, the district court denied casino's motion for JNOV regarding defamation
claim, granted casino's alternative motion for new trial on defamation issue, denied
gambler's motion for JNOV, but granted his motion for new trial on claims alleging assault
and battery, false arrest and false imprisonment, and intentional infliction of emotional
distress and outrage.
on defamation claim and in favor of casino on remaining claims, the district court denied
casino's motion for JNOV regarding defamation claim, granted casino's alternative motion for
new trial on defamation issue, denied gambler's motion for JNOV, but granted his motion for
new trial on claims alleging assault and battery, false arrest and false imprisonment, and
intentional infliction of emotional distress and outrage. On appeal and cross-appeal, the
Supreme Court held that: (1) defamation action could not be maintained as there was no
publication of defamatory statements; (2) gambler was not entitled to new trial on assault and
battery, false arrest and false imprisonment, and intentional infliction of emotional distress
and outrage claims; (3) gambler failed to make prima facie showing that trial court's dismissal
of conversion claim was erroneous; and (4) gambler could not maintain claims based on
invasion of privacy or malicious prosecution.
Affirmed in part; reversed in part and remanded.
Thorndal, Backus & Maupin, Las Vegas, for Appellant and Cross-Respondent M & R
Investment Company, Inc.
Johnson & Rosenberger, Las Vegas, for Appellants and Cross-Respondents Charles
Cooper, J. Dilly, Alvin Englett.
E. Leslie Combs, Jr., Las Vegas, for Respondent and Cross-Appellant.
Defamatory statement is actionable only if it has been published; communication of defamatory statement
between agents or employees of corporation, however, is not publication.
Publication is generally proven by direct evidence of communication of defamatory statement to third
party, by testimony of third party that he heard defamatory statement; however, publication may also be
proven by circumstantial evidence that statement was comprehensible to and uttered in presence and
hearing of third party.
Gambler could not maintain defamation action against casino based on comment by one casino employee
to another employee that fleeing gambler was a thief and [he is] trespassing also; record contained no
direct or circumstantial evidence of communication of defamatory statement to third person.
4. New Trial.
District court may grant new trial if it finds that jury has shown manifest disregard for instructions of
court. NRCP 59(a)(5).
5. New Trial.
Gambler was not entitled to new trial on his assault and battery, false arrest and false imprisonment, and
intentional infliction of emotional distress and outrage claims against casino based upon their apprehension
of him after he fled from casino; substantial evidence supported jury's determination that casino
employees had reasonable cause to believe that gambler had committed crime, and
that they used reasonable force to detain him until police arrived.
jury's determination that casino employees had reasonable cause to believe that gambler had committed
crime, and that they used reasonable force to detain him until police arrived.
Cross-appellant failed to make prima facie showing that trial court's dismissal of conversion claim was
erroneous on ground that trier of fact was entitled to decide whether punitive damages should be awarded
on claim; cross-appellant did not provide appellate court with transcript or submit settled and approved
statement pertaining to motion for partial summary judgment or proceedings conducted pursuant to that
motion. NRCP 41(b); NRAP 10(b), (c), (e).
7. Torts.
Gambler was unable to maintain invasion of privacy claim against casino which was based upon casino
personnel's request that he identify himself, publication of his photograph, and detention for questioning
after he fled premises; gambler published fact that he was card counter by very act of publicly counting
cards at blackjack table in public gaming establishment, and further had no reasonable expectation that
casino personnel would not request that he identify himself given fact that he was playing blackjack while
disguised in dark glasses, false mustache and slicked down hair.
8. Malicious Prosecution.
Gambler who was detained by casino personnel after having bolted from establishment when he was
asked to identify himself could not maintain malicious prosecution action against casino; there was no
evidence that police officers commenced criminal prosecution at direction, request or pressure of casino.
OPINION
Per Curiam:
At 9:00 p.m., on September 15, 1982, respondent and cross-appellant Daniel Mark
Mandarino, an admitted card counter,
1
entered the Oasis Casino of the Dunes Hotel and
began playing blackjack. Mandarino wore dark glasses and a false mustache, and he had
slicked back his hair in an effort to conceal his true identity. Because Mandarino was
employed by another casino, he was aware of the fact that casinos ban card counters from
their property and distribute the photographs of known card counters to other gaming
establishments.
A number of casino employees became suspicious of Mandarino after they observed his
irregular betting, his nervous demeanor and his obvious disguise. They suspected that he was
either counting cards or cheating. When Mandarino saw that he was being watched, he left
the table to cash in his winnings and to avoid the risk of being identified and banned from the
casino.
____________________

1
A card counter or card caser keeps track of exposed cards, increases the size of his bets when the odds
are in his favor, and decreases the size of his bets or discontinues betting when they are not. J. Scarne, Scarne's
Complete Guide to Gambling, pgs. 332-333 (1961).
When casino security guards approached him and asked for identification at the cashier's
cage, Mandarino gave a false name, falsely stated that his wife had his identification and
indicated that she was at a slot machine near the front door. As the guards and Mandarino
approached the door, Mandarino bolted and ran. A guard chased Mandarino across Las Vegas
Boulevard and into the entryway of the MGM Grand Hotel, where the guard tackled
Mandarino, handcuffed him and returned him to a security office at the Dunes.
Mandarino subsequently filed suit against appellant and cross-respondent M & R
Investment Company, Inc. (M & R), which owns the Dunes Hotel. The suit also named
Dunes Hotel security guards Charles Cooper, J. Dilly, and Alvin Englett as defendants. In his
complaint, Mandarino alleged that, when employees of M & R discovered that he was a card
counter, they called him a thief and a trespasser, pursued him through the casino and into
the street, tackled him in the entryway to another casino, transported him to the Dunes Hotel
security office, confiscated $2,650 in chips that he had won playing blackjack, photographed
him, beat him up, had him arrested, and had his photograph distributed to other casinos. The
complaint asserted twelve claims for relief, including claims for conversion, invasion of
privacy, defamation, malicious prosecution, assault, battery, false arrest, false imprisonment,
intentional infliction of emotional distress, and outrage.
Prior to trial, the district court granted Mandarino's motion for partial summary judgment
on his conversion claim and ordered M & R to pay Mandarino $2,650. M & R did so.
Following the presentation of his case-in-chief, the district court dismissed Mandarino's
claims for conversion and invasion of privacy pursuant to NRCP 41(b). The defamation claim
against Cooper, Dilly, and Englett was also dismissed. Subsequently, the district court
granted appellant's motion for a directed verdict pursuant to NRCP 50(a) and dismissed
Mandarino's claim for malicious prosecution. The remaining claims for assault and battery,
outrage and intentional infliction of emotional distress, false imprisonment and false arrest,
and defamation (against M & R) were submitted to the jury.
The jury returned a verdict against M & R on Mandarino's claim for defamation. The jury,
however, found in favor of the defendants on the remaining claims. Thereafter, M & R, as
well as Mandarino, filed timely motions for judgment notwithstanding the verdict or, in the
alternative, for a new trial.
2
The district court denied M & R's motion for judgment
notwithstanding the verdict {JNOV) respecting the claim for defamation, but granted M &
R's alternative motion for new trial on the defamation issue.

____________________

2
On appeal M & R asserts that Mandarino's post-judgment motions were untimely. We reject this contention.
Our review of the record reveals that Mandarino's motions were filed within ten days of service of written notice
of entry of the judgment. See NRCP 50(b); NRCP 59(b).
The district court denied M & R's motion for judgment notwithstanding the verdict
(JNOV) respecting the claim for defamation, but granted M & R's alternative motion for new
trial on the defamation issue. Similarly, the district court denied Mandarino's motion for
JNOV, but granted his motion for a new trial on the claims alleging assault and battery, false
arrest and false imprisonment, and intentional infliction of emotional distress and outrage.
On appeal, M & R asserts that the district court erred in denying its motion for JNOV. All
the appellants assert that the district court erred in granting Mandarino's motion for new trial.
Mandarino cross-appeals and maintains that the district court erred in dismissing his claims
for conversion and invasion of privacy pursuant to NRCP 41(b). Further, Mandarino
challenges the district court's order directing a verdict in favor of appellants on his claim for
malicious prosecution.
DEFAMATION
[Headnote 1]
M & R contends that, because the record is devoid of evidence that M & R published a
defamatory statement about Mandarino, the district court erred in denying its motion for
JNOV on Mandarino's defamation claim for relief. We agree. A defamatory statement is
actionable only if it has been published. Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d
970 (1981); Prosser and Keeton on Torts 113 (5th Ed. 1984). Publication . . . is the
communication of the defamatory matter to some third person. . . . Jones, 97 Nev. at 26, 623
P.2d at 971 quoting Prins v. Holland-North American Mortgage Co., 181 P. 680 (Wash.
1919). The communication of a defamatory statement between agents or employees of a
corporation, however, is not publication. Jones, 97 Nev. at 26, 623 P.2d at 971.
[Headnote 2]
Publication is generally proven by direct evidence of the communication of the defamatory
statement to a third person, that is, by the testimony of a third person that he heard the
defamatory statement. Publication may also be proven, however, by circumstantial evidence
of the communication of the defamatory statement to a third person, that is, by evidence that
the defamatory statement was comprehensible to and uttered in the presence and hearing of a
third person. Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla.App. 1976); Duckworth
v. First National Bank, 176 S.E.2d 297 (S.C. 1970); Gaudette v. Carter, 214 A.2d 197 (R.I.
1965).
[Headnote 3]
We must allow Mandarino the benefit of every reasonable inference in support of the
verdict, in reviewing the district court's denial of M & R's motion for JNOV. Hernandez v.
City of Salt Lake, 100 Nev. 504, 686 P.2d 251 (1984). Nonetheless, the record before us is
devoid of any evidence that M & R published a defamatory statement about Mandarino. The
record indicates that, at 9:00 a.m. on September 15, 1982, on the floor of the Oasis Casino,
Cooper asked Mandarino for identification, Mandarino bolted, and Roger Mennie, another
Dunes Hotel employee said to Cooper, [C]atch him, he's a thief and [he is] trespassing also.
The communication of the allegedly defamatory statement between Mennie and Cooper, both
employees of M & R, is not publication. Jones, supra. The record contains no direct or
circumstantial evidence of the communication of the defamatory statement to a third person.
Evidence that one employee of M & R said something defamatory about Mandarino to
another employee of the corporation, without more, that is, without evidence regarding the
tone in which the defamatory statement was made or the proximity of third parties, does not
establish that the defamatory statement was published. Id. Because the record is devoid of any
evidence of the requisite element of publication, Mandarino, as a matter of law, failed to
establish a sufficient claim for relief. Jones, supra. The district court, therefore, erred in
denying M & R's motion for JNOV, and in granting M & R's motion for a new trial on
Mandarino's defamation claim for relief. Accordingly, on remand, the district court shall
vacate its order granting a new trial and enter judgment notwithstanding the verdict in favor
of M & R on the defamation claim.
ASSAULT AND BATTERY, FALSE ARREST AND FALSE
IMPRISONMENT, AND INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS AND OUTRAGE
[Headnote 4]
Appellants argue that the district court erred in granting Mandarino's motion for a new trial
on the claims for assault and battery, false arrest and false imprisonment, and intentional
infliction of emotional distress and outrage. We agree. The district court may grant a new trial
if it finds that the jury has shown manifest disregard for the instructions of the court. NRCP
59(a)(5). In determining the propriety of the granting of a new trial under NRCP 59(a)(5),
the question is whether we are able to declare that, had the jurors properly applied the
instructions of the court, it would have been impossible for them to reach the verdict which
they reached. Weaver Brothers, Ltd. v. Misskelley, 9S Nev. 232, 234
ley, 98 Nev. 232, 234, 645 P.2d 438, 439 (1982); see also Jaramillo v. Blackstone, 101 Nev.
316, 704 P.2d 1084 (1985).
[Headnote 5]
Our review of the record reveals that appellants presented substantial evidence under
which the jury, in properly applying the instructions of the court, could have reasonably found
in appellants' favor. For example, in light of the testimony presented, the jury could have
properly found that appellants had reasonable cause to believe that Mandarino had committed
a crime, and that appellants used reasonable force to detain him until the police arrived.
Accordingly, we conclude that the district court erred in granting Mandarino's motion for a
new trial respecting these claims, and we direct the district court to reinstate the jury's verdict
in favor of appellants.
CONVERSION
On August 11, 1983, following a hearing, the district court entered a written order granting
Mandarino's motion for partial summary judgment respecting the claim for conversion. The
order specifically awarded partial judgment in the amount of $2,650.00 to Mandarino. Our
review of the record on appeal, however, reveals no written motion for partial summary
judgment, no written opposition to the motion and no transcript of the hearing at which the
district court heard argument respecting the motion for partial summary judgment.
On August 16, 1983, Mandarino filed an amended complaint in the district court which
again asserted a claim for conversion and which sought [s]pecial damages for conversion of
[Mandarino's] property in the amount of $2,650. The amended complaint also sought a
general award of punitive damages. On February 17, 1984, following the presentation of
Mandarino's case-in-chief, M & R moved the district court pursuant to NRCP 41(b) to
dismiss the claim for conversion.
3
M & R argued that under Nevada law any money won at
a gaming table is not recoverable in a civil action. See e.g., Weisbrod v. Fremont Hotel, 74
Nev. 227, 326 P.2d 1104 (1958) (an action will not lie for collection of money won in
gambling, even when patron seeks such recovery from proprietors of gaming establishment).
The district court granted M & R's motion, but, apparently, it based its decision on the fact
that the court had previously granted Mandarino's motion for partial summary judgment on
the conversion claim and, therefore, the district court determined that the claim
previously had "been disposed of in its entirety."
____________________

3
NRCP 41(b) provides, in pertinent part:
After the plaintiff has completed the presentation of his evidence, the defendant . . . may move for a
dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case
for the . . . jury.
Mandarino's motion for partial summary judgment on the conversion claim and, therefore, the
district court determined that the claim previously had been disposed of in its entirety. We
discern these facts from the transcript of the hearing before the district court of February 17,
1987. We note, however, that no written order memorializing the district court's decision
pursuant to NRCP 41(b) appears in the record on appeal.
[Headnote 6]
In his cross-appeal, Mandarino contends that the district court erred by dismissing his
conversion claim because the trier of fact was entitled to decide whether punitive damages
should be awarded on the conversion claim. Our review of the propriety of the district court's
order dismissing the conversion claim pursuant to NRCP 41(b), however, is necessarily
dependent upon the evidence which would have been disclosed in the written motion for
partial summary judgment or in a transcript of the hearing on that motion. See Stover v. Las
Vegas Int'l Country Club, 95 Nev. 66, 589 P.2d 671 (1979). This court has not been favored
with a transcript of that hearing, nor has cross-appellant submitted a settled and approved
statement pertaining to the motion for partial summary judgment or the proceedings
conducted pursuant to that motion. See Cleveland v. Hopper, 90 Nev. 134, 136, 520 P.2d 614,
615 (1974); NRAP 10(b), (c) and (e). Thus, without cross-appellant's written pleadings
setting forth the precise relief requested by the motion for partial summary judgment, we are
unable to ascertain whether the district court correctly determined that the prior order granting
the partial summary judgment resolved and disposed of the conversion claim in its entirety. It
is Mandarino's responsibility as the cross-appellant to make and transmit an adequate
appellate record to this court. When evidence upon which the lower court's judgment rests is
not included in the record, it is assumed that the record supports the district court's decision.
See Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985); Carson Ready Mix v.
First Nat'l Bk., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981). The record before us discloses
no error in this regard which has been properly preserved for appellate review, and
Mandarino has failed to make a prima facie showing that the trial court's dismissal of the
conversion claim pursuant to NRCP 41(b) was clearly erroneous. See Jaramillo v. Blackstone,
101 Nev. 316, 704 P.2d 1084 (1985). Accordingly, we reject Mandarino's contention in this
regard.
INVASION OF PRIVACY
[Headnote 7]
Mandarino contends that the district court erred in granting M & R's motion for
involuntary dismissal of his invasion of privacy claim for relief pursuant to NRCP 41{b).
privacy claim for relief pursuant to NRCP 41(b). We disagree. Interpreting the evidence
presented at trial in the light most favorable to plaintiff, we conclude that cross-appellant did
not establish a prima facie case of invasion of privacy sufficient to withstand the motion for
dismissal pursuant to NRCP 41(b). Garton v. City of Reno, 102 Nev. 313, 720 P.2d at 1227
(1986).
Specifically, Mandarino contends that the actions of appellants constituted an unwarranted
intrusion into his seclusion, solitude and private affairs, as well as an unjustified public
disclosure of private facts. See generally Montesano v. Donrey Media Group, 99 Nev. 644,
668 P.2d 1081 (1983). M & R correctly contends, however, that the alleged publication of
facts about Mandarino did not constitute a publication of private facts, but rather, a
publication of public facts which Mandarino himself made public. In the instant case,
Mandarino himself published the fact that he is a card counter by the very act of publicly
counting cards at a blackjack table in a public gaming establishment. Therefore, the fact that
Mandarino counted cards for the purpose of monetary gain was not a private fact about which
he could have had a reasonable expectation of privacy. Moreover, the fact that he disguised
himself in an attempt to prevent the exposure of his true identity, clearly establishes that he
expected that his skills would be observed and his identity detected and published.
Accordingly, we conclude that Mandarino failed to establish a prima facie case of invasion of
privacy based on the public disclosure of private facts.
Additionally, we observe that a twenty-two year old man, disguised in dark glasses, a false
mustache and slicked down hair, who, by virtue of his skill at counting cards, wins a great
deal of money in a short period of time, does not have a reasonable expectation that casino
personnel will turn a blind eye to his presence and will not request that he identify himself.
We conclude, therefore, that even interpreting the facts in the light most favorable to
Mandarino, he could have had no reasonable expectation under these circumstances that
casino personnel would not request him to identify himself, publish his photograph, or even
detain him for questioning after he fled the premises.
MALICIOUS PROSECUTION
Mandarino next contends that the district court erred in granting a directed verdict against
him on his claim for malicious prosecution pursuant to NRCP 50(a).
4
We disagree.
____________________

4
NRCP 50(a) provides, in pertinent part:
A motion for a directed verdict may be made at the close of the . . . case. . . . If the evidence is sufficient
to sustain a verdict for the opponent, the motion shall not be granted.
[Headnote 8]
To recover for malicious prosecution, Mandarino had to demonstrate that police officers
commenced the criminal prosecution because of direction, request, or pressure from
appellants. Catrone v. 105 Casino Corporation, 82 Nev. 166, 171-172, 414 P.2d 106, 109
(1966). Viewing the evidence and all inferences in the light most favorable to Mandarino, we
conclude that the record is devoid of any evidence that the police officers commenced the
criminal prosecution at the direction, request, or pressure of appellants. Connell v. Carl's Air
Conditioning, 97 Nev. 436, 438, 634 P.2d 673 (1981); Catrone, supra. Consequently, the
evidence presented below was not sufficient to sustain a verdict in Mandarino's favor on this
issue. The district court, therefore, correctly granted a directed verdict against Mandarino on
the claim for malicious prosecution.
CONCLUSION
Accordingly, we reverse the orders of the district court (1) denying appellant M & R's
motion for a judgment notwithstanding the jury's verdict on the claim for defamation, and (2)
granting the parties' motions for new trial. On remand, the district court shall enter judgment
in favor of M & R on its motion for judgment notwithstanding the verdict on the claim for
defamation, and shall reinstate the jury's verdict respecting the remaining claims. The
judgment of the district court is affirmed in all other respects.
____________

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