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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.
103 Nev. 1, 2 (1987) Crow-Spieker #23 v. Helms
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.
2. Vendor and Purchaser.
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.
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1
The enforceability of that right is disputed; however, our resolution of this appeal makes discussion of that
issue unnecessary.
103 Nev. 1, 3 (1987) Crow-Spieker #23 v. Helms
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.
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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).
103 Nev. 1, 4 (1987) Crow-Spieker #23 v. Helms
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.
____________
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.
103 Nev. 4, 5 (1987) Downey v. State
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.
103 Nev. 4, 6 (1987) Downey v. State
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.
103 Nev. 4, 7 (1987) Downey v. State
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.
103 Nev. 4, 8 (1987) Downey v. State
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
STATE OF NEVADA, Respondent.
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.
103 Nev. 8, 9 (1987) Ybarra v. State
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.
U.S.C.A.Const. Amend. 6.
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.
U.S.C.A.Const. Amend. 6.
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.
103 Nev. 8, 10 (1987) Ybarra v. State
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."
103 Nev. 8, 11 (1987) Ybarra v. State
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.
103 Nev. 8, 12 (1987) Ybarra v. State
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).
103 Nev. 8, 13 (1987) Ybarra v. State
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.
103 Nev. 8, 14 (1987) Ybarra v. State
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.
103 Nev. 8, 15 (1987) Ybarra v. State
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."
103 Nev. 8, 16 (1987) Ybarra v. State
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.
2. Workers' Compensation.
Last injurious exposure rule applies to both occupational disease and successive injuries situations.
3. Workers' Compensation.
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.
4. Workers' Compensation.
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.
5. Workers' Compensation.
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.
6. Workers' Compensation.
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.
103 Nev. 17, 18 (1987) SIIS v. Swinney
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.
103 Nev. 17, 19 (1987) SIIS v. Swinney
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.
103 Nev. 17, 20 (1987) SIIS v. Swinney
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
103 Nev. 17, 21 (1987) SIIS v. Swinney
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
NRS 616.110(1) provides:
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.
103 Nev. 26, 27 (1987) Dagher v. Dagher
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.
103 Nev. 26, 28 (1987) Dagher v. Dagher
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.
103 Nev. 26, 29 (1987) Dagher v. Dagher
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.
THE STATE OF NEVADA, Respondent.
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.
103 Nev. 29, 30 (1987) Huebner v. State
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).
103 Nev. 29, 31 (1987) Huebner v. State
[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.
103 Nev. 29, 32 (1987) Huebner v. State
[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.
103 Nev. 29, 33 (1987) Huebner v. State
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.
103 Nev. 33, 34 (1987) Regent International v. Lear
1. Vendor and Purchaser.
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.
2. Vendor and Purchaser.
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.
103 Nev. 33, 35 (1987) Regent International v. Lear
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.
103 Nev. 35, 36 (1987) Atlantic Commercial v. Boyles
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.
103 Nev. 35, 37 (1987) Atlantic Commercial v. Boyles
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.
103 Nev. 35, 38 (1987) Atlantic Commercial v. Boyles
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.
103 Nev. 35, 39 (1987) Atlantic Commercial v. Boyles
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.
103 Nev. 39, 40 (1987) K Mart Corp. v. Ponsock
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.
2. Master and Servant.
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.
4. Master and Servant.
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.
5. Master and Servant.
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.
6. Master and Servant.
Mere discharge of tenured employee in violation of employment contract is not tortious conduct.
103 Nev. 39, 41 (1987) K Mart Corp. v. Ponsock
7. Master and Servant.
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.
8. Master and Servant.
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.
9. Master and Servant.
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.
14. Master and Servant.
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.
15. Master and Servant.
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.
17. Master and Servant.
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.
103 Nev. 39, 42 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 43 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 44 (1987) K Mart Corp. v. 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.
103 Nev. 39, 45 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 46 (1987) K Mart Corp. v. Ponsock
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:
103 Nev. 39, 47 (1987) K Mart Corp. v. Ponsock
[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
103 Nev. 39, 48 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 49 (1987) K Mart Corp. v. Ponsock
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?
103 Nev. 39, 50 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 51 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 52 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 39, 53 (1987) K Mart Corp. v. Ponsock
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.
103 Nev. 53, 54 (1987) Glenda S., A Minor v. State
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.
Reversed and remanded.
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.
103 Nev. 53, 55 (1987) Glenda S., A Minor v. State
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
By the Court, Springer, J.:
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.
103 Nev. 53, 56 (1987) Glenda S., A Minor v. State
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.
103 Nev. 53, 57 (1987) Glenda S., A Minor v. State
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."
103 Nev. 53, 58 (1987) Glenda S., A Minor v. State
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.
103 Nev. 53, 59 (1987) Glenda S., A Minor v. State
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.
103 Nev. 53, 60 (1987) Glenda S., A Minor v. State
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.
103 Nev. 60, 61 (1987) Holiday Inn v. Barnett
Jerry Collier Lane, Las Vegas, for Appellant.
Dennis A. Kist, Las Vegas, for Respondent.
1. Appeal and Error.
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).
2. Workers' Compensation.
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).
3. Workers' Compensation.
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
4. Workers' Compensation.
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).
103 Nev. 60, 62 (1987) Holiday Inn v. Barnett
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.
103 Nev. 60, 63 (1987) Holiday Inn v. Barnett
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).
103 Nev. 60, 64 (1987) Holiday Inn v. Barnett
(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.
103 Nev. 60, 65 (1987) Holiday Inn v. Barnett
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
OF NEVADA, Respondent.
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.
103 Nev. 69, 70 (1987) Mazzan v. State
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.
103 Nev. 69, 71 (1987) Mazzan v. State
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.
103 Nev. 69, 72 (1987) Mazzan v. State
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
STATE OF NEVADA, Respondent.
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.
103 Nev. 76, 77 (1987) Dawson v. State
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
Tufteland, Deputy District Attorney, Clark County, for Respondent.
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.
103 Nev. 76, 78 (1987) Dawson v. State
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:
103 Nev. 76, 79 (1987) Dawson v. State
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.
103 Nev. 76, 80 (1987) Dawson v. State
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.
103 Nev. 76, 81 (1987) Dawson v. State
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.
103 Nev. 81, 82 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 83 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 84 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 85 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 86 (1987) Leavitt v. Leisure Sports Inc.
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.

103 Nev. 81, 87 (1987) Leavitt v. Leisure Sports Inc.
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).
103 Nev. 81, 88 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 89 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 90 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 91 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 92 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 93 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 94 (1987) Leavitt v. Leisure Sports Inc.
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.
103 Nev. 81, 95 (1987) Leavitt v. Leisure Sports Inc.
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
STATE OF NEVADA, Respondent.
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.
103 Nev. 95, 96 (1987) Pendleton v. State
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.
Reversed and remanded.
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.
103 Nev. 95, 97 (1987) Pendleton v. State
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.
103 Nev. 95, 98 (1987) Pendleton v. State
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.
103 Nev. 95, 99 (1987) Pendleton v. State
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.
103 Nev. 95, 100 (1987) Pendleton v. State
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.
Reversed and remanded.
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.
3. Appeal and Error.
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.
103 Nev. 101, 102 (1987) McCourt v. J. C. Penney Co.
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.
5. Products Liability.
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.
103 Nev. 101, 103 (1987) McCourt v. J. C. Penney Co.
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.
103 Nev. 101, 104 (1987) McCourt v. J. C. Penney Co.
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.
103 Nev. 104, 105 (1987) Zobrist v. Farmers Ins. Exchange
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).
103 Nev. 104, 106 (1987) Zobrist v. Farmers Ins. Exchange
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
OF NEVADA, Respondent.
No. 16921
March 31, 1987 734 P.2d 700
Appeal from conviction of first-degree murder with use of a deadly weapon. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
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.
103 Nev. 106, 107 (1987) Williams v. State
Beury & Schubel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
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.
103 Nev. 106, 108 (1987) Williams v. State
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.
17. Attorney and Client.
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.
103 Nev. 106, 109 (1987) Williams v. State
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.
103 Nev. 106, 110 (1987) Williams v. State
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.
103 Nev. 106, 111 (1987) Williams v. State
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.
103 Nev. 106, 112 (1987) Williams v. State
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
STATE OF NEVADA, Respondent.
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.
103 Nev. 113, 114 (1987) Townsend v. State
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.
103 Nev. 113, 115 (1987) Townsend v. State
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.
103 Nev. 113, 116 (1987) Townsend v. State
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.
103 Nev. 113, 117 (1987) Townsend v. State
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.]
103 Nev. 113, 118 (1987) Townsend v. State
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.
103 Nev. 113, 119 (1987) Townsend v. State
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.
103 Nev. 113, 120 (1987) Townsend v. State
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
103 Nev. 113, 121 (1987) Townsend v. State
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
STATE OF NEVADA, Respondent.
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.
103 Nev. 121, 122 (1987) Dumaine v. State
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.
103 Nev. 121, 123 (1987) Dumaine v. State
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.
103 Nev. 121, 124 (1987) Dumaine v. State
[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.
103 Nev. 121, 125 (1987) Dumaine v. State
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.
103 Nev. 126, 127 (1987) Overhead Door Co. v. Overhead Door Corp.
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.
103 Nev. 126, 128 (1987) Overhead Door Co. v. Overhead Door Corp.
[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.
1. Appeal and Error.
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.
4. Appeal and Error.
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.
103 Nev. 129, 130 (1987) Pandelis Constr. Co. v. Jones-Viking Assoc.
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
103 Nev. 129, 131 (1987) Pandelis Constr. Co. v. Jones-Viking Assoc.
[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.
103 Nev. 129, 132 (1987) Pandelis Constr. Co. v. Jones-Viking Assoc.
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.
1. Appeal and Error.
Order partially adjudicating complaint which asserts only one claim for relief is not amenable to
certification as final judgment. NRCP 54(b).
103 Nev. 132, 133 (1987) Bernard v. Rockhill Dev. Co.
2. Appeal and Error.
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."
103 Nev. 132, 134 (1987) Bernard v. Rockhill Dev. Co.
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).
103 Nev. 132, 135 (1987) Bernard v. Rockhill Dev. Co.
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
103 Nev. 132, 136 (1987) Bernard v. Rockhill Dev. Co.
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.
103 Nev. 136, 137 (1987) Hughes Properties Inc. v. Plaza Investments
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.
103 Nev. 136, 138 (1987) Hughes Properties Inc. v. Plaza Investments
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
OF NEVADA, Respondent.
No. 16300
RICHARD ALLEN MORAN, Appellant, v. THE STATE
OF NEVADA, Respondent.
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).
[Rehearing denied June 25, 1987]
Lovell, Bilbray & Potter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
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.
[Rehearing denied June 25, 1987]
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.
103 Nev. 144, 145 (1987) Summa Corp. v. DeSure Corp.
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.
103 Nev. 144, 146 (1987) Summa Corp. v. DeSure Corp.
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.
103 Nev. 144, 147 (1987) Summa Corp. v. DeSure Corp.
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.
Reversed and remanded.
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.
2. Husband and Wife.
Estate owned by life tenant is subject to division as community property.
3. Husband and Wife.
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.
4. Husband and Wife.
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.
6. Husband and Wife.
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.
Reversed and remanded.
King, Clark, Gross and Sutcliffe, Ltd., Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondent.
1. Workers' Compensation.
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.
2. Workers' Compensation.
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.
3. Workers' Compensation.
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.
4. Workers' Compensation.
Decision of appeals officer in worker's compensation case will not be disturbed on judicial review if it is
supported by substantial evidence.
103 Nev. 152, 153 (1987) Diaz v. Golden Nugget
5. Workers' Compensation.
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.
6. Workers' Compensation.
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.
103 Nev. 152, 154 (1987) Diaz v. Golden Nugget
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
This appeal followed.
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.
103 Nev. 152, 155 (1987) Diaz v. Golden Nugget
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.
103 Nev. 152, 156 (1987) Diaz v. Golden Nugget
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.
Reversed and remanded.
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.
103 Nev. 157, 158 (1987) Carrillo v. Valley Bank
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.
103 Nev. 157, 159 (1987) Carrillo v. Valley Bank
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.
103 Nev. 157, 160 (1987) Carrillo v. Valley Bank
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
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
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.
103 Nev. 160, 161 (1987) Sheriff v. Frank
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.
103 Nev. 160, 162 (1987) Sheriff v. Frank
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.
103 Nev. 160, 163 (1987) Sheriff v. Frank
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.
103 Nev. 160, 164 (1987) Sheriff v. Frank
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.
103 Nev. 160, 165 (1987) Sheriff v. Frank
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.
103 Nev. 160, 166 (1987) Sheriff v. Frank
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.
THE STATE OF NEVADA, Respondent.
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.
103 Nev. 166, 167 (1987) Sanchez v. State
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.
2. Searches and Seizures.
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.
103 Nev. 166, 168 (1987) Sanchez v. State
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.
103 Nev. 166, 169 (1987) Sanchez v. State
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.
103 Nev. 166, 170 (1987) Sanchez v. State
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.
103 Nev. 172, 173 (1987) Brooks v. Nevada First Thrift
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.
103 Nev. 172, 174 (1987) Brooks v. Nevada First Thrift
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.
103 Nev. 175, 176 (1987) Bidart v. American Title
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.
103 Nev. 175, 177 (1987) Bidart v. American Title
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.
103 Nev. 175, 178 (1987) Bidart v. American Title
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.
103 Nev. 175, 179 (1987) Bidart v. American 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.
Affirmed in part; reversed and remanded in part.
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.
103 Nev. 180, 181 (1987) Sheriff v. Richardson
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.
103 Nev. 180, 182 (1987) Sheriff v. Richardson
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.
103 Nev. 180, 183 (1987) Sheriff v. Richardson
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.
103 Nev. 180, 184 (1987) Sheriff v. Richardson
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.
Reversed and remanded.
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
further proceedings.
____________
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.
103 Nev. 187, 188 (1987) Pub. Service Comm'n v. Sierra Pacific
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).
103 Nev. 187, 189 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 190 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 191 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 192 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 193 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 194 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
103 Nev. 187, 195 (1987) Pub. Service Comm'n v. Sierra Pacific
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.
1. Workers' Compensation.
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.
2. Workers' Compensation.
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.
3. Workers' Compensation.
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.
4. Workers' Compensation.
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.
5. Workers' Compensation.
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.
5. Workers' Compensation.
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
By the Court, Gunderson, C. J.:
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.
7. Attorney and Client.
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
By the Court, Springer, J.:
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.
Affirmed in part; reversed and remanded in part.
[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.
103 Nev. 208, 209 (1987) Dep't Human Res. v. UHS of The Colony
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).
103 Nev. 208, 210 (1987) Dep't Human Res. v. UHS of The Colony
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.
103 Nev. 208, 211 (1987) Dep't Human Res. v. UHS of The Colony
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.
NRS 439A.017 (1983) provided:
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.
THE STATE OF NEVADA, Respondent.
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.
Reversed and remanded.
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.
2. Constitutional Law.
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.
103 Nev. 212, 213 (1987) Passama v. State
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."
103 Nev. 212, 214 (1987) Passama v. State
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.
103 Nev. 212, 215 (1987) Passama v. State
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.
103 Nev. 212, 216 (1987) Passama v. State
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.
Reversed and remanded.
[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.
Reversed and remanded.
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.
103 Nev. 218, 219 (1987) Boulware v. State, Dep't Human Resources
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
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. 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.
NRS 439A.017 (1983) provided:
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.
103 Nev. 218, 220 (1987) Boulware v. State, Dep't Human Resources
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.
Reversed and remanded.
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.
103 Nev. 220, 221 (1987) Davis v. Nevada National Bank
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.
103 Nev. 220, 222 (1987) Davis v. Nevada National Bank
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.
103 Nev. 220, 223 (1987) Davis v. Nevada National Bank
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.
103 Nev. 220, 224 (1987) Davis v. Nevada National Bank
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
County; Carl J. Christensen, Judge.
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.
Reversed and remanded.
103 Nev. 224, 225 (1987) Tschabold v. Orlando
Jack Pursel and Charles Burnett, Las Vegas, for Appellant.
Moran & Weinstock and Frances-Ann Fine, Las Vegas, for Respondents.
1. Appeal and Error.
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.
103 Nev. 224, 226 (1987) Tschabold v. Orlando
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.
____________
103 Nev. 227, 227 (1987) Williams v. State
CARY WALLACE WILLIAMS, Appellant, v.
THE STATE OF NEVADA, Respondent.
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
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
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.
103 Nev. 227, 228 (1987) Williams v. State
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.
103 Nev. 227, 229 (1987) Williams v. State
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.
103 Nev. 227, 230 (1987) Williams v. State
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).
103 Nev. 227, 231 (1987) Williams v. State
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.
103 Nev. 227, 232 (1987) Williams v. State
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
OF NEVADA, Respondent.
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.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
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.
103 Nev. 238, 239 (1987) Commercial Cabinet Co. v. Wallin
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.
103 Nev. 238, 240 (1987) Commercial Cabinet Co. v. Wallin
[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
103 Nev. 238, 241 (1987) Commercial Cabinet Co. v. Wallin
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.)
103 Nev. 238, 242 (1987) Commercial Cabinet Co. v. Wallin
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.
103 Nev. 242, 243 (1987) Fleischer v. August
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.
103 Nev. 242, 244 (1987) Fleischer v. August
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.
103 Nev. 242, 245 (1987) Fleischer v. August
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.
103 Nev. 242, 246 (1987) Fleischer v. August
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
NRS 18.110(4) provides:
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.
103 Nev. 242, 247 (1987) Fleischer v. August
[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.
103 Nev. 247, 248 (1987) Morrow v. Barger
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).
3. Appeal and Error.
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.
103 Nev. 247, 249 (1987) Morrow v. 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.
103 Nev. 247, 250 (1987) Morrow v. Barger
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
103 Nev. 247, 251 (1987) Morrow v. Barger
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.
103 Nev. 247, 252 (1987) Morrow v. Barger
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.
103 Nev. 247, 253 (1987) Morrow v. Barger
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.
103 Nev. 247, 254 (1987) Morrow v. Barger
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).
103 Nev. 247, 255 (1987) Morrow v. Barger
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.
1. Husband and Wife.
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.
2. Husband and Wife.
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.
3. Husband and Wife.
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.
103 Nev. 255, 256 (1987) Hybarger v. Hybarger
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.
4. Husband and Wife.
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.
5. Husband and Wife.
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.
103 Nev. 255, 257 (1987) Hybarger v. Hybarger
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.
103 Nev. 255, 258 (1987) Hybarger v. Hybarger
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.
103 Nev. 255, 259 (1987) Hybarger v. Hybarger
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.
103 Nev. 259, 260 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 261 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 262 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 263 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 264 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 265 (1987) Mizushima v. Sunset Ranch
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.
103 Nev. 259, 266 (1987) Mizushima v. Sunset Ranch
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.
Reversed and remanded.
[Rehearing denied June 25, 1987]
Bill C. Hammer, Las Vegas, for Appellants.
Mark Brandenburg, Las Vegas, for Respondent.
103 Nev. 266, 267 (1987) Vosburg Equipment v. Zupancic
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
By the Court, Springer, J.:
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.
103 Nev. 266, 268 (1987) Vosburg Equipment v. Zupancic
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.
103 Nev. 266, 269 (1987) Vosburg Equipment v. Zupancic
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.
Gunderson, C. J., and Steffen, Young, and Mowbray, JJ., concur.
____________
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.
Reversed and remanded.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, and Mark Knobel, Reno, for
Appellant.
103 Nev. 269, 270 (1987) New Shy Clown v. Baldwin
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.
103 Nev. 269, 271 (1987) New Shy Clown v. Baldwin
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
STATE OF NEVADA, Respondent.
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.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
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
STATE OF NEVADA, Respondent.
No. 17420
June 25, 1987 738 P.2d 1303
Appeal from conviction of burglary, robbery, and grand larceny auto. Eighth Judicial
District Court, Clark County; Earle W. White, Jr., Judge.
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.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
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.
2. Extradition and Detainers.
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).
3. Extradition and Detainers.
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).
4. Extradition and Detainers.
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).
5. Extradition and Detainers.
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.
103 Nev. 275, 276 (1987) Snyder v. State
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.
7. Searches and Seizures.
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.
8. Searches and Seizures.
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.
103 Nev. 275, 277 (1987) Snyder v. State
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.
103 Nev. 275, 278 (1987) Snyder v. State
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.
103 Nev. 275, 279 (1987) Snyder v. State
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.
103 Nev. 275, 280 (1987) Snyder v. State
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.
103 Nev. 275, 281 (1987) Snyder v. State
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
STATE OF NEVADA, Respondent.
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.
Affirmed in part; reversed in part.
[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
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
103 Nev. 281, 282 (1987) Albitre v. State
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
By the Court, Steffen, J.:
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.
103 Nev. 281, 283 (1987) Albitre v. State
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.
103 Nev. 281, 284 (1987) Albitre v. State
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.
103 Nev. 281, 285 (1987) Albitre v. State
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.)
103 Nev. 281, 286 (1987) Albitre v. State
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.
103 Nev. 281, 287 (1987) Albitre v. State
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.
1. Husband and Wife.
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.
Gunderson, C. J. and Steffen, Young, and Mowbray, J.J., concur.
____________
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.
103 Nev. 289, 290 (1987) SIIS v. E G & G Special Projects
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.
103 Nev. 289, 291 (1987) SIIS v. E G & G Special Projects
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.
103 Nev. 289, 292 (1987) SIIS v. E G & G Special Projects
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.
103 Nev. 289, 293 (1987) SIIS v. E G & G Special Projects
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.
Gunderson, C. J. and Steffen, Young, and Mowbray, J.J., concur.
____________
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.
103 Nev. 293, 294 (1987) Kobinski v. State
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.
103 Nev. 293, 295 (1987) Kobinski v. State
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.
103 Nev. 293, 296 (1987) Kobinski v. State
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.
103 Nev. 293, 297 (1987) Kobinski v. State
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).
103 Nev. 293, 298 (1987) Kobinski v. State
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.
Gunderson, C. J. and Steffen, Young, and Mowbray, J.J., concur.
____________
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 assump