Nevada Reports 1983 (99 Nev.) PDF

99 Nev.
1, 1 (1983)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 99
____________
99 Nev. 1, 1 (1983) In re Ross
In The Matter of JOHN TOM ROSS and
PETER FLANGAS, Attorneys at Law.
No. 11114
January 5, 1983 656 P.2d 832
Applications for review of Decision and Recommendation of Board of Bar Governors,
in Bar disciplinary proceedings.
On applications for review of decision and recommendation of the Board of Bar
Governors that one attorney should be disbarred and that another should be suspended from
practice of law for two years, the Supreme Court held that procedure in which Board of
Governors, the body responsible for finances of bar association, functioned as factfinder in
disciplinary proceeding involving costs which were substantial and which were recoverable
by state bar only upon finding of misconduct violated due process.
On Motion to Dismiss and Quash the Action of the Board of Governors, motion
granted.
[Rehearing denied September 12, 1983] F.
99 Nev. 1, 2 (1983) In re Ross
F. DeArmond Sharp, President, State Bar, Reno; J. Roger Detweiler, Executive Director,
State Bar, Reno; and Kent Robison, Reno, for State Bar.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas; and Robert A. Grayson, Carson City,
for John Tom Ross.
David Goldwater, and Peter L. Flangas, in proper person, Las Vegas, for Peter L. Flangas.
1. Constitutional Law.
Due process clause entitles person to impartial and disinterested tribunal in both civil and criminal cases.
U.S.C.A.Const. Amend. 14.
Rule of necessity exception to rule against improperly combining adjudicatory and executive functions is
called into play when strict application of rule of disqualification would leave parties without a forum.
3. Attorney and Client.
Rule of necessity did not excuse permitting same Board of Governors primarily responsible for finances
of the bar to try accused attorneys in disciplinary matter, where rules provided two alternative adjudicatory
proceedings, neither of which involved group with direct executive responsibilities for bar finances in
initial factfinding process.
4. Attorney and Client; Constitutional Law.
Procedure in which Board of Governors, the body responsible for finances of bar association, functioned
as factfinder in disciplinary proceeding against attorneys, involving costs which were substantial and which
were recoverable by state bar only upon finding of misconduct, violated due process. SCR 85, 85(2),
86(1)-(4), (7), (12), 104(7); U.S.C.A.Const. Amend. 14.
Fullest review by Supreme Court did not cure adjudicatory proceeding below which was defective for
improper combination of adjudicatory and executive functions. U.S.C.A.Const. Amend. 14.
Trial court procedure may not be deemed constitutionally acceptable simply because state eventually
offers defendant an impartial adjudication; petitioner is entitled to neutral and detached judge in first
instance.
Any tribunal permitted by law to try cases and controversies not only must be unbiased but must also
avoid even appearance of bias.
OPINION
Per Curiam:
In these proceedings, this court is called to review determinations of the State Bar of
Nevada's Board of Governors, which has recommended to us that attorney John Tom Ross
should be disbarred, that attorney Peter L.
99 Nev. 1, 3 (1983) In re Ross
be disbarred, that attorney Peter L. Flangas should be suspended from the practice of law for
two years, and that each of them should be fined one-half of the costs the State Bar has
incurred through investigating and processing charges against them.
1
For the reasons stated
below, we are constrained to hold that the proceedings against the aforesaid attorneys
derogated their right to due process of law, as guaranteed by the Constitution of the United
States. Accordingly, we grant the motions of attorneys Flangas and Ross to dismiss the
proceedings against them.
I
HISTORICAL BACKGROUND OF THE CASE
This matter arose from probate proceedings involving the estate of Walter E. Herrmann,
who died on January 20, 1973, leaving substantial properties in Nevada and California. Over
five years later, in March of 1978, this disciplinary proceeding was commenced by the filing
of a complaint with the State Bar's Board of Governors which accused Flangas and Ross, as
attorneys for non-resident heirs, together with the attorney for the estate's executor, of
misconduct in connection with the probate proceedings and subsequent inquiries into the
propriety of their fees.
The matter has a tortuous history, which will only be traced in most material part. In
November of 1973, District Judge Richard Waters of the First Judicial District Court, for the
County of Lyon, awarded the total sum of $70,000 to Flangas and Ross, whom Judge Waters
had previously appointed to represent the non-resident heirs of the Herrmann Estate. From the
record, it appears that Flangas and Ross had performed services of benefit to the Herrmann
Estate. It also appears, however, that at least part of their services were of no benefit to the
non-resident heirs, to whom Walter Herrmann had bequeathed specific sums of money. Thus,
apparently for that reason, when the executor filed his account and petition for fees, Judge
Waters ordered that the fees to Flangas and Ross should be paid from the general estate.
Under Judge Waters's order, the specific bequests to the non-resident heirs bore no portion
whatever of the fees awarded to Flangas and Ross.
2
This fact should be noted explicitly,
inasmuch as numerous stories have been generated in the news media, comparing the size of
the fees to Flangas and Ross with the specific bequests made by the decedent to the
non-resident heirs.
____________________

1
The amount claimed by the State Bar as costs is some $34,000, much of which was expended in an
investigation of charges which, as noted hereinafter, the Board of Governors has determined to be unjustified
and without factual foundation.

2
Therefore, the non-resident heirs did not, and have not, objected to the amount of the fees which Judge
Waters awarded to Flangas and Ross.
99 Nev. 1, 4 (1983) In re Ross
of the fees to Flangas and Ross with the specific bequests made by the decedent to the
non-resident heirs.
Not long after fees were awarded to Flangas and Ross, Judge Waters died. A successor
judge was named to fill Judge Waters's office until the next general election. He assumed
control of the Herrmann Estate matter, and in time came to believe that the award of fees
resulted from a corrupt conspiracy between Judge Waters, Flangas, Ross, and the executor's
attorney. Thereupon, the successor judge telephoned the State Bar's president to solicit the
investigation which culminated in the instant proceedings. After consulting with the
successor judge, the State Bar president hired an investigator from Sacramento. These
circumstances are summarized in a letter, in the nature of a status report, which the State Bar
president wrote to his own successor:
I received a call from [the successor judge], who indicated that it was obvious to him
that his predecessor, [the attorney] representing the estate together with Peter Flangas
and John Tom Ross, were involved in a conspiracy to extract exorbitant fees from this
estate. He had no place else to look for assistance and asked if the State Bar would be
willing to conduct an investigation into the entire matter. Thereafter, with the assent of
the Board, I hired Jim Sims, who is a competent private investigator from Sacramento.
I felt at that time that this investigation would serve a dual purpose:
A. To assist the Court.
B. To determine if counsel involved had been guilty of unethical conduct which
could either lead to their receiving a reprimand, suspension or disbarment.
Appreciating the fact that this might entail the spending of some State Bar dues to
assist the Court, I felt we were justified in proceeding in the manner in which we have.
I had in mind also that later perhaps we could petition the Court to recoup some of the
expenses which have been involved, if, as a matter of fact, we could ultimately prove
that there was unethical conduct involved and by virtue of this fact the assets of the
estate were not diminished due to the conduct of counsel.
. . .
I am enclosing four bills from Jim Sims which somehow I misplaced which are in
line for payment. I appreciate the fact that we have spent considerable money to date
but, under these circumstances, I think the expenditures are justified.
(Emphasis added.)
99 Nev. 1, 5 (1983) In re Ross
The State Bar pursued a lengthy investigation attempting to validate the successor judge's
suspicions about conspiracies. It appears that the successor judge assumed an active role in
these inquiries, meeting privately with the Bar's investigator, one Sims, and channeling his
activities. Flangas and Ross, as well as the attorney for the Herrmann Estate's executor,
ultimately were charged and brought to hearing before the State Bar's Board of Governors.
After an eight-day hearing in the summer of 1978, the Board of Governors absolved all
three attorneys of every allegation originally conceived by Judge Waters's successor. The
Board of Governors found that there was neither evidence to justify any of several charges of
conspiracy and related impropriety involving Judge Waters and the Herrmann Estate
attorneys, nor evidence to substantiate a charge involving a political plot by Flangas against
the successor judge. On the basis of a welter of conflicting evidence, however, the Board of
Governors found that Flangas and Ross had been untruthful in regard to aspects of the
inquiries into the successor judge's unsupportable suspicions. Hence, the Board of Governors
determined to recommend that Flangas and Ross should be disciplined.
Under rules promulgated by this court, bar disciplinary proceedings are required to remain
confidential pending our review. Nonetheless, almost immediately following conclusion of
the Board of Governors' deliberations, and long before the Board had formulated and filed its
legally confidential Decision and Recommendation with this court on September 11, 1978,
distorted and inflammatory stories concerning the proceedings began surfacing in the news
media. Therefore, after the formal Decision and Recommendation ultimately was filed with
this court, Flangas and Ross moved to require more specific findings of fact, and requested an
investigation into the breaches of confidentiality which were undermining the accused's
rights. On October 19, 1978, the court convened with counsel in chambers, and elicited an
agreement that the Board of Governors would prepare specific findings.
3
The court took no
action, however, on complaints concerning the aforementioned breaches of confidentiality.
A few days afterward, election campaign advertising began to appear in the print and
electronic media throughout Nevada, alluding to the pending Herrmann Estate proceedings,
and to the successor judge's role in these pending proceedings, as a basis for lauding the
successor judge's candidacy for election to this court. Flangas again petitioned this court for
protection, but relief was denied in an order executed by two court members, with one
justice dissenting.
____________________

3
On January 19, 1979, the Board filed with this court Supplemental Findings of Fact, attempting to
delineate more specifically their factual findings concerning Flangas and Ross.
99 Nev. 1, 6 (1983) In re Ross
but relief was denied in an order executed by two court members, with one justice dissenting.
This history has given rise to a plethora of issues. Flangas sued for violation of his civil
rights in the United States District Court for Nevada, moving for an injunction against further
proceedings in this court on the ground that the unlawful media leaks, the improper
campaign advertising, and other judicial misconduct, had destroyed prospects for due process
in our state court system. The United States District Court for Nevada enjoined us from
proceeding. On appeal, however, the Ninth Circuit Court reversed, holding that federal
intervention would be unwarranted until Flangas and Ross have exhausted possibilities for
just treatment in this tribunal. See: Flangas v. State Bar of Nevada, 655 F.2d 946 (1981).
II
CURRENT STATUS OF THE CASE
Following the granting of various motions for extension of time, attorney Ross filed a
petition for review of the Board's decision on October 3, 1979. Briefing was completed on the
Ross petition on April 16, 1980. Among other things, Ross contends that the conduct of the
hearing by the Board of Governors of the State Bar of Nevada, the body primarily responsible
for the finances of the Bar, violated his due process right to an impartial tribunal, because the
Board could only recoup its considerable expenses of the proceedings if charges of
misconduct were sustained. In May, 1980, petitioner Ross filed a motion for a Pre-Hearing
Conference, containing inter alia subordinate requests for (1) the granting of its prior
unopposed motion for a precise statement by the Bar of the costs of the proceedings,
characterized as critical to petitioner's due process argument, and (2) the bifurcation of
argument so as to allow the court to consider his threshold constitutional argument separately
and preliminarily, perhaps sparing the court the necessity of de novo review of some 2310
pages of transcript and over 200 documents contained in the Exhibits.
On December 9, 1981, attorney Flangas filed a Motion to Dismiss and Quash the
Decision and Action of the Board of Governors, also asserting the due process argument
advanced by petitioner Ross.
4
Attorney Ross later joined in this motion. In order that we
might consider the threshold question thus raised, we required the State Bar to submit a
precise itemization of the costs of proceedings.
____________________

4
No petition for review has as yet been filed by attorney Flangas.
99 Nev. 1, 7 (1983) In re Ross
III
ANALYSIS OF THRESHOLD LEGAL ISSUE
[Headnote 1]
The United States Supreme Court has made it clear that [t]he Due Process Clause entitles
a person to an impartial and disinterested tribunal in both civil and criminal cases. Marshall
v. Jerrico, Inc., 446 U.S. 238, 242 (1980). It has further said: Not only is a biased
decisionmaker constitutionally unacceptable but our system of law has always endeavored to
prevent even the probability of unfairness.' Withrow v. Larkin, 421 U.S. 35, 48 (1974);
Gibson v. Berryhill, 411 U.S. 564 (1973).
In Tumey v. Ohio, 273 U.S. 510 (1927), the court reversed convictions by a mayor whose
salary was paid in part out of fees and costs levied by him in adjudicatory proceedings. As the
court pointed out the following year, however,
the mayor's individual pecuniary interest in his conviction of defendants was not the
only reason in the Tumey case for holding the Fourteenth Amendment to be violated.
Another was that a defendant brought into court might with reason complain that he
was not likely to get a fair trial or a fair sentence from a judge who as chief executive
was responsible for the financial condition of the village . . . and who by his interest as
mayor might be tempted to accumulate from heavy fines a large fund by which the
running expenses of a small village could be paid, improvements might be made and
taxes reduced. This was thought not to be giving the defendant the benefit of due
process of law.
Dugan v. Ohio, 277 U.S. 61, 64-65 (1928).
In Ward v. City of Monroeville, 409 U.S. 57 (1972), the court dealt with the issue of
whether trial before a mayor who also had executive responsibility for the village budget and
finances was consistent with the guarantees of the due process clause when the revenue
produced from the mayor's court provided a substantial portion of village funds. The court
once again noted that in Tumey, [t]he fact that the mayor . . . shared directly in the fees and
costs did not define the limits of the principle. 409 U.S. at 60. Rather, the court reiterated,
the test is whether the mayor's situation is one which would offer a possible temptation to
the average man as a judge to forget the burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice, clear and true between the State and the
accused. . . .' Id., quoting Tumey v. Ohio, supra, 273 U.S. at 532.
99 Nev. 1, 8 (1983) In re Ross
Tumey v. Ohio, supra, 273 U.S. at 532. The court held that such possible temptation might
exist, even in the absence of any direct, personal pecuniary interest on the part of the
adjudicator, when his executive responsibilities for village finances may make him partisan
to maintain the high level of contribution from the mayor's court. 409 U.S. at 60.
Flangas and Ross argue that Ward is directly applicable to this disciplinary proceeding,
since the adjudicatory hearing, factual findings and recommendations were all undertaken, as
the Supreme Court Rules then permitted,
5
by the Board of Governors of the State Bar of
Nevada, the body with primary responsibility for the finances of the Bar Association.
As Flangas and Ross point out, the same group which was permitted to try the accused
in a disciplinary matter, pursuant to former SCR 104(7), was also the group charged with the
executive functions of the state bar, SCR 85, including responsibility for revenues,
expenditures, and management of the bar's finances. See SCR 85(2); former SCR 86(1), (2),
(3), (4), (12), and present SCR 86(1), (2), (3), (4), and (11), eff. Feb. 15, 1979. Most
significantly, under former SCR 105(1), the Board of Governors was given power for any of
the causes set forth in [the Supreme Court] rules warranting [discipline] to assess or
recommend the assessment of costs or the imposition of fines on disciplines. All fines,
assessments and costs were paid directly to the State Bar treasury. Former SCR 86(7).
As reflected by a supplemental record submitted by the State Bar pursuant to order of this
court, the total costs which the Bar claims to have incurred in the Herrmann Estate
Disciplinary Matter, and which it seeks to recover from Flangas and Ross, amount to some
$34,000. The record before us also shows that in the fiscal year ending September 30, 1978,
during which charges against Flangas and Ross were heard, the State Bar enjoyed total
revenues of only $177,494, while expending $204,650, with a resulting deficit of $27,156. In
other words, the assessment sought against Flangas and Ross was equal to nearly 20 percent
of the State Bar's total revenue, and would more than have defrayed its yearly deficit.
____________________

5
At the time of this hearing, the applicable Supreme Court Rule, former SCR 104, permitted disciplinary
proceedings to be instituted before the Board of Governors, or in the Supreme Court, as well as before a local
administrative committee. This rule was repealed, effective February 15, 1979, when the Bar disciplinary
procedure was substantially revised. Such hearings are now conducted by panels of two disciplinary boards
created by SCR 103, on which members of the Board of Governors are expressly precluded from sitting, SCR
103(1). The role of the Board of Governors in disciplinary matters is now limited to the hearing of complaints
against bar counsel or staff, SCR 104(2), and review on the record of disciplinary board decisions to dismiss
complaints, SCR 105(1)(a).
99 Nev. 1, 9 (1983) In re Ross
Counsel for the Board of Governors has cited a number of cases in support of his argument
that the procedure used in this case did not violate the constitutional due process standard of
Tumey and Ward. Upon examination, however, none of these cases involves the combination
of adjudicatory and executive functions addressed by the court in Ward and presented by the
facts of this case.
In two of the cases cited by counsel for the Board of Governors, courts held that judges
were not precluded, by virtue of their own membership in state bar associations, from hearing
disciplinary matters brought by those bar associations. Ex Parte Alabama State Bar Ass'n, 8
So. 768 (Ala. 1891); State v. Rhodes, 131 N.W.2d 118 (Neb. 1964). Both cases, in other
words, dealt with mere membership of the judicial officer in the state bar association
prosecuting the charges, rather than with a situation in which a judicial officer also had
responsibility for the finances of the organization. This is also true of the cases cited by
counsel for the Board as analogous, though dealing with other professional organizations.
See: State Board of Dental Examiners v. Miller, 8 P.2d 699 (Colo. 1932); State v.
Churchwell, 195 So.2d 599 (Fla.App. 1967); Bruce v. Department of Registration and
Education, 187 N.E.2d 711 (Ill. 1963); Wagner v. Ezell, 154 S.E.2d 731 (S.C. 1967).
The issue presented here, however, is illustrated by City of Boston v. Baldwin, 1 N.E. 417
(Mass. 1885), cited by petitioner Ross. In Baldwin, the Massachusetts court held that
although a mere inhabitant of Boston would not be precluded from sitting on a jury where the
city was a party, a member of the commonwealth council was required to be excluded, since
it was his particular duty . . . as a part of the government, to guard and protect the rights of
the city. Id. at 418, See also State ex rel. Colcord v. Young, 12 So. 673 (Fla. 1893) (judge
precluded from sitting on matter in which church, of which he was vestryman, had interest);
Meyer v. Niles Tp., Ill., 477 F.Supp. 357 (N.D.Ill. 1979) (violation of due process for
township supervisors to rule upon eligibility of applicants for medical assistance, paid from
general township funds).
Here the members of the Board of Governors, like the mayor in Ward or the councilman in
Baldwin, collectively have a particular responsibility and duty to protect the financial integrity
of the bar association. This distinguishes their position from that of a mere member of the bar
association. It is the potential impact of this duty and responsibility upon the ability of a
factfinder to hold the balance nice, clear and true which was of concern to the Supreme
Court in Ward and which is at issue here.
The final case cited by the Board is also inapposite. In re Osborn, 376 F.2d S0S {6th Cir.
99 Nev. 1, 10 (1983) In re Ross
Osborn, 376 F.2d 808 (6th Cir. 1967), held that it was not a violation of due process for a
judge to institute and then to hear a disbarment proceeding. The question of the propriety of a
combination of prosecutorial and adjudicatory functions has in fact been addressed by this
court previously, though not labeled as such. In the bar discipline case of In re Scott, 53 Nev.
24, 43, 292 P. 291 (1930), the court concluded that a statute was not invalid which allowed a
member of a local administrative committee, or of the board of governors, to prefer charges
against an attorney and then to sit as a member of the committee or board in judgment of the
same charge. See Withrow v. Larkin, supra.
This issue, like the issue of mere membership, is not presented here. The question is not
whether the Board improperly combined adjudicatory and prosecutorial functions, but
whether it improperly combined adjudicatory and executive functions, in contravention of the
standard of Ward. In re Osborn is therefore of no help to the Board.
Counsel for petitioner Ross points out that there are two possible exceptions to the dictates
of Ward. First, the rule of necessity, and, second, a pecuniary interest too remote or
insubstantial. It appears that neither of these exceptions is applicable here.
[Headnotes 2, 3]
The rule of necessity is called into play when the strict application of a rule of
disqualification would leave the parties without a forum. See, e.g., Atkins v. United States,
556 F.2d 1028 (Ct.Cl. 1977). The rule has, in fact, been applied to preclude disqualification
of judges who were members of a state bar association from hearing a bar disciplinary matter.
State v. Rhodes, supra, 131 N.W.2d at 125. It is, however, clearly inapplicable here. As noted
above, the rules then provided two alternative adjudicatory proceedings, neither of which
involved a group with direct executive responsibilities for bar finances in the initial fact
finding process: hearings before the local administrative committees, or before the Supreme
Court itself. It may also be noted that the Board plays no comparable factfinding role under
the current disciplinary rules. There can be, therefore, no legitimate argument that the rule of
necessity should excuse compliance with the standard of Ward.
The second exception is derived from Dugan v. Ohio, supra. There, the court held that a
mayor's court did not violate due process where, although fines were deposited in the city's
general fund, the mayor's salary was unrelated to convictions or fines imposed, and he had as
mayor no specific executive responsibilities. As the court later summarized this holding in
Ward, 409 U.S. at 61-62, "the Mayor's relationship to the finances and financial policy of
the city was too remote to warrant a presumption of bias toward conviction in
prosecutions before him as judge."
99 Nev. 1, 11 (1983) In re Ross
Ward, 409 U.S. at 61-62, the Mayor's relationship to the finances and financial policy of the
city was too remote to warrant a presumption of bias toward conviction in prosecutions
before him as judge. In accord, see: Burleigh v. State Bar of Nevada, 98 Nev. 140, 643 P.2d
1201 (1982) (proceedings before disciplinary panel, which was not charged with executive
responsibilities relating to the State Bar's budget, held not to offend due process). Of course,
the facts of this case rather parallel the situation of the mayor in Ward, in that the Board of
Governors does have direct responsibility for the finances and financial policy of the bar
association.
Though counsel for the Board does not argue this point, it might be suggested that the
court should apply the less stringent standard recently announced by the Supreme Court in
Marshall v. Jerrico, Inc., supra, as applicable to an administrative agency performing a
prosecutorial rather than an adjudicatory function. After determining that the agency's
function was in fact prosecutorial, the court concluded that any potential biasing influence
in the challenged statutory procedure was too remote and insubstantial to violate the
constitutional constraints applicable to the decisions of an administrator performing
prosecutorial functions. 446 U.S. at 243-44. In this case, however, the Board performed
much more than a merely prosecutorial function, and in any event dealt with a matter
involving a financial impact considerably more substantial than that involved in Marshall v.
Jerrico.
In Marshall v. Jerrico, the court concluded that the function of an assistant regional
administrator for the Employment Standards Administration of the Department of Labor
performs no judicial or quasi-judicial functions. He hears no witnesses and rules on no
disputed factual or legal questions. The function of assessing a violation is akin to that of a
prosecutor or civil plaintiff. 446 U.S. at 247. Similarly, a federal district court in E.E.O.C. v.
Sears, Roebuck & Co., 504 F.Supp. 241 (N.D.Ill. 1980), concluded that the agency involved
there neither heard witnesses nor ruled on factual or legal questions, and therefore should be
judged by prosecutorial standards.
Here, the function performed by the Board is clearly more akin to the judicial than a
prosecutorial role. The rules themselves referred to the Board's power to try the accused.
Former SCR 104(7). These proceedings were conducted according to the Nevada Rules of
Civil Procedure, and the Nevada Evidence Code, in a full adversary proceeding with a
designated prosecutor, as well as counsel for the accused, presenting witnesses and making
factual and legal arguments to the Board. Most significantly, at the conclusion of the hearing,
the Board made factual findings, on the basis of its resolution of conflicting testimony by
witnesses before it, and then made its recommendations.
99 Nev. 1, 12 (1983) In re Ross
conflicting testimony by witnesses before it, and then made its recommendations. The Board
thus clearly functioned in a quasi-judicial role.
6

Furthermore, even should the prosecutorial standard be applied, the financial impact of a
decision in this case is simply not comparable to that judged in Marshall v. Jerrico to be too
remote and insubstantial. In Marshall v. Jerrico, the court noted the child labor penalties,
assessment of which was claimed to present the basis for an unconstitutional potential for
bias on the part of certain administrators, amounted to substantially less than 1 percent of the
agency's budget during three years of operation. Moreover, in each of those years the agency
did not spend the full amount of its appropriation, and in fact returned amounts to the
Treasury exceeding the sums of child labor penalties collected. Though the law allowed it,
none of the penalties had ever actually been allotted to the regional offices whose
administrators were alleged to be affected by the potential for institutional gain in the
assessment of the penalties.
In such circumstances, it is not surprising that the court in Marshall v. Jerrico said it need
not say with precision what limits there may be on a financial or personal interest of one
who performs a prosecutorial function, for here the influence alleged to impose bias is
exceptionally remote."
____________________

6
Some confusion might be occasioned by this court's prior holding, In re Scott, supra, [53 Nev. 24, 292 P.
291 (1930)], that the Board of Governors did not perform a judicial function, because its decisions were merely
recommendatory' in character and the only orders which have the effect of working disbarment or suspension of
a person are the final orders of the supreme court. 53 Nev. at 38, 292 P. at 295. The Board, or local
administrative committee, was described as an intermediary agency' for the taking of evidence and reporting
thereon to this court. Id. at 42, 292 P. at 296. See also Haviland v. Foley et al., 55 Nev. 455, 39 P.2d 198
(1935); State ex rel. McCloskey v. Greathouse, 55 Nev. 409, 36 P.2d 357 (1934). However, in State Bar v.
Raffetto, 64 Nev. 390, 183 P.2d 621 (1947), Justice Badt pointed out that Scott should be read in the context of
the contention which had been made that the state bar act violated the constitutional provision regarding
separation of powers by conferring judicial power upon the Board of Governors. Refusing to follow the literal
language of Scott, suggesting that the Board's findings and recommendations were entitled to no influence with
the court upon review, the court through Justice Badt declared that it was henceforth prepared to accord
persuasive force to the findings of fact and recommendations of the local administrative committee and the
board of governors. 64 Nev. at 397, 183 P.2d at 624.
While continuing to recognize its obligations to review the entire record, this court has also continued to
recognize the persuasive force of such findings, see, e.g., In re Kellar, 88 Nev. 63, 493 P.2d 1039 (1972), and
has required a petitioner for review to affirmatively reveal wherein the findings and recommendations of the
committee and board are erroneous and unlawful. In re Miller, 87 Nev. 65, 69, 482 P.2d 326, 328 (1971). Such
status would, of course, certainly not be accorded a merely prosecutorial decision by any agency.
99 Nev. 1, 13 (1983) In re Ross
limits there may be on a financial or personal interest of one who performs a prosecutorial
function, for here the influence alleged to impose bias is exceptionally remote. 446 U.S. at
250. The court understandably decided that there was simply not a realistic possibility that
the assistant regional administrator's judgment will be distorted by the prospect of
institutional gain as a result of zealous enforcement efforts. Id. Such cannot be said here,
where the significant cost figure for these proceedingsa very substantial portion of the State
Bar's annual budgetcould be recovered only upon a finding of misconduct.
[Headnote 4]
Therefore, the adjudication by the Board would appear to fall within the proscription of
Ward, unexcused by the rule of necessity and not within the exception established for an
interest too remote or insubstantial, according to Dugan or Marshall v. Jerrico.
[Headnotes 5, 6]
Two final points are worthy of comment. First, it should be noted that the United States
Supreme Court has made it clear that the fullest review by this court would not cure a
defective adjudicatory proceeding below. As the court held in Ward, a trial court procedure
[may not] be deemed constitutionally acceptable simply because the State eventually offers a
defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in
the first instance. 409 U.S. at 61-62. See also Gibson v. Berryhill, supra, 411 U.S. at 577.
[Headnote 7]
Second, it should be stressed that we are dealing here not with a charge of actual bias, but
with a challenge to a procedure as presenting a constitutionally unacceptable potential for
bias, based upon the premise that any tribunal permitted by law to try cases and
controversies not only must be unbiased but also must avoid even the appearance of bias.
Commonwealth Coat. Corp. v. Continental Cas. Co., 393 U.S. 145, 150 (1968). The United
States Court of Appeals for the Fifth Circuit recently explored this point at some length in an
opinion finding invalid a statutory system for compensating justices of the peace on the basis
of the number of cases heard. Brown v. Vance, 637 F.2d. 272 (5th Cir. 1981). The appellate
court determined that the district court had improperly required the plaintiffs to carry the
burden of overcoming the presumption of honesty and integrity in those serving as
adjudicators. Id. at 274. In Tumey and Ward, the Fifth Circuit concluded, the Supreme Court
"was not as interested in the probity of an individual judge or perhaps even, of the great
majority of judges.
99 Nev. 1, 14 (1983) In re Ross
Supreme Court was not as interested in the probity of an individual judge or perhaps even,
of the great majority of judges. It was interested rather in the inherent defect in the legislative
framework arising from the vulnerability of the average manas the system works in
practice and as it appears to defendants and to the public. Id. at 284.
As the Supreme Court has said, In re Murchison, 349 U.S. 133, 136 (1955):
Fairness of course requires an absence of actual bias in the trial of cases. But our system
of law has always endeavored to prevent even the probability of unfairness. To this end
no man can be a judge in his own case and no man is permitted to try cases where he
has an interest in the outcome. That interest cannot be defined with precision.
Circumstances and relationships must be considered. This Court has said, however, that
every procedure which would offer a possible temptation to the average man as judge .
. . not to hold the balance nice, clear and true between the State and the accused, denies
the latter due process of law. Tumey v. Ohio, 273 U.S. 510, 532. Such a stringent rule
may sometimes bar trial by judges who have no actual bias and who would do their
very best to weigh the scales of justice equally between contending parties. But to
perform its high function in the best way, justice must satisfy the appearance of
justice. Offutt v. United States, 348 U.S. 11, 14.
The procedure used here, formerly permitted by the rules governing bar disciplinary
mattersin which the Board of Governors, the body responsible for the finances of the bar
association, functioned as fact-finder in a quasi-judicial proceeding, involving costs which
were substantial and which were recoverable by the State Bar only upon a finding of
misconductappears to violate due process under the standard enunciated by the Supreme
Court in Ward v. City of Monroeville, supra.
IV
CONCLUSION
Because doing so obviates the need to consider other more problematical legal and factual
issues, we have determined to address first the threshold due process issue, which is
discussed at length above. We have concluded the argument that the proceedings conducted
herein violated the accused's right to due process of law is meritorious. Accordingly,
petitioner Flangas' Motion to Dismiss and Quash the Action of the Board of Governors, in
which petitioner Ross has joined, is hereby granted.
99 Nev. 1, 15 (1983) In re Ross
Motion to Dismiss and Quash the Action of the Board of Governors, in which petitioner Ross
has joined, is hereby granted.
Proceedings against said attorneys are hereby dismissed.
Springer, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
7
concur.
____________________

7
Chief Justice Noel E. Manoukian is disqualified in this matter. Justice John C. Mowbray, has voluntarily
recused himself. Pursuant to order entered by the former Chief Justice, Senior Justice David Zenoff has been
assigned to participate in the court's deliberation and determination of this matter. See: Nev. Const., art. 6,
19(1)(a) and 19(1)(c), and SCR 10.
____________
99 Nev. 15, 15 (1983) Allied Fidelity Ins. Co. v. Pico
ALLIED FIDELITY INSURANCE COMPANY, Appellant,
v. RAYMOND C. PICO, Respondent.
No. 13512
January 20, 1983 656 P.2d 849
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Addeliar
D. Guy, Judge.
Automobile buyer brought action to recover against dealer for breach of warranty of title
and fraud and to recover against surety on vehicle dealer's bond. The district court entered
summary judgment against surety, and it appealed. The Supreme Court held that genuine
issues of material fact as to whether dealer's allegedly false representations that it was owner
of the vehicle and that there were no liens against it formed a part of the basis of the bargain
and as to whether the dealer was the named principal in bond precluded summary judgment
against surety.
Reversed and remanded.
Fitzgibbons & Beatty and James S. Savett, Las Vegas, for Appellant.
Weiner, Waldman & Gordon and Kenneth C. Freitas, Las Vegas for Respondent.
1. Judgment.
In action by automobile buyer to recover against dealer for breach of warranty of title and fraud and to
recover against surety on vehicle dealer's bond, genuine issues of material fact as to whether dealer's
allegedly false representations that it was owner of vehicle and that there were no liens against it formed
the part of the basis of the bargain and as to whether the dealer was the named principal in bond
precluded summary judgment against surety. NRS 104.2313, 4S2.010 et seq.,
4S7.001 et seq.
bond precluded summary judgment against surety. NRS 104.2313, 482.010 et seq., 487.001 et seq.
2. Principal and Surety.
Where there is a compensated surety, it cannot be discharged from its obligation when there is an
alteration or modification in the contract unless it shows it was prejudiced or injured by the variance.
OPINION
Per Curiam:
In September, 1979, respondent Raymond C. Pico attempted to purchase a 1956
Thunderbird automobile from the defendant below, Ron Campbell, dba Elco Sales and
Leasing. When the sale was completed, Pico was given a Retail Buyer's Order and Invoice
as a bill of sale. Under the terms of this invoice, Campbell expressly warranted that he was
the lawful owner of the vehicle with a good right to sell, and further warranted that there were
no liens or encumbrances against the automobile.
In March, 1980, however, Pico was notified that the Deseret Federal Credit Union was in
fact the lawful owner of the Thunderbird with a lien against the vehicle of approximately
$2,200. Pico subsequently brought an action against Campbell, alleging breach of warranty
and fraud. Appellant Allied Fidelity Insurance Company (Allied) was also named as a
defendant, based on a vehicle dealer's bond Allied had issued in the name of Ron Campbell
dba E.L.C.O.
1

Before trial, Allied brought a motion to dismiss on the ground that Campbell was not the
principal covered by Allied's vehicle dealer's bond. This motion was based on a discrepancy
between the complaint, which named Ron Campbell dba Elco Sales and Leasing, and the
bond, which named Ron Campbell dba E.L.C.O. as the covered principal.
Allied's motion to dismiss was successfully opposed by Pico, in part on the basis of an
affidavit filed by counsel. This affidavit alleged that counsel had contacted the County Clerk's
Office, Department of Indexing, Division of Fictitious Firm Names, and had been given a list
of all fictitious firm names beginning with ELCO, either as one word or separated by
periods. Of the five names found, the affidavit continued, only three had been filed prior to
the effective date of Allied's bond.
____________________

1
Under the terms of this bond, any person injured by the actions of the principal in violation of Chapters 482
and 487 of the Nevada Revised Statutes (governing licensing, registration, sales and leasing, and regulating
garages, repair shops and wreckers) could bring an action against the surety.
Of these three, only one contained the name Ronald P. Campbell, dba Elco Sales. The
affidavit also alleged that the Las Vegas Business License Division had issued only one
business license to Campbell, also in the name of Elco Sales.
On the evidence before it, the district court denied Allied's motion to dismiss. Pico
subsequently moved for summary judgment against Allied contending that the adverse ruling
against Allied's motion to dismiss was now the law of the case on the issue of Allied's
principal. After oral argument, the court entered summary judgment against Allied for the
amount of the vehicle dealer's bond.
[Headnote 1]
On appeal, Allied argues that entry of summary judgment was inappropriate, as there
remained material questions of fact. We agree. This court has noted that great care should be
exercised in granting summary judgment. Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378
P.2d 979 (1963); McCall v. Scherer, 73 Nev. 226, 231-232, 315 P.2d 807 (1957). Summary
judgment is appropriate only when the moving party is entitled to judgment as a matter of
law, and no genuine issue remains for trial. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258
(1981); NRCP 56.
In the instant case, however, there appear to be genuine issues of fact remaining for trial as
to two issues. The first concerns whether Allied is liable for breach of the express warranties
contained in the invoice. The record on appeal contains a registration certificate which
indicates a Ray J. Rees was the registered owner of the Thunderbird at the time Campbell
attempted to sell it to Pico. This registration certificate raises the factual question of whether
Pico was apprised of Ree's apparent ownership at the time of sale, which is in turn relevant as
to the asserted claim of fraud.
The registration also raises factual questions relevant to the alleged breach of warranty of
title. We note that the invoice contained an express warranty of good title. NRS 104.2313,
which governs the creation of express warranties, provides in pertinent part:
1. Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates
to the goods and becomes part of the basis of the bargain creates an express warranty
that the goods shall conform to the affirmation or promise. . . .
(Emphasis added.) Under this section, actual reliance on an express warranty is apparently not
a prerequisite for breach of warranty, as long as the express warranty involved became a
part of the bargain. See White & Summers, Uniform Commercial Code {2nd ed., 19S0),
9-4.
warranty, as long as the express warranty involved became a part of the bargain. See White &
Summers, Uniform Commercial Code (2nd ed., 1980), 9-4. If, however, the resulting
bargain does not rest at all on the representations of the seller, those representations cannot be
considered as becoming any part of the basis of the bargain within the meaning of NRS
104.2313. A buyer who examines and discovers a defect could conceivably be purchasing
without a warranty created by a seller's prior affirmation, if the seller's prior representation
did not form a part of the bargain. See Sylvia Coal Co. v. Mercury Coal & Coke Co., 156
S.E.2d 1, 7 (W.Va. 1967); Nordstrom, Sales (1970), 68.
Thus, if Pico was aware of a prior lienholder through the registration in the name of one
other than the purported seller, it is possible that the representations on the face of the invoice
did not form a part of the basis of the bargain. If these representations did not form a part of
the basis of the bargain, they might not constitute express warranties which would be
actionable if breached. Whether or not the representations formed a part of the basis of the
bargain is a question which must be resolved by the trier of fact.
[Headnote 2]
The second issue on which there appears to be genuine issues of fact remaining concerns
whether the Campbell dba Elco Sales and Leasing is the Campbell dba E.L.C.O. named
principal in Allied's vehicle dealer's bond. It is true that strict construction in favor of a
compensated surety is no longer the policy of the law in this state. Where there is a
compensated surety, the surety cannot be discharged from its obligation when there is an
alteration or modification in the contract unless it shows it was prejudiced or injured by the
variance. Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 367, 468 P.2d 980 (1970).
In the instant case, however, the possibility of prejudice was never addressed, as the trial
court determined there was no material question of fact that the Elco Sales and Leasing
named in the complaint was the same entity as the E.L.C.O. named in the bond. Despite the
trial court's finding, there appears to be the possibility that Allied has been prejudiced by the
extension of its bond to cover a principal not expressly named. As Allied noted in the court
below, Campbell appears to have engaged in several business enterprises at the time of the
sale of the Thunderbird to Pico. One of these enterprises appears to have been conducted
under the fictitious name Elco Sales and Garage, a name certified by Campbell in January,
1979. Although Pico may very well be correct when he asserts that Campbell was engaged
in only one business with a name involving any variant of "Elco" at the time the bond was
issued, this alone does not establish the identity of the business which sold the
Thunderbird to Pico.
asserts that Campbell was engaged in only one business with a name involving any variant of
Elco at the time the bond was issued, this alone does not establish the identity of the
business which sold the Thunderbird to Pico. From the record before us, there appears to be a
factual question as to whether the Elco Sales and Leasing named in the complaint is the
E.L.C.O. named in the bond or is instead some variant on Elco Sales and Garage.
Certainly the Elco Sales and Leasing named in the complaint bears as close a resemblance
to the E.L.C.O. named in the bond as Elco Sales and Garage bears to Elco Sales and
Leasing. Material questions of fact therefore remain, and summary judgment was
inappropriate.
Accordingly, the summary judgment against Allied Fidelity Insurance Company is
reversed, and this case is remanded.
____________
99 Nev. 19, 19 (1983) Mobile Discount Corp. v. Price
MOBILE DISCOUNT CORPORATION, Appellant, v. GEORGE
R. PRICE and DORIS J. PRICE, Respondents.
No. 13845
January 20, 1983 656 P.2d 85l
Appeal from order dismissing complaint with prejudice. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Assignee of a creditor sought to recover against debtors for a deficiency balance owing on
a retail installment contract. The district court entered order dismissing complaint with
prejudice, and assignee appealed. The Supreme Court held that once debtors failed in 1971 to
make any further payments on a retail installment contract, a default occurred, so that a cause
of action in the creditor's assignee accrued, and suit filed in 1980 was untimely,
notwithstanding alleged tolling of statute of limitations by payment of interest on debt, where
payment was made by a third party and was neither authorized by the debtors nor made under
their direction.
Affirmed.
Cal J. Potter, III, Las Vegas, for Appellant.
Monte J. Morris, Henderson, for Respondents.
1. Secured Transactions.
A default occurs on a secured transaction contract when the debtor fails to meet his or her monetary
obligations.
2. Limitation of Actions.
The payment of interest on a debt will ordinarily take the debt out of the operation of the statute of
limitations where the payment is made by the debtor, but if the payment is made by a third party, it must be
authorized by the debtor and be made under his direction.
Once debtors failed in 1971 to make any further payments of a retail installment contract, a default
occurred, so that a cause of action in the creditor's assignee accrued, and suit filed in 1980 was untimely,
notwithstanding alleged tolling of statute of limitations by payment of interest on debt, where payment was
made by a third party and was neither authorized by the debtors nor made under their direction. NRS
104.2725.
OPINION
Per Curiam:
On May 4, 1970, respondents George and Doris Price purchased a mobile home on a retail
installment contract from E-Z Livin' Mobile Homes Sales, Inc. (E-Z Livin'). On the very same
day, E-Z Livin' assigned the contract to Western Coach who in turn assigned it to Fidelity
Acceptance Corporation. After several other mesne assignments, the contract was finally
assigned to appellant Mobile Discount Corporation, Inc. (Mobile) on April 9, 1980.
Pursuant to the installment contract, the Prices made twelve consecutive payments of $105
each and none thereafter, leaving a balance due of $11,334.40. As a consequence of the
default in payment, E-Z Livin' repossessed the mobile home sometime after June of 1971 and
filed suit against the Prices on January 7, 1972, for monies E-Z Livin' had paid on its
guarantee and for repossession costs. When the matter came to trial, the complaint was
dismissed without prejudice. No appeal was taken nor was any further action commenced
against the Prices until Mobile filed its complaint in the present action on June 12, 1980,
some eight years after the dismissal of E-Z Livin's complaint. With this background in mind,
the facts giving rise to the instant case are as detailed below.
After appellant Mobile was assigned the contract on April 8, 1980, it immediately
published and sent notice to the Prices that as a result of the latters' default, Mobile would be
selling the mobile home at auction pursuant to the Uniform Commercial Code. The sale took
place on April 23, 1980, and Mobile received $7,381 from the highest bidder. The proceeds
of the sale were credited to the balance owing on the mobile home of $11,334.40, leaving a
deficiency balance of $3,953.40. Mobile then filed suit against the Prices on June 12, 19S0,
to recover this deficiency.1
then filed suit against the Prices on June 12, 1980, to recover this deficiency.
1

In the process of litigation, the Prices filed a cross motion for dismissal based upon one or
all of the following grounds: (1) res judicata; (2) statute of limitations; and (3) laches. The
district court granted the Prices' motion to dismiss without specifying the grounds which
prompted the dismissal. Under the specific facts of this case, we conclude that the district
court properly dismissed the complaint on the ground that the statute of limitations had
expired. Accordingly, we affirm.
[Headnote 1]
In a secured transaction contract, a default occurs when a debtor fails to meet his or her
monetary obligations. Boudreau v. Borg-Warner Acceptance Corp., 616 F.2d 1077 (9th Cir.
1980); Whisenhunt v. Allen Parker Co., 168 S.E.2d 827 (Ga.App. 1969). Therefore, it is quite
clear the Prices defaulted in 1971 when they failed to make any further payments on their
retail installment contract. Having defaulted, the cause of action accrued at that time because
under the UCC provisions dealing with the statute of limitations [a] cause of action accrues
when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.
NRS 104.2725. Nevertheless, appellant contends that Western Coach continued to make the
delinquent interest payments through March of 1980; therefore, it is argued that these
payments tolled the statute of limitations until March of 1980 when Western Coach refused to
continue to make the delinquent interest payments. We disagree.
[Headnote 2]
As a general rule, the payment of interest on a debt will ordinarily take the debt out of the
operation of the statute of limitations. Guild v. Meredith Village Sav. Bank, 639 F.2d 25 (1st
Cir. 1980); 54 C.J.S. Limitations of Actions, 323 (1948). The theory on which this rule is
based is that the payment amounts to a voluntary acknowledgment of the existence of the debt
which raises an implied new promise to pay. See Hamilton v. Pearce, 547 P.2d 866
(Wash.App. 1976). In most instances, the payment of interest is made by the debtor.
However, where the payment is made by a third party, as in the present case, it must be
authorized by the debtor and under his direction. Jarnagin v. Ditus, 424 P.2d 265 (Kan.
1967); Caridas v. Dahl, 311 So.2d 551 {La.App.
____________________

1
The record is silent as to the whereabouts and use of the mobile home during the eight plus years that
elapsed from the time it was repossessed by E-Z Livin' until it was sold at auction by Mobile on April 23, 1980.
v. Dahl, 311 So.2d 551 (La.App. 1975). For example, in Jarnagin the court held:
In order to effectively toll the statute, a part payment must have been voluntarily and
deliberately made on the indebtedness in question by the debtor, or by someone at his
direction, and under such circumstances as to amount to an acknowledgement of the
debtor's existing liability on such obligation.
Id. at 270. Accord, Martindell v. Bodrero, 63 Cal.Rptr. 774 (Ct.App. 1967).
[Headnote 3]
Here, Western Coach purportedly made the interest payments without the knowledge or
consent of the debtors, the Prices. The Prices did not authorize Western Coach to make the
interest payments nor did they manifest any willingness or intent to pay the debt in question.
On these facts, we hold that the payment of interest by Western Coach did not toll the statute
of limitations. We therefore affirm the decision of the district court in dismissing the
complaint since the statute of limitations had expired.
2

____________________

2
This case is governed by the Uniform Commercial Code which provides: An action for breach of any
contract for sale must be commenced within 4 years after the cause of action has accrued. NRS 104.2725. Here
the cause of action accrued in 1971 when the Prices discontinued paying on the contract. Consequently, the
statute of limitations expired in 1975 in this particular action.
____________
99 Nev. 22, 22 (1983) Douglas v. State
BRUCE B. DOUGLAS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 13887
January 20, 1983 656 P.2d 853
Appeal from denial of a motion to withdraw a guilty plea or, in the alternative, for
reconsideration of sentencing; Eighth Judicial District Court, Clark County; Paul S. Goldman,
Judge.
Appeal was taken from an order of the district court denying a motion to withdraw a guilty
plea or alternatively for reconsideration of sentencing. The Supreme Court held that where
defendant's plea of guilty to crime of giving away controlled substance was based upon his
misunderstanding that maximum sentence was 20 years instead of life and his
misunderstanding was not adequately clarified or contradicted on the record, sentence
imposed on defendant would be modified from suspended life sentence with five years'
probation to suspended 20-year sentence with five years' probation.
was not adequately clarified or contradicted on the record, sentence imposed on defendant
would be modified from suspended life sentence with five years' probation to suspended
20-year sentence with five years' probation.
Sentence modified.
James O. Porter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where defendant's plea of guilty to crime of giving away controlled substance was based upon his
misunderstanding that maximum sentence was 20 years instead of life and his misunderstanding was not
adequately clarified or contradicted on the record, sentence imposed on defendant would be modified
from suspended life sentence with five years' probation to suspended 20-year sentence with five years'
probation. NRS 174.035, subd. 1.
OPINION
Per Curiam:
In this appeal it appears that the trial court accepted a guilty plea from Douglas which was
in violation of NRS 174.035(1).
1
As a result we modify the sentence as we did in Taylor v.
Warden, 96 Nev. 272, 607 P.2d 587 (1980).
On October 28, 1981, the district court sentenced Douglas to six years in the Nevada State
Prison for conspiracy to sell a controlled substance, Count I, and life imprisonment for giving
away a controlled substance, Count IX. The life sentence was suspended and Douglas was put
on probation for five years. Following his imprisonment, Douglas filed a motion to withdraw
his plea, or in the alternative, for reconsideration of sentencing. The district court denied the
motion on December 14, 1981. This appeal followed.
____________________

1
NRS 174.035(1) provides as follows:
174.035 Kinds of pleas; when plea of not guilty is entered by court.
1. A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The
court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere
without first addressing the defendant personally and determining that the plea is made voluntarily with
understanding of the nature of the charge and consequences of the plea.
The canvass of the defendant is set out in the margin. It does not support a determination
that Douglas understood the consequence of his plea of guilty to the crime of giving away a
controlled substance, which is life imprisonment. Douglas stated during the canvass that he
understood the maximum sentence to be 20 years. A reading of the canvass rather clearly
discloses the confusion and lack of understanding of the consequences of Douglas's plea.
2
See McCarthy v. United States, 394 U.S. 459 (1969); Hanley v. State, 97 Nev. 130, 624 P.2d
1387 (1981); Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973); Higby v. Sheriff, 86
Nev. 774, 476 P.2d 959 (1970).
In Taylor we held that appropriate relief in such cases was reduction of the sentence to the
maximum sentence represented as the possible consequence of the crime in question. Douglas
stated his belief that 20 years was the maximum sentence that he could receive; his
misunderstanding was not adequately clarified or contradicted on the record.
____________________

2
During the taking of the plea, the following colloquy took place:
[Cotton is a co-defendant of Douglas's. Momot is counsel for Cotton.]
The Court: Has he, your attorney, advised you of the maximum penalty the Court could impose on
each of these counts?
Mr. Douglas: Yes.
Mr. Cotton: Yes, your Honor.
The Court: Mr. Douglas, what's your understanding of the maximum penalty of conspiracy to sell
controlled substance?
Mr. Douglas: One to 20, sir.
Mr. Cotton: One to six.
The Court: $2500 fine, I believe.
Mr. Momot: Five thousand.
The Court: Five thousand. How about Count IX, giving away a controlled substance, what's your
understanding of the maximum?
Mr. Douglas: One to 20.
Mr. Cotton: And a monetary fine. Is that $5,000?
Mr. Momot: No, it's a $20,000 fine. It's life or for a term of less than one year, one to 20 years.
The Court: Has either one of these individuals been convicted of narcotic offenses before?
Mr. Momot: No, Judge. That's why I read it from the first offense.
The Court: I don't impose life unless there is some extraordinary circumstances.
All right. Mr. Cotton, you understand the maximum sentence in conspiracy is one to six and/or a
$5,000 fine?
Mr. Cotton: Yes, I do, your Honor.
The Court: You understand giving away a controlled substance is one to 20 and/or a $20,000 fine?
Mr. Cotton: Yes.
The Court: All right. By pleading guilty you are each surrendering certain valuable constitutional
rights. You each have the right to confront the witnesses face to face in a courtroom and to have process
or what we call subpoenas to bring your own witnesses to court to testify for you.
he could receive; his misunderstanding was not adequately clarified or contradicted on the
record. We, therefore, modify the suspended life sentence with five years probation to a
suspended sentence of 20 years imprisonment with five years probation.
____________
99 Nev. 25, 25 (1983) Davis v. State
RICKY EUGENE DAVIS, Appellant, v. THE STATE
No. 13972
January 20, 1983 656 P.2d 855
Appeal from judgment of conviction following nonjury trial for driving under the
influence of intoxicating liquor when death results. Sixth Judicial District Court, Humboldt
County; Stanley A. Smart, Judge.
The Supreme Court held that substantial evidence supported finding that defendant
motorist's consent to blood alcohol test at time when he was not under arrest was freely and
voluntarily given.
Affirmed.
Thomas E. Perkins, State Public Defender, Robert A. Bork and Kenneth V. Ward, Deputy
Public Defenders, Carson City, for Appellant.
Brian McKay, Attorney General, Dan R. Reaser, Deputy Attorney General, Carson City;
Virginia R. Shane, District Attorney, Jack T. Bullock, II, Deputy District Attorney, Humboldt
County, for Respondent.
1. Criminal Law.
Implied consent statute does not prevent a conscious driver who is not under arrest from providing valid
consent to blood alcohol test. NRS 484.383.
2. Criminal Law.
If a driver expressly and voluntarily consents to submit to a blood alcohol test, test results are admissible
not because of implied consent law but because of his express consent. NRS 484.383.
3. Searches and Seizures.
Consent exempts a search from the probable cause and warrant requirements of Fourth and Fourteenth
Amendments; however, to be valid, consent must be voluntarily given and not product of coercion, either
express or implied. U.S.C.A.Const. Amends. 4, 14.
4. Searches and Seizures.
Voluntariness of a consent is a question of fact to be determined from totality of surrounding
circumstances.
99 Nev. 25, 26 (1983) Davis v. State
from totality of surrounding circumstances. U.S.C.A.Const. Amends. 4, 14.
5. Criminal Law.
Substantial evidence supported finding that defendant motorist's consent to blood alcohol test at time
when he was not under arrest was freely and voluntarily given.
OPINION
Per Curiam:
Ricky Eugene Davis was convicted of driving under the influence of intoxicating liquor
when death results. NRS 484.3795. He claims that the district court erred in admitting the
results of a blood alcohol test because he was not under arrest at the time the blood sample
was taken. We do not agree. Substantial evidence supports the determination that Davis
expressly consented to the taking of the blood sample. Accordingly, we affirm the judgment
of the district court.
THE FACTS
On August 15, 1981, Davis was driving a pickup truck on Interstate 80 east of
Winnemucca with two passengers. He had been drinking, and was driving erratically. At one
point the truck went into a skid and rolled over, injuring all three occupants. One passenger
was pronounced dead on arrival at Humboldt County Hospital.
Soon after Davis arrived at the hospital, Officer Black of the Winnemucca Police
Department
1
read to Davis portions of the Nevada implied consent law, informing him that
if he refused to submit to a blood, breath, or urine test he would lose his license for one to
three years. Davis did not have, and has never had, a driver's license. Although he was still
somewhat intoxicated and distraught, Davis expressed his consent to a blood alcohol test and
signed a consent form.
Later that evening, before the results of his blood test were known, Davis was arrested for
felony drunk driving by Nevada Highway patrolman Massae, who had investigated the
accident scene. Davis does not contest the existence of probable cause for the arrest.
His blood test revealed that he had a blood alcohol level of .31, and Davis was convicted
of driving under the influence of intoxicating liquor when death results. This appeal followed.
____________________

1
Officer Black was involved in the investigation because he had investigated an earlier accident in
Winnemucca involving the same vehicle.
99 Nev. 25, 27 (1983) Davis v. State
EXPRESS CONSENT AUTHORIZED THE SEARCH
[Headnotes 1, 2]
By its terms, Nevada's implied consent statute
2
becomes operative in only two situations:
when a driver is arrested, or when a driver is dead, unconscious, or otherwise in a condition
rendering him incapable of being arrested. However, nothing in the statute indicates that it
prevents a conscious driver who is not under arrest from providing valid consent to a blood
alcohol test, and we shall not construe the statute to impose such a bar. Cf. Galvan v. State,
98 Nev. 550, 655 P.2d 155 (1982) (we shall construe our implied consent statute liberally to
promote the legislative policy of removing intoxicated drivers from our state's highways). If a
driver expressly and voluntarily consents to submit to a blood alcohol test, the test results are
admissible not because of the implied consent law, but because of his express consent. State
v. Kirkaldie, 587 P.2d 1298 (Mont. 1978). See State v. Wetherell, 514 P.2d 1069, 1072-73
(Wash. 1973). See also People v. Superior Court of Kern County, 493 P.2d 1145, 1147 (Cal.
1972).
[Headnotes 3, 4]
Consent exempts a search from the probable cause and warrant requirements of the Fourth
and Fourteenth Amendments. To be valid, however, consent must be voluntarily given and
not the product of coercion, either express or implied; voluntariness is a question of fact to be
determined from the totality of the surrounding circumstances. Schneckloth v. Bustamonte,
412 U.S. 218, 248-49 (1973); Cuellar v. State, 96 Nev. 68, 605 P.2d 207 (1980); Sparkman v.
State, 95 Nev. 76, 590 P.2d 151 (1979).
[Headnote 5]
Substantial evidence supports the finding of the district judge at the suppression hearing,
and the implied finding of the trial court, that Davis' consent was freely and voluntarily
given.
____________________

2
NRS 484.383 provides in relevant part as follows:
1. Except as provided in subsections 4 and 5, any person who drives a vehicle upon a highway in this
state shall be deemed to have given his consent to a chemical test of his blood, urine, breath or other
bodily substance for the purpose of determining the alcoholic content of his blood or the presence of a
controlled substance when such a test is administered at the direction of a police officer having
reasonable grounds to believe that the person to be tested was driving a vehicle while under the influence
of intoxicating liquor or a controlled substance and:
(a) After he was arrested for any offense allegedly committed while he was driving a vehicle under the
influence of intoxicating liquor or a controlled substance; or
(b) He is dead, unconscious or otherwise in a condition rendering him incapable of being arrested.
99 Nev. 25, 28 (1983) Davis v. State
at the suppression hearing, and the implied finding of the trial court, that Davis' consent was
freely and voluntarily given. Davis orally manifested his consent when the police officer
asked if he would submit to a blood test. Moreover, when the medical technologist explained
the procedure and the reason for it to Davis, he said that he understood the consent form and
asked for a pen with which to sign it. Although the officer told Davis that he would lose his
license for one to three years if he refused, Davis did not have a license to forfeit, and was
thus immune to pressure under the implied consent law.
Since we hold that substantial evidence supports the district court's finding of express and
voluntary consent, we need not discuss the State's suggestion that an arrest is not necessary
under NRS 484.383 when probable cause to arrest exists at the time the sample is taken. As
there was neither a violation of NRS 484.383 nor constitutional infirmity in admitting the
blood test results at trial, we affirm the judgment of the district court.
____________
99 Nev. 28, 28 (1983) Mason v. State
MACK MASON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 12049
January 20, 1983 656 P.2d 841
Appeal from conviction of second degree murder, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The Supreme Court held that decision of the United States Supreme Court in Dunaway
that a statement taken from a defendant who had been detained without probable cause was
inadmissible pursuant to the Fourth Amendment was retroactive in application to a case
which had not as yet become final at time decision was rendered.
Frank J. Cremen, Las Vegas, for Appellant.
Courts.
Decision of the United States Supreme Court in Dunaway that a statement taken from a defendant who
had been detained without probable cause was inadmissible pursuant to the Fourth Amendment was
retroactive in application to a case which had not as yet become final at time decision was rendered.
99 Nev. 28, 29 (1983) Mason v. State
OPINION
Per Curiam:
This is an appeal from a conviction of second degree murder. The only issue we will
address is whether certain statements made by appellant to police officers were admitted into
evidence in violation of the Fourth Amendment.
Appellant contends that he was detained by police officers without probable cause to
justify detention, and that he made statements to the police as a result of the detention.
Appellant argues that under Dunaway v. New York, 442 U.S. 200 (1979), a statement taken
from a defendant who has been detained without probable cause is inadmissible pursuant to
the Fourth Amendment to the United States Constitution.
Respondent's only argument on this issue was that Dunaway should not be applied
retroactively to this case, because appellant's arrest occurred prior to the decision in
Dunaway. After oral argument in this appeal, the Supreme Court decided the cases of United
States v. Johnson, 457 U.S. 537, 50 U.S.L.W. 4742 (June 21, 1982) and Taylor v. Alabama,
457 U.S. 687, 50 U.S.L.W. 4783 (June 23, 1982). In Johnson it was held that a decision of
the Supreme Court construing the Fourth Amendment is to be applied retroactively to all
convictions which were not yet final at the time the decision was rendered. In Taylor the
Supreme Court applied Dunaway to an arrest which had occurred prior to the decision in
Dunaway. See also United States v. Tucker, 610 F.2d 1007 (2d Cir. 1979).
On September 29, 1982, we ordered the parties to file supplemental briefs addressing the
significance of the recent cases cited above. In response to our order, respondent has
essentially conceded that Dunaway must be applied in this case, and that the conviction must
be reversed and remanded for a new trial.
Accordingly, as mandated by Dunaway and subsequent Supreme Court decisions, we
reverse the conviction and remand for a new trial.
Manoukian, C. J., Springer, Mowbray and Gunderson, JJ., and Guy, D. J.,
1
concur.
____________________

1
The Governor designated The Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court to sit
in the place of Justice Cameron M. Batjer, who voluntarily recused himself. Nev. Const., art. 6, 4.
____________
99 Nev. 30, 30 (1983) Folio v. Briggs
BERNARD FOLIO, Appellant v. MITZI S. BRIGGS
Respondent.
No. 13270
January 20, 1983 656 P.2d 842
Appeal from summary judgment. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Assignee of rights under option to purchase five percent of capital stock of corporation,
which held gaming license, brought action for specific performance and damages. The district
court entered summary judgment against assignee, and he appealed. The Supreme Court held
that: (1) statute, which provided that sale, assignment, pledge or other disposition of security
issued by corporate holder of gaming license was ineffective unless approved in advance by
Gaming Commission, did not require advance approval as a condition to validity of the
option; (2) term ineffective, within such statute, means conditionally valid or, at most,
voidable; and (3) corporation, which had contracted for the option, had obtained a contract
right which was not exercisable without approval of Commission, and subsequent assignees
also received rights which were not exercisable prior to obtaining Commission's approval.
Nitz & Schofield and James H. Walton, Las Vegas, for Appellant.
Goodman, Oshins, Brown & Singer, and Richard A. Harris and Kirby R. Wells, Las Vegas,
for Respondent.
1. Gaming.
Statute, which provided that sale, assignment, pledge or other disposition of security issued by corporate
holder of gaming license was ineffective unless approved in advance by Gaming Commission, did not
require advance approval as a condition to validity of option to acquire stock in a corporate holder of
gaming license. NRS 463.510, subd. 1.
2. Corporations
Option to acquire an issued security does not create any ownership interest in the security, but rather, the
right to acquire, upon condition satisfied, such an ownership interest.
3. Gaming.
Term ineffective, within statute providing that sale, assignment, pledge or other disposition of a
security issued by corporate holder of gaming license is ineffective unless approved in advance by Gaming
Commission, means conditionally valid or, at most, voidable. NRS 463.510, subd. 1 4.
4. Gaming,
Corporation, which contracted for option to purchase five percent of capital stock of corporate holder of
gaming license, had obtained a contract right which was not exercisable without approval of Gaming
Commission; subsequent assignees also received rights which were not exercisable prior to obtaining
Commission's approval. NRS 463.510, subd. 1.
5. Statutes.
Agency such as Gaming Commission is impliedly clothed with power to construe statutes under which it
operates, and, thus, Supreme Court is obliged to attach substantial weight to the agency's interpretation.
OPINION
Per Curiam:
Summary judgment was entered in favor of respondent Mitzi S. Briggs (Briggs) and
against appellant Bernard Folio (Folio) pursuant to the district court's perception of the
meaning and effect of NRS 463.510(1).
1
Since we do not agree with that perception of the
statute, we must reverse.
On or about February 15, 1977, Briggs entered into a stock purchase agreement with
Anthony Torcasio. Under the terms of the agreement, Torcasio and his assigns were given the
option to purchase 5 percent of the total issued capital stock of Hotel Conquistador, Inc.
2
The latter corporation was, on the date of the agreement, holder of a Nevada gaming license
and the owner and operator of the Tropicana Hotel and Country Club. On July 21, 1977, the
Nevada Gaming Commission approved the agreement between Briggs and Torcasio.
Torcasio assigned all of his interest in the agreement to Grandeotto, Inc., on July 13, 1978,
for the sum of $10,000. Thereafter on November 15, 1979, Grandeotto, Inc. sought to
exercise the stock purchase option by tendering $5,000 to Briggs. The tender was rejected.
On September 3, 1980, Grandeotto, Inc. assigned all of its rights in the stock purchase
agreement to Folio. Thereafter, Folio filed a complaint against Briggs seeking specific
performance of the agreement and damages. In response, Briggs filed a motion to dismiss
claiming the assignment to Folio was void ab initio by reason of the absence of prior
approval of the Nevada Gaming Commission as assertedly required by NRS 463.510{1).
____________________

1
NRS 463.510(1) provides:
The sale, assignment, pledge or other disposition of any security issued by a corporation which holds a
state gaming license is ineffective unless approved in advance by the commission.

2
Neither the agreement nor the subsequent assignments thereof were made part of the record on appeal. We
are thus forced to accept the uncontroverted recital of facts and affidavits on appeal concerning the substance of
these documents.
motion to dismiss claiming the assignment to Folio was void ab initio by reason of the
absence of prior approval of the Nevada Gaming Commission as assertedly required by NRS
463.510(1). By a parity of reasoning, Briggs also contended that the first assignment from
Torcasio to Grandeotto, Inc. was invalid. The district court treated the motion to dismiss as a
motion for summary judgment, adopted the position asserted by Briggs and accordingly
entered summary judgment. For reasons specified hereafter, we have determined that
summary judgment in favor of Briggs was based upon an erroneous interpretation of the
effect of NRS 463.510(1) and cannot stand.
[Headnotes 1, 2]
On appeal, Briggs assumed the anomalous position of acknowledging the validity of the
original agreement between Briggs and Torcasio albeit without the advance approval of the
Nevada Gaming Commission. It is apparent that the gaming commission also considered the
agreement valid from its inception since it received the express approval of the commission
over five months after the agreement was executed. It seems clear, therefore, that the Nevada
Gaming Commission has, at least inferentially, interpreted NRS 463.510(1) as not requiring
advance approval as a condition to the validity of an option to acquire stock in a corporation
which holds a state gaming license. This is a sound position for several reasons. First, the
clear language of the statute purports to operate only on a sale, assignment, pledge or other
disposition of a security issued by such a corporation. An option to acquire an issued security
does not constitute any form of disposition of the security itself. It does not create any
ownership interest in a security but rather the right to acquire, upon condition satisfied, such
an ownership interest. Ross v. Bank of Gold Hill, 20 Nev 191, 19 P.243 (1888). Second,
since the statute is directed to those who hold or own securities, as opposed to those who
would purchase, acquire or receive such securities as a pledgee or other form of secured
creditor, it seems clear that the statute has the effect of requiring approval of the intended
security disposition as a condition precedent to an effectual disposition. Third, such an
interpretation facilitates orderly business transactions which include the sale of options which
may, in fact, never be exercised.
[Headnote 3]
Even if we were to fit an option agreement within the purview of NRS 463.510(1) it would
not affect the validity of the assignments any more than it affected the validity of the
underlying agreement between Briggs and Torcasio. The statutory language makes any
disposition of a gaming security "ineffective" without advance approval of the
commission.
language makes any disposition of a gaming security ineffective without advance approval
of the commission. The term ineffective is not, however, equivalent to the terms void or
invalid. We conclude, in the context of the subject statute, that the term ineffective means
conditionally valid or, at most, voidable. See Pastimes Publishing Co. v. Advertising
Displays, 286 N.E.2d 19 (Ill.App. 1972) (ineffective means voidable); Peck v. Ormsby 8
N.Y.S. 372 (N.Y. 1889) (ineffective is not equivalent to void). Such an interpretation would
mean that any attempted disposition of gaming securities would suffer from a legal
impediment pending approval by the gaming commission.
[Headnotes 4, 5]
In the context of the instant action, the distillate of the foregoing means that when
Torcasio contracted with Briggs he obtained a contract right which was not exercisable
without the approval of the gaming commission. Similarly, Grandeotto, Inc. and Folio each
received contract rights by assignment which at the time were not exercisable prior to
obtaining the commission's approval. This is entirely consistent with the action of the gaming
commission in its approval of the Briggs-Torcasio agreement long after the date of its
execution. If the commission had construed the statute to mean that such agreements were
void unless previously approved by the commission, no subsequent approval by the
commission of a void agreement could breathe into it the breath of life. And since an agency
such as the gaming commission is impliedly clothed with the power to construe the statutes
under which it operates, we are obliged to attach substantial weight to the agency's
interpretation. See Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 530 P.2d 114 (1974);
Sierra Pac. Power v. Department of Taxation, 96 Nev. 295, 607 P.2d 1147 (1980).
Since our decision is dispositive of this appeal, we decline to consider other issues raised
by the parties. However, it should be noted that the provisions of NRS 463.510(1) are no
longer applicable to the instant case in that the assets of Hotel Conquistador, Inc., including
the Tropicana Hotel, were sold to Hotel Ramada of Nevada on December 8, 1979, and Hotel
Conquistador, Inc. has not held a gaming license since that time. Consequently, even if the
assignment of the option to Folio was at one time subject to a legal impediment imposed by
the subject statute, it is not now. Therefore, since the failure to seek prior approval of the
commission did not affect the validity of the assignment, now that the statute is no longer
applicable, the question of compliance with NRS 463.510(1) is moot.
Accordingly, we reverse the summary judgment and remand the case to the district court
for further proceedings in accordance with this opinion.
____________
99 Nev. 34, 34 (1983) Christensen v. Chromalloy Amer. Corp.
L. DERRAL CHRISTENSEN and BARBARA CHRISTENSEN, His Wife, Appellants, v.
CHROMALLOY AMERICAN CORPORATION, a Delaware Corporation, Respondent.
No. 13310
January 20, 1983 656 P.2d 844
Appeal from order denying a motion for preliminary injunction, Fourth Judicial District
Court, Elko County; William P. Beko, Judge.
Landowners became owners of ranch subject to reservation of mineral rights which had
been leased to corporation. Corporation brought action against landowners, seeking
declaratory judgment regarding its rights under mineral reservation, and requesting injunction
restraining landowners from interfering with its open-pit mining of barite on ranch.
Landowners filed answer and counterclaim seeking damages for trespass, conversion of
barite, negligence, and nuisance. The district court denied landowners' motion for preliminary
injunction against corporation, and they appealed. The Supreme Court held that: (1) mineral
reservation clause was ambiguous because it was silent as to method of mining operations
original grantor contemplated, and (2) as landowners were suffering irreparable harm to their
surface estate by corporation's open-pit mining, and had established reasonable probability of
success on merits, trial court erred in denying preliminary injunction.
Puccinelli & Puccinelli, Elko; Vargas & Bartlett, and William A. Prezant, Reno, for
Appellants.
Hoy, Miller & Murphy, and Hill, Cassas, De Lipkau and Erwin, Reno; Puritt and Gushee,
and F. Alan Fletcher, Salt Lake City, Utah, for Respondent.
1. Appeal and Error.
On appeal of denial of motion for preliminary injunction, Supreme Court must decide whether movant
has shown reasonable probability of success on merits, and also whether respondent's conduct, if allowed to
continue, will result in irreparable harm for which compensatory damages represent inadequate remedy.
2. Mines and Minerals.
Title to surface or subsurface minerals vests in surface estate owner unless mineral estate owner can
remove minerals in question by methods of extraction which will not consume, deplete, or destroy surface
estate.
3. Evidence.
Mineral reservation clause which was silent as to method of mining operations original grantor
contemplated was ambiguous, and did not clearly establish that parties intended to allow open-pit or strip
mining of other minerals referred to in reservation, and thus, extrinsic evidence regarding parties' intent
should be considered by trial court in action to determine mineral rights lessee's right to engage in open-pit
mining of barite on land.
Where landowners were suffering irreparable harm to their surface estate as result of mineral rights
lessee's open-pit mining operations, and mineral reservation clause was ambiguous as to right of open-pit
mining of barite on land, landowners were entitled to preliminary injunction to halt such open-pit mining.
OPINION
Per Curiam:
In 1945, the partnership of Wilkins and Wunderlich purchased extensive land holdings
owned by U.C. Land and Cattle Company. On May 24, 1947, the partnership was dissolved
and a portion of the land known as Winecup Ranch was conveyed to Russell Wilkins. The
deed to the Winecup Ranch contained the following mineral reservation clause:
RESERVING HOWEVER to the grantors their heirs, administrators, executors, assigns
or successors all right, title and interest to coal, oil, gas and other minerals of every kind
and nature whatsoever existing upon beneath the surface of, or within said lands,
including the right to the use of so much of the surface thereof as may be required in
prospecting for, in locating developing, producing and transporting said coal oil, gas or
minerals and any of their by-products thereof.
In June, 1978, appellants, Derral and Barbara Christensen, became the owners of Winecup
Ranch. Appellants' deed to the ranch specifically excepted any and all mineral rights. The
mineral rights to Winecup Ranch are presently owned by AZL Minerals, Inc., Superior Oil
Company, and Patsy R. Grube; these rights have been leased to respondent Chromalloy
American Corporation.
This litigation began when respondent filed suit against appellants, seeking a declaratory
judgment regarding its rights under the mineral reservation.
under the mineral reservation. It also requested an injunction restraining appellants from
interfering with its open-pit mining of barite on the Winecup Ranch. Appellants filed an
answer and counterclaim, alleging that they owned the surface minerals on the land and that
respondent was trespassing. They further alleged respondent's mining operations were
destroying their ranch land, and they sought damages for trespass, conversion of the barite,
negligence and nuisance. In addition, appellants moved for a preliminary injunction to halt
the open-pit mining of barite on the Winecup Ranch. The district court entered an order
denying appellants' motion for a preliminary injunction, and this appeal followed.
[Headnote 1]
On appeal, appellants assert the district court erred in denying their motion for a
preliminary injunction. Thus, we must decide whether they have shown a reasonable
probability of success on the merits, and also whether respondent's conduct, if allowed to
continue, will result in irreparable harm for which compensatory damages represent an
inadequate remedy. Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 587 P.2d 1329
(1978). In regard to these concerns, appellants contend the district court erred in concluding
that the mineral reservation clause in controversy was clear, definite, unequivocal and
unambiguous. We agree.
In Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971), the holder of certain mineral rights
brought an action for declaratory judgment to determine which party was the legal owner of
iron ore surface minerals. The deed at issue purported to convey an undivided 1/2 interest in
and to all of the oil, gas, and other minerals in and under, and that may be produced from the
land in question.
In construing the clause other minerals in the deed, the court considered whether the
reservation clause was intended to include minerals that were only recoverable by open-pit
mining. The court ultimately concluded that surface minerals which were subject to
extraction by open-pit mining belonged to the surface estate owner and not the lessee. In its
holding, the court stated:
The parties to a mineral lease or deed usually think of the mineral estate as including
valuable substances that are removed from the ground by means of wells or mine
shafts. This estate is dominant, of course, and its owner is entitled to make reasonable
use of the surface for the production of his minerals. It is not ordinarily contemplated,
however, that the utility of the surface for agricultural or grazing purposes will be
destroyed or substantially impaired.
grazing purposes will be destroyed or substantially impaired. Unless the contrary
intention is affirmatively and fairly expressed, therefore, a grant or reservation of
minerals or mineral rights should not be construed to include a substance that must
be removed by methods that will, in effect, consume or deplete the surface estate. See
Clark, Uranium Problems, 18 Tex.B.J. 505.
Id. at 352 (footnote omitted). See also, Kuntz, The Law Relating to Oil and Gas in Wyoming,
3 Wyo. L.J. 107 (1948).
In Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980), the Texas Supreme Court further
delineated the Acker decision. The court, in Reed, found that a mineral reservation clause,
reserving an interest in oil, gas and other minerals did not include surface minerals which
were necessarily mined by methods that destroyed the surface estate. The court stated that if
the deposit lies near the surface, the substance will not be granted or retained as a mineral if
it is shown that any reasonable method of production would destroy or deplete the surface.
Id. at 747.
Finally, in Riddlesperger v. Creslenn Ranch Co., 595 S.W.2d 193 (Tex.Civ.App. 1980),
the court interpreted the following mineral reservation:
all of the oil, gas, uranium, and other minerals and gravel in, on and under said land,
together with full rights of ingress and egress to, from and over said land, or any part
thereof, for the purpose of exploring for mining, producing, developing or removing
any or all of said minerals on, under or from any part of said land . . . .
The court held that at the time the parties executed the deed containing the reservation of
other minerals, they did not intend to include mineral substances lying so near the surface
that their extraction would result in a destruction of the surface estate. Id at 196. The court
found its construction of the reservation impelled the conclusion that the near-surface
substances in question were not minerals and title to the contested substances remained
with the surface owner. Id. In reaching its decision, the court relied on Acker, and Reed.
[Headnote 2]
Under the rationale enunciated in Acker, Reed, and Riddlesperger, title to surface or
subsurface minerals vests in the surface estate owner unless the mineral estate owner can
remove the minerals in question by methods of extraction which will not consume, deplete or
destroy the surface estate.
Respondent claims the mineral reservation clause at issue clearly establishes the original
grantor's intent to allow unlimited use of the surface estate in order to extract the barite.
clearly establishes the original grantor's intent to allow unlimited use of the surface estate in
order to extract the barite. In support of its position, respondent relies on New Mexico and
Arizona Land Company v. Elkins, 137 F.Supp. 767 (D.N.M. 1956), wherein the federal
district court attempted to interpret and apply New Mexico law in a diversity case involving a
mineral reservation.
In Elkins, the court construed a mineral reservation clause which applied to all oil, gas
and minerals underlying or appurtenant to said lands. The defendants in Elkins argued that it
was not the intention of the original grantors to reserve the then unknown substances of
uranium and thorium in their mineral deed. Further, defendants argued that these surface
minerals would have to be strip mined, thus making their land unfit for ranching and
agricultural purposes. The court rejected the defendants' contentions and held that extrinsic
evidence was not admissible to show the circumstances surrounding the execution of the
deeds in question, or the intention of the parties at that time. Id. at 769. In his opinion, the
district judge stated: I am of the considered opinion extrinsic evidence as to the intentions of
the parties to the deeds in question is not admissible in this case, inasmuch as the language of
the reservation is clear, definite and unequivocal. The phrase all oil, gas and minerals' is a
phrase well known to scriveners of deeds, well known in the mining industry, and well
known to the average person. Id. at 770.
The Elkins decision represents a minority view, which we do not find persuasive. In point
of fact, the precedential value of the Elkins case is questionable in the wake of State Ex Rel.
State Highway Commission v. Trujillo, 487 P.2d 122 (N.M. 1971).
1

In Trujillo, the court stated that generally clay, sand and gravel are deemed to be minerals,
but went on to note certain exceptions to this general rule: There are, however, important
considerations which cause exceptions to this general rule.
____________________

1
In the unpublished decision of New Mexico and Arizona Land Company v. Elkins, No. 74-235 (D.N.M.
Dec. 3, 1974), the federal district court rejected the parties' contention that the first Elkins case governed the
controversy, and found that the more recent Trujillo holding was controlling. The Elkins II case involved
open-pit mining of limestone, which necessarily destroyed the surface estate. After considering the holding in
Trujillo, the court, in Elkins II, held that limestone was not a mineral under the reservation clause at issue. The
court stated:
The removal of the limestone destroys the surface and it cannot be removed without destruction of the
surface. Following the other general lines of authority on this point, the reservation claimed by the
plaintiff under this conveyance would have destroyed the thing that they were conveying to the
defendants' predecessors in title.
Slip op. at 14.
There are, however, important considerations which cause exceptions to this general
rule. Among them are that materials which possess no exceptional characteristics or
value which distinguish them from the surrounding soil are not likely to be recognized
as minerals in the sense of such conveyances; that materials which form part of the
surface are also not legally recognizable as minerals, nor are those which cannot be
obtained without a destruction of the surface, in the absence of extremely clear
indication that they are to be so recognized and that the usual considerations of
avoiding damage to the surface estate are to be deliberately disregarded; * * *.
Id. at 124-125 (quoting 95 A.L.R.2d 843 (1964)).
Case authority is replete with problems of interpretation arising from mineral reservations
which are broadly drafted or include the term other minerals. In Doochin v. Rackley, 610
S.W.2d 715 (Tenn. 1981), the court interpreted mineral reservations executed in the 1920's
and early 1930's. The mineral reservations were for all oil, gas, saline and mineral
substances of any nature whatsoever. The reservations did not specify the methods of
extracting minerals that were contemplated by the parties. In deciding the case, the court
distinguished strip mining from deep-rock mining and stated:
Strip mining temporarily or permanently destroys the surface of the land, depending
on the success of reclamation efforts. Thus, strip mining is incompatible with the
surface owner's enjoyment of his estate. See Skivolocki v. East Ohio Gas Co., 38 Ohio
St.2d 244, 313 N.E.2d 374 (1974); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259
(1970). This incompatibility and the physical and aesthetic effects on the environment
distinguish strip mining from traditional deep mining.
Id. at 717. In Doochin, the court concluded that the contracting parties did not intend for one
party to own the right to use and enjoy the surface of the land and for another party to own the
right to completely disrupt that surface. Because strip mining for limestone in the region in
question was not utilized until the 1940's, the court concluded that strip mining could not
have been within the contemplation of the parties. Id. at 719.
Similarly, in Besing v. Ohio Valley Coal Co., Inc., of Kentucky, 293 N.E.2d 510
(Ind.Ct.App. 1973), the court considered a reservation involving oil, gas and other minerals
to determine whether coal was a mineral within the ambit of the reservation. The court held
the phrase and other minerals was ambiguous, and stated: The phrase and other minerals'
is susceptible of more than one reasonable interpretation as to the grantor's intent." Id. at
512.
as to the grantor's intent. Id. at 512. See also, Lazy D. Grazing Ass'n v. Terry Lane, 641 F.2d
844 (10th Cir. 1981); United States v. 1,253.14 Acres of Land, Etc., State of Colo., 455 F.2d
1177 (10th Cir. 1972); Bumpus v. United States, 325 F.2d 264 (10th Cir. 1963); State Land
Board v. State Department of Fish & Game, 408 P.2d 707 (Utah 1965); Farrell v. Sayre, 270
P.2d 190 (Colo. 1954).
[Headnote 3]
In the case at bar, we conclude the mineral reservation clause is ambiguous because it is
silent as to the method of mining operations the original grantor contemplated. The
reservation does not clearly establish that the parties intended to allow open-pit or strip
mining of the other minerals referred to in the reservation. The lower court therefore erred
in finding that the mineral reservation was clear, definite, unequivocal and unambiguous.
Admission of extrinsic evidence regarding the parties' intent should be considered by the
district court at trial on the merits.
[Headnote 4]
From the record before us, it also appears that appellants are suffering irreparable harm to
their surface estate as a result of respondent's open-pit mining operations. Further, we are
satisfied that appellants have established a reasonable probability of success on the merits of
the case. Accordingly, we reverse and remand this case to the district court, with instructions
to grant appellants' motion for a preliminary injunction.
____________
99 Nev. 40, 40 (1983) Kenney v. Greer
BENJAMIN G. KENNEY, Appellant, v. MILT GREER and VICTOR RUSSELL, Both
Individually and dba PEGGY-LEE ANN MINING COMPANY, a Partnership, Respondents.
No. 13682
January 21, 1983 656 P.2d 857
Appeal from judgment for defendants following trial without a jury. Fifth Judicial District
Court, Esmeralda County; William P. Beko, Judge.
Action was brought involving dispute over who had better right to mine particular lode
discovery. The district court found that monumentation on ground adequately established
location of respondents' claim, and appeal was taken.
location of respondents' claim, and appeal was taken. The Supreme Court held that
substantial evidence supported district court's finding that monumentation on ground
adequately established location of respondents' claim.
Affirmed.
George R. Carter, Las Vegas, for Appellant.
Peter L. Knight, Tonopah, for Respondents.
If person properly locates a lode discovery by complying with all state and federal requirements, he or
she gains exclusive right to explore and develop all minerals within claim.
Priority in time of discovery of mineral deposit and subsequent continued possession of claim containing
deposit gives owner priority of right as against any subsequent claim involving overlapping territory.
Where original monuments marking claim are found on ground, or their position or location can be
satisfactorily determined, monumentation evidence prevails over courses and distances set forth in
recorded description of claim.
Where monuments or stakes do not define boundaries of claim with some certainty, calls in recorded
location certificate must control.
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to
opportunity of trial court to judge credibility of witnesses. NRCP 52(a).
The Supreme Court will not disturb a lower court's findings if they are supported by substantial evidence.
In action involving dispute over who had better right to mine a particular lode discovery, substantial
evidence supported finding of district court that monumentation on ground adequately established location
of respondents' claim.
Given adequate monumentation, district court, in action concerning dispute over who had better right to
mine a particular lode discovery, did not err in refusing to accept recorded map as best evidence of location
of claim, particularly since field investigation would have revealed that recorded location certificate and
plat map conflicted with each other.
One who asserts particular mining claim is open for location has burden of proving it.
OPINION
Per Curiam:
This case concerns a dispute over who, as between appellant and respondents, has the
better right to mine a particular lode discovery located in Esmeralda County. Appellant
contends that a recorded map is the best evidence of the boundaries of respondents' claim in
light of indefinite monumentation at the site, and that the map shows that respondents' claim
does not include the disputed area. Respondents argue that the monumentation evidence and a
recorded certificate of location adequately demonstrate that their claim encompasses the lode
in question. We hold that substantial evidence supports the district court's finding that the
monumentation on the ground adequately establishes the location of respondents' claim, and
we therefore affirm.
THE FACTS
In February 1965, William Meredith and Lester Brown located the Sunset mining claim in
the Gold Mountain Mining district, Esmeralda County. The location certificate contains a
general description of the location, extent, and boundary markings of the claim. Along with
the location certificate, Brown and Meredith recorded a map purportedly indicating the
location of the Sunset claim in relation to a nearby U.S. Location Monument.
Mrs. Harry Wiley inherited from William Meredith an undivided one-half interest in the
Sunset claim in December 1970. She quitclaimed all of her interest in the Sunset claim to
respondents Greer and Russell in November 1979, designating the claim by the recorded
notice and map. Russell re-marked the boundaries of the claim, using some existing rock
monuments.
In 1978, appellant Benjamin Kenney had located several contiguous claims, named Long
Shot and Long Shots 2-5, in the Gold Mountain Mining District. Kenney testified that
when he arrived at the site of his prospective claim, there were several dozen old rock
monuments and one post monument in the area, none of which bore any markings. Kenney
assumed the ground was open, and staked out his claims with post monuments. When he
checked with the Esmeralda County Recorder, he discovered the Sunset claim as described by
its location notice, map, and the Master Title plat that had been made from the map. Kenney
then recorded a location notice and map of his claims, deleting Long Shot 1 because of the
location of the Sunset claim as shown by the recorded Sunset map and the Master Title
plat.
location of the Sunset claim as shown by the recorded Sunset map and the Master Title plat.
These documents indicated that the Sunset claim and the remaining Long Shot claims did not
overlap.
Respondents' predecessors in interest, appellant, and respondents all filed the requisite
proof of annual assessment work on their respective claims.
When Kenney returned to his claims in June 1980, he discovered Russell and a crew of
men working on the site. After failing to convince Russell, and then Greer, that he was the
rightful owner of the claimed area, Kenney sued to remove them. Russell and Greer
counterclaimed, seeking to establish their right to enter upon and mine the area claimed by
Kenney. The district court denied relief to Kenney and granted respondents' counterclaim,
holding that the evidence established the Sunset claim as a valid and subsisting claim that
was located in the disputed area prior in time to the Long Shot claims. This appeal followed.
THE BEST EVIDENCE OF THE LOCATION
OF THE SUNSET CLAIM
[Headnotes 1, 2]
If a person properly locates a lode discovery by complying with all state and federal
requirements, he or she gains the exclusive right to explore and develop all minerals within
the claim. See Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676, cert. denied, 371 U.S.
821 (1962); Schwarz v. Ulmer, 370 P.2d 889 (Colo. 1962). See generally Olen P. Matthews,
Legal Pitfalls, Land Status and the Acquisition of Mineral Rights 48-74 (1981). The priority
in time of the discovery of a mineral deposit and the subsequent continued possession of the
claim containing the deposit gives the owner priority of right as against any subsequent claim
involving overlapping territory. Couch v. Clifton, 626 P.2d 731 (Colo.App. 1981).
[Headnotes 3, 4]
Where the original monuments marking a claim are found on the ground, or their position
or location can be satisfactorily determined, the monumentation evidence prevails over the
courses and distances set forth in the recorded description of the claim. Gray et al. v.
Coykendall et al., 53 Nev. 466, 475, 6 P.2d 442, 444 (1931); Gibson v. Hjul, 32 Nev. 360,
108 P. 759 (1910). See Silver King Co. v. Conkling Co., 255 U.S. 151, 162 (1921);
Lombardo Turquoise Milling & Mining v. Hemanes, 430 F. Supp. 429, 442 (D.Nev. 1977).
On the other hand, where monuments or stakes do not define the boundaries of a claim with
some certainty, the calls in the recorded location certificate must control.
with some certainty, the calls in the recorded location certificate must control. Gray et al. v.
Coykendall et al., supra. This rule is calculated to require the best evidence of the true
boundaries of a claim, and to prevent the swinging or floating of claims to the detriment of
subsequent locators. 53 Nev. at 476, 6 P.2d at 444-45.
[Headnotes 5, 6]
The district court found that there was sufficient evidence of the monumentation of the
Sunset claim to establish its location on the ground, and that its boundaries encompassed
respondents' workings. Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the credibility of the
witnesses. NRCP 52(a); Unionamerica Mtg. v. McDonald, 97 Nev. 210, 626 P.2d 1272
(1981). See B.S. & K. Mining Co. v. American Smelting & Refining Co., 461 P.2d 93
(Ariz.App. 1969). This Court will not disturb a lower court's findings if they are supported by
substantial evidence. Central Bank v. Baldwin, 94 Nev. 581, 583 P.2d 1087 (1978).
[Headnote 7]
Substantial evidence upholds the factual findings of the district court concerning the
location of the Sunset claim. A registered land surveyor testified extensively concerning the
most likely location of the Sunset claim. He based his conclusions on the narrative
description in the recorded certificate of location; corresponding monuments and workings
that he found in the field; and the absence of any substantial monumentation or workings in
the areas delineated by the contradictory plat map that the original locators had prepared. The
surveyor also suggested that the original locators had made a simple error in describing the
bearing from the nearest U.S. Location Marker to the Sunset claim, and that this error would
reasonably account for the discrepancy between the actual monumentation and the recorded
map.
[Headnote 8]
Therefore, while Kenney was indeed misled by an incorrect plat map, there was a logical
pattern of monumentation in the field that corresponded with the narrative description of the
Sunset claim in the recorded certificate of location. Given adequate monumentation, the
district court did not err in refusing to accept the recorded map as the best evidence of the
location of the Sunset claim, particularly since field investigation would have revealed to
Kenney that the recorded location certificate and the plat map conflicted with each other. See
Lombardo Turquoise Milling & Mining v. Hemanes, supra, 430 F.Supp. at 440-42.
[Headnote 9]
One who asserts that a particular claim is open for location has the burden of proving it.
Columbia Standard Corp. v. Ranchers Explor. & Dev., Inc., 468 F.2d 547, 551 (10th Cir.
1972); Western Standard Uranium Co. v. Thurston, 355 P.2d 377 (Wyo. 1960). In light of the
controlling monumentation evidence, the district judge did not err in holding that Kenney
failed to satisfy his burden of proof, and that respondents retained the right to enter upon and
mine the land in question.
After examining the record and considering the relevant case law, we hold appellant's
other contentions on appeal to be meritless. We therefore affirm the judgment of the district
court.
____________
99 Nev. 45, 45 (1983) Walker v. Scully
DANNY WALKER, Appellant, v. DR. ARMAND
SCULLY, Respondent.
No. 13335
January 26, 1983 657 P.2d 94
Appeal from order dismissing with prejudice complaint for medical malpractice. Eighth
Judicial District Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that the district court lacked authority to extend the 30-day period
within which plaintiff could file his notice of appeal, and thus the notice of appeal was
untimely and the Supreme Court was without jurisdiction to entertain the appeal.
Appeal dismissed.
Houston, Moran & Kennedy, Las Vegas, for Appellant.
Vargas & Bartlett, and Steven Glade, Las Vegas, for Respondent.
Appeal and Error.
District court lacked authority to extend 30-day period within which plaintiff could file his notice of
appeal from the order dismissing with prejudice his complaint for medical malpractice, and thus his notice
of appeal was untimely and Supreme Court was without jurisdiction to entertain the appeal. NRAP 4(a).
OPINION
Per Curiam:
Appellant Walker initiated an action in district court alleging medical malpractice.
99 Nev. 45, 46 (1983) Walker v. Scully
medical malpractice. Respondent subsequently moved to dismiss for lack of prosecution. An
order granting the motion and dismissing the complaint with prejudice was filed on February
4, 1981. The following day respondent served written notice of entry of the order. Appellant
filed a motion for rehearing on February 9, 1981. On April 3, 1981, the district court denied
the motion, and a notice of appeal was filed.
Our preliminary review of the record revealed that the notice of appeal was not filed
within the thirty-day period specified in NRAP 4(a).
1
Accordingly, we issued an order
directing appellant to show cause why the appeal should not be dismissed on jurisdictional
grounds.
Appellant submitted a memorandum of authorities in response to our order. Appellant
contends that the district court granted an extension of time within which to file the notice of
appeal, and that he filed the notice of appeal well before the extended deadline had expired.
Contrary to appellant's suggestion, the district court lacked authority to extend the
thirty-day period within which Walker could file his notice of appeal.
2
See Ross v. Giacomo,
97 Nev. 550, 635, P.2d 298 (1981); Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113
(1960); Novack & Sons v. Hoppin, 75 Nev. 475, 345 P.2d 769 (1959). Accordingly, the
notice of appeal was untimely.
3
We are therefore without jurisdiction to entertain the appeal.
Morrell v. Edwards, 98 Nev. 91, 640 P.2d 1322 (1982).
This appeal is hereby dismissed.
____________________

1
NRAP 4(a) provides, in relevant part, as follows:
In a civil case in which an appeal is permitted by law from a district court to the Supreme Court the
notice of appeal required by Rule 3 shall be filed with the clerk of the district court within thirty (30) days
of the date of service of written notice of the entry of the judgment or order appealed from.

2
The only legal authority cited by appellant on this point is NRAP 4(a), which provides no authority for a
district court judge to grant an extension of time for filing the notice of appeal.

3
The motion for rehearing did not toll the running of the thirty-day period set forth in NRAP 4(a). Whitehead
v. Norman Kaye Real Estate, 80 Nev. 383, 395 P.2d 329 (1964); NRAP 4(a). Appellant argues that he was
precluded from filing the notice of appeal until after the district court ruled on the motion for rehearing.
Appellant has cited no authorities in support of this argument, and we are aware of none.
____________
99 Nev. 47, 47 (1983) Ward v. Ford Motor Co.
DONNA WARD, Appellant, v. FORD MOTOR
COMPANY, Respondent.
No. 13788
January 27, 1983 657 P.2d 95
Appeal from judgment. Second Judicial District Court, Washoe County; Grant L. Bowen,
Judge.
Motorist brought products liability action against automobile manufacturer. The district
court entered judgment on verdict in favor of manufacturer and motorist appealed. The
Supreme Court held that, in order for plaintiff to recover, defect must make the product
unreasonably dangerous and unsafe for its intended use.
Affirmed.
Echeverria and Osborne, and James M. Walsh, Reno, for Appellant.
Eugene J. Wait, Jr., Reno, for Respondent.
1. Products Liability.
In order to recover for defective product, it must be shown that the defect made the product unreasonably
dangerous and unsafe for its intended use; article is unreasonably dangerous if it is dangerous to the extent
beyond that which would be contemplated by the ordinary consumer who purchases with the ordinary
knowledge common to the community as to its characteristics.
Plaintiff in products liability action need only prove that the product failed to perform in the manner
reasonably to be expected in light of its nature and intended functions.
OPINION
Per Curiam:
This appeal arises from a single car accident which occurred on June 2, 1978. According
to appellant, on that date, the 1977 Ford Maverick she was driving on U.S. Highway 50 began
to vibrate. In an attempt to reduce the vibration, appellant applied the brakes. She then lost
control of the car, and the Maverick began a slide sideways across the pavement. The vehicle
eventually left the roadway and rolled over several times finally coming to rest on its top.
During the rollover, appellant was ejected from the automobile and suffered serious injuries
which have left her a paraplegic.
As a result of the accident, appellant initiated suit against the respondent, Ford Motor
Company, on the theory of strict liability in tort.
respondent, Ford Motor Company, on the theory of strict liability in tort. After a jury trial,
judgment was entered in favor of Ford Motor Company. Thereafter, appellant moved for a
new trial which was denied by the district court. We affirm.
[Headnote 1]
The main issue on appeal is whether the district court erred by giving certain portions of
Jury Instruction No. 4.
1
Appellant contends that the fifth section of the instruction, which
requires the plaintiff to prove that the product is unreasonably dangerous, is unduly
burdensome. We disagree.
The fifth section of the instruction is a correct statement of the law in Nevada. For
example, in General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), we held:
We have heretofore held that a defective product is dangerous if it fails to perform in
the manner reasonably to be expected in the light of its nature and intended function.
Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Beyond that a product
being defective gives rise to strict tort liability even though faultlessly made if it was
unreasonably dangerous for the manufacturer or supplier to place that product in the
hands of a user . . . (Emphasis added.)
Id. at 364. Accord, Outboard Marine Corp. v. Schupbach, 93 Nev. 15S, 561 P.2d 450 {1977).
We therefore hold that the district court did not err in giving the fifth section of Jury
Instructions No. 4.
[Headnote 2]
____________________

1
Jury Instruction No. 4 provided:
The defendant FORD MOTOR COMPANY is not required under the law so to create and deliver its
products as to make them accident proof. They are, however, liable to plaintiff for any injury suffered by
her if plaintiff establishes by a preponderance of the evidence all the facts necessary to prove each of the
following conditions:
First: That the defendant FORD MOTOR COMPANY placed its products in question on the market
for use and defendant knew, or, in the exercise of reasonable care should have known, that the particular
product would be used without inspection for defects in the particular part, mechanism or design which is
claimed to have been defective;
Second: That the product was defective in design or manufacture at the time it was placed on the
market and delivered;
Third: That plaintiff was unaware of the claimed defect;
Fourth: That the claimed defect was a proximate cause of any such injury to plaintiff occurring while
the product was being used in the way and for the general purpose for which it was designed and
intended; and
Fifth: That the defect, if it existed, made the product unreasonably dangerous and unsafe for its
intended use. An article is unreasonably dangerous if it is dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common
to the community as to its characteristics.
Nev. 158, 561 P.2d 450 (1977). We therefore hold that the district court did not err in giving
the fifth section of Jury Instructions No. 4.
[Headnote 2]
Through this appeal, appellant really seems to be urging us to adopt what she considers the
enlightened view of strict liability as expressed in Cronin v. J.B.E. Olson Corp., 501 P.2d
1153 (Cal. 1972). There, the California Supreme Court rejected the concept that a defective
condition must be unreasonably dangerous to the user or consumer in order to be actionable.
After reviewing our previous decision, as well as other cases and authorities on this subject,
we decline to adopt the minority position of Cronin and we reaffirm our belief that the
plaintiff must prove that the product is unreasonably dangerous. This hardly detracts from the
sound public policy favoring the strict products liability doctrine. A plaintiff need only prove
that the product failed to perform in the manner reasonably to be expected in the light of its
nature and intended function. General Electric Co. v. Bush, supra. Or, in the language of the
subject instruction, that the product is dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it with the ordinary knowledge
common to the community as to its characteristics.
Appellant also contends that the district court erred by including the third section of the
instruction which requires her to prove that she was unaware of the claimed defect. Although
her point may have merit, based on our examination of the record, we conclude that it is
unnecessary to determine whether the plaintiff should be required to prove lack of awareness
because in the context of this case we believe the result would not be altered.
Appellant's other assignment of error has been considered, and we conclude that it is
without merit.
The judgment of the district court is affirmed.
Manoukian, C.J., Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Chief Justice assigned Senior Justice David Zenoff to participate in the decision of this matter, in the
place and stead of E. M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c),
and SCR 10.
____________
99 Nev. 50, 50 (1983) Givens v. State
JAMES EARL GIVENS, Appellant v. THE STATE
No. 13849
January 27, 1983 657 P.2d 97
Appeal from judgment on jury verdict convicting appellant of first degree kidnapping,
false imprisonment, and battery. Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
The Supreme Court held that: (1) trial court did not abuse its discretion in admitting
defendant's prior conviction for assault with intent to commit rape; (2) trial court's refusal to
exclude witnesses from courtroom on defendant's request caused no prejudice to defendant;
but (3) convictions may not be had for both offense charged and lesser included offense.
Affirmed in part; reversed in part.
Morgan D. Harris, Public Defender, Douglas P. DeJulio and Craig D. Creel, Deputy
Public Defenders, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
Tufteland and Randall M. Pike, Deputy District Attorneys, Clark County, for Respondent.
1. Witnesses.
Although state statutes and case authority permit impeachment by proof of prior felony convictions which
are not too remote and do not limit felonies that can be used to those specifically determined to be relevant
to witnesses' veracity, trial court must exclude prior felony convictions if their probative value is
substantially outweighed by danger of unfair prejudice, confusion of issues or misleading jury. NRS
48.035, subd. 1, 50.095.
2. Criminal Law.
While nature of prior felony conviction may affect trial court's determination as to its relevance and its
admissibility for impeachment purposes, outcome of balancing process rests with sound discretion of trial
court and will not be reversed absent a clear showing of abuse. NRS 48.035, subd. 1, 50.095.
3. Witnesses.
Prior conviction of assaultive crime usually has only slight probative value with respect to defendant's
veracity and prejudice is magnified when prior crime parallels that for which defendant witness is presently
being tried. NRS 48.035, subd. 1, 50.095.
4. Witnesses.
Trial court in prosecution for first degree kidnapping, false imprisonment and battery did not abuse its
discretion by admitting defendant witness' prior conviction for assault with intent to commit rape. NRS
48.035, subd. 1, 50.095.
5. Witnesses.
As with fact of prior felony conviction to impeach defendant's veracity, trial court has discretion to admit
or exclude number and names of prior felony convictions, so long as court does not allow interrogation as
to details of such convictions.
6. Statutes.
In construing statutes, may is construed as permissive and shall is construed as mandatory unless
statute demands different construction to carry out clear intent of Legislature.
7. Criminal Law.
Statute providing that at the request of a party the judge shall order witnesses excluded so that they
cannot hear the testimony of other witnesses . . . establishes duty on judge's part to exclude witnesses upon
request. NRS 50.155.
8. Criminal Law.
Purpose of sequestration of witnesses is to prevent particular witnesses from shaping their testimony in
light of other witnesses' testimony and to detect falsehood by exposing inconsistencies. NRS 47.020,
50.155.
9. Criminal Law.
Since requiring defendant to prove that actual prejudice occurred from trial court's refusal to sequester
witnesses on defendant's request would be overly harsh and unjust, Supreme Court will presume prejudice
from violation of sequestration statute unless record shows that prejudice did not occur. NRS 47.020,
50.155.
10. Criminal Law.
Where testimony of witness present in courtroom could not have been influenced by victim's testimony
and other witnesses present during testimony were not called in rebuttal, so their presence could not have
affected outcome of trial, no prejudice resulted from trial court's refusal to sequester witnesses on
defendant's request. NRS 47.020, 50.155.
11. Criminal Law.
Convictions may not be had for both offense charged and lesser included offense. U.S.C.A.Const.
Amend. 5.
OPINION
Per Curiam:
James Earl Givens appeals from a judgment of conviction of first degree kidnapping, false
imprisonment, and battery. Givens seeks reversal on several grounds. He contends that the
district court committed reversible error in denying his motions to preclude the State from
using both the fact and specific nature of a prior felony conviction to impeach his testimony,
and in refusing to exclude witnesses from the courtroom in violation of NRS 50.155. He also
contends that the rule against double jeopardy bars his conviction of both kidnapping and
false imprisonment. While the district court erred in refusing appellant's request to exclude
witnesses, we hold that the error in this case is not reversible.
in this case is not reversible. The State concedes the merit of appellant's double jeopardy
argument. We therefore set aside the conviction of false imprisonment, and affirm the
judgment of the district court in all other respects.
THE FACTS
Givens was charged with one count of first degree kidnapping with use of a deadly
weapon, and three counts of sexual assault with use of a deadly weapon. During the jury trial,
defense counsel moved to preclude the State from introducing a prior felony conviction for
impeachment purposes, on the grounds that the danger of unfair prejudice outweighed the
probative value of the conviction. Givens had entered a guilty plea to a charge of assault with
intent to commit rape in 1970, and had been sentenced to three years in state prison. The
district judge denied the motion.
Givens' counsel then made a motion in limine requesting that only the fact and not the
nature of the prior felony be admitted, relying on this Court's opinion in Sanders v. State, 96
Nev. 341, 609 P.2d 324 (1980). The judge denied the motion, which then led defense counsel
to bring out both the fact and name of the prior felony conviction on direct examination.
On the second day of trial, before any testimony was heard, defense counsel moved to
invoke the rule of exclusion of witnesses. The judge denied the motion. On the third day of
trial, defense counsel noted that several of the State's witnesses had been present in the
courtroom during the testimony of prosecution witnesses.
At the completion of the trial, the jury was instructed as to both kidnapping and false
imprisonment, and it found Givens guilty of both charges. The jury also found Givens guilty
of battery. He was sentenced to ten years in state prison for the kidnapping, one year in the
county jail for the false imprisonment, and six months in the county jail for the battery, all
sentences to run concurrently. This appeal followed.
THE PRIOR CONVICTION
[Headnote 1]
The statutes and case authority of this State permit impeachment by proof of prior felony
convictions which are not too remote, and do not limit the felonies that can be used to those
specifically determined to be relevant to the witness' veracity. NRS 50.095; Rusling v. State,
96 Nev. 755, 616 P.2d 1108 (1980); Yates v. State, 95 Nev. 446, 449-50, 596 P.2d 239, 241
(1979). However, the trial court must exclude prior felony convictions if their probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.
the danger of unfair prejudice, confusion of the issues, or misleading the jury. NRS
48.035(1); Yates v. State, supra; Anderson v. State, 92 Nev. 21, 544 P.2d 1200 (1976);
Edwards v. State, 90 Nev. 255, 263-64, 524 P.2d 328, 334 (1974).
[Headnote 2]
While the nature of the prior felony conviction may affect the trial court's determination as
to its relevance and hence its admissibility for impeachment purposes, the outcome of the
balancing process rests within the sound discretion of the trial court, and will not be reversed
absent a clear showing of abuse. See Owens v. State, 96 Nev. 880, 620 P.2d 1236 (1980);
Rusling v. State, supra; Hicks v. State, 95 Nev. 503, 596 P.2d 505 (1979); Yates v. State,
supra; Redeford v. State, 93 Nev. 649, 654, 572 P.2d 219, 222 (1977); Anderson v. State,
supra.
[Headnotes 3, 4]
We recognize that assaultive crimes usually have only slight probative value with respect
to veracity, and that prejudice is magnified when the prior crime parallels that for which the
defendant witness is presently being tried. Although this is a close case, we cannot say that
the district court abused its discretion by admitting Givens' prior conviction for assault with
intent to commit rape. See State v. Renfro, 639 P.2d 737, 740 (Wash. 1982). See also United
States v. Wilson, 536 F.2d 883 (9th Cir.) cert. denied, 429 U.S. 982 (1976).
Givens contends that, because he was willing to stipulate to the fact of his prior
conviction, the district court should have prevented the State from inquiring into the nature of
the conviction, on the grounds that it was similar to the current charges and thus unduly
prejudicial. Appellant relies on Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980). In
Sanders, the defendant was being tried both for robbery and for possession of a concealable
firearm by a felon. Proof of a former conviction was needed to prove the latter charge. The
district court admitted evidence of the defendant's prior convictions for attempted robbery and
rape, even though the defendant had been willing to stipulate that he had been convicted of a
felony. We held that, because of the danger of prejudice created, the district court had erred in
allowing the State specifically to identify the prior convictions to supply an element of the
possession charge where the defendant was contemporaneously being prosecuted for robbery.
Givens' reliance on Sanders is misplaced. In Sanders and the California cases from which
we drew our reasoning, the names of prior felonies were irrelevant to the element of the
charge sought to be proved. The defendant's stipulation in each case would have
satisfactorily supplied the needed element and avoided prejudice to the defendant on the
other charges.
would have satisfactorily supplied the needed element and avoided prejudice to the defendant
on the other charges. Sanders should not be read as applying to cases where the prior
conviction is admitted for impeachment rather than substantive purposes.
[Headnote 5]
As with the fact of prior felony convictions, the trial court has discretion to admit or
exclude the number and names of prior felony convictions, so long as the court does not
allow interrogation as to the details of the convictions. Anglin v. State, 86 Nev. 70, 464 P.2d
504 (1970); Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968), quoted in Layton v. State, 87
Nev. 598, 601, 491 P.2d 45, 47 (1971); State v. Johnson 559 P.2d 496 (Or. 1977) (State may
impeach defendant with name of felony and date and place of conviction, but not details of
convictions). We refuse to overturn the district court's exercise of discretion in the case at bar.
Givens was acquitted of all sexual assault charges. He appears not to have suffered
substantial prejudice from the district court's denial of his motion in limine.
THE COURT'S REFUSAL TO EXCLUDE WITNESSES
[Headnotes 6, 7]
NRS 50.155, enacted in 1971, provides in relevant part that at the request of a party the
judge shall order witnesses excluded so that they cannot hear the testimony of the other
witnesses. . . . NRS 47.020 makes NRS 50.155 applicable to both civil and criminal
proceedings.
1

In construing statutes, may is construed as permissive and shall is construed as
mandatory unless the statute demands a different construction to carry out the clear intent of
the legislature. Thomas v. State, 88 Nev. 382, 498 P.2d 1314 (1972); Ewing v. Fahey, 86
Nev. 604, 607, 472 P.2d 347, 349 (1970). See Kanekoa v. Washington State Dept. of Soc. &
Health Serv., 626 P.2d 6 (Wash. 1981) (shall is presumptively imperative, and operates to
create a duty rather than confer discretion). NRS 50.155 clearly establishes a duty on the
judge's part to exclude witnesses upon request.
Respondent concedes that the district court violated the statute when it refused to exclude
witnesses on appellant's request.
____________________

1
NRS 50.155 should be contrasted with its predecessor, NRS 175.167 (enacted in 1961), which provided
that:
[u]pon request by either party, the judge may exclude from the courtroom any witness of the adverse
party, not at the time under examination, so that he may not hear the testimony of other witnesses.
(Emphasis added.)
However, respondent argues that the error was not prejudicial. Appellant contends that trying
to determine the degree of prejudice would be wholly speculative, and that prejudice must
therefore be presumed.
[Headnote 8]
The purpose of sequestration of witnesses is to prevent particular witnesses from shaping
their testimony in light of other witnesses' testimony, and to detect falsehood by exposing
inconsistencies. Rainsberger v. State, 76 Nev. 158, 161, 350 P.2d 995, 997 (1960); State v.
Leong, 465 P.2d 560, 562 (Hawaii 1970); State v. Ortiz, 540 P.2d 850, 857 (N.M.App. 1975).
In many instances the prejudice resulting from a violation of a sequestration order will be
virtually impossible to detect, as the damage will have already been done and no
inconsistencies will appear.
[Headnote 9]
We hold that because requiring the requesting party to prove that actual prejudice occurred
would be overly harsh and unjust, we will presume prejudice from a violation of NRS 50.155
unless the record shows that prejudice did not occur. State v. Roberts, 612 P.2d 1055 (Ariz.
1980); Reynolds v. State, 497 S.W.2d 275 (Ark. 1973).
[Headnote 10]
In Roberts, under a statute similar to NRS 50.155, the court examined the record and
found changes in one witness' testimony that might have occurred as a result of the trial
court's failure to exclude witnesses on defendant's request; the court therefore held the error
to be prejudicial. While we intend to follow the strong lead of Roberts and Reynolds, the
record in the instant case indicates that the violation of NRS 50.155 caused no prejudice to
Givens. On the first day of taking testimony, a Mr. Brown was in the courtroom while the
victim testified. Brown subsequently testified that he had loaned to Givens the car that Givens
allegedly had used to transport the victim on the night in question. This testimony could not
have been influenced by the victim's testimony. See State v. Valdez, 562 P.2d 1368
(Ariz.App. 1977). On the second day of taking testimony, the victim and another witness who
had already testified were present in the courtroom. Neither one was called in rebuttal, so
their presence could not have affected the outcome of the trial.
2
See State v. Stolze, 539 P.2d
881, 883 (Ariz. 1975) {where one witness had already testified, policy underlying
sequestration rule not violated by his remaining in courtroom during his sister's
testimony).
____________________

2
We recognize that our holding may require those requesting exclusion to note on the record whether
prospective or rebuttal witnesses are present in the courtroom. We do not believe that this is too great a burden
to trigger the presumption of prejudice, as counsel may either state for the record that a witness is present, or ask
witnesses on the stand whether they have been present during the testimony of other witnesses.
(where one witness had already testified, policy underlying sequestration rule not violated by
his remaining in courtroom during his sister's testimony). Because the record shows that no
prejudice occurred, we will not reverse the judgment of conviction in this case. In the future,
absent such a showing, we shall not hesitate to reverse, and we note that because the damage
presumptively will have been done, retrial in such cases will often be infeasible.
DOUBLE JEOPARDY PROHIBITS CONVICTION OF
BOTH KIDNAPPING AND FALSE IMPRISONMENT
[Headnote 11]
The State concedes that the false imprisonment conviction must be set aside. Convictions
may not be had for both the offense charged and a lesser included offense. Fairman v. State,
83 Nev. 137, 142, 425 P.2d 342, 345 (1967). We recently adopted the double jeopardy test of
Blockburger v. United States, 284 U.S. 299, 304 (1932), in Litteral v. State, 97 Nev. 503,
508, 634 P.2d 1226, 1229 (1981); [W]here the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other does
not. By definition, conviction of both an offense and a lesser included offense will always be
impermissible under this test.
We therefore reverse the conviction of false imprisonment and affirm the judgment of the
district court in all other respects.
Manoukian, C.J., Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
Senior Justice David Zenoff was appointed to participate in the decision of this matter in the place and stead
of The Honorable E. M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c),
and SCR 10.
____________
99 Nev. 56, 56 (1983) Circus Circus Hotels v. Witherspoon
CIRCUS CIRCUS HOTELS, INC., and LOYAL BORDEN,
Appellants, v. JERRY WITHERSPOON, Respondent.
No. 13811
January 27, 1983 657 P.2d 101
Appeal from judgment for plaintiff on a jury verdict. Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
In action against former employer predicated on defamation and interference with
prospective contractual relations, the district court entered judgment on $55,500 general
verdict in favor of former employee, and former employer and manager appealed. The
Supreme Court held that (1) trial court erred in admitting letter from former employer to
Employment Security Department and in allowing testimony and argument concerning such
letter; (2) trial court erred in leaving to jury question of whether letter's content was
sufficiently relevant to fall within absolute privilege; and (3) trial court erred in leaving to
jury initial question of whether manager's statements were conditionally privileged.
Shamberger, Georgeson, McQuaid & Thompson, Chtd., Reno; Carl E. Lovell, Jr., Las
Vegas, for Appellants.
Terry A. Friedman, Reno, for Respondent.
1. False Pretenses.
Past posting a wager constitutes crime of swindling. NRS 465.070, subd. 1.
2. Libel and Slander.
Absolute privilege accorded to communications uttered or published in course of judicial proceedings so
long as they are in some way pertinent to subject of controversy precludes liability even where defamatory
statements are published with knowledge of their falsity and personal ill will toward plaintiff.
Policy underlying absolute privilege accorded to communications uttered or published in course of
judicial proceedings so long as they are in some way pertinent to subject of controversy is that in certain
situations public interest in having people speak freely outweighs risk that individuals will occasionally
abuse privilege by making false and malicious statements.
On basis of policy that in certain situations public interest in having people speak freely outweighs risk
that individuals will occasionally abuse privilege by making false and malicious statements, absolute
privilege attached to judicial proceedings has been extended to quasi-judicial proceeding before executive
officers, boards and commissions, including proceedings in which administrative body is considering
employee's claim for unemployment compensation. NRS 612.265, subd. 7.
For absolute privilege attached to judicial proceedings and extended to quasi-judicial proceeding before
executive officers, boards and commissions to apply, defamatory material need not be relevant in
traditional evidentiary sense, but need have only some relation to proceeding; so long as material has
some bearing on subject matter of proceeding, it is absolutely privileged. NRS 612.265, subd. 7.
Purpose of statute creating absolute privilege for certain oral or written communications from employer
to Employment Security Department is to encourage employers and employees to submit any and all
potentially relevant information to Department that might bear on employee's right to receive
unemployment compensation, without fear of civil liability. NRS 612.265, subd. 7.
Statute creating absolute privilege for certain oral or written communications from employer to
Employment Security Department promotes vigorous contesting of grants of benefits. NRS 612.265,
subd. 7.
8. Torts.
District court in action against former employer for defamation and interference with prospective
contractual relations erred in admitting letter from former employer to Employment Security Department
and in allowing testimony and argument concerning such letter. NRS 612.265, subd. 7.
contractual relations erred in leaving to jury question of whether content of employer's letter to
Employment Security Department was sufficiently relevant to fall within absolute privilege; absolute
privilege and relevance are questions of law for court to decide. NRS 612.265, subd. 7.
contractual relations erred by leaving to jury question of whether allegedly defamatory communication by
former manager to prospective employer was made on privileged occasion.
Qualified or conditional privilege exists where defamatory statement is made in good faith on any subject
matter in which person communicating has interest or in reference to which he has right or duty, if it is
made to person with corresponding interest or duty.
Whether particular communication is conditionally privileged by being published on privileged
occasion is question on law for court; burden then shifts to plaintiff to prove to jury's satisfaction that
defendant abused privilege by publishing communication with malice in fact; question goes to jury only if
there is sufficient evidence for jury reasonably to infer the publication was made with malice in fact.
Conditional privilege may be abused by publication in bad faith, with spite or ill will or some other
wrongful motivation toward plaintiff and without belief in statement's probable truth.
Former employer has qualified or conditional privilege to make otherwise defamatory communications
about character or conduct of former employees to present or prospective employers, as they have common
interest in subject matter of statements.
OPINION
Per Curiam:
Respondent obtained a $55,500 general verdict against appellants predicated on
defamation and interference with prospective contractual relations. Appellants contend that
the district court committed prejudicial error by admitting into evidence a letter from Circus
Circus Hotels, Inc. to the Nevada Employment Security Department, and by leaving certain
questions of privilege to the jury. We agree with appellants, and therefore reverse and remand
for a new trial.
THE FACTS
[Headnote 1]
In December 1979, respondent Witherspoon was working in Reno for Appellant Circus
Circus Hotels, Inc., as a craps boxman and floorman. On December 20, 1979, a Nevada
Gaming Control Board agent allegedly saw Witherspoon past post a toke bet (a bet made
for the dealers as a gratuity). Past posting a wager constitutes the crime of swindling. NRS
465.070(1).
On December 21, Circus Circus Hotels' Reno casino manager, appellant Loyal Borden,
discharged Witherspoon on the basis of the agent's observation. Witherspoon contacted his
attorney, who advised him to seek other employment before considering a lawsuit against
Circus Circus. Witherspoon attempted to find work in the gaming industry for several
months, but was unsuccessful. On his job applications, he indicated that he had been accused
of theft at Circus Circus, although his termination slip had stated only that he had not
complied with company policy.
Some prospective employers contacted Loyal Borden concerning the reasons for
Witherspoon's termination. A former shift manager at the Ponderosa in Reno testified that
Loyal Borden had told him that Witherspoon was a good kid, and he went sour. This meant
to the shift manager that Witherspoon was a thief or a drinker, or was missing a lot of shifts.
The shift manager also testified that Borden had said Circus Circus was going to try to keep
him [Witherspoon] from going to work in the gaming industry.
Patricia Kice, Circus Circus' personnel director, sent a letter to the Nevada Employment
Security Department requesting an appeal of a grant of unemployment benefits to
Witherspoon. The letter stated that Witherspoon had been terminated on the basis of a
Gaming Control agent's observation of Witherspoon past-posting a wager; it also stated
that the request for an appeal was
past-posting a wager; it also stated that the request for an appeal was
based on Section 612.383 of the Nevada law that provides an individual who has been
discharged for commission of . . . embezzlement . . . (which) has resulted in a
conviction in a court of competent jurisdiction [shall be denied benefits].
Witherspoon testified that he has never been arrested for a gaming incident or charged by the
Gaming Control Board with theft or embezzlement.
All of the above evidence was presented to the jury at trial. Appellants objected to the
admission into evidence of the Kice letter to the Employment Security Department.
Appellants also presented several instructions concerning absolute and conditional privilege
that the district court refused.
THE LETTER TO THE EMPLOYMENT SECURITY
DEPARTMENT WAS ABSOLUTELY PRIVILEGED
[Headnote 2]
The district court recognized that NRS 612.265(7)
1
creates an absolute privilege for all
oral or written communications from an employer to the Employment Security Department,
provided that the communications are made pursuant to Chapter 612. See Georgia Power Co.
v. Busbin, 250 S.E.2d 442 (Ga. 1978); Sias v. General Motors Corp., 127 N.W.2d 357 (Mich.
1964); Krenek v. Able, 594 S.W.2d 821 (Tex.Civ.App. 1980). See Green v. Hoiriis, 103 S.2d
226 (Fla.App. 1958).
The statute is based on the long-standing common law rule that communications uttered or
published in the course of judicial proceedings are absolutely privileged so long as they are in
some way pertinent to the subject of controversy. See Drummond v. Stahl, 618 P.2d 616
(Ariz.App. 1980), cert. denied, 450 U.S. 967 (1981); Prosser, Handbook of the Law of Torts,
114 at 777-79 (4th ed. 1971). The absolute privilege precludes liability even where the
defamatory statements are published with knowledge of their falsity and personal ill will
toward the plaintiff. Skinner v. Pistoria, 633 P.2d 672 (Mont. 1981); Stafford v. Garrett, 613
P.2d 99 (Or.App. 1980); Prosser, supra, at 777.
____________________

1
All letters, reports or communications of any kind, oral or written, from the employer or employee to
each other or to the employment security department or any of its agents, representatives or employees
are privileged and shall not be the subject matter or basis for any lawsuit if such letter, report or
communication is written, sent, delivered or prepared pursuant to the requirements of this chapter.
[Headnotes 3, 4]
The policy underlying the privilege is that in certain situations the public interest in having
people speak freely outweighs the risk that individuals will occasionally abuse the privilege
by making false and malicious statements. See Ducosin v. Mott, 642 P.2d 1168 (Or. 1982);
Fairbanks Pub. Co. v. Francisco, 390 P.2d 784 (Alaska 1964); Sampson v. Rumsey, 563 P.2d
506 (Kan.App. 1977). On the basis of this policy, the absolute privilege attached to judicial
proceedings has been extended to quasi-judicial proceedings before executive officers,
boards, and commissions, including proceedings in which the administrative body is
considering an employee's claim for unemployment compensation. See Krenek v. Able, 594
S.W.2d 821 (Tex.Civ.App. 1980); White v. United Mills Co., 208 S.W.2d 803 (Mo.App.
1948) (applying Kansas law); Annot., 45 A.L.R.2d 1296 (1956).
[Headnote 5]
In the instant case, the district court misunderstood the relevancy requirement attached to
the privilege. The court construed the statute not to privilege irrelevant or nonfactual
defamatory information or opinions, but only relevant factual information. However, the
test of relevancy is very broad. The defamatory material need not be relevant in the traditional
evidentiary sense, but need have only some relation to the proceeding; so long as the
material has some bearing on the subject matter of the proceeding, it is absolutely privileged.
Cooperstein v. Van Natter, 611 P.2d 1332 (Wash.App. 1980); Tiedemann v. Superior Court,
148 Cal.Rptr. 242 (Cal.App. 1978) Annot., 38 A.L.R.3d 272, 279-83, 288-98, 311 (1971).
[Headnotes 6-8]
The allegedly defamatory statement regarding Witherspoon's supposed embezzlement
was pertinent to the Department's decision concerning whether to grant or deny
Witherspoon's unemployment benefits on appeal on the basis of misconduct by Witherspoon.
As counsel for appellants noted at trial, the purpose of the statute is to encourage employers
and employees to submit any and all potentially relevant information to the Employment
Security Department that might bear on an employee's right to receive unemployment
compensation, without fear of civil liability. See Greene v. Hoiriis, supra, 103 S.2d at 228.
The statute also promotes the vigorous contesting of grants of benefits. Georgia Power Co. v.
Busbin, supra, 250 S.E.2d at 445. Therefore, the district court erred in admitting the letter
from Circus Circus to the Employment Security Department and in allowing testimony and
argument concerning the letter.
erred in admitting the letter from Circus Circus to the Employment Security Department and
in allowing testimony and argument concerning the letter.
[Headnote 9]
The district court also erred in leaving to the jury the question of whether the letter's
content was sufficiently relevant to fall within the absolute privilege. Absolute privilege and
relevance are questions of law for the court to decide. Cooperstein v. Van Natter, supra, 611
P.2d at 1336 n.2; Franklin v. Blake, 525 P.2d 945, 946 (N.M.App. 1974).
WHETHER A CONDITIONAL PRIVILEGE
EXISTS IS A QUESTION OF LAW
[Headnotes 10-13]
Loyal Borden, in response to one query for information concerning Witherspoon's
discharge, stated that Witherspoon was a good kid, and he went sour. Appellants contend
that the district court erred by leaving to the jury the question of whether this allegedly
defamatory communication was made on a privileged occasion. We agree.
A qualified or conditional privilege exists where a defamatory statement is made in good
faith on any subject matter in which the person communicating has an interest, or in reference
to which he has a right or a duty, if it is made to a person with a corresponding interest or
duty. Scarpelli v. Jones, 626 P.2d 785 (Kan. 1981); Hamm v. Merrick, 605 P.2d 499 (Hawaii
1980); Annot., 60 A.L.R.3d 1080, 1084-90 (1974). Whether a particular communication is
conditionally privileged by being published on a privileged occasion is a question of law
for the court; the burden then shifts to the plaintiff to prove to the jury's satisfaction that the
defendant abused the privilege by publishing the communication with malice in fact.
2
Gallues v. Harrah's Club, 87 Nev. 624, 626 n.2, 491 P.2d 1276, 1277 n.2 (1971); Abrahamsen
v. Mountain States Tel & Tel. Co., 494 P.2d 1287 (Colo. 1972); Roscoe v. Schoolitz, 464
P.2d 333 (Ariz. 1970). The question goes to the jury only if there is sufficient evidence for the
jury reasonably to infer that the publication was made with malice in fact. Aspell v. Amer.
Contract Bridge League, 595 P.2d 191 (Ariz.App. 1979); Annot., 60 A.L.R.3d 1080, 1090
(1974).
____________________

2
A conditional privilege may be abused by publication in bad faith, with spite or ill will or some other
wrongful motivation toward the plaintiff, and without belief in the statement's probable truth. See Gallues v.
Harrah's Club, 87 Nev. 624, 627, 491 P.2d 1276, 1277 (1971). See also R. Sack, Libel, Slander, and Related
Problems II.2 at 42-43, VI.4.1 at 329-33 (1980).
[Headnote 14]
The district court in the instance case erred by leaving to the jury the initial question of
whether Loyal Borden's statements were conditionally privileged. The jury could have either
concluded incorrectly that Borden's remarks were not privileged at all,
3
or concluded that he
made the remarks with malice in fact.
As the jury may have relied on otherwise privileged evidence of defamation to find for
Witherspoon in its general verdict, we must reverse and remand for a new trial. See Sunkist v.
Winckler & Smith Co., 370 U.S. 19, 29-30 (1962); Ross v. Giacomo, 97 Nev. 550, 556, 635
P.2d 298, 302 (1981). Given our disposition of this case, we need not reach the other
contentions on appeal.
Reversed and remanded for a new trial.
Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

3
A former employer has a qualified or conditional privilege to make otherwise defamatory communications
about the character or conduct of former employees to present or prospective employers, as they have a common
interest in the subject matter of the statements. Walsh v. Consolidated Freightways, Inc., 563 P.2d 1205 (Or.
1977); Gengler v. Phelps, 589 P.2d 1056 (N.M.App.) (per Sutin, J., with two Judges concurring in result), cert.
denied, 588 P.2d 554 (N.M. 1979). See R. Sack, Libel, Slander, and Related Problems VI.3.3.1 at 305 (1980).

4
of The Honorable E.M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c),
and SCR 10.
____________
99 Nev. 63, 63 (1983) Beccard v. Nevada National Bank
DALE W. BECCARD and HELEN M. BECCARD, Appellants, v. NEVADA
NATIONAL BANK, a Nevada Corporation, Respondent.
No. 13199
February 9, 1983 657 P.2d 1154
Appeal from order granting a new trial, Second Judicial District Court, Washoe County,
John W. Barrett, Judge.
The Supreme Court held that complaints of highly prejudicial and inflammatory
statements allegedly made by plaintiffs' counsel in closing argument did not show
egregious conduct such as would warrant new trial in absence of objection.
Reversed.
Murray Dolan, Sparks, for Appellants.
Guild, Hagen & Clark, and Ann Morgan and Charles David Russell, Reno, for
Respondent.
Failure to object to allegedly prejudicial remarks at time argument is made, and for considerable time
afterwards, strongly indicates that party moving for new trial did not consider arguments objectionable at
time they were delivered, but made claim as afterthought.
Specific objections must be made to allegedly improper closing arguments in order to preserve contention
for appellate review.
Complaints of highly prejudicial and inflammatory statements allegedly made by plaintiffs' counsel in
closing argument did not show egregious conduct such as would warrant new trial in absence of
objection. NRCP 59(a)(6).
Mere fact that verdict is large is not conclusive that it is result of passion or prejudice. NRCP 59(a)(6).
5. New Trial.
Trial court is precluded from substituting its view of evidence for that of jury in case where losing party
is not entitled to judgment as matter of law.
OPINION
Per Curiam:
1

This is an appeal from an order granting a new trial to respondent Nevada National Bank
(hereinafter the Bank). Appellants Dale and Helen Beccard (hereinafter the Beccards)
executed a promissory note for $25,000 in favor of the Bank. The money was to be used for
the costs of growing and selling a crop of hay. The Beccards defaulted on their first quarterly
interest payment, and the Bank ultimately repossessed and sold the hay.
The Beccards subsequently filed suit against the Bank. At trial there was conflicting
evidence regarding the quality and quantity of the repossessed hay and the reasonableness of
the ultimate sale. The jury returned a verdict in favor of the Beccards and assessed damages at
$45,500. The Bank then filed motions alternatively seeking a judgment notwithstanding the
verdict, a new trial, or an amendment to the judgment.
The trial court rejected all of the Bank's motions but the one seeking a new trial, which it
granted. The court's decision was predicated on the size of the jury award, which the court
reasoned could not have been made unless the jury was improperly influenced by the
remarks of the Beccards' counsel during closing argument.2
____________________

1
Justice Thomas Steffen voluntarily disqualified himself from the consideration of this case.
influenced by the remarks of the Beccards' counsel during closing argument.
2

The closing arguments of counsel were not reported. In its motion for a new trial, however,
the Bank complained of the following highly prejudicial and inflammatory statements
allegedly made by the Beccards' counsel:
1. That counsel never trusted anybody who did not look at him, and that a witness for the
Bank had not looked at him, thereby implying that the witness could not be trusted.
2. That a witness for the Bank was a client of the Bank and, later, that even if the
witness was not a client, the Bank wanted him as a customer, thereby implying that the
witness could not be trusted.
3. That the Bank's witnesses were all from a small rural community in Nevada where no
one wished to offend bankers, thereby implying that the witnesses were not to be trusted.
4. That the testimony of a witness for the Bank was to be distrusted because he failed to
produce weigh slips, when in fact the witness was not obligated to produce the documents
and had testified that he was unable to obtain them.
5. That employees of the Bank could not be trusted to tell the truth.
6. That a witness for the Bank had failed to bring certain documents to court and was
therefore not to be trusted, when in fact the witness was not obligated to produce the
documents.
7. That the case should remind the jury of a movie script involving the landlord and the
little old lady, where the landlord advised the old lady . . . her rent or her home, and that the
Beccards had lost everything.
8. That the Beccards' testimony that certain amounts of hay were involved was consistent
with and supported by other evidence, when in fact the testimony was not supported by other
evidence.
The parties agree that no objection to these remarks was made either at the time of
argument or any time before the motion for a new trial was made fifteen days after the verdict
was filed. The Beccards contend that a new trial should not be granted where, as here, the
moving party fails to object to the alleged misconduct at trial and raises the allegation for the
first time in a motion for a new trial. We agree.
[Headnote 1]
The failure to object to allegedly prejudicial remarks at the time an argument is made,
and for a considerable time afterwards, strongly indicates that the party moving for a new
trial did not consider the arguments objectionable at the time they were delivered, but
made that claim as an afterthought.
____________________

2
The trial court did not recite the statutory authority upon which it relied in granting the motion for a new
trial. It is apparent from the court's order, however, that the basis for its decision was NRCP 59(a)(6), under
which a new trial may be granted for [e]xcessive damages appearing to have been given under the influence of
passion or prejudice.
time an argument is made, and for a considerable time afterwards, strongly indicates that the
party moving for a new trial did not consider the arguments objectionable at the time they
were delivered, but made that claim as an afterthought. Curtis Publishing Company v. Butts,
351 F.2d 702, 714 (5th Cir. 1965), aff'd, 388 U.S. 130 (1967).
[Headnotes 2-5]
Specific objections must be made to allegedly improper closing arguments in order to
preserve the contention for appellate review. Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev.
241, 244, 577 P.2d 1234, 1235-36 (1978). Similar considerations lead us to conclude that the
trial court in this case erred in granting a new trial under NRCP 59(a)(6) based upon the
statements recited above, since the moving party failed to object to the allegedly improper
closing arguments at trial and raised the allegation for the first time in a motion for a new
trial.
3
See Curtis Publishing Company v. Butts, supra.
The Bank maintains that counsel's conduct during closing argument may be so egregious
as to warrant a new trial even in the absence of objection. The authorities relied upon by the
Bank to support this contention are not persuasive. We need not resolve this issue, however,
as none of the recited statements, alone or in sum, can be characterized as egregious.
The order granting a new trial is reversed, and the jury verdict is reinstated.
____________________

3
We note that the mere fact that a verdict is large is not conclusive that it is the result of passion or
prejudice. . . . Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824, 828 (1962). The trial court is precluded
from substituting its view of the evidence for that of a jury in a case where the losing party is not entitled to
judgment as a matter of law. See Fox v. Cusick, 91 Nev. 218, 533 P.2d 466 (1975).
____________
99 Nev. 66, 66 (1983) Midland Ins. v. Yanke Plumbing & Heating
MIDLAND INSURANCE COMPANY, Appellant, v. YANKE
PLUMBING AND HEATING, INC., Respondent.
NO. 13282
February 9, 1983 657 P.2d 1152
Appeal from a summary judgment granting respondent's claim for $5,000 against surety.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
The Supreme Court held that material issue of genuine fact existed as to whether
compensated surety was prejudiced by named principal's association with another person
with whom he was doing business as a general contractor, precluding summary judgment
in favor of subcontractor in suit to recover under named principal's contractor's licensing
bond for materials necessary to complete plumbing for several houses.
named principal's association with another person with whom he was doing business as a
general contractor, precluding summary judgment in favor of subcontractor in suit to recover
under named principal's contractor's licensing bond for materials necessary to complete
plumbing for several houses.
Fitzgibbons & Beatty, Las Vegas, for Appellant.
Rogers, Monsey, Woodbury and Berggreen, Las Vegas, for Respondent.
1. Judgment.
Cross motions for summary judgment do not necessarily result in a waiver of a judicial determination of
whether a material issue of fact exists on either side of the case; trial court cannot advocate [abdicate] its
role as arbiter of questions of law simply because both parties happen to file motions for summary
judgment.
2. Judgment.
Material issue of genuine fact existed as to whether compensated surety was prejudiced by named
principal's association with another person with whom he was doing business as a general contractor,
precluding summary judgment in favor of subcontractor in suit to recover under named principal's
contractor's licensing bond for materials necessary to complete plumbing for several houses.
3. Licenses.
Plumbing subcontractor, which furnished all materials necessary to complete plumbing for several houses
and which also supplied materials or equipment for construction covered by contract, was entitled to claim
against a contractor's licensing bond. NRS 624.273, subd. 1(c).
OPINION
Per Curiam:
On or about July 13, 1979, Yanke Plumbing and Heating Co. (Yanke) entered into a series
of five separate written contracts with a general contractor named Bernard Schiappa, who was
doing business with Joseph Ash as Contemporary Builders. Contemporary Builders has never
been licensed with the State Contractor's Board (Board). Pursuant to those contracts, Yanke
furnished all materials and labor necessary to complete the rough, top-out and finished
plumbing for six houses in Clark County, Nevada. Yanke contends that Schiappa owes
approximately $6,000 under the July 13th contracts for labor and materials provided by
Yanke after August 28, 1979.
On August 28, 1979, Midland Insurance Co. (Midland) issued to Schiappa a State of
Nevada contractor's bond in the sum of $5,000.
issued to Schiappa a State of Nevada contractor's bond in the sum of $5,000. The bond sets
out verbatim the provisions of NRS 624.273(1). Schiappa holds a contractor's license issued
by the Board on June 18, 1978.
Yanke commenced this action against Midland to recover on the licensing bond issued to
Schiappa for the moneys it claims were due and owing under the July 13th contracts. In
response to cross motions for summary judgment on all issues, the lower court found that
there were no material issues of fact, and that the respondent, as a subcontractor, could claim
against licensing bond, pursuant to NRS 624.273(1)(c). Thus, the trial court granted summary
judgment in favor of Yanke on the licensing bond in the sum of $5,000. Midland has
appealed from this judgment.
[Headnote 1]
On appeal, Midland argues that the lower court erred in granting a summary judgment
because genuine issues of material fact remain. This court, however, has emphasized in two
recent opinions that cross motions for summary judgment do not necessarily result in a
waiver of a judicial determination of whether a material issue of fact exists on either side of
the case. See Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d 996 (1982);
Young Electric Sign Co. v. State, 98 Nev. 536, 654 P.2d 1028 (1982). Although Cheqer
involved a situation where the cross motions for summary judgment were directed toward
two separate legal theories which were supported by two separate sets of facts, there is no
reason for limiting the principle announced therein to that particular situation. The decision as
to whether a genuine issue of material fact exists is a question of law which the lower court
must address. The trial court cannot abdicate its role as arbiter of questions of law simply
because both parties happen to file motions for summary judgment. Even though cross
motions for summary judgment as to the same legal theories which are premised on the same
set of facts may be probative of the nonexistence of a factual dispute, see Schlytter v. Baker,
580 F.2d 848, 850 (5th Cir. 1978), the trial court must rule separately on each party's motion,
and if a genuine issue of material fact exists, then both motions must be denied. See Cheqer
Inc. v. Painters & Decorators, supra. Accord Securities Exch. Com'n v. Am. Commodity
Exch., 546 F.2d 1361, 1365 (10th Cir. 1976). Thus, we must review the record to determine
whether the lower court overlooked a genuinely disputed factual issue.
[Headnote 2]
Midland argues that because its surety bond names only Schiappa as the principal, the
lower court erred in extending Midland's liability on the bond to cover a business entity
such as Contemporary Builders.
Schiappa as the principal, the lower court erred in extending Midland's liability on the bond
to cover a business entity such as Contemporary Builders. Such an addition to the principals
of a bond, appellant contends, materially alters the nature of its obligation as a surety. See,
e.g., Western Surety Co. v. Horrall, 533 P.2d 543 (Ariz. 1975). In Zuni Constr. Co. v. Great
American Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970), this court announced that strict
construction in favor of a compensated surety is no longer the policy of law in this state and
that the contract of a compensated surety should be interpreted liberally in the interests of the
promisee and the beneficiaries. Id. at 347, 468 P.2d at 982. There, the surety claimed that the
original named principal had discharged the surety's obligation under a performance bond by
assigning the construction contract to a third party. This court, however, reversed the lower
court's summary judgment in favor of the surety, stating that a compensated surety cannot be
discharged from its obligation when there is an alteration or modification in the contract
unless it shows it was prejudiced or injured by the variance. Id. We remanded the case for
trial to determine whether the surety suffered any injury or prejudice as a result of the
assignment.
The record in the present case contains no evidence of prejudice or injury to Midland
resulting from Schiappa's business association with Ash. The lower court erred in granting a
summary judgment because on the limited record before it the court could not say, as a matter
of law, that Midland was prejudiced by Schiappa's association with Ash. See generally
Cheqer, Inc. v. Painters and Decorators, supra.
[Headnote 3]
Finally, Midland argues that the lower court erred in holding that Yanke, as a
subcontractor, was entitled to claim against Schiappa's contractor's licensing bond under NRS
624.273(1)(c). In plain language, NRS 624.273(1)(c) defines one group of intended
beneficiaries of a contractor's licensing bond, issued pursuant to and in conformance with
NRS 624.270, as suppliers or materialmen who furnished materials or equipment for
construction covered by the contract. The contracts which the parties executed on July 13,
1979, indicate that Yanke furnished all materials necessary to complete the plumbing for
several houses. Although Yanke was Contemporary Builder's plumbing subcontractor, it also
supplied materials or equipment for construction covered by the contract. The trial court did
not err in holding that Yanke, as a subcontractor, was entitled to claim against a contractor's
licensing bond, pursuant to NRS 624.273(1)(c).
Accordingly, the summary judgment against Midland Insurance Company is reversed and
the case is remanded for trial on the issue of whether appellant suffered any injury or
prejudice from Schiappa's association with Ash.
1

____________________

1
Justice John Mowbray voluntarily disqualified himself from consideration of this case.
____________
99 Nev. 70, 70 (1983) Renfro v. Forman
RICHARD N. RENFRO and SANDRA M. RENFRO, Petitioners. v. HONORABLE
WILLIAM N. FORMAN, District Judge of the Second Judicial District Court of the State of
Nevada, in and for the County of Washoe, Respondent, AMERICAN HONDA MOTOR
COMPANY, INC., a Corporation and HONDA MOTOR COMPANY, LTD., a Japanese
Corporation, Real Parties in Interest.
No. 14572
February 9, 1983 657 P.2d 1151
Original petition for writ of prohibition.
Petitioners, who obtained a judgment against automobile manufacturers, filed petition for
writ of prohibition seeking to prevent district court from hearing motions of automobile
manufacturers seeking a certification of finality and an order staying execution of the
judgment. The Supreme Court held that: (1) automobile manufacturers, which previously
treated judgment against them as final when they appealed to Supreme Court from the
judgment and when they did not request a certification of finality under applicable rule, were
estopped from asserting that the judgment was not final and that a certification of finality was
necessary, and (2) Supreme Court's dismissal of automobile manufacturers' untimely appeal
from an adverse judgment rendered the judgment res judicata and therefore district court was
precluded from entertaining motions of automobile manufacturers seeking a certification of
finality and an order staying execution of the judgment.
Writ granted.
Davenport & Perry, Reno, for Petitioners.
Cromer, Barker, Michaelson, Gillock & Rawlings, Reno, for Respondent.
1. Estoppel.
Automobile manufacturers, which previously treated judgment against them as final when they
appealed to Supreme Court from the judgment and when they did not request a
certification of finality under applicable rule, were estopped from asserting that the
judgment was not final and that a certification of finality was necessary.
against them as final when they appealed to Supreme Court from the judgment and when they did not
request a certification of finality under applicable rule, were estopped from asserting that the judgment was
not final and that a certification of finality was necessary. NRCP 54(b).
2. Appeal and Error; Judgment.
Supreme court's dismissal of automobile manufacturers' untimely appeal from an adverse judgment
rendered the judgment res judicata and therefore district court was precluded from entertaining motions of
automobile manufacturers seeking a certification of finality and an order staying execution of the judgment.
NRCP 54(b).
OPINION
Per Curiam:
On May 19, 1982, Richard and Sandra Renfro received a judgment in district court against
American Honda Motor Co., Inc., and Honda Motor Co., Ltd. Shortly thereafter, the Honda
motor companies unsuccessfully filed motions for a judgment notwithstanding the verdict and
for a new trial. The Honda motor companies appealed, and on December 28, 1982, we
dismissed their appeal because the notice of appeal was untimely filed.
On January 4, 1983, after their appeal had been dismissed by this court, the Honda motor
companies filed motions in district court seeking: (1) a certification of finality under NRCP
54(b);
1
and (2) an order staying execution of the judgment. These motions are pending in the
district court. The Renfros have filed this petition for a writ of prohibition, seeking to prevent
the district court from hearing these motions.
[Headnote 1]
The Renfros contend that the Honda motor companies are estopped from asserting, in
district court, the judgment's lack of finality. We agree. The Honda motor companies
previously treated the judgment against them as final when they appealed to this court from
the judgment, and when they did not request an NRCP 54(b) certification before they
appealed. They are now estopped from asserting that the judgment was not final and that a
certification of finality was necessary under NRCP 54(b). See State v. Commissioners Lander
Co., 22 Nev. 71, 35 P. 300 (1894). Cf. Gamble v. Silver Peak, 35 Nev. 319, 323, 133 P. 936,
937 (1912) (opinion on reh'g) ([a] party in an appellate court who has treated the judgment
as final and asked that the same be affirmed or reversed will not be heard afterwards,
when the decision has gone against him, to contend that the judgment was not final and
the court therefore without jurisdiction to determine the questions presented on the
appeal").
____________________

1
The Honda motor companies contend that the district court's judgment did not adjudicate all the claims or
the rights and liabilities of all the parties below, in particular, the claims of Robert Carnahan, dba Reno Honda
Center, and the State Industrial Insurance System (formerly entitled the Nevada Industrial Commission).
court who has treated the judgment as final and asked that the same be affirmed or reversed
will not be heard afterwards, when the decision has gone against him, to contend that the
judgment was not final and the court therefore without jurisdiction to determine the questions
presented on the appeal).
[Headnote 2]
The Renfros also correctly contend that this court's dismissal of the untimely appeal
rendered the judgment res judicata and, therefore, the district court is precluded from
entertaining the motions below. See, e.g., Misty Management v. District Ct., 83 Nev. 180,
426 P.2d 728 (1967). Since the Renfros' judgment has become final and is res judicata, the
district court is without power to entertain the motions below for a certification of finality
under NRCP 54(b) and for a stay of execution of the judgment.
Accordingly, the writ of prohibition shall issue forthwith. See Misty Management v.
District Ct., 83 Nev. 180, 426 P.2d 728 (1967). Cause appearing, we deny petitioners' request
for an award of damages for delay pursuant to NRAP 38.
2

____________________

2
We express no opinion as to the district court's jurisdiction to rule on the motion for costs pending below,
brought by the State Industrial Insurance System.
____________
99 Nev. 72, 72 (1983) McCullough v. State
JOSEPH LEWIS McCULLOUGH, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 13838
February 10, 1983 657 P.2d 1157
Appeal from judgment of conviction upon a jury verdict. Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
Defendant was convicted in the district court of possession of a controlled substance and
possession of stolen property, and he appealed. The Supreme Court held that trial court's
numerical description of reasonable doubt, where it was coupled with a reasonable doubt
instruction that deviated from the statutory reasonable doubt definition, constituted
prejudicial error.
Thomas E. Perkins, State Public Defender, Annabelle Whiting Hall, Deputy Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Dan R. Reaser, Deputy Attorney General, Carson City;
Virginia R. Shane, District Attorney, Jack T. Bullock, II, Deputy District Attorney, Humboldt
1. Criminal Law.
Generally, failure to object to asserted errors at trial will bar review of an issue on appeal; however,
when constitutional questions are raised on appeal, Supreme Court has the power to address them.
2. Criminal Law.
Instruction that it is not necessary that the defendant's guilt should be established beyond any doubt
or to an absolute certainty is reversible error when coupled with any other attempt to supplement,
change, or clarify the statutory reasonable doubt definition. NRS 175.211.
3. Criminal Law.
While an attempt by the trial judge to clarify the meaning of reasonable doubt is not by itself
reversible error, the question on appeal is whether the court's statements correctly conveyed the concept
of reasonable doubt to the jury.
4. Criminal Law.
Trial court's numerical description of reasonable doubt, where it was coupled with a reasonable doubt
instruction that deviated from the statutory reasonable doubt definition, constituted prejudicial error.
NRS 175.211.
OPINION
Per Curiam:
A jury found appellant Joseph Lewis McCullough guilty of possession of a controlled
substance and possession of stolen property. Among other contentions, McCullough argues
on appeal that the jury was prejudicially misinformed regarding the concept of reasonable
doubt, because the district judge made several attempts to quantify reasonable doubt during
the voir dire examination of the jurors and also delivered an improper jury instruction on the
subject. A review of the authorities and the record leads us to agree with appellant, and we
therefore reverse.
THE FACTS
McCullough was charged with possession of a controlled substance (marijuana) and
possession of stolen property (a 1974 Chevrolet Luv pickup truck).
During the voir dire examination of the jurors during trial, the district judge attempted to
illustrate the concept of reasonable doubt with a numerical scale. On a scale of zero to ten, the
judge placed the preliminary hearing standard of probable cause at about one, and the
burden of persuasion in civil trials at just over five.
cause at about one, and the burden of persuasion in civil trials at just over five. He then twice
described reasonable doubt as about seven and a half, if you had to put it on a scale. After
introducing the jurors to the reasonable doubt standard provided by NRS 175.211, the judge
again noted, I have tried to give you that on a zero to ten scale.
The district judge further embellished the statutory definition of reasonable doubt in his
instructions to the jury, stating in instruction number five that it is not necessary that the
defendant's guilt should be established beyond any doubt or to an absolute certainty. . . .
McCullough's trial counsel did not object to the judge's extemporaneous characterizations of
reasonable doubt, nor did she object to the above instruction.
1

FAILURE TO OBJECT
[Headnote 1]
The general rule is that failure to object to asserted errors at trial will bar review of an
issue on appeal. Krueger v. State, 92 Nev. 749, 755, 557 P.2d 717, 721 (1976); Walker v.
State, 89 Nev. 568, 516 P.2d 739 (1973); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973).
However, when constitutional questions are raised on appeal, we have the power to address
them. Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979); Hardison v. State, 84 Nev. 125, 437
P.2d 868 (1968). We believe that the issues in this case are of constitutional dimension. See
Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir. 1978).
DEFINING REASONABLE DOUBT
[Headnote 2]
In NRS 175.211, the Legislature has both defined reasonable doubt and mandated that no
other definition shall be given to juries in criminal actions in Nevada.
2
Despite our frequent
condemnations of the practice, the lower court of this state have persisted in adding to the
statutory reasonable doubt definition.
____________________

1
McCullough's counsel on appeal did not represent McCullough in the district court.

2
NRS 175.211. Reasonable doubt defined; no other definition to be given to juries.
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding
conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and
substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in this
state.
persisted in adding to the statutory reasonable doubt definition. See, e.g. Page v. State, 94
Nev. 386, 580 P.2d 477 (1978); Jackson v. State, 93 Nev. 677, 572 P.2d 927 (1977); Tucker
v. State, 92 Nev. 486, 553 P.2d 951 (1976). Instruction number five in this case is identical to
the supplemental instruction disapproved in Page and Jackson, where we held that, standing
alone, the instruction was not reversible error.
3
We now hold that the disapproved
instruction is reversible error when coupled with any other attempt to supplement, change, or
clarify the statutory reasonable doubt definition.
[Headnote 3]
In the instant case, the district judge tried to edify the jury by placing the reasonable doubt
concept on a numerical scale. While an attempt by the trial court to clarify the meaning of
reasonable doubt is not by itself reversible error, see Page v. State and Jackson v. State,
supra, the question on appeal is whether the court's statements correctly conveyed the concept
of reasonable doubt to the jury. Holland v. United States, 348 U.S. 121, 140 (1954); State v.
Olivera, 555 P.2d 1199 (Hawaii 1976).
The U.S. Supreme Court has stated that the reasonable doubt instruction should impress on
the jury the need to reach a subjective state of near certitude on the facts in issue. Jackson
v. Virginia, 443 U.S. 307, 315 (1979). See In re Winship, 397 U.S. 358, 364 (1970). For
example, where a trial court had punctuated the statutory reasonable doubt definition with
statements to the effect that the state was not required to establish guilt beyond all doubt, to
an absolute positive certainty, to a mathematical certainty, or to a scientific certainty,
the judgment was reversed on the grounds that the instruction impermissibly favored the
prosecution. State v. Aubert, 421 A.2d 124 (N.H. 1980).
The concept of reasonable doubt is inherently qualitative. Any attempt to quantify it may
impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than
clarify. See Dunn v. Perrin, 570 F.2d 21, 23 (1st Cir. 1978). As one Second Circuit panel
noted, [t]he heart of [the reasonable doubt charge] was appropriate enough, but the
somewhat confusing parable of the father and a bundle of twigs and the apparent
characterization of the standard as quantitative rather than qualitative both might better
have been omitted."
____________________

3
Instruction Number Five stated as follows:
It is not necessary that the defendant's guilt should be established beyond any doubt or to an absolute
certainty, but instead thereof that the defendant's guilt must be established beyond a reasonable doubt as
hereinafter defined.
rather than qualitative both might better have been omitted. United States v. Anglada, 524
F.2d 296, 300 (2d Cir. 1975).
[Headnote 4]
In this case the district court may have led the jury to believe that the prosecution satisfied
the burden established by In re Winship if the proof reached a score of 7.5 on a scale of zero
to ten. Alternatively, the jury may improperly have concluded that anything more than a 75
percent chance of each fact being true was constitutionally sufficient to find McCullough
guilty as charged. The judge's numerical description of reasonable doubt, particularly because
it was coupled with a reasonable doubt instruction that deviated from the command of NRS
175.211, constituted prejudicial error. In light of our treatment of this issue, we need not
discuss appellant's other contentions. Reversed and remanded for a new trial.
____________
99 Nev. 76, 76 (1983) Standen v. State
WARREN ROBERT STANDEN, Appellant, v. THE
No. 12918
February 14, 1983 657 P.2d 1159
Appeal from an order denying a petition for post-conviction relief, Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
The Supreme Court, Springer, J., held that the defendant's guilty plea to a charge of first
degree murder was not knowingly and voluntarily entered where first degree murder was not
charged in the information, the information was not read to the defendant at the time of the
trial court's canvass, the elements of first degree murder were never explained to the
defendant and the defendant did not admit factually to the commission of any crime.
[Rehearing denied June 28, 1983]
Manoukian, C.J., dissented.
Thomas E. Perkins, State Public Defender, and Michael K. Powell, Special Deputy Public
Brian McKay, Attorney General, Carson; Mills Lane, District Attorney, and Edward B.
District Attorney, and Edward B. Horn, Deputy District Attorney, Washoe County, for
Respondent.
Criminal Law.
Defendant's guilty plea to charge of murder in first degree was not entered voluntarily where first degree
murder was not charged in information, information was not read to defendant at time of court's canvass,
elements of offense of murder in first degree were never explained to defendant nor did defendant admit
factually to commission of any crime. Fed. Rules Cr. Proc. Rule 11, 18 U.S.C.A.; NRS 174.035, subd. 1:
SCR 10; Const. Art. 6, 19.
OPINION
By the Court, Springer, J.:
Appellant Standen appeals from the denial of post-conviction relief claiming that his plea
of guilty to murder in the first degree was not entered voluntarily.
NRS 174.035 prohibits acceptance of a guilty plea without first addressing the defendant
personally and determining that the plea is made . . . with understanding of the nature of the
charge . . . .
We have held that the record must show that the defendant knew the nature of the charge
to which the plea of guilty was entered. Gonzales v. State, 96 Nev. 562, 613 P.2d 410 (1980);
Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), modified, Heffley v. Warden, 89 Nev.
573, 516 P.2d 1403 (1973). All that appears in this record relating to the defendant's
understanding of the charge against him is the following:
THE COURT: Do you understand the nature of the charge against you in the
information which is murder?
THE DEFENDANT: Yes.
1
First degree murder was not charged in the
information.
____________________

1
This is the only questioning concerning Standen's supposed understanding of the charge at the time he
entered his guilty plea. The information, which charges a violation of NRS 200.030 (murder in the first
degree and murder in the second degree) was read to him in open court on November 2, 1978, 14 weeks
before the date of the guilty plea. However, even were we to assume that Standen, who has the benefit of a sixth
grade education, understood the elements and degrees of murder on November 2, 1978, and remembered the
same on February 13, 1979, when the guilty plea was entered, the information does not charge, nor does it
mention, murder in the first degree. Consequently it cannot be concluded that a reading of the information
reasonably provided Standen with an understanding of the elements of murder in the first degree, to which the
guilty plea was entered.
At the post-conviction hearing Standen stated that he knew then that he had pleaded guilty to first degree
murder but that on February 13, 1979, he was only doing what his lawyer told him to do, claiming that he did not
understand the proceedings.
First degree murder was not charged in the information. The information was not read to
the defendant at the time of the court's canvass. The elements of the offense of murder in the
first degree, in what ever form, were never explained to the defendant; neither did the
defendant admit factually to the commission of any crime. We, and presumably the
defendant, have no way of knowing from what occurred in court whether the plea to murder
in the first degree related to deliberation and premeditation or to felony murder. See Hanley v.
State, 97 Nev. 130, 624 P.2d 1387 (1981).
The United States Constitution, our statutes, our cases and common fairness require that a
defendant have some understanding of the charges before a plea of guilty to the charge is
accepted. Merely asking the defendant if he understands the nature of the charge against
him falls far short of what is constitutional, legal and fair.
Such an inquiry fails to satisfy the holding of this court in Higby v. Sheriff, 86 Nev. 774,
476 P.2d 959 (1970), Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981), and various U.S.
Supreme Court holdings.
In Higby, this court clearly adopted the literal interpretation of NRS 174.035(1) that the
trial court shall not accept such [guilty] plea . . . without first addressing the defendant
personally and determining that the plea is made voluntarily with understanding of the nature
of the charge and consequences of the plea. The statutory language is identical to the first
two sentences of Rule 11 of the Federal Rules of Criminal Procedure which was interpreted
by the Supreme Court of the United States in McCarthy v. United States, 394 U.S. 459
(1969). The opinion in Higby quotes extensively from McCarthy, specifically adopting the
Supreme Court's rationale for rigid adherence to Rule 11's procedural safeguards:
First, although the procedure embodied in Rule 11 has not been held to be
constitutionally mandated, it is designed to assist the district judge in making the
constitutionally required determination that a defendant's guilty plea is truly voluntary.
Second, the Rule is intended to produce a complete record at the time the plea is
entered of the factors relevant to this voluntariness determination. Thus, the more
meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable
more expeditious disposition of, the numerous and often frivolous post-conviction
attacks on the constitutional validity of guilty pleas.
86 Nev. at 779, quoting 394 U.S. at 465.
Concluding, the Court in McCarthy stated: Our holding that a defendant whose plea has
been accepted in violation of Rule 11 should be afforded the opportunity to plead anew
not only will insure that every accused is afforded those procedural safeguards, but also
will help reduce the great waste of judicial resources required to process the frivolous
attacks on guilty plea convictions that are encouraged and are more difficult to dispose
of, when the original record is inadequate.
Our holding that a defendant whose plea has been accepted in violation of Rule 11
should be afforded the opportunity to plead anew not only will insure that every
accused is afforded those procedural safeguards, but also will help reduce the great
waste of judicial resources required to process the frivolous attacks on guilty plea
convictions that are encouraged and are more difficult to dispose of, when the original
record is inadequate. It is, therefore, not too much to require that, before sentencing
defendants to years of imprisonment, district judges take the few minutes necessary to
inform them of their rights and to determine whether they understand the action they
are taking.
394 U.S. at 472; see also 86 Nev. at 779-80.
The McCarthy Court unequivocally stated: There is no adequate substitute for
demonstrating in the record at the time the plea is entered the defendant's understanding of
the nature of the charge against him. 394 U.S. at 470 (emphasis supplied by the Supreme
Court). And this court, in Higby, stated:
Concededly, it is difficult to prescribe a precise procedure or set of questions to be
asked at every guilty plea hearing. It necessarily must vary from case to case. We agree,
however, that certain minimal requirements may be specified. The record should
affirmatively show:
1. The defendant knowingly and understandingly waived (a) the privilege against
self-incrimination, (b) the right to trial by jury, and (c) the right to confront his
accusers. In reference to these rights and privileges, it was stated in United States ex rel.
Ward v. Deegan, supra, 310 F.Supp. at 1078: . . . [I]t is clearly the duty of a state court
judge taking a guilty plea to canvass with a defendant at least those consequences of his
plea so that the voluntariness of the plea will be established on the record. (Emphasis
added [by the court].)
2. The plea was voluntary, was not coerced, and was not the result of a promise of
leniency.
3. The defendant understands the consequences of his plea. The judge should
inform the defendant of the range of punishments that may be imposed and then ask
whether it is his intention to plead guilty.
4. The defendant understands the nature of the charge itself, i.e., the elements of
the crime to which he is pleading guilty.
86 Nev. at 781.
In fact, the Higby court added a special note of attention for Nevada trial judges as the last
sentence of the opinion: [W]e do take this opportunity to direct the attention of the district
judges to the provisions of subsection 1 of NRS 174.035, and we urge that when they
receive a guilty plea the minimal requirements as specified, supra, be followed to reduce,
as the Court said in McCarthy, 394 U.S. at 472, "the great waste of judicial resources
required to process the frivolous attacks on guilty plea convictions that are encouraged,
and are more difficult to dispose of, when the original record is inadequate."
[W]e do take this opportunity to direct the attention of the district judges to the
provisions of subsection 1 of NRS 174.035, and we urge that when they receive a guilty
plea the minimal requirements as specified, supra, be followed to reduce, as the Court
said in McCarthy, 394 U.S. at 472, the great waste of judicial resources required to
process the frivolous attacks on guilty plea convictions that are encouraged, and are
more difficult to dispose of, when the original record is inadequate.
86 Nev. at 781-82.
It is very clear that Standen's plea was not entered knowingly or understandingly.
2

We reverse the order of the trial court. The plea of guilty is set aside, and the matter is
remanded to the district court for further proceedings.
Mowbray and Gunderson, JJ., and Zenoff, Sr. J.,
3
concur.
Manoukian, C.J., dissenting:
The majority reverses Standen's conviction of first degree murder, based solely on his
contention that he did not understand the nature of the offense to which he pled guilty. I
respectfully dissent.
There can be no dispute that in order for a defendant's plea of guilty to be freely and
voluntarily given, he must understand the nature of the charge. See Higby v. Sheriff, 86 Nev.
774, 476 P.2d 959 (1970); NRS 174.035(1). The majority fails to recognize, however, that the
voluntariness of a plea is to be determined from all of the circumstances surrounding entry of
that plea. Brady v. United States, 397 U.S. 742, 749 (1970).
In Hanley v. State, 97 Nev. 130, 625 P.2d 1387 (1981), cited for support by the majority,
this court relied on Henderson v. Morgan, 426 U.S. 637 {1976), primarily on the concurring
opinion of Justice White.
____________________

2
On September 25, 1978 a complaint charging open murder was read to Standen. An information charging
the same offense was read to him on November 2, 1978. There is nothing in the record to indicate that the charge
was read to him on the day he entered his guilty plea on February 13, 1979. As we have stated, the open
murder charge does not apprise the accused of the elements of murder in the first degree. Even if it did, it
would be a remarkable mental feat indeed if Standen, an illiterate former mental patient, could have remembered
and understood formal, legal charges read to him three and five months before he pleaded guilty. Under no
circumstances can these previous readings be held either to substitute for an explanation of the charges or to
constitute a factual admission of the elements of murder in the first degree.

3
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable Cameron Batjer. Nev. Const., art. 6 19; SCR 10.
Morgan, 426 U.S. 637 (1976), primarily on the concurring opinion of Justice White. Justice
White noted:
In those cases in which the indictment is read to the defendant by the court at
arraignment or at the time of his plea, his plea of guilty may well be deemed a factual
admission that he did what he is charged with doing so that a judgment of conviction
may validly be entered against him.
Id. at 650, n. 2 (White, J., concurring).
In the instant case, the trial court, in part, based its determination on the fact that the
information, containing the elements of the crime charged, was read to appellant at the
arraignment. Furthermore, the lower court noted that at the evidentiary hearing for
post-conviction relief, Standen confirmed what he had stated at the plea hearing: that, indeed,
he did understand the nature of the charge when he entered the guilty plea.
1
Moreover,
during the post-conviction hearing, the state introduced copies of six prior convictions,
involving Standen's guilty pleas to unrelated offenses as evidence of his familiarity with plea
bargaining and criminal proceedings.
The record must affirmatively show that the defendant understood the nature of the charge
or that he made factual statements to the court which constituted an admission to the offense.
Hanley, 97 Nev. at 133, 624 P.2d at 1389. Nevertheless, I believe it is unnecessarily
restrictive to construe that pronouncement to mean that the trial court (and this court) can
only consider the record concerning statements made at the entry of plea. I find no
constitutional or statutory requirement for the majority's ruling, nor do I find, on the basis of
all the circumstances surrounding Standen's plea, that he was denied common fairness.
____________________

1
This case, then, is materially different from Henderson, in which the trial court found, as a specific fact, that
the elements had never been explained to the respondent. The Supreme Court found that fact to pose a unique
situation:
Normally the record contains either an explanation of the charge by the trial judge, or at least a
representation by defense counsel that the nature of the offense had been explained to the accused.
Moreover, even without such an express representation, it may be appropriate to presume that in most
cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused
notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that
the element of intent was not explained to respondent.
426 U.S. at 647.
____________
99 Nev. 82, 82 (1983) Manning v. Warden
BENNY R. MANNING, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 12487
February 14, 1983 659 P.2d 847
Appeal from order denying petition for post-conviction relief, Second Judicial District
Court, Washoe County, John W. Barrett, Judge.
Prisoner appealed from an order of the district court denying his petition for
post-conviction relief. The Supreme Court, Springer, J., held that: (1) instruction to effect that
criminal intent can only be proven as deduction from declaration or acts and that when acts
are established, natural and logical deduction that defendant intended to do what he did do
was not violative of statute prohibiting judge from directing jury to find presumed fact against
accused, and instruction did not amount to denial of defendant's due process rights; (2)
consent was not legitimate defense to charge of committing infamous crime against nature;
and (3) prosecution witness' reference to mug shots of defendant and to focus on defendant as
suspect based upon victim's description and nature of charge was harmless error with regard
to conviction of infamous crime against nature but reversible error with regard to conviction
of forcible rape.
Manoukian, C. J., concurred in part, dissented in part.
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and
Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Constitutional Law; Criminal Law.
Instruction to effect that criminal intent can only be proven as deduction from declarations or acts and
that when acts are established, natural and logical deduction is that defendant intended to do what he did do
was not violative of statute prohibiting judge from directing jury to find presumed fact against accused, nor
did instruction amount to denial of defendant's due process rights, where instruction did not concern any
elements essential to establish general intent crimes charged and was not phrased in mandatory terms.
NRS 47.230, 193.200, 200.366, 201.190; NRS 200.363 (Repealed); U.S.C.A.Const. Amends. 5,
14.
2. Sodomy.
Under then existing statute proscribing both cunnilingus and anal intercourse, consent of 17-year-old
complainant was not defense to charge of committing infamous crime against nature, notwithstanding that
another statute limited crime of statutory rape to sexual intercourse committed with female under age of 16,
where defendant was convicted under portion of former statute concerning commission of sexual acts upon
person under age of 18, 18 years of age was age of majority, protecting health and morals of minors was
legitimate state interest and thus legislature was within powers in enacting statutory provisions applicable
to defendant. NRS 62.010, 129.010, 200.364, 201.190; NRS 200.365 (Repealed).
3. Criminal Law.
Error, if any, in prosecution witness' reference to mug shots of defendant and to focus on defendant as
suspect based upon victim's description and nature of charge was harmless with regard to conviction of
infamous crime against nature where there was uncontradicted evidence of oral and anal intercourse
involving defendant and 17-year-old complainant and therefore clear violation of statute proscribing
offense. NRS 201.190.
4. Criminal Law.
Prosecution witness' reference to mug shots of defendant and to focus on defendant as suspect based upon
victim's description and nature of charge was reversible error with regard to conviction of forcible rape
where combined effect of two statements would lead jury to conclude defendant had criminal record,
probably sexual in nature, and record revealed serious questions relative to forcible nature of defendant's
encounter with complainant.
OPINION
This is an appeal from an order denying post-conviction relief to appellant Benny R.
Manning. Manning was convicted of forcible rape and committing the infamous crime
against nature upon a person under the age of eighteen. We shall consider three issues raised
by Manning in this appeal.
The Jury Instruction on Criminal Intent
Appellant first challenges the giving, over objection, of the following instruction:
Criminal intent can only be proven as a deduction from declarations or acts; when the acts
are established, the natural and logical deduction is that the defendant intended to do what he
did do.
Manning first contends that the giving of this instruction was a violation of NRS 47.230
which prohibits the judge from directing the jury to find a presumed fact against the accused.
[Headnote 1]
The instruction is not violative of NRS 47.230 first, because it does not concern any of the
elements essential to establish either offense, and second, because it is not phrased in
mandatory terms.
Manning was convicted of two general intent crimes. The jury was not required to find any
specific intent since the requisite mental state is said to be found in the doing of the acts
which constitute the offense. See Boyd v. State, 572 P.2d 276 (Okla.Crim.App. 1977). In
order to convict Manning of forcible rape, the jury was required only to find that Manning
had carnal knowledge of a female against her will.
1
In order to convict Manning of the
infamous crime against nature upon a person under the age of eighteen, the jury was required
to find that Manning had committed an act proscribed by former NRS 201.190, in this case
cunnilingus or anal intercourse, upon a person under the age of eighteen.
The instruction in issue explains the concept of mens rea, the absence of accident,
inadvertence or casualtya varying state of mind which is the contrary of an innocent state of
mind . . . .
2

In telling the jury that criminal intent can only be proven as a deduction from declarations
or acts, the court merely restated NRS 193.200, namely that [i]ntention is manifested by the
circumstances connected with the perpetration of the offense, and the sound mind and
discretion of the person accused. The second clause of the instruction states that doing an act
gives rise to the conclusion that the act was done intentionally.
The instruction reflects common experience. In so doing, it does not command the jury to
find anything, but merely reminds the jury that most actions are not the result of mistake or
inadvertence. The instruction thus did not violate NRS 47.230. Cf. Marshall v. State, 95 Nev.
802, 603 P.2d 283 (1979) (instruction was erroneous in requiring jury to find that defendant
had knowledge and intent to defraud if the jury found that defendant possessed two or more
credit cards issued in the name of another).
Appellant next argues that the giving of the instruction amounted to denial of his due
process rights as announced in Sandstrom v. Montana, 442 U.S. 510 (1979). Based on the
foregoing analysis, we also reject this contention.
3
We therefore conclude that the trial
court did not err in giving its instruction on general criminal intent.4
____________________

1
Manning was convicted under former NRS 200.363. The current provision is found at NRS 200.366.

2
2 J. Wigmore, Evidence 300 (Chadbourn rev. 1979).

3
Sandstrom was a murder case in which one of the elements of the conviction was the defendant's having
purposely or knowingly, that is, intentionally, caused the victim's death. The trial court had instructed the
We therefore conclude that the trial court did not err in giving its instruction on general
criminal intent.
4

The Jury Instruction on Consent
We next consider whether the trial court erred by instructing the jury that consent was no
defense to a charge of committing the infamous crime against nature. At the time of the
alleged offense, NRS 201.190 proscribed both cunnilingus and anal intercourse, two acts
which Manning allegedly committed on the complainant. Under the statute, consent was no
defense to the charge, regardless of the age of the participants; however, age was an
aggravating circumstance to be considered in determining the appropriate penalty.
5
Manning
was convicted and sentenced under that portion of the statute concerning commission of
sexual acts upon a person under the age of eighteen.
[Headnote 2]
Manning urges that consent was a legitimate defense to the charge. He argues that since
the complainant was seventeen years old, she was of sufficient age to consent to the act. The
argument is premised on the fact that former NRS 200.365, in existence at the time of the
offense, limited the crime of statutory rape to sexual intercourse committed with a female
under the age of sixteen.
____________________
jury that [t]he law presumes that a person intends the ordinary consequences of his voluntary acts. Under
Montana law whether the crime was committed purposely or knowingly was a fact necessary to the crime
charged, deliberate homicide. The Supreme Court held that the challenged instruction had the effect of relieving
the state of the burden of proof on a critical fact, thus violating the fourteenth amendment requirement that every
element of a crime be proven beyond a reasonable doubt.

4
Accord, McGuinn v. Crist, 657 F.2d 1107 (9th Cir. 1981), cert. denied, 455 U.S. 990 (1982), (if the jury is
properly instructed concerning the disputed issues in a case, an erroneous instruction regarding intent is harmless
so long as the defense does not concern intent.)

5
Former NRS 201.190, in pertinent part, provided as follows:
201.190 Crime against nature: Punishment; limitations on parole, probation.
1. Except as provided in subsection 2, every person of full age who commits the infamous crime
against nature shall be punished:
(a) Where physical force or the immediate threat of such force is used by the defendant to compel
another person to participate in such offense, or where such offense is committed upon the person of one
who is under the age of 18 years, by imprisonment in the state prison for life with possibility of parole,
eligibility for which begins, unless further restricted by subsection 3, when a minimum of 5 years has
been served.
(b) Otherwise, by imprisonment in the state prison for not less than 1 year nor more than 6 years.
2. No person who is compelled by another, through physical force or the immediate threat of such
force, to participate in the infamous crime against nature is thereby guilty of any public offense.
the age of sixteen. Manning argues that the same age limit should apply to his alleged offense
as well.
We disagree. The age of majority in this state is eighteen. NRS 129.010; see also NRS
62.010. The legislature was within its powers in enacting the statutory provisions applicable
to appellant since protecting the health and morals of minors is a legitimate state interest. The
fact the legislature chose the age of sixteen for consent to sexual intercourse in no way
diminishes its authority to determine that all minors should be protected under NRS 201.190.
6

The Reference to Appellant's Prior Criminal Record
The third alleged error relates to reference by a prosecution witness to Manning's past
criminal record. A police officer testified that after receiving a description of the crime from
the complainant he had come to an understanding or an idea of who the suspect might be in
this particular case. The detective told the jury that he reached this conclusion when the
victim said her assailant was a young man by the name of Benny or Sid. The detective then
testified that when she mentioned Benny, I knew of Benny Manning myself. The detective
further testified that based on his belief that the suspect was Benny Manning, he went to the
identification division of the police department to obtain a mug shot. The inference from the
detective's testimony is clearly that Manning had been engaged in some prior criminal
activity.
Both parties agree that the test for determining a reference to criminal history is whether a
juror could reasonably infer from the facts presented that the accused had engaged in prior
criminal activity. Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972). In applying this
test, it appears that the jurors could have inferred previous criminal activity from either the
reference to the mug shots or from the focus on Benny Manning as a suspect based upon the
victim's description and the nature of the charge. The combined effect of the two statements
would lead the jury to conclude Manning had a criminal record, probably sexual in nature. Cf.
Gehrke v. State, 96 Nev. 581, 613 P.2d 1028 (1980) (police officer's testimony concerning
previous acquaintance with defendant was as consistent with the inference that the two men
were family friends as it was with the inference that the defendant had a prior criminal
record); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979) (reference made to previous
contacts with a police officer, without any indication of the nature of the contacts or that
the accused had committed any previous crime, a situation much different from the
present reference to "mug shots" of appellant being located in criminal record files);
Geary v. State, 91 Nev. 7S4, 544 P.2d 417 {1975) {reference to an "unfortunate
confrontation" with a witness, not a police officer, described as "highly unusual" with no
reference to details of the meeting or any inference of or reference to a criminal record or
criminal event); Founts v. State, S7 Nev. 165
____________________

6
NRS 201.190 has since been amended to exclude acts involving minors. NRS 200.364 now defines statutory
sexual seduction and specifies sixteen as the age of consent for sexual intercourse, anal intercourse, cunnilingus
or fellatio.
any indication of the nature of the contacts or that the accused had committed any previous
crime, a situation much different from the present reference to mug shots of appellant being
located in criminal record files); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975) (reference
to an unfortunate confrontation with a witness, not a police officer, described as highly
unusual with no reference to details of the meeting or any inference of or reference to a
criminal record or criminal event); Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971) (similar
to Geary, another coincidental reference to an unfortunate confrontation with a witness
under circumstances described as highly unusual, with no reference or inference as to the
accused's having been engaged in or convicted of previous criminal offenses).
The state concedes that in a majority of jurisdictions improper reference to criminal history
is a violation of due process since it affects the presumption of innocence; the reviewing court
therefore must determine whether the error was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967).
7

[Headnote 3]
Applying the Chapman standard to the facts of this case, we conclude, beyond a
reasonable doubt, that the error is harmless with regard to the conviction of the infamous
crime against nature. There was uncontradicted evidence of oral and anal intercourse
involving Manning and the seventeen year old complainant. Since Manning claimed that the
victim had consented and since consent was not available as a defense to the crime, there was
a clear violation of former NRS 201.190. We hold under such circumstances the improper
reference to Manning's criminal history was harmless.
[Headnote 4]
We arrive at a different conclusion concerning the rape conviction. There appears to be no
doubt that a variety of sexual activities took place between Manning and the complainant. A
reading of the record does, however, reveal some serious questions relative to the forcible
nature of the couple's encounter.
The evidence used to convict Manning came primarily from the complainant. She testified
that Manning came to her apartment after midnight, apparently seeking marijuana. Manning
had on previous occasions smoked marijuana at the apartment with the complainant and
her boyfriend.
____________________

7
This court in Porter v. State, 94 Nev. 142, 149, 576 P.2d 275, 279 (1978) commented that [i]t is without
question that . . . [an improper] reference to past criminal history is reversible error. The facts in Porter were
remarkably close to those in the instant case; the erroneous testimony did not result in reversal, however, since
counsel failed to object to the reference.
had on previous occasions smoked marijuana at the apartment with the complainant and her
boyfriend. The complainant testified that after Manning entered the apartment, he dragged her
upstairs and forced her to participate in various sex acts.
The complainant testified that she had attempted to escape onto a balcony, but was
apprehended just as she called for help. Although her neighbors were at home in the next
apartment, they did not hear any sounds of a struggle. The complainant testified that upon
returning to the bedroom, Manning suggested that the two compromise rather than doing it
the hard way. Thereupon they engaged in cunnilingus. Manning subsequently told the
woman to choose between anal and vaginal intercourse. Although the complainant indicated a
preference for anal sex, Manning alternated instead between anal and vaginal intercourse.
When asked by counsel whether she had been forced to have vaginal intercourse, the woman
replied, I guess you would say that.
There are other inconsistencies in the record. The complainant told her neighbor that she
immediately went for help after Manning left and that she had neither bathed nor douched.
She later testified that she waited approximately thirty minutes before contacting her neighbor
and admitted that she had both bathed and douched. The woman also testified that after
Manning cleaned up and dressed, he asked her to walk him to the door. He then advised her
not to discuss their activities with her boyfriend because it might be embarrassing. She did,
however, tell her boyfriend, who called the police.
The testimony of the detective rather clearly imparts to the jury that Manning had a record
of previous criminal assaults. We cannot say that in a rape case no jury would be influenced
in some substantial manner by such an impermissible reference. As stated in Porter v. State,
94 Nev. 142, 576 P.2d 279 (1978), [i]t is without question that absent special conditions of
admissibility, reference to past criminal history is reversible error.
The federal constitutional rule which we must follow in these matters require us to
conclude beyond a reasonable doubt that reference to Manning's past criminal conduct had no
affect on the jury before we can affirm the conviction. Since the record will not permit us to
draw this conclusion, we must reverse the conviction for forcible rape and allow to remain in
effect the other convictions.
We find all remaining assignments of error to be without merit. The conviction on the
infamous crime against nature committed with a person under the age of eighteen is affirmed.
The conviction for forcible rape is reversed and remanded for a new trial.
Mowbray and Gunderson, JJ., and Zenoff, Sr. J.,
8
concur.
Manoukian, C. J., concurring and dissenting:
I concur with the majority's affirmance of the conviction of the infamous crime against
nature. The majority, however, has concluded that the rape conviction is infirm because [t]he
combined effect of the two statements would lead the jury to conclude Manning had a
criminal record, probably sexual in nature, which would, in turn, prejudice appellant beyond
a reasonable doubt. I disagree that reversal is dictated under the guidelines set out by our
cases which have addressed the issue of previous-offense testimony. See Coats v. State, 98
Nev. 179, 643 P.2d 1225 (1982); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979); Geary v.
State, 91 Nev. 784, 544 P.2d 417 (1975); Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971).
See also, Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978).
1
Accordingly, I dissent from
that portion of the opinion.
The statements made by the officer and detective in the present case fall far short of those
complained of in the above-referenced cases. In Reese v. State, supra, a Las Vegas police
officer testified that he had had previous contacts' with [the accused] and his brother. Id. at
422, 596 P.2d at 215. In Geary v. State, supra, an officer testified that he had arrested the
accused on another incident. Id. at 788, 544 P.2d at 420. In Founts v. State, supra, the
victim testified before the grand jury that the accused had also robbed him on a previous
occasion. There, the prosecuting attorney repeatedly referred to the unusual or
unfortunate nature of the earlier confrontation between the accused and the victim. Id. at
168, 483 P.2d at 656. This court, in all three cases, held that because [t]here was no
description of or further reference to these contacts . . . Reese at 422, 596 P.2d at 215, or any
description of the offense which occurred," Founts at 16S, 4S3 P.2d at 656, "no damaging
previous-offense testimony was introduced, and the rule proscribing proof of a distinct
independent offense at the trial of a person accused of a crime was not violated."
____________________

8
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.,
art. 6, 19; SCR 10.

1
In Porter v. State, supra, cited by the majority, Porter alleged, under the accumulated error doctrine, that a
police witness' testimony regarding mug shots improperly implied that Porter had a previous arrest record.
There, citing Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970), we refused to reverse due to Porter's failure to
object, implicitly determining that plain error had not occurred. We reached that conclusion notwithstanding the
fact that Porter had also presented some evidence that the line-up procedure improperly implied that he had a
previous arrest record. This was in addition to an allegedly prejudicial closing argument by the prosecutor.
offense which occurred, Founts at 168, 483 P.2d at 656, no damaging previous-offense
testimony was introduced, and the rule proscribing proof of a distinct independent offense at
the trial of a person accused of a crime was not violated. Geary at 788, 544 P.2d at 420-421.
Here, a police officer testified that after receiving a description of the crime from the
complainant, he had come to an understanding or an idea of who the suspect might be in this
particular case. The detective told the jury that he reached this conclusion when the victim
said her assailant was a young man by the name of Benny or Sid. The detective then
testified that when she mentioned Benny, I knew of Benny Manning myself. According to
Reese, Founts and Geary, these statements do not rise to the level of damaging
previous-offense testimony because they do not describe these previous contacts or the
offense which occurred.
The detective also testified that, based on his belief that the suspect was Benny Manning,
he went to the identification division of the police department to obtain a mug shot. In Coats
v. State, supra, the detective testified that he obtained the photographs of the defendants used
in a photographic lineup from the homicide division of the Las Vegas Police Department.
There, this court held that the references to the homicide division and the mug shots did not
introduce damaging previous-offense testimony. Id. at 181, 182, 643 P.2d 1226, 1227. See
also Porter v. State, supra.
In my view, the references of the officer and the detective to their familiarity with
Manning and the detective's testimony concerning the mug shots did not introduce damaging
previous-offense testimony. Because I have concluded that the admission of the detective's
and the officer's testimony did not constitute error, it is not necessary to decide whether the
error was harmless beyond a reasonable doubt.
Accordingly, I would affirm both convictions.
____________
99 Nev. 91, 91 (1983) Myers v. Jones
ALONZO F. MYERS, DORIS FRY, and SIERRA LAND TITLE COMPANY, Appellants, v.
DAVID P. JONES and DONNA JONES, Respondents.
No. 12024
February 15, 1983 657 P.2d 1163
Appeal from judgment granting specific performance. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Purchasers brought action seeking, inter alia, specific performance on contract to purchase
second of two parcels of land. The district court granted judgment for purchasers, and owners
of second parcel appealed. The Supreme Court, Legakes, District Judge, held that evidence
supported trial court's finding that owner of first parcel was authorized to sell second parcel
on behalf of defendants.
Affirmed.
C. Nicholas Pereos, Reno, for Appellants.
Smith & Gamble, Carson City, for Respondents.
1. Principal and Agent.
It is essential that an agent have actual authority, express or implied; however, his authority can be
apparent or ostensible and still bind principal.
2. Principal and Agent.
In specific performance action for sale of two parcels of land, evidence supported trial court's finding that
owner of first parcel was authorized to sell the second parcel on behalf of its owners.
OPINION
By the Court, Legakes, D.J.:
1

Alonzo F. Myers, Jr., acquired a one acre parcel in Carson City between 1960 and 1962,
built a house on it, and encumbered it with a $15,500 note secured by a second deed of trust
held by his parents. This parcel is hereafter referred to as the front one acre parcel. An
adjoining one acre parcel was acquired by Myers shortly thereafter, and hereafter is referred
to as the back one acre parcel. In 1968, Myers quit-claimed the back one acre parcel to his
sister and brother-in-law, the Zimmermans, and the deed was recorded.
____________________

1
The Governor designated The Honorable Robert G. Legakes, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable Cameron M. Batjer. Nev. Const., art. 6, 4.
99 Nev. 91, 92 (1983) Myers v. Jones
Myers vacated his house on the front one acre parcel and moved out of state in 1969. In
1971, respondents David and Donna Jones took possession of both the front and back one
acre parcels under a lease option purchase agreement prepared by a realtor.
At the trial, the realtor testified that he had a written listing agreement from Mr. Myers
which he believed included both the front and back one acre parcels. The listing agreement
was not produced at trial and Mr. Myers disputed the fact that the listing agreement covered
both parcels of land. Respondents timely exercised their lease option purchase agreement and
attempted to close escrow with Mr. Myers. As a result of a foreclosure proceeding brought by
a collection service on the front acre, escrow never opened. Ultimately, respondents received
title to the front one acre parcel, subject to the encumbrance of $15,500 secured by the deed
of trust then held by Myers' mother, and to a second encumbrance which the Joneses
eventually paid.
In 1976 Myers' mother assigned her deed of trust on the front one acre parcel to appellant
Doris Fry, Mr. Myers' second wife. Fry in turn commenced foreclosure proceeding on the
note, which was by its terms due in full on or before August 5, 1975, with interest.
Respondents commenced proceedings to enjoin the foreclosure and to determine what
amount was due on the note. Respondents also sought a decree of specific performance on the
back one acre.
[Headnote 1]
The district court, sitting without a jury, concluded that respondents were entitled to a
permanent injunction forbidding Fry from foreclosing on the $15,500 note and further that
upon tender by respondents of $28,411.21, both parcels should be conveyed to them. The trial
court in granting respondents' prayer for specific performance necessarily found the existence
of an agency relationship between Mr. Myers and the Zimmermans, whereby Mr. Myers had
the authority to convey the back one acre parcel, previously deeded to the Zimmermans, at the
time he entered into the lease option agreement with respondents in 1971.
The determinative issue on appeal is whether the evidence supports the district court's
conclusion that Myers was Zimmermans' agent for the purpose of selling the back one acre
parcel. The evidence on the record indicates that Mrs. Zimmerman testified that at no time
prior to 1977 did she authorize Myers to act as her agent with respect to the sale of the back
one acre. There is, however, in addition to Zimmermans' testimony, ample evidence which
indicates that an agency relationship did exist at the time Myers entered into the lease option
agreement with respondents in 1971.
99 Nev. 91, 93 (1983) Myers v. Jones
agreement with respondents in 1971. It is essential that an agent have actual authority,
express or implied; however, his authority can be apparent or ostensible and still bind the
principal. Apparent authority can be defined as that authority which a principal holds his
agent out as possessing or permits him to exercise or to represent himself as possessing,
under such circumstances as to estop the principal from denying its existence. 2A C.J.S.
Agency 157(a) (1972). Segura v. Molycorp, 97 N.M. 13, 636 P.2d 284 (1981). The
appellate court will not disturb the findings of the lower court if based on substantial
evidence. See Wiley v. Cook, 94 Nev. 558, 583 P.2d 1076 (1978).
[Headnote 2]
Thus, the trial court did not err in granting specific performance to respondents upon the
substantiated findings that prior to 1977 Myers was authorized to sell the back one acre on
behalf of the Zimmermans. The holding of the trial court is affirmed in all respects.
Manoukian, C. J., and Springer, Mowbray, and Gunderson JJ., concur.
____________
99 Nev. 93, 93 (1983) Mianecki v. District Court
B. MIANECKI, and THE STATE OF WISCONSIN, Petitioners, v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
WASHOE, and THE HONORABLE JOHN E. GABRIELLI, Respondents, LINDA A.
AVERETT and STANLEY E. AVERETT, Individually; and LINDA C. AVERETT, as
Mother and Guardian of TRENT AVERETT, a Minor Child, Real Parties in Interest.
No. 14180
February 16, 1983 658 P.2d 422
Petitioners brought original petition for writ of prohibition, seeking to have district court's
order denying petitioners' motion to quash service of summons and complaint overturned.
The Supreme Court, Steffen, J., held that: (1) doctrine of sovereign immunity did not prevent
suit in Nevada against Wisconsin and its employee for acts occurring in Nevada; (2)
Wisconsin's reservation of sovereign immunity was not entitled to full faith and credit; and
(3) law of Wisconsin would not be granted comity.
Writ denied.
Woodburn, Wedge, Blakey and Jeppson, and William E. Peterson, Reno, for Petitioners.
Petersen & Petersen, Reno for Respondents.
1. States.
State of Wisconsin and one of its employees were not immune from suit in Nevada, since sovereign
immunity doctrine provides no immunity in courts of state other than that claiming immunity.
2. States.
Adoption of Interstate Compact for Supervision of Parolees and Probationers by Nevada and Wisconsin
constituted, in each instance, a discretionary act for which each state would maintain immunity, because the
act of adopting rules and regulations is a discretionary function. NRS 41.032, subd. 2, 213.180 et seq.
3. States.
State of Wisconsin was not immune from suit in Nevada for negligent performance of operational acts
under Interstate Compact for Supervision of Parolees and Probationers, and Nevada was not required to
grant full faith and credit to Wisconsin's reservation of sovereign immunity, in light of determination that,
if acts complained of had been committed by Nevada, sovereign immunity would not bar suit against
Nevada, and also in light of Nevada's paramount interest in protecting its citizens. NRS 41.032, subd. 2,
213.180 et seq.
4. Courts.
Comity is a principle whereby the courts of one jurisdiction may give effect to the laws and judicial
decisions of another jurisdiction out of deference and respect; comity is appropriately invoked according to
the sound discretion of the court acting without obligation.
5. Courts.
In action for negligent performance of operational acts under Interstate Compact for Supervision of
Parolees and Probationers, law of Wisconsin would not be granted comity in Nevada, in light of greater
weight to be accorded Nevada's interest in protecting its citizens from injurious operational acts committed
within its borders by employees of sister states, than Wisconsin's policy favoring governmental immunity.
NRS 213.180 et seq.
OPINION
By the Court, Steffen, J.:
Petitioners, by this original proceeding in prohibition, ask us to overturn the district court's
order denying petitioners' motion to quash service of summons and complaint filed by the
Averetts, the real parties in interest. We have considered each of petitioners' contentions and
have concluded that the district court did not err in denying petitioners' motion.
The factual scenario giving rise to the Averetts' complaint has interstate implications of
substantial magnitude. According to the allegations of the complaint, a convicted sex
offender, Barney Blake, was placed on probation for the first degree sexual assault of a
young boy in Wisconsin.
degree sexual assault of a young boy in Wisconsin. Blake was to be under the supervision of
the Wisconsin Division of Corrections during his four year period of probation. At some
point during that period, Blake sought and received approval from the Division of
Corrections to permanently relocate in Nevada. Shortly after his arrival in this state, Blake
moved in with the Averetts, who were uninformed of his history of sexual aberrations and
criminal conduct. Eventually, Blake victimized the minor son of the Averetts.
The complaint alleged that petitioners violated certain provisions of the Interstate Compact
for the Supervision of Parolees and Probationers
1
and, in addition, set forth two causes of
action in negligence: (1) failure to warn the Averetts of Blake's sexual propensities; and (2)
failure to supervise properly and control Blake's activities.
Petitioners, the State of Wisconsin and B. Mianecki,
2
seek avoidance of Nevada
jurisdiction under the doctrines of sovereign immunity, full faith and credit, and comity.
There are compelling reasons why we cannot accept the propositions asserted by Mianecki
and our sister state, Wisconsin.
[Headnote 1]
All parties agree that the landmark decision of Nevada v. Hall, 400 U.S. 410 (1978), is
dispositive of the sovereign immunity issue. Each, however, interprets Hall in a different
light, consistent with its respective position. The Hall case arose in California, where an
employee of the University of Nevada, traveling by automobile on official business,
negligently injured several California residents. Action was instituted in California against the
State of Nevada and its employee. Nevada moved unsuccessfully to quash service and
dismiss the action on grounds of sovereign immunity. The California Supreme Court held
that the State of Nevada enjoyed no immunity in the courts of California. Hall v. Nevada, 503
P.2d 1363 (Cal. 1973), aff'd, Nevada v. Hall, supra. The United States Supreme Court
affirmed the California court, holding that the sovereign immunity doctrine, which, absent
consent, precludes actions against a state in its own courts, provides no such immunity in the
courts of another state.
Other jurisdictions which have applied Nevada v. Hall have reached the same result. See,
e.g., Peterson v. State of Tex., 635 P.2d 241 (Colo.App. 1981); Daughtry v. Arlington
County, Va., 490 F.Supp. 307 (D.D.C. 1980); and Wendt v. County of Osceola, Iowa, 2S9
N.W.2d 67 {Minn.
____________________

1
NRS 213.180 et seq.

2
B. Mianecki is employed by the State of Wisconsin as a compact specialist. He is also the individual who
actually approved Blake's travel permit.
County of Osceola, Iowa, 289 N.W.2d 67 (Minn. 1979). The Peterson case is analogous to
the instant action. There, the plaintiff, a Colorado resident, brought an action in Colorado
against the State of Texas and its agent. The complaint alleged that the plaintiff's automobile
was stolen and damaged by two juveniles who were in Colorado on a juvenile rehabilitation
program sponsored by the Texas Youth Council. It was further alleged that the person in
charge of the program in Colorado, as an agent of the State of Texas, and the Texas Youth
Council were negligent in the supervision of the two juveniles. The State of Texas challenged
jurisdiction of the Colorado court arguing that Nevada v. Hall should be limited to factual
situations involving automobile collisions. The Colorado court in Peterson disagreed and
held as follows:
We approve the reasoning of the California court and hold that where the injured party
is a citizen of this state, injured in this state and sues in the courts of this state, there is
no immunity, by law or as a matter of comity, covering a sister state activities in this
state. Hall v. Nevada, supra; Nevada v. Hall, supra.
635 P.2d at 243.
Based on the above authority, we conclude that petitioners are not immune from suit in
this jurisdiction.
[Headnotes 2, 3]
Since Wisconsin has not seen fit to waive its immunity, the question remains as to whether
this state should grant full faith and credit to Wisconsin's reservation of such immunity.
According to Nevada v. Hall, questions of interstate suability must be determined under the
law of the forum. Furthermore, [t]he Full faith and Credit Clause does not require a State to
apply another State's law in violation of its own legitimate public purpose. 440 U.S. at 442.
Therefore, we must ascertain Nevada's policies and determine whether this state would permit
itself to be sued if it had engaged in the conduct assigned to Wisconsin in the present action.
The State of Nevada has waived its sovereign immunity by the enactment of NRS 41.031.
3
However, immunity has been retained with respect to claims arising out of conduct which
is deemed to be discretionary rather than operational. NRS +1.032{2).4 See also Andolino v.
State, 97 Nev. 53
____________________

3
NRS 41.031 provides:
The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its
liability determined in accordance with the same rules of law as are applied to civil actions against natural
persons. . . .
41.032(2).
4
See also Andolino v. State, 97 Nev. 53, 624 P.2d 7 (1981). In the instant case,
the adoption of the Interstate Compact for Supervision of Parolees and Probationers by
Nevada and Wisconsin constituted, in each instance, a discretionary act for which each state
would maintain immunity because the act of adopting rules and regulations is a discretionary
function. Upchurch v. State, 454 P.2d 112 (Hawaii 1969). However, the Averetts do not
attribute their injuries to the discretionary act of adopting the compact or the decision to
transfer Blake to Nevada. The gravamen of their claim against petitioners is based upon the
negligent performance of operational acts by the Wisconsin Division of Correction in
effectuating the transfer and placement of Blake in Nevada. The allegations of failure to
investigate where Blake would be living and to warn the Averetts of the nature of Blake's
prior offense refer to operational deficiencies for which immunity has been waived. See Silva
v. State, 86 Nev. 911, 478 P.2d 591 (1970); see also Johnson v. State, 447 P.2d 352 (Cal.
1968). We thus conclude that if the acts complained of had been committed by the Nevada
Department of Parole and Probation, sovereign immunity would not bar suit against Nevada.
NRS 41.032(2). Therefore, under Nevada v. Hall, supra, Nevada as the forum state is not
required to honor Wisconsin's claim of sovereign immunity, especially in light of the fact that
Nevada has a paramount interest in protecting its citizens from individuals who have been
convicted of criminal offenses. Furthermore, we reject petitioners' argument that the purpose
and policies of the compact would be frustrated if Nevada is permitted to assert jurisdiction.
On the contrary, assertion of jurisdiction should encourage compliance with the compact and
promote its policies inasmuch as [t]he prime purpose of both probation and parole is the
protection of the community through the rehabilitation of those convicted of crime [and] the
success of both procedures depends on adequate control of those who are released and
intelligent supervision while under care. Council of State Government, Handbook of
Interstate Crime Control, the Interstate Compact for Supervision of Parolees and
Probationers, page 1 (1978 ed.). Accordingly, we hold that petitioners are not immune from
suit in Nevada.
[Headnotes 4, 5]
The final issue for our consideration is whether Nevada should decline to exercise
jurisdiction as a matter of comity.
____________________

4
No action may be brought . . . which is based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty. . . .
should decline to exercise jurisdiction as a matter of comity. In general, comity is a principle
whereby the courts of one jurisdiction may give effect to the laws and judicial decisions of
another jurisdiction out of deference and respect. Brown v. Babbitt Ford, Inc., 571 P.2d 689,
695 (Ariz. 1977). The principle is appropriately invoked according to the sound discretion of
the court acting without obligation. Id.; see also City of Philadelphia v. Austin, 429 A.2d 568
(N.J. 1981). [I]n considering comity, there should be due regard by the court to the duties,
obligations, rights and convenience of its own citizens and of persons who are within the
protection of its jurisdiction. State ex rel. Speer v. Haynes, 392 So.2d 1183, 1185
(Ala.Civ.App. 1979), rev'd on other grounds, 392 So.2d 1187. With this in mind, we believe
greater weight is to be accorded Nevada's interest in protecting its citizens from injurious
operational acts committed within its borders by employees of sister states, than Wisconsin's
policy favoring governmental immunity. Therefore, we hold that the law of Wisconsin should
not be granted comity where to do so would be contrary to the policies of this state.
Accordingly, the writ of prohibition is denied.
Manoukian, C.J., Springer and Mowbray, JJ., and Zenoff, Sr. J.,
5
concur.
____________________

5
place and stead of E. M. Gunderson, Justice, pursuant to the Nevada Const., art. 6, 19(1)(a) and 19(1)(c), and
SCR 10.
____________
99 Nev. 98, 98 (1983) Daines v. Abrams
DARREL R. DAINES, CLARK COUNTY COMPTROLLER, Appellant, v. FREDERIC H.
ABRAMS, ESQUIRE, Attorney for DONALD DOWELL, Respondent.
No. 14227
February 28, 1983 659 P.2d 296
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Appeal was taken from a judgment of the district court awarding attorney excess
compensation in connection with appointment to represent certain indigent in criminal matter.
The Supreme Court held that where attorney filed no brief on appeal and did not respond to
order to show cause why failure to file brief should not be treated as confession of error, his
conduct would be treated as confession of error, and judgment in his favor reversed.
99 Nev. 98, 99 (1983) Daines v. Abrams
conduct would be treated as confession of error, and judgment in his favor reversed.
Reversed.
Robert J. Miller, District Attorney, Johnnie B. Rawlinson, Deputy District Attorney, Clark
County, for Appellant.
Fred H. Abrams, Las Vegas, for Respondent.
Appeal and Error.
Where attorney, awarded excess compensation in connection with appointment to represent certain
indigent, filed no brief on appeal and did not respond to order to show cause why his failure to file brief
should not be treated as a confession of error, his conduct would be treated as a confession of error and
judgment in his favor would be reversed. NRAP 31(c).
OPINION
Per Curiam:
This is an appeal from a judgment awarding respondent Abrams excess compensation in
connection with his appointment to represent a certain indigent in a criminal matter.
Appellant Daines filed a timely opening brief, but Abrams has not filed an answering brief.
On January 24, 1983, we ordered Abrams to show cause why his failure to file a brief should
not be treated as a confession of error pursuant to NRAP 31(c). Abrams has filed no brief, nor
has he responded to our order to show cause.
Cause appearing, we elect to treat Abrams' conduct as a confession of error. NRAP 31(c);
see Smith v. Smith, 98 Nev. 395, 649 P.2d 1374 (1982). Accordingly, the judgment below in
Abrams' favor is reversed.
____________
99 Nev. 100, 100 (1983) Zugel v. Miller
KEVIN ZUGEL, BY LAWRENCE ZUGEL, Guardian Ad Litem, Appellant, v. GEORGE
PARKER MILLER and ARLENE MILLER, Respondents.
No. 14456
February 28, 1983 659 P.2d 296
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Appeal was taken from the district court which granted summary judgment for
respondents. Respondents moved to dismiss appeal. The Supreme Court held that matter had
to be remanded to district court for proceedings and findings relating to factual question
raised in motion to dismiss, namely, when appellant received notice of entry of judgment.
Motion to dismiss remanded.
Burns & Pritchard, Las Vegas, for Appellant.
Dickerson, Miles, Pico & Mitchell, Las Vegas, for Respondents.
Filing a timely notice of appeal is jurisdictional and an untimely appeal may not be considered.
Matter had to be remanded to district court for proceedings and findings relating to factual question
raised in motion to dismiss appeal from grant of summary judgment for respondents, namely, when
appellant received notice of entry of judgment.
OPINION
Per Curiam:
This is an appeal from a grant of summary judgment for respondents. Respondents have
moved to dismiss the appeal on the ground that the notice of appeal was not filed within thirty
days of the date of service of written notice of entry of the district court's judgment as
required by NRAP 4(a).
The judgment appealed from was entered on July 30, 1982. Written notice of entry of
judgment was filed on August 9, 1982. A certificate of mailing appears upon this notice and
states that the notice was mailed, postage prepaid, to the address of counsel for appellant. The
certificate also states that the notice was mailed by an employee of counsel for respondents.
The notice of appeal was filed on October 19, 1982, well after the thirty-three days allowed
by NRAP 4{a) and NRAP 26{c).
99 Nev. 100, 101 (1983) Zugel v. Miller
after the thirty-three days allowed by NRAP 4(a) and NRAP 26(c). Based on these facts
respondents contend the appeal should be dismissed.
In opposition to the motion to dismiss, appellant's counsel avers that he first received the
notice of entry during the week of October 11, 1982. The notice of appeal was filed within
thirty days thereafter.
[Headnote 1]
Filing a timely notice of appeal is jurisdictional and an untimely appeal may not be
considered. Morrell v. Edwards, 98 Nev. 91, 640 P.2d 1322 (1982); see Culinary Workers v.
Haugen, 76 Nev. 424, 357 P.2d 113 (1960). Under NRAP 4(a), the time for filing the notice
of appeal begins to run upon service of written notice of entry of judgment. Service by mail is
complete upon mailing. NRAP 25(c); NRCP 5(b).
In this case, where counsel for appellant avers that he did not receive the notice of entry of
judgment, there is a legitimate question of fact as to whether the notice was ever mailed to
counsel prior to the week of October 11, 1982.
This court is not a fact-finding tribunal; that function is best performed by the district. Cf.
Zobrist v. Sheriff, 96 Nev. 625, 614 P.2d 538 (1980) (original habeas returned to district
court for factual findings.) Resolution of the factual issue in this case, i.e., whether notice of
entry of order was mailed on August 9, 1982, may involve a balancing of the weight and
credibility of witnesses. We decline to undertake such a fact-finding activity.
[Headnote 2]
Accordingly, we hereby remand this matter to the district court for proceedings and
findings relating to the factual question raised in the motion to dismiss.
1
The district court's
findings shall thereafter be certified and transmitted to the clerk of this court, at which time
the motion to dismiss shall stand submitted. The briefing schedule contained in NRAP 31(a)
shall commence upon this court's determination of the motion to dismiss.
It is so ORDERED.
____________________

1
We note that a respondent is in a much better position to avoid questions as to when the notice was mailed,
because a respondent can personally serve the notice (and obtain an acknowledgement of service), or the
respondent can use registered or certified mail (with return receipt requested). Therefore, the respondents in this
case shall have the burden of proof on the question presented to the district court on remand.
____________
99 Nev. 102, 102 (1983) Sheriff v. Berman
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. JEFFREY A.
BERMAN and SUSAN LEE BERMAN, Respondents.
No. 14027
SHERIFF, CLARK COUNTY, NEVADA, Appellant v.
JAMES ALEXANDER NEWMAN, Respondent.
No. 14045
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. TONY DE ROSA
and RICHARD SULLIVAN, Respondents.
No. 14054
February 28, 1983 659 P.2d 298
Consolidated appeals from orders granting writs of habeas corpus. Eighth Judicial District
Court, Clark County; James A. Brennan, Judge.
Defendants were arrested on drug-related charges and were arraigned 73, 85, and 125 days
after arrest respectively. The district court granted defendants' writ of habeas corpus on basis
of excessive delay in arraignment and trial, and state appealed. The Supreme Court,
Mowbray, J., held that: (1) as defendants made no incriminating statements or confessions
during prearraignment period, habeas relief was not warranted under statute affording
defendants right to be brought before magistrate without unnecessary delay, and (2)
defendants' right to speedy trial was not violated.
Springer and Gunderson, J.J., dissented.
Tufteland and Ronald C. Bloxham, Deputy District Attorneys, Clark County, for Appellant.
Manos & Cherry, Ltd., and Mark B. Bailus, Las Vegas, for Jeffrey A. Berman and Susan
Lee Berman.
Morgan D. Harris, Public Defender, Gary H. Lieberman, Deputy Public Defender, Clark
County, for James Alexander Newman.
Sully, McKay & Lenhard, Las Vegas, for Tony De Rosa.
Dickerson, Miles, Pico & Mitchell, Las Vegas, for Richard Sullivan.
1. Arrest.
Statute affording arrested person right to be brought before magistrate without unnecessary delay does
not directly enforce federal constitutional guarantee of speedy trial, and does not require same
interpretation that federal courts have given similarly worded federal criminal procedure rule. NRS
171.178; Fed.Rules Cr. Proc. Rule 5(a), 18 U.S.C.A.; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Speedy arraignment is primarily intended to insure that accused is promptly informed of his privilege
against self-incrimination. NRS 171.178; U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Passage of time between arrest and arraignment will not alone establish deprivation of defendant's right to
speedy arraignment; where there has been no interrogation during delay, and accused has not confessed or
made incriminating statements, delay has caused no prejudice to accused, and his rights have not been
violated. NRS 171.178.
4. Habeas Corpus.
Where defendants were released from custody immediately after arrest and neither suffered any
interrogation nor made any incriminating statements or confessions during prearraignment period,
prearraignment delays of 73, 85, and 125 days respectively did not entitle defendants to habeas corpus
relief. NRS 171.178.
5. Criminal Law.
Sixth Amendment guarantee of speedy trial attaches once putative defendant is accused by arrest,
indictment or filing of criminal complaint, whichever comes first. U.S.C.A.Const. Amend. 6.
6. Criminal Law.
In determining whether right to speedy trial has been violated, court must in each case weigh at least four
factors: length of delay, reason for delay, defendant's assertion of his rights, and prejudice to defendant
from delay; four factors must be considered together, and no single factor is either necessary or sufficient,
though, while not essential, courts may weigh showing of prejudice to defense, or its absence, more heavily
than other factors. U.S.C.A.Const. Amend. 6.
7. Criminal Law.
Assertion of right to speedy trial by accused is entitled to strong evidentiary weight in determining
whether right has been denied. U.S.C.A.Const. Amend. 6.
8. Criminal Law.
Prejudice to accused is of paramount concern in speedy trial cases, but bare allegations of impairment of
memory, witness unavailability, or anxiety, unsupported by affidavits or other offers of proof, do not
demonstrate reasonable possibility that defense will be impaired at trial or that defendants have suffered
other significant prejudice. U.S.C.A.Const. Amend. 6.
9. Criminal Law.
Where defendants made no attempt to demand speedy arraignment or trial during period of
prearraignment delay, and made only general claims of prejudice, without showing of
testimony lost as result of delay or how delay caused alleged financial troubles,
prearraignment delays of 73, S5, and 125 days did not deny defendants right to
speedy trial, notwithstanding that state's explanation for delays was not entirely
adequate.
general claims of prejudice, without showing of testimony lost as result of delay or how delay caused
alleged financial troubles, prearraignment delays of 73, 85, and 125 days did not deny defendants right to
speedy trial, notwithstanding that state's explanation for delays was not entirely adequate. U.S.C.A.Const.
Amend. 6.
OPINION
By the Court, Mowbray, J.:
Respondents sought habeas relief in the district court, claiming that the State had violated
their Sixth Amendment right to a speedy trial. The district court granted their petitions. The
State has appealed. We agree with appellant that the district court erred in issuing the writs of
habeas corpus. Therefore, we reverse and remand the cases for trial.
THE FACTS
The Bermans, De Rosa, and Sullivan were arrested together in Las Vegas on April 7,
1981, on charges of sale of a controlled substance and possession of a controlled substance
with intent to sell. At the time of the arrest, the police took into evidence approximately one
kilogram of cocaine that the Bermans allegedly had sold to an undercover agent, and some
white tablets believed to be methaqualone (Quaaludes). The defendants were released on bail
following their arrest.
The cocaine was analyzed on April 17, 1981, and the case was submitted to the district
attorney's office on May 12. On May 12, the screening attorney requested an analysis of the
tablets taken from the Bermans, as the tablets had not been analyzed with the cocaine. The
analysis of the tablets was completed May 19, and the district attorney's office received this
analysis on May 27. A complaint was filed against the Bermans, De Rosa, and Sullivan on
May 29. While all four were charged with sale of a controlled substance, the charge of
possession of a controlled substance with intent to sell was lodged against the Bermans only.
The Bermans were arraigned on June 19, 1981. As De Rosa and Sullivan did not appear on
that date, the magistrate issued bench warrants to obtain their presence. Counsel for De Rosa
and Sullivan appeared on their behalf on July 1, and had the warrants quashed.
The Bermans, De Rosa, and Sullivan all moved to dismiss the charges on the grounds of
pre-arraignment delay. After the magistrate denied their motions, they petitioned the district
court for writs of habeas corpus, arguing that the 73- and S5-day delays between their
arrest and arraignments violated NRS 171.17S and their constitutional right to a speedy
trial.
court for writs of habeas corpus, arguing that the 73- and 85-day delays between their arrest
and arraignments violated NRS 171.178 and their constitutional right to a speedy trial. The
district court granted the petitions.
Respondent Newman was arrested on October 16, 1981, on a charge of selling cocaine. He
was released on bail following his arrest. Newman was finally arraigned on February 18,
1982, and provided with a copy of the complaint.
On proper motion the justice's court dismissed the charge on the ground of
pre-arraignment delay. Three days later Newman was indicted on the same charge. He then
petitioned the district court for a writ of habeas corpus, arguing that the 125-day delay
between his arrest and arraignment denied him his constitutional right to a speedy trial. The
district court granted the petition.
The State has appealed the granting of habeas relief in all of these cases.
MERE DELAY DOES NOT WARRANT HABEAS
RELIEF UNDER NRS 171.178
[Headnote 1]
NRS 171.178
1
affords an arrested person a statutory right to be brought before a
magistrate without unnecessary delay. It does not directly import the federal constitutional
guarantee of a speedy trial, and does not require the same interpretation that federal courts
have given the similarly-worded Federal Rule of Criminal Procedure 5(a). See Brown v.
Justice's Court, 83 Nev. 272, 428 P.2d 376 (1967). Cf. Sondergaard v. Sheriff, 91 Nev. 93,
531 P.2d 474 (1975) (violation of NRS 178.460, which requires that the State bring a
defendant to trial within 60 days after being notified that the defendant is competent to stand
trial, does not establish constitutional speedy trial violation or right to habeas relief.)
[Headnote 2]
The purpose of the statute is to prevent law enforcement personnel from conducting a
secret interrogation of persons accused of crime."
____________________

1
NRS 171.178 provides in relevant part:
1. [A] peace officer making an arrest under a warrant issued upon a complaint or without a warrant
shall take the arrested person without unnecessary delay before the magistrate. . . .
. . . .
3. If an 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.
accused of crime. Morgan v. Sheriff, 92 Nev. 544, 546, 554 P.2d 733, 734 (1976), quoting
McNabb v. United States, 318 U.S. 332, 344 (1943). Speedy arraignment is primarily
intended to ensure that the accused is promptly informed of his privilege against
self-incrimination. Brown v. Justice's Court, supra, 83 Nev. at 276, 428 P.2d at 378.
[Headnote 3]
The passage of time between arrest and arraignment will not alone establish a deprivation
of the defendant's rights. See Deutscher v. State, 95 Nev. 669, 680, 601 P.2d 407, 414 (1979).
Cf. Brown v. Justice's Court, supra (mere delay between arrest and arraignment, without
some showing of prejudice to defendant's constitutional rights, does not deprive the justice's
court of jurisdiction to proceed). 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. Morgan v. Sheriff, supra;
Dunkin v. Lamb, 500 F.Supp. 184, 187 (D. Nev. 1980).
[Headnote 4]
In the cases at bar, all defendants were released from custody immediately after their
arrest. While the prearraignment delay in each of these cases was lengthy, and none of the
delays resulted from the conduct of any of the respondents, the respondents did not make any
incriminating statements or confessions or suffer any interrogation during the delays. Hence,
the purpose of NRS 171.178 would not be served by the granting of habeas relief. The district
court therefore erred in granting habeas relief on NRS 171.178 grounds.
RESPONDENTS WERE NOT DENIED THEIR
RIGHT TO A SPEEDY TRIAL
[Headnote 5]
The Sixth Amendment guarantee of a speedy trial attaches once a putative defendant is
accused by arrest, indictment, or the filing of a criminal complaint, which ever comes first.
Dillingham v. United States, 423 U.S. 64 (1975); United States v. Marion, 404 U.S. 307
(1971).
[Headnote 6]
In determining whether the right to a speedy trial has been violated, the court must in each
case weigh at least the following four factors: (1) the length of the delay; (2) the reason for
the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant
from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Brinkman v. State, 95 Nev. 220,
592 P.2d 163 {1979); Larsgaard v. Sheriff, 95 Nev. 171
P.2d 163 (1979); Larsgaard v. Sheriff, 95 Nev. 171, 591 P.2d 256 (1979). The four Barker
factors must be considered together, and no single factor is either necessary or sufficient.
Moore v. Arizona, 414 U.S. 25 (1973). While a showing of prejudice to the defense is not
essential, courts may weigh such a showing (or its absence) more heavily than other factors.
See, e.g., State v. Edwards, 594 P.2d 72, 80 (Ariz. 1979), rev'd on other grounds, 451 U.S.
477 (1981); State v. Larson, 623 P.2d 954, 959 (Mont. 1981).
The intervals between arrest and arraignment in the cases at bar are all sufficiently lengthy
to trigger further inquiry into the other Barker factors. See Phillips v. State, 597 P.2d 456
(Wyo. 1979) (95-day delay between arrest and preliminary hearing sufficient to justify further
inquiry). However, the delays alone do not establish any violation of speedy trial rights. See,
e.g., Bailey v. State, 94 Nev. 323, 579 P.2d 1247 (1978); Sondergaard v. Sheriff, 91 Nev. 93,
531 P.2d 474 (1975); State v. Taylor, 594 P.2d 262 (Kan.App. 1979) (128-day delay between
arrest and arraignment did not deny defendant his right to a speedy trial).
The State attributes the delays in these cases to the backlog of substances awaiting analysis
in the Las Vegas police laboratory. There is no evidence in the record to indicate that the
State sought intentionally to hamper the defense of the accused through delay. While the
State's explanation of the delays is not entirely adequate, this fault is not determinative. See
Sondergaard v. Sheriff, supra.
[Headnote 7]
The assertion of the right to a speedy trial by the accused is entitled to strong evidentiary
weight in determining whether the right has been denied. Barker v. Wingo, supra, 407 U.S. at
531. The record does not show that the Bermans, De Rosa, or Sullivan attempted to demand a
speedy arraignment or trial at any time during the period of delay.
[Headnote 8]
Prejudice to the accused is of paramount concern in speedy trial cases. See Bailey v. State,
94 Nev. 323, 579 P.2d 1247 (1978); Sheriff v. McKinney, 93 Nev. 313, 565 P.2d 649 (1977);
State v. Larson, 623 P.2d 954 (Mont. 1981); State v. Worden, 611 P.2d 185 (Mont. 1980).
Bare allegations of impairment of memory, witness unavailability, or anxiety, unsupported by
affidavits or other offers of proof, do not demonstrate a reasonable possibility that the defense
will be impaired at trial or that defendants have suffered other significant prejudice. See Saiz
v. Eyman, 446 F.2d 884 (9th Cir. 1971); Nickerson v. State, 492 P.2d 11S {Alaska 1971);
People v. Jamerson, 596 P.2d 764 {Colo.
State, 492 P.2d 118 (Alaska 1971); People v. Jamerson, 596 P.2d 764 (Colo. 1979).
[Headnote 9]
All respondents made general claims of prejudice, but none made any offers of proof
concerning testimony lost as a result of the delay. While the Bermans allege that they suffered
economic hardship following Jeffrey Berman's arrest and suspension from work, preventing
them from investigating potential witnesses, they do not show how the delay itself caused
their financial troubles or which, if any, potential witnesses were in that manner lost.
In conclusion, while the State's explanation for the delays in the cases at bar may be
inadequate, we do not consider this fault alone to overbalance the other considerations to
which we have alluded. Sondergaard v. Sheriff, supra, 91 Nev. at 95, 531 P.2d at 475. See
State v. Worden, 611 P.2d 185 (Mont. 1980).
Respondents' citations to cases involving the question of whether the State has exhibited a
conscious indifference to important procedural rights [of defendants] are inapposite to the
cases at bar. As respondents' right to a speedy trial has not been denied, we reverse all grants
of writs of habeas corpus in these cases and remand the cases for trial on the merits.
Manoukian, C.J., and Steffen J., concur.
Springer, J., dissenting:
I dissent because I do not believe that the trial judge abused his discretion in granting the
writs of habeas corpus in any of the three consolidated cases.
Gunderson, J., dissenting:
I, too, must respectfully dissent.
Our respected brethren in the majority correctly note that, pursuant to the United States
Supreme Court's decision in Barker v. Wingo, 407 U.S. 514 (1972), a district judge must
consider four factors when determining whether a defendant's right to a speedy trial has been
violated. Our brethren also correctly recite that a district judge is obligated to consider all of
the aforesaid factors together, and that no single factor is to be considered either necessary or
sufficient. Moore v. Arizona, 414 U.S. 25 (1973). Notwithstanding these unquestioned legal
premises, however, our brethren then proceed in the instant case to reverse the district judge's
admittedly discretionary ruling.
I would be pleased to join our brethren if I could discern the legal principles which license
their mandate.
____________
99 Nev. 109, 109 (1983) Sheriff v. Morris
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
DANA LINDSAY MORRIS, Respondent.
No. 12459
March 1, 1983 659 P.2d 852
Appeal from order granting Petition for Writ of Habeas Corpus. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Defendant was indicted for murder, two counts of giving away controlled substance, and
one count of sale of controlled substance. The district court granted defendant's pretrial
petition for writ of habeas corpus and discharged defendant. State appealed. The Supreme
Court, Steffen, J., held that: (1) in view of legislative intent behind murder and involuntary
manslaughter statutes, Supreme Court would recognize second degree felony-murder rule, at
least in fact-specific context of case where defendant allegedly sold and participated in
administration of drugs, leading to fatal overdose by recipient, and (2) indictment, which
failed to refer to facts regarding defendant's conduct or presence during decedent's ingestion
of lethal dose of controlled substance, was insufficient.
Affirmed.
Robert J. Miller, District Attorney, and James N. Tufteland, Deputy District Attorney,
Clark County, for Appellant.
Gerald F. Neal, Las Vegas; Morgan D. Harris, Public Defender, Robert D. Larsen,
Assistant Public Defender, and Xavier Gonzales, Deputy Public Defender, Clark County, for
Respondent.
1. Homicide.
Felony-murder rule is that any homicide, committed while perpetrating or attempting felony, is first
degree murder. NRS 200.070.
2. Homicide.
Direct causal connection between commission of underlying offense, and resulting homicide, is required
for imposition of felony-murder rule. NRS 200.070.
3. Statutes.
Where at all possible, statutes should be construed so as to give effect to legislative intent.
4. Statutes.
Statutes should be construed in order to validate each provision of statute.
5. Homicide.
Statutes relating to murder and involuntary manslaughter evince legislative intent that every involuntary
killing which occurs in prosecution of felonious intent or which happens in commission of unlawful act
which, in its consequences, naturally tends to destroy human life is "murder," in
either first or second degree.
ful act which, in its consequences, naturally tends to destroy human life is murder, in either first or
second degree. NRS 200.030, 200.070.
6. Homicide.
Offense of felony-murder in second degree is limited to cases where there was immediate and direct
causal relationship between defendant's actions and victim's death, and felony supporting application of
second degree felony-murder rule was inherently dangerous to human life, when viewed in abstract, that is,
without reference to specific victim. NRS 200.030, 200.070.
7. Homicide.
In prosecution for sale and distribution of controlled substance, and for murder of minor who died from
overdose, second degree felony-murder instruction would be appropriate, if evidence established that
unauthorized sale and ingestion of controlled substance in quantities involved was inherently dangerous in
abstract, immediate and causal relationship existed between defendant's felonious conduct and death of
minor, and causal relationship extended beyond unlawful sale of drugs to involvement by commission or
omission in ingestion of lethal dosage by decedent. NRS 200.030, 200.070.
8. Homicide.
For purposes of requirement in second degree felony-murder rule that immediate and causal relationship
exist between defendant's felonious conduct and death of decedent, term immediate means without
intervention of some other source or agency. NRS 200.030, 200.070.
9. Homicide.
Element of second degree felony-murder rule requiring that causal relationship between defendant's
felonious conduct and death of decedent extend beyond unlawful sale of drugs, to an involvement by
commission or omission in ingestion of lethal dosage by decedent, would be satisfied by unlawful selling or
providing of drugs and helping recipient of drugs to ingest lethal dose or by unlawfully selling or
dispensing drugs and being present during consumption of lethal dose. NRS 200.030, 200.070.
10. Homicide.
In context of unlawful sale of controlled substances resulting in death, second degree felony-murder rule
may be premised on either felonious intent provision or unlawful act provision of involuntary manslaughter
statute, and same guidelines are applicable in either case: particular nature and quantity of drug must be
shown to be inherently dangerous in abstract, and immediate and causal relationship must exist between
sale or dispensing of drug and death of victim. NRS 200.070.
11. Homicide.
In view of holding in case that application of second degree felony-murder rule to drug overdose case
required, inter alia, proof that defendant was involved, by commission or omission, in ingestion of lethal
dosage by decedent, indictment which failed to refer to facts regarding defendant's conduct or presence
during decedent's ingestion of lethal dose of controlled substance was insufficient. NRS 200.030,
200.070.
OPINION
This appeal results from the district court's order granting the respondent's pretrial petition
for writ of habeas corpus and discharging the respondent. We conclude that the district court
erred as to the law but must affirm the granting of the writ on grounds of the insufficiency of
the indictment.
In respect of this appeal, the following alleged facts are deemed relevant. On March 1,
1979, 17-year old Timothy Slotemaker died as a result of ingesting a lethal quantity of
trichloral ethanol (a derivative of chloral hydrate).
1
The controlled substance in the form of
tablets, was purchased by the decedent from the respondent, Dana Lindsay Morris
(hereinafter defendant). During the early afternoon hours of that fateful date, Slotemaker,
accompanied by two companions, went to defendant's trailer for the purpose of purchasing
drugs. Defendant informed decedent that he had some sodium pentathol or downers for
sale. Slotemaker purchased two pills which he ingested in defendant's presence with some
beer furnished by defendant to help wash down the pills. Decedent then purchased one
more pill which he consumed outside defendant's trailer as the three were leaving the
premises. Approximately one-half later, Slotemaker and one of the companions returned to
defendant's trailer. This time Slotemaker obtained up to ten additional tablets from the
defendant, several of which were again consumed in the presence of the defendant.
Slotemaker died later that evening as a result of the drug overdose.
On March 10, 1979, the Clark County Grand Jury indicted the defendant for the murder of
Timothy Slotemaker, for two counts of giving away a controlled substance, and for one count
of sale of a controlled substance.
Defendant filed a petition for writ of habeas corpus on the basis that the portion of the
indictment charging defendant with open murder was not sufficiently specific. Defendant's
petition was granted by the lower court, and affirmed by this Court. The state was granted
leave to refile the murder charge.
On July 31, 1979, the state filed a complaint charging the defendant with murder.
Thereafter, on September 6, 1979, an indictment was filed against defendant accusing him of
the crime of "MURDER {Felony NRS 200.010, 200.030, 200.070)."
____________________

1
A Schedule IV controlled substance under NRS 453.196.
crime of MURDER (Felony NRS 200.010, 200.030, 200.070).
This most recent indictment charged that the defendant, on March 1, 1979, did then and
there feloniously and without authority of law, kill and murder TIMOTHY A.
SLOTEMAKER, a human being, in the commission of an unlawful act, which, in its
consequences naturally tended to destroy the life of a human being and/or was committed in
the prosecution of a felonious intent in the following manner, to-wit: by giving away or
selling to the said TIMOTHY A SLOTEMAKER, a lethal quantity of a controlled substance
to-wit: CHLORAL HYDRATE, the said TIMOTHY A. SLOTEMAKER, thereafter ingesting
said lethal quantity of CHORAL HYDRATE, the ingestion of which caused the said
TIMOTHY A. SLOTEMAKER to die of CHLORAL HYDRATE poisoning resulting from
an overdose of CHLORAL HYDRATE which was a direct and proximate cause of the
unlawful acts of the defendant DANA LINDSAY MORRIS described hereinabove.
The defendant responded to this indictment in part by filing a petition for a writ of habeas
corpus with this Court. We ruled that the petition be heard by the district court, and the latter
court granted the writ of habeas corpus and discharged the defendant, holding that the
question of whether an overdose resulting in death by a drug sale should be murder . . .
should be decided by the legislature and not by the court . . . .
This appeal followed.
The primary issue before us on appeal is whether, under the fact-specific circumstances of
this case, a charge of second degree murder is authorized under Nevada law. The resolution
of the issue is the product of the combined meaning of NRS 200.030, and NRS 200.070. The
former statute reads in pertinent part, as follows:
1. Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of
willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of sexual assault,
kidnapping, arson, robbery, burglary or sexual molestation of a child under the age of
14 years; or
(c) Committed to avoid or prevent the lawful arrest of any person by a peace officer
or to effect the escape of any person from legal custody.
As used in this subsection, sexual molestation is any willful and lewd or lascivious
act, other than acts constituting the crime of sexual assault, upon or with the body, or
any part or member thereof, of a child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions or sexual desires of the
perpetrator or of the child.
or any part or member thereof, of a child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions or sexual desires of the
perpetrator or of the child.
2. Murder of the second degree is all other kinds of murder.
It is noted that the above statute clearly specifies those acts which are in the category of
murder in the first degree. Under subsection (2) all other kinds of murder are of the second
degree. The state argues that the latter subsection, read in conjunction with NRS 200.070,
justifies the charge of murder against the respondent. NRS 200.070 provides:
Involuntary manslaughter shall consist in the killing of a human being, without any
intent so to do, in the commission of an unlawful act, or a lawful act which probably
might produce such a consequence in an unlawful manner; but where such involuntary
killing shall happen in the commission of an unlawful act, which, in its consequences,
naturally tends to destroy the life of a human being, or is committed in the prosecution
of a felonious intent, the offense shall be deemed and adjudged to be murder.
(Emphasis supplied.)
2

The indictment of the respondent on the charge of murder was couched in the terms of the
above quoted provision, the state urging culpability upon either (or both) of two grounds: (1)
the homicide occurred during the commission of an unlawful act, which, in its
consequences, naturally tends to destroy the life of a human being, and/or (2) the killing was
committed in the prosecution of a felonious intent.
We turn first to the question of whether NRS 200.070, when read in conjunction with NRS
200.030, permits a charge of second degree murder under the felony-murder rule. Because the
actions of the defendant do not come within those specified areas of first degree murder under
NRS 200.030, the state argues that the defendant is criminally responsible under a second
degree felony-murder theory.
[Headnotes 1, 2]
This Court has long recognized the felony-murder rule in the context of first degree
murder. The felony-murder rule simply stated is that any homicide, committed while
perpetrating or attempting a felony, is first degree murder. Payne v. State, 81 Nev. 503, 505,
406 P.2d 922 {1965), cert. denied, 391 U.S. 927 {1967).
____________________

2
NRS 200.070 is the applicable statute designated in effect in 1979, as quoted in this Opinion.
Nev. 503, 505, 406 P.2d 922 (1965), cert. denied, 391 U.S. 927 (1967). In Payne, this Court
said:
The original purpose of the felony-murder rule was to deter felons from killing
negligently or accidentally by holding them strictly responsible for the killings that are
the result of a felony or an attempted one. [Citations omitted.] In the majority of
jurisdictions, such a homicide acquires first degree murder status without the necessity
of proving premeditation and deliberation. The heinous character of the felony is
thought to justify the omission of the requirements of premeditation and deliberation.
Under Payne, a direct causal connection between the commission of the underlying offense,
and the resulting homicide is also required for the imposition of the rule. Id. at 506.
There appears to be no Nevada cases which address the felony-murder rule in the context
of second degree murder.
3
California, however, has adopted a persuasive position supporting
the concept of felony-murder in the second degree. In People v. Cline, 75 Cal.Rptr. 459
(Ct.App. 1969), the defendant, while visiting at the residence of the decedent, indicated that
he had some phenobarbital tablets. After bringing the tablets into the house at the request of
the decedent, the defendant then gave the decedent a number of these tablets, and in the
presence of the defendant, the decedent consumed a substantial number of them within a
period of approximately thirty minutes.
4
Later that evening the decedent lapsed into
unconsciousness and subsequently died as a result of a central nervous system depression
caused by barbituate intoxication.
____________________

3
NRS 200.010 defines murder as follows: Murder is the unlawful killing of a human being, with malice
aforethought, either express or implied . . . . NRS 200.020(2) provides: Malice shall be implied when no
considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant
heart. This Court has held that the presence of a malice is a question of fact which bears directly on the guilt or
innocence of a defendant and upon the degree of the crime charged . . . [I]t is a question to be determined by the
trier of fact at the trial of the case. Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25 (1970). And in context
of reviewing a conviction for first degree murder, this Court has said concerning the murder language found
within the involuntary manslaughter statute: Under this statute the killing of the woman by means employed
was murder, even though there was no conscious intent to kill. Malice is implied from the unlawful use of the
deadly weapon. Consequently, the evidence as to his condition, due to intoxication, was immaterial, except as to
whether the killing was willful . . . . State v. Fisko, 58 Nev. 65, 77, 70 P.2d 1113 (1937).

4
There was conflicting testimony as to whether the decedent in Cline consumed 15 of 58 tablets, but in any
event expert testimony indicated that a dosage of over five tablets (10 grains) would be extremely dangerous and
would be likely to cause death or serious bodily injury. Id. at 460-461.
Notwithstanding the fact that California lacked a specific statutory provision for
felony-murder in the second-degree,
5
the court went on to hold that such a concept was
imbedded in the law. In so holding, the court recognized some limitations in the
applicability of the doctrine:
[A] homicide that is a direct causal result of the commission of a felony inherently
dangerous to human life . . . constitutes at least second degree murder. However, there
can be no deterrent where the felony is not inherently dangerous, since the potential
felon will not anticipate that any injury or death might arise solely from the fact that he
will commit the felony. [Citations omitted.]
. . .
Only such felonies as are in themselves inherently dangerous to human life can
support the application of the felony-murder doctrine.
Id. at 461-462. The California court then affirmed the defendant's second degree murder
conviction by holding that the act of illegally furnishing a restricted dangerous drug to
another is inherently dangerous to human life.
6
Id. at 463.
The second degree felony-murder rule has been followed in other cases. See, e.g., People
v. Poindexter, 330 P.2d 763 (Cal. 1958), where a second degree murder conviction was
upheld against a defendant who supplied a minor with heroin, the minor having died later of
an overdose of the use of that drug. The court held: Death resulting from the commission of
a felony such as furnishing, selling or administering of narcotics to a minor constitutes
murder of the second degree. Pen.Code, 189; People v. Powell, 34 Cal.2d 196, 205, 208
P.2d 974. Id. at 767.
Further, the concept is not unique to California jurisdictions. See, e.g., People v. Johnson,
329 N.Y.S.2d 265 (1972); Jenkins v. State, 230 A.2d 262, 267-269 (Del. 1967), reh'g denied,
396 U.S. 995 (1969); wherein the Delaware Supreme Court expounded upon the second
degree felony-murder rule in the context of a felony not related to the sale of drugs: Under
the common law felony-murder rule, any homicide committed in the perpetration of any
felony constituted murder . . . .
____________________

5
Similar to Nevada law, the court recognized that the California Penal Code did not expressly set forth any
provision for second degree felony-murder, but rather provided: All kinds of murder other than those specified
as first degree are murder of the second degree. (Penn. Code, 189). Id. at 461.

6
It is interesting to note that both phenobarbital (the non-narcotic drug in Cline) and chloral hydrate (the drug
in the present case) are controlled substances in Nevada and classified as Schedule IV drugs under NRS
453.196.
Under the common law felony-murder rule, any homicide committed in the
perpetration of any felony constituted murder . . . .
The felony-first degree murder rule is expressly limited by Statute to three felonies .
. . . The defendant contends that the enumeration of three types of felonies . . .
manifests a legislative intent to abolish the felony-murder rule as to all other felonies.
We disagree.
A felony-second degree murder rule has long been recognized in Delaware . . . .
[Citations omitted.]
We conclude that . . . the General Assembly intended to prescribe the scope of the
felony-first degree murder rule; that the long-standing felony-second degree murder
was not abrogated by the Statute.
. . .
The California rule has been stated as follows: a homicide that is a direct causal result
of the commission of a felony inherently dangerous to human life (except felonies
enumerated in the first degree murder statute) constitutes at least second degree murder.
[Citations omitted.]
In our judgment, the California rule is supported by logic, reason, history, and
common sense.
. . .
It is the opinion of the Court, therefore, that the felony-second degree murder rule of
this State should be limited to homicides proximately caused by the perpetration or
attempted perpetration of felonies which are, by nature or circumstances, foreseeably
dangerous to human life, whether such felonies be common law or statutory.
The defendant directs our attention to cases which assertedly support his position. In State
v. Mauldin, 529 P.2d 124 (Kan. 1974), the court held that the selling of heroin to a purchaser
who subsequently injected the heroin into his body and died as a result thereof, did not invoke
the application of the felony-murder rule so as to constitute first degree murder. In so holding,
the court placed great importance on factors of time and causation under circumstances
(unlike the California cases) where the overdose was not taken with the assistance of the
seller nor in his presence. The court not only determined there was no causal connection
between the commission of the felony and the resulting death, but further believed that any
such expansion of the felony-murder rule was a function for the legislature, not the judiciary.
Id. at 126-127.
Similarly, in State v. Dixon, 511 P.2d 623 (Ariz. 1973), the court held that the sole act of
selling heroin to a purchaser, who (out of the presence of and without assistance of the seller)
injected the heroin into his body and died as a result thereof did not constitute second
degree murder.
injected the heroin into his body and died as a result thereof did not constitute second degree
murder. In so holding, the court said:
The legislature, after considering whether to enact the common law felony murder rule,
limited it to homicides occurring during the commission of arson, rape, robbery,
burglary, or mayhem. It then added that all other kinds of murder are of the second
degree. It did not provide that homicides committed during all unnamed felonies were
second degree murders. We think that the language used was used advisedly.
Id. at 625. The defendant also places great significance upon this Court's holding in Catania
v. State Farm Life Ins. Co., 95 Nev. 532, 598 P.2d 631 (1979). Defendant's reliance is
misplaced. The Court's holding did nothing more than construe the terms of an insurance
policy in the context of an unintended death resulting from self-injected heroin. Furthermore,
in both State v. Mauldin, supra, and State v. Dixon, supra, there were no statutes expressly
providing, as in Nevada, that when an involuntary killing occurs in the commission of an
unlawful act, which, in its consequences, naturally tends to destroy the life of a human being,
or is committed in the prosecution of a felonious intent, the offense is murder.
Under Nevada law, the unauthorized selling of chloral hydrate tablets is a felony.
7
The
degree of the crime is undoubtedly commensurate with the degree of danger confronting
persons who take such drugs from unauthorized sources. If the evidence supports the state's
allegations, defendant sold, with felonious intent, dangerous drugs to young Slotemaker.
Additionally, the defendant actually participated in the process of overdosing the decedent as
did the defendant in Cline.
8

[Headnotes 3-5]
It is a fundamental principle of statutory construction that where at all possible, statutes
should be construed so as to give effect to the legislative intent. White v. Warden, 96 Nev.
634, 614 P.2d 536 (1980); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). It is
equally fundamental that statutes should be construed in order to validate each provision of
the statute. White v. Warden, supra; A Minor v. Clark Co. Juvenile Ct.
____________________

7
NRS 453.321, NRS 453.191.

8
Here, the medical examiner testified before the grand jury that the level of trichloral ethanol found in the
decedent was a lethal dose of 77.5 micrograms per milliliter [which] is about ten to twelve times the amount . . .
expect[ed] from an ordinary dose when one uses chloral hydrate as a sleeping pill. The actual number of tablets
consumed in the presence of the defendant would, of course, be a question for the trier of fact.
Servs., 87 Nev. 544, 490 P.2d 1248 (1968). Here, it is apparent that the legislature intended
that every involuntary killing which occurs in the prosecution of a felonious intent or which
happens in the commission of an unlawful act which, in its consequences, naturally tends to
destroy a human life is murder. The legislature has also specified that all murder excepting
that identified as first degree shall be of the second degree. We may not conclude, therefore,
that one who feloniously sells and participates in the administration of lethal dosages of
controlled substances to a minor is outside the intended purview of the subject statutes. To
the contrary, under the factual setting here present, a trier of fact could justifiably conclude
that the 17-year old Slotemaker was killed because of the unlawful act of the defendant in
selling and participating in the administration of drugs which are naturally life-threatening.
The trier of fact, properly instructed, could also conclude that Slotemaker was killed in the
prosecution of a felonious intent by the defendant.
[Headnote 6]
We are not unmindful of the potential for untoward prosecutions resulting from this
decision. We therefore emphasize that our holding today is limited to the narrow confines of
this case wherein we perceive an immediate and direct causal relationship between the
actions of the defendant, if proved, and the minor's demise. Further, in line with the decision
in People v. Satshell, 489 P.2d 1361 (Cal. 1971), we hold that a felony which would support
the application of this second degree felony murder rule, would have to be one which is
inherently dangerous when viewed in the abstract. There can be no deterrent value in a second
degree felony murder rule unless the felony is inherently dangerous since it is necessary that a
potential felon foresees the possibility of death or injury resulting from the commission of the
felony. People v. Cline, supra.
[Headnotes 7-9]
In the present action, if the facts as alleged are proved a second degree felony murder
instruction consistent with this opinion may be appropriately applied to defendant's conduct.
First, it must be established by the evidence that the unauthorized sale and ingestion of
chloral hydrate in the quantities involved are inherently dangerous in the abstract, i.e., without
reference to the specific victim. Second, there must be an immediate and causal relationship
between the felonious conduct of the defendant and the death of the minor, Slotemaker. By
the term immediate we mean without the intervention of some other source or agency.
other source or agency. Third, the causal relationship must extend beyond the unlawful sale
of the drugs to an involvement by commission or omission in the ingestion of a lethal dosage
by the decedent. This element of the rule would be satisfied by the unlawful selling or
providing of the drugs and helping the recipient of the drugs to ingest a lethal dose or by
unlawfully selling or dispensing the drugs and being present during the consumption of a
lethal dose. Thus, absent more, the rule would not apply to a situation involving a sale only or
a sale with a nonlethal dosage ingested in the defendant's presence. Although it may be
cogently argued that an unlawful sale of drugs is inherently dangerous per se, and therefore an
appropriate basis for a charge of murder when death occurs, we leave such a determination to
the legislature.
9

[Headnote 10]
Our holding with respect to that portion of NRS 200.070 dealing with felonious intent
applies with equal force to the unlawful act provision of the statute. In other words, in the
context of an unlawful sale of controlled substances resulting in death, the state must prove
its case in accordance with the same guidelines applicable to the second degree felony murder
rule. The particular nature and quantity of the drug must be shown to be inherently dangerous
in the abstract, and there must be an immediate and causal relationship between the sale or
dispensing of the drug and the death of the victim as hereinbefore defined.
10

[Headnote 11]
We must now consider defendant's argument that the and/or approach used in the
indictment violates the rule of this Court established in Simpson v. District Court, 88 Nev.
654, 503 P.2d 1225 (1972). In Simpson, this Court held that an indictment for murder is not
sufficient when it alleges nothing whatever concerning the means by which the crime was
committed. Id. at 655. Simpson was founded upon the threats to due process that indefinite
indictments necessarily pose by not entitling an accused to be informed of the nature and
cause of the accusation. Id. at 655-656. This Court said: NRS 173.075{1) expressly
provided that the "indictment or the information shall be a plain, concise and definite
written statement of the essential facts constituting the offense charged."
____________________

9
In at least one jurisdiction, homicides resulting from the unlawful sale of controlled substances have been
made, by legislative enactment, a capital offense. Ariz. Rev. Stat. Ann. 13-1105.

10
The language of this provision of the statute would suggest that non-felonious conduct may be all that is
required provided the defendant's conduct is unlawful and naturally tends to destroy the life of a human
being. Because the present case involves an underlying felony (the sale of the Schedule IV drug), the question
of applicability to behavior amounting to less than a felony need not be addressed.
NRS 173.075(1) expressly provided that the indictment or the information shall be a
plain, concise and definite written statement of the essential facts constituting the
offense charged. NRS 173.075(2) indicates this should either include the means by
which the offense was accomplished or show means are unknown. [Footnote omitted.]
NRS 179.370 likewise recognizes that a proper murder indictment should, among other
things, contain some reference to means.
In view of our holding concerning the necessary elements of proof in a criminal prosecution
under the subject provisions of NRS 200.070, in the fact-specific setting of this case, it is
apparent that the language of the indictment is fatally defective. The non-statutory language
of the indictment fails to reference facts regarding defendant's conduct or presence during
decedent's ingestion of a lethal dose of the controlled substance. Consequently, the indictment
fails to sufficiently apprise the defendant of what he must be prepared to meet. Russell v.
United States, 369 U.S. 749, 763 (1962).
11

Since we have ruled against the sufficiency of the indictment, we must affirm the action
taken by the district court. We do so, however, without prejudice to the state's right to seek a
new indictment or to proceed by way of a criminal information in accordance with this
opinion.
Manoukian, C.J., and Mowbray, J., concur.
Springer, J., with whom Gunderson, J., agrees, concurring:
I concur with the opinion of the majority except insofar as its dicta purports to create a
new crime in this state to be styled, Second Degree Felony Murder. The trial judge properly
held that new crimes should be created by the legislature and not by the court.
In oral argument the state's attorney agreed that it was not necessary to create the proposed
new crime and that creation of a "second degree felony murder" was not necessary for
effective prosecution of these kinds of drug cases.1 I agree with the state's attorney and
suggest that it is inappropriate and unnecessary to conjure up this brand new crime.
____________________

11
In this respect, this Court in Simpson adopted the following formulation of the law:
Whether at common law or under statute, the accusation must include a characterization of the crime and
such description of the particular act alleged to have been committed by the accused as will enable him properly
to defend against the accusation, and the description of the offense must be sufficiently full and complete to
accord to the accused his constitutional right to due process of law.
a second degree felony murder was not necessary for effective prosecution of these kinds of
drug cases.
1
I agree with the state's attorney and suggest that it is inappropriate and
unnecessary to conjure up this brand new crime.
The defendant in this case can be prosecuted for second degree murder under present law.
A second degree murder conviction may result from an unintentional killing when it occurs in
the commission of an unlawful act which by its nature tends to destroy human life. NRS
200.070 ([W]here the involuntary killing occurs in the commission of an unlawful act,
which, in its consequences, naturally tends to destroy the life of a human being, or is
committed in the prosecution of a felonious intent, the offense is murder.); State v. Hall, 54
Nev. 213, 239, 13 P.2d 624, 632 (1932). Criminal liability for murder can attach in this case
if it is established that the unlawful act of furnishing drugs was, under the circumstances of
this case, an act which had a natural tendency to destroy human life. Consequently, as
conceded by the state at oral argument, there is no need for the accretion of a new crime.
I agree with the majority that there is a potential for untoward prosecutions resulting from
this decision, and believe that this danger presents an additional reason for this court to leave
the creation of new crimes to the legislative branch of government.
____________________

1
THE COURT: In this case you don't need a felony murder theory, do you?
COUNSEL FOR THE STATE: Under these facts I don't think so.
. . .
THE COURT: Are you receding from your position? Are you suggesting that you, yourself, do not agree that
this court should adopt a second degree felony murder rule with respect to drug cases?
COUNSEL FOR THE STATE: I have to say that if I were sitting where one of you are, I would not do so.
THE COURT: You have reached the conclusion that we should reject such a theory, correct?
COUNSEL FOR THE STATE: I think so.
____________
99 Nev. 122, 122 (1983) McCulloch v. Jeakins
WILLIAM H. McCULLOCH and PATRICIA McCULLOCH, Appellants,
v. RONALD W. JEAKINS, Respondent.
No. 14379
March 1, 1983 659 P.2d 302
Motion to compel the posting of a supersedeas bond pending appeal, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
Appellants filed a motion to stay execution of the money judgment entered against them
pending their appeal. The district court granted the motion staying execution of the judgment
without the posting of a supersedeas bond, and respondent moved for an order requiring
appellants to post a supersedeas bond or, alternatively, vacating the stay order. The Supreme
Court held that remand was required for a hearing in the district court to determine whether
appellants were financially able to post a supersedeas bond pending appeal, since there was
no indication that the district court ever inquired into appellants' financial ability to post a
supersedeas bond, and appellants' history of prompt payment did not constitute an unusual
circumstance upon which a waiver of security was appropriate.
Remanded for hearing.
G. C. Backus, Reno, for Appellants.
Durney, Guinan & Brennan, Reno, for Respondent.
Purpose of a supersedeas bond is to protect prevailing party from loss resulting from a stay of
execution of the judgment. NRCP 62.
A supersedeas bond should usually be set in an amount that will permit full satisfaction of the
judgment; however, a district court, in its discretion, may provide for a bond in a lesser amount, or may
permit security other than a bond when unusual circumstances exist and so warrant. NRCP 62.
Remand was required for a hearing to determine whether appellants were financially able to post a
supersedeas bond pending appeal where district court had granted appellants' motion staying execution of
the judgment without posting of a supersedeas bond based on their uncontested record of payment of
their just debts, since there was no indication that district court ever inquired into appellants' financial
ability to post a supersedeas bond, and a history of prompt payment did not constitute an unusual
circumstance upon which a waiver of security is appropriate. NRCP 62.
OPINION
Per Curiam:
This is an appeal from a judgment of $5,889.42 against appellants. On October 27, 1982,
appellants filed a motion in district court to stay execution of the money judgment pending
their appeal to this court. Appellants requested that no supersedeas bond be required for this
stay based upon [their] uncontested record of payment of their just debts. On the following
day, the district court granted appellants' motion, staying execution of the judgment without
the posting of a supersedeas bond. Respondent was not given an opportunity to oppose
appellants' motion in district court. Respondent now moves this court for an order requiring
appellants to post a supersedeas bond or, alternatively, vacating the district court's stay order.
[Headnotes 1-3]
The purpose of a supersedeas bond is to protect the prevailing party from loss resulting
from a stay of execution of the judgment. Thus, a supersedeas bond posted under NRCP 62
1
should usually be set in an amount that will permit full satisfaction of the judgment. A district
court, in its discretion, may provide for a bond in a lesser amount, or may permit security
other than a bond, when unusual circumstances exist and so warrant. 11 Wright & Miller,
Federal Practice and Procedure 2905, at 328 (1973), See also Fed. Presc. Serv. v. Am.
Pharm. Ass'n, 636 F.2d 755 (D.C. Cir. 1980); Poplar Grove, Etc. v. Bache Halsey Stuart, Inc.,
600 F.2d 1189 (5th Cir. 1979). In the present case, however, there is no indication that the
district court ever even inquired into appellants' financial ability to post a supersedeas bond,
and the district court's order does not contain reasons why a bond was not required.
Furthermore, we do not perceive a history of prompt payment as an unusual circumstance
upon which a waiver of security is appropriate.
Accordingly, we remand this matter to the district court for the limited purpose of dealing
with the question of the stay pending appeal.
____________________

1
NRCP 62 provides in pertinent part:
(a) Execution or other proceedings to enforce a judgment may issue immediately upon the entry of the
judgment, unless the court in its discretion and on such conditions for the security of the adverse party as
are proper, otherwise directs.
. . . .
(d) When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay. The bond
may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas
bond is filed.
pending appeal. The district court shall promptly conduct a hearing to determine whether
appellants are financially able to post a supersedeas bond pending appeal. In the event the
district court, in its discretion, accepts a bond or other security in an amount less than the full
judgment against appellant, the district court shall set forth specific and substantial reasons
for so doing in an appropriate order.
____________
99 Nev. 124, 124 (1983) Gray Line Tours v. District Court
GRAY LINE TOURS OF SOUTHERN NEVADA, INC., a Nevada Corporation, Petitioner,
v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
Respondent.
No. 14438
March 1, 1983 659 P.2d 304
Carrier brought a petition for a writ of prohibition challenging an order of the District
Court denying its motion to dismiss business's action seeking judicial review requesting that a
letter sent by the director of the Public Service Commission's Division of Consumer
Relations in response to business's complaint against carrier be set aside as unreasonable. The
Supreme Court held that the district court was without jurisdiction, since the letter was not a
judicially reviewable order of the commission, and since business did not exhaust its
available administrative remedies.
Writ granted.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Petitioner.
Greenman, Goldberg & Raby, Las Vegas, for Respondent.
Automobiles.
District court was without jurisdiction to grant judicial review of a complaint filed by business alleging
that motor carrier violated statutes and its certificate of public convenience and necessity by discontinuing
service to business where complaint requested that letter sent by director of the Public Service
Commission's Division of Consumer Relations to business's attorney be set aside as unreasonable, since the
letter was not a judicially reviewable order of the commission, and since business did not exhaust its
available administrative remedies. NRS 703.310, 706.706, subd. 1.
OPINION
Per Curiam:
This petition for writ of prohibition challenges the order of the district court denying
petitioner's motion to dismiss.
In March of 1982, Bonnie Springs Ranch, Inc. (real party in interest) filed a complaint
with the Public Service Commission (PSC). The complaint alleged that petitioner Gray Line
Tours had violated NRS Chapter 706,
1
and its certificate of public convenience and
necessity, by discontinuing service to Bonnie Springs' place of business. Pursuant to NRS
703.310 and Nev. Admin. Code 703.635, the complaint was sent to the PSC's Division of
Consumer Relations (hereinafter referred to as the division). The division forwarded the
complaint to Gray Line and requested a written reply.
Shortly thereafter, Gray Line filed its answer with the division explaining its reasons for
declining to operate daily sight-seeing tours. On May 19, 1982, the director of the division
wrote a letter to the attorney for Bonnie Springs with regard to the complaint. The letter
explained that Gray Line was not required under the terms of its tariff to provide daily
scheduled tours to Bonnie Springs' place of business.
2
Dissatisfied with this response,
Bonnie Springs filed a complaint in district court against Gray Line and the PSC seeking
judicial review. The complaint referred to the above letter and requested that this order of
the PSC be set aside as unreasonable.
Gray Line moved to dismiss Bonnie Springs' complaint, contending that the district court
lacked jurisdiction to review the action of the division. The district court denied the motion,
and this petition for a writ of prohibition followed.
NRS 706.706(1) authorizes judicial review of an order of the commission fixing any rate
or rates . . . or any order fixing any regulations, practices or services.
____________________

1
NRS Chapter 706 regulates motor vehicle carriers. Specifically, Bonnie Springs contended that Gray Line
had violated NRS 706.341.

2
The body of the letter read:
This is in response to the above-captioned complaint regarding Gray Line Tours of Southern Nevada
and their service to Bonnie Springs Ranch and Old Nevada.
Please be advised that the company does not offer a daily, scheduled tour to Old Nevada and is not
required to do so under the terms of its tariff. However, Gray Line is willing and able to provide on-call
service to Old Nevada in charter and special services, pursuant to its certificate and in accordance with
the terms and provisions of its tariff.
The Commission's legal staff has determined that the company has not demonstrated a specific refusal
of a request for transportation service, but has, in effect, discouraged service by giving erroneous
information to the inquiring public. Please be assured that the management of Gray Lines has been
specifically advised by this Commission that they must either honor requests for such transportation
service or remove itself from that specific offering of the sightseeing tariff.
If you have any questions, or if we can be of assistance in the future, please contact us.
any regulations, practices or services.
3
Petitioner contends that the letter from the division
was not an order of the commission within the meaning of NRS 706.706(1). Furthermore,
petitioner contends that Bonnie Springs is precluded from seeking judicial review because it
has failed to exhaust its administrative remedies. See First Am. Title Co. v. State of Nevada,
91 Nev. 804, 543 P.2d 1344 (1975). We agree with both contentions.
The letter written by the division was not an order of the commission within the
contemplation of NRS 706.706(1). See Public Serv. Comm'n v. Community Cable, 91 Nev.
32, 530 P.2d 1392 (1975) (interpretation of order of the commission as used in NRS
704.540, which provides for judicial review of decisions affecting public utilities). In
addition, NRS 703.310 and Nev. Admin. Code 703.635 clearly contemplate further
administrative review of consumer complaints if the division has failed in its attempts at
informal resolution.
4
Bonnie Springs' remedy in this case was to communicate to the
division its dissatisfaction with the letter, so that the division could transmit the complaint
and its recommendations to the commission for further investigation and disposition by the
commission. NRS 703.310(l).
Because the division's letter was not a judicially reviewable order of the commission,
and because Bonnie Springs did not exhaust its available administrative remedies, the district
court is without jurisdiction, and petitioner's motion to dismiss should have been granted.
Prohibition is an appropriate remedy. See Public Service Comm. v. Court, 61 Nev. 245, 123
P.2d 237 (1942).
Accordingly, we grant the writ of prohibition.
____________________

3
1. Any party in interest being dissatisfied with an order of the commission fixing any rate or rates . . .
or any order fixing any regulations, practices or services, may within 90 days commence an action in the
proper district court against the commission and other interested parties as defendants to vacate and set
aside any such order on the ground that the rate fixed in such order is unlawful or unreasonable, or that
any such regulation, practice or service fixed in such order is unreasonable. [Emphasis added.]

4
NRS 703.310 provides that if the division is unable to resolve a complaint, the division shall transmit the
complaint and its recommendation to the commission, and the commission may then investigate and hold a
hearing on the complaint.
Nev. Admin Code 703.635, which contains Rule 8 of the PSC's internal rules of practice, provides that
written complaints must be transmitted to the division, and [i]f the complaint cannot be resolved to the
satisfaction of the parties involved, the complaint and the division's recommendations will be transmitted to the
commission for disposition.
____________
99 Nev. 127, 127 (1983) Southwest Gas Corp. v. Flintkote Co.
SOUTHWEST GAS CORPORATION, and CHARLES H. McCREA, Appellants, v. THE
FLINTKOTE COMPANYU.S. LIME DIVISION AND GYPSUM PRODUCTS
DIVISION (Formerly BLUE DIAMOND DIVISION); et al., Collectively Referred to as
Southern Nevada Industrial Customers, Respondents.
No. 13853
March 1, 1983 659 P.2d 861
Appeal from order denying motion to amend and supplement the findings of fact,
conclusions of law and judgment of contempt. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
The Supreme Court, Manoukian, C.J., held that: (1) appellants could not be held in
contempt where district court order remanding rate refund proceeding to Public Service
Commission did not specifically direct appellants to do anything, and (2) the Commission,
and not a natural gas utility's customers, has power to enforce Commission orders.
Reversed.
Guild, Hagen & Clark, Ltd., Reno, for Appellants.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd., Carson City, for
Respondents.
1. Contempt.
Generally, an order for civil contempt must be grounded on one's disobedience of an order that spells out
the details of compliance in clear, specific and unambiguous terms so that such person will readily know
what duties or obligations are imposed on him.
2. Contempt.
Natural gas supplier and its executive vice-president could not be held in civil contempt of order
remanding rate refund proceeding to Public Service Commission with direction to issue an appropriate
order directing supplier to make refunds in accordance with procedures set forth in Commission opinion
where the order did not specifically direct the supplier or vice-president to do anything and no part of the
order was directed to them, even though customers had prayed for relief against supplier.
3. Contempt.
Order on which judgment of civil contempt is grounded must be clear and unambiguous.
4. Gas.
Public Service Commission, and not natural gas customers, had power to enforce Commission order
concerning refunds received by the supplier on its purchases of gas for resale. NRS 233B.120,
704.600-704.645, 704.630.
OPINION
By the Court, Manoukian, C.J.:
This is an appeal from a judgment of contempt
1
for failure to comply with a district court
order which directed the Public Service Commission (Commission) to order Southwest Gas
Corporation (Southwest) to refund to some of its customers certain moneys it had received
from its suppliers of natural gas. Finding that appellants were not explicitly directed to take
any action or refrain from any acts by the district court's order and that respondents did not
have standing to initiate proceedings to enforce an order of the Commission in this manner,
we reverse the judgment of contempt.
Southwest purchased natural gas from El Paso Natural Gas Co. (El Paso) for resale to its
southern Nevada customers. The Southern Nevada Industrial Customers (Industrials) were a
group of Southwest's customers. Any increases in the price of natural gas charged by El Paso
to Southwest were under the jurisdiction of the Federal Energy Regulatory Commission
(FERC). The FERC permitted El Paso to increase its rates for natural gas charged to
Southwest without prior approval, subject to a final order from FERC or a settlement
agreement. If FERC determined that the interim rate charged El Paso's customers was too
high, refunds were ordered.
The Public Service Commission of Nevada, however, had jurisdiction over Southwest,
pursuant to Chapter 704 of the Nevada Revised Statutes. Increases in the cost of natural gas
from El Paso were either absorbed by Southwest or were passed along to Southwest's
customers pursuant to orders of the Commission. The moneys refunded by El Paso, pursuant
to FERC order, were distributed by Southwest to its customers according to contractual
agreements or by order of the Commission.
Following petitions from the Flintkote Company and Titanium Metals Corporation of
America, the Commission initiated its own investigation concerning certain refunds received
by Southwest from El Paso according to refund orders of the FERC. The Commission issued
its decision and order on January 14, 1976. This original order separated the refunds received
by Southwest into "Part I Refunds" and "Part II Refunds" and established detailed
procedures for distributing those refunds to Southwest's customers.
____________________

1
In an unpublished order dated April 9, 1982, we denied the respondents' motion to dismiss appeal on the
grounds that the order denying the motion to amend and supplement is a non-appealable order and that the
appeal was not timely filed vis-a-vis the actual judgment of contempt. Thus, we construe the notice of appeal
from the denial of the motion to amend and supplement as an appeal from the judgment of contempt itself. See
Ross v. Giacomo, 97 Nev. 550, 635 P.2d 298 (1981).
by Southwest into Part I Refunds and Part II Refunds and established detailed procedures
for distributing those refunds to Southwest's customers. The Commission also issued two
amendatory orders following the original order, which clarified procedures for refunds
earmarked for customers whose addresses were unknown and established the formula for
determining the customers' pro rata shares of Part I Refunds.
On March 19, 1976, the Commission issued an Order in Erratum which acknowledged that
the original order of January 14, 1976, failed to dispose of a certain class of refunds. The
Commission allowed Southwest to place these omitted refunds in a deferred account and
amortize those refunds at the rate of 1/60th per month and [credit] to other gas revenues,
Account 495. In response, the Industrials petitioned the district court on March 31, 1976, for
relief, claiming that both the amendatory orders and the Order in Erratum were not supported
by substantial evidence. On April 7, 1977, the district court issued an order which vacated the
two amendatory orders and the Order in Erratum for lack of substantial evidence in support of
the Commission's rulings. The case was remanded to the Commission with directions to
issue an appropriate order directing Southwest to refund to each of its customers, in
accordance with the detailed refunding procedures set forth in the Commissions's opinion . . .
dated January 14, 1973, that amount of refunds retained by Southwest which will ensure that
each such customer will obtain his proportionate share of the total refunds received by
Southwest . . . . On May 3, 1977, the Commission issued its Order in Compliance to the
district court's order. The Commission's compliance order recited verbatim the language of
the district court's order and further ordered Southwest to submit a report, within ninety days,
which detailed all refunds distributed pursuant to the Commission's original order of January
14, 1973. Charles McCrea, Executive Vice-President and General Counsel for Southwest,
submitted a letter on May 27, 1977, which reported Southwest's efforts concerning refunds.
McCrea stated that those refunds which Southwest had amortized to utility revenues, pursuant
to the amendatory orders and Order in Erratum, were not available for distribution to
Southwest's customers. Because the orders issued by the Commission after the original order
were valid until vacated by the court, McCrea maintained that the amortization of certain
refunds done under those later orders did not have to be reversed.
On September 15, 1977, the Industrials petitioned the district court for an order to show
cause why a judgment of contempt should not be entered against the Commission and
Southwest for failure to obey the district court's order of April 7, 1977. At the contempt
hearing, McCrea testified that when the Commission issued its Order in Erratum, Southwest
removed the refunds omitted in the original order of January 14, 1973, ($972,000) from its
retained earnings account and placed that sum in a deferred account and amortized it to utility
revenues at a rate of 1/60th a month. McCrea further testified that when the district court
vacated the Order in Erratum on April 7, 1977, Southwest once again credited the $972,000
in refunds to its retained earnings account. Long after the hearing on the motion to show
cause, the district court filed its findings of fact, conclusions of law and judgment of
contempt. The lower court found McCrea and Southwest in contempt of the court's order
dated April 7, 1977, and granted them an opportunity to purge themselves of contempt by
refunding the retained refunds. The Commission was found not to be in contempt. A motion
filed by Southwest to amend and supplement the findings of fact, conclusions of law and
judgment of contempt and to obtain a written decision of the district court was denied.
Southwest and McCrea appealed from the order denying Southwest's motion to amend and
supplement.
The lower court concluded that, although Southwest was able to comply with the district
court's order of April 7, 1977, and the Commission's compliance order of May 3, 1977, it
failed to do so by refusing to make the refunds. Appellants, however, contend that since no
part of the district court's order directed either Southwest or McCrea to do or refrain from
doing any act, the lower court erred in holding them in contempt. Respondents argue that a
violation of a court's order may be punished by contempt although the party charged with
such violation was not a party to the proceedings, so long as the contemnor had actual notice
of the court's order.
2
Respondents contend that this court, in Ex Rel. Cameron v. District
Court, 4S Nev. 19S
____________________

2
Respondents also cite In re Lennon, 166 U.S. 548 (1896), in support of this proposition. Lennon, however,
is readily distinguished. There, the court order underlying the contempt proceeding specifically enjoined all
defendants, their officers, agents, servants and employees . . . from refusing, [inter alia,] to extend to [certain
railroad companies] the same facilities for an interchange of interstate business between the companies as were
enjoyed by other railway companies. . . . Lennon, 166 U.S. at 550. In the present case, the district court's order
of April 7, 1977, does not specifically direct the appellants to take or refrain from any acts. Lennon, therefore, is
inapposite.
Court, 48 Nev. 198, 228 P. 617 (1924), ruled that if the contemnor appears and contests the
motion to show cause, the judgment will stand even though the court's order which the
contemnor disobeyed does not name or direct the contemnor to take or refrain from any acts.
Respondents conclude that Southwest and McCrea can be cited for contempt even though
they were not specifically directed to do or refrain from any acts by the district court's April 7,
1977, order.
Cameron, however, suggests that the court's authority to summarily enforce its order for
the surrender of property against a non-party arises from the court's power to appoint a
receiver. Id. at 201, 228 P. at 617-618. In Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833
(1954), we clearly stated that the duty of a non-party to deliver [the property] results from
the appointment of the receiver and not from independent action or restraint enjoined upon
the [alleged contemnors]. Id. at 386-387, 269 P.2d at 841. Because the present case does not
concern the appointment of a receiver, Cameron is inapplicable.
[Headnotes 1-3]
Generally, an order for civil contempt must be grounded upon one's disobedience of an
order that spells out the details of compliance in clear, specific and unambiguous terms so
that such person will readily know exactly what duties or obligations are imposed on him.
Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). See, e.g., Schiselman v. Trust Company
Bank, 271 S.E.2d 183 (Ga. 1980); Hargis v. Fleck, 157 N.W.2d 103 (Iowa 1968). See also
L.A.M. v. State, 547 P.2d 827 (Alaska 1976); Caplow v. District Court, 72 Nev. 265, 302
P.2d 755 (1956). The district court's April 7, 1977, order does not specifically direct
Southwest or McCrea to do anything. No part of the district court's order was directed to
either Southwest or McCrea, even though the Industrials had prayed for relief against
Southwest. The April 7, 1977, order directs the Commission to issue an order requiring the
appellants to comply with the Commission's original order issued on January 14, 1973. We
believe that enforcement of the instant judgment of contempt would violate the general rule
that the order upon which the judgment of contempt is grounded must be clear and
unambiguous. See, e.g., Ex Parte Padron, 565 S.W.2d 921 (Tex. 1972).
[Headnote 4]
Moreover, the Commission's compliance order of May 3, 1977, which directed action on
the part of Southwest, cannot provide the basis of a judgment of contempt.
provide the basis of a judgment of contempt. Appellants persuasively argue that, at least in
the first instance, the Industrials' remedies lay with an application to the Commission for
enforcement of its compliance order under NRS 704.600-.645. NRS 704.630 provides that
[i]n addition to all the other remedies provided by [Chapter 704] for the prevention and
punishment of any and all violations of . . . all orders of the Commission, the Commission
may compel compliance with the . . . orders of the Commission by proceedings in mandamus,
injunction or by other civil remedies. (Emphasis added.) After McCrea reported to the
Commission on the disposition of the disputed refunds, the Industrials petitioned the
Commission for declaratory relief, pursuant to NRS 233B.120. There, the Industrials
contended the district court's April 7, 1977, order required the Commission to issue an
additional order directing Southwest to distribute all refunds from El Paso, including the
$972,000 which Southwest re-credited to its retained earnings account following the vacation
of the Order in Erratum. The Commission denied the petition on July 15, 1977. Had the
Commission, at that time, believed that Southwest had violated its compliance order by not
distributing those refunds which were amortized to utility revenues, pursuant to the
amendatory orders and the Order in Erratum, the Commission could have sought enforcement
by proceedings in mandamus, injunction or other civil remedies. In the context of this case,
under Chapter 704, however, the Industrials did not have standing to petition the district court
for an order to show cause why Southwest should not be held in contempt of the
Commission's compliance order.
3

Accordingly, the judgment of contempt for Southwest's and McCrea's alleged violations of
the district court's April 7, 1977, order and the Commission's May 3, 1977, compliance order
is reversed.
Springer, Mowbray, Steffen, and Gunderson, JJ., concur.
____________________

3
Like most public boards and commissions, public service commissions are generally creatures of statute, . .
. [and possess] no inherent power; all its power and jurisdiction, and the nature and extent of the same, must be
found within the statutory or constitutional provisions creating it. 1957 Attorney General's Opinion No. 326 at
275. Orders issued by such a body are attributed only those powers as are granted by the legislature.
Correspondingly, the scope of such an order may be circumscribed by the legislature. In the present case, the
legislature has charged the Commission, not utility customers, with the power of enforcing its orders. NRS
704.630.
____________
99 Nev. 133, 133 (1983) List v. Whisler
GOVERNOR ROBERT LIST; NEVADA TAX COMMISSION, ROY E. NICKSON,
Executive Director of the Department of Taxation, State of Nevada and Legislative
Commission of the State of Nevada, Appellants, v. T. L. WHISLER, Maj. USMC, Retired,
KATE A. WHISLER, SHANNON E. WARREN, GEORGE WARD, WILLIAM TURNER,
GEORGE TURNER, RICHARD TRAVIS, ROSEMARY SMITH, JACK SCOLLIN,
ALPHONSO ROVERO, SEYMORE RAMBERG, DOTTIE RAMBERG, HANK PESNER,
SAM PATERNOSTOS, R. G. PARK, PAUL OSBORNE, MARLYS OSBORNE,
GREGORY MILLSPAUGH, TOM MILK, ELAINE MENDONCA, JAMES B.
McMILLIAN, WILLIAM McGARRY, DELORES McGARRY, WADE McLAUGHLIN,
PATRICIA McLAUGHLIN, FRANK McFADEN, JANET MacEACHERN, GEORGE
ANGUS MacEACHERN, GEORGE MARSHALL, DARRELL LUCE, SY LEWELLYN,
EDNA KRAMER, ARDIS KEARNS, FRIEDA KARSH, ANDREW JERRY, WILLIAM H.
HEINRICH, CLAIR HAYCOCK, CHIC HECHT, RUTH HAZARD, DICK GRUBB,
STUART GRIFFIN, Sr., DAVID L. GOODNO, BEVERLY A. GOODNO, IVAN GILLETT,
PEGGY ANN FORD, NORMA CURTIN, ROBERT CRADDOCK, JOHN N. CATHA,
ERNEST A. BECKER, Sr., LUANN BECKER, GERALD ALTON, JEAN DUTTON, Clark
County Assessor, Clark County Nevada, WILLIAM GALLOWAY, Clark County Treasurer,
Clark County, Nevada, Respondents.
No. 14440
March 4, 1983 660 P.2d 104
Appeal from a declaratory judgment holding taxation statutes violative of the Nevada
Constitution, Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Taxpayers' suit was filed challenging certain 1981 amendments to tax statutes as violative
of state and federal Constitutions. The district court held that statutes violated state
Constitution, and appeal was taken. The Supreme Court, Gunderson, J., held that since
legislation neither applied separate tax rates to different classes nor partially exempted a
particular class of property from legitimate burdens of taxation, it did not violate the uniform
and equal clause of state Constitution but, rather, it provided a limited adjustment
mechanism, by which prior inequitable valuations could be melded into hopefully more
uniform valuation and assessment procedures established under the 19S1 tax package.
prior inequitable valuations could be melded into hopefully more uniform valuation and
assessment procedures established under the 1981 tax package.
Reversed.
Brian McKay, Attorney General, and Frank Daykin, Legislative Counsel, Carson City, for
Appellants.
Robert Miller, District Attorney, Bill Curran, County Counsel and James M. Bartley,
Chief Civil Deputy, Clark County; and John P. Foley, Las Vegas, for Respondents.
All acts passed by legislature are presumed to be valid until the contrary is clearly established.
Every possible presumption will be made in favor of the constitutionality of a statute, and courts will
interfere only when the Constitution is clearly violated.
Presumption of constitutional validity places upon those attacking a statute the burden of making a clear
showing that the statute is unconstitutional.
4. Statutes.
If possible, legislative intent should be determined by looking at the act itself.
5. Taxation.
Expressed intent of legislature in enacting taxation statute was not either to favor a particular class of
property or to exempt a particular class of property partially from the legitimate burdens of taxation but,
rather, the legislature intended to correct a method of assessment and taxation which it perceived to be
unjust and potentially unconstitutional. St. 1975, c. 427, 31.
6. Taxation.
Since tax statute neither applied separate tax rates to different classes nor partially exempted a particular
class of property from legitimate burdens of taxation, it did not violate uniform and equal clause of
Constitution but, rather, statute provided a limited adjustment mechanism, by which prior inequitable
valuations could be melded into hopefully more uniform valuation and assessment procedures established
under 1981 tax package. St. 1981, c. 427, 31; Const. Art. 10, 1.
OPINION
By the Court, Gunderson, J.:
This appeal arises out of a taxpayers' suit challenging certain 1981 amendments to Nevada
tax statutes as violative of the Nevada and United States Constitutions.
Nevada and United States Constitutions. In our view, such challenge lacks merit. The relevant
background follows.
In 1981, the Nevada Legislature undertook a comprehensive revision of the state's tax
structure. The primary components of this effort were contained in Assembly Bill 369,
Chapter 149, 1981 Statutes of Nevada 285; Senate Bill 69, Chapter 427, 1981 Statutes of
Nevada 786; and Senate Bill 411, Chapter 150, 1981 Statutes of Nevada 305.
1
These three
pieces of legislation, constituting the 1981 tax package, were intended, inter alia, to
provide property tax relief to homeowners by limiting the revenues which local government
might generate through property taxes. Increases in the state retail sales tax were expected to
offset any loss of revenues occasioned by the limitation on property taxes.
As part of the 1981 tax package, the Legislature undertook to revise the statutory method
theretofore utilized in the valuation of property. Under the statutory procedure previously
established, assessment was based on the full cash value of property. See 1977 Nev. Stat.
1318 (NRS 361.227). This full cash value had in turn been determined by resort to a series
of considerations, which were given such weight as the assessor deemed appropriate. These
considerations included the value of the vacant land plus the cost of improvements minus any
depreciation, the market value of the property as evidenced by certain other considerations,
and the value of the property estimated by capitalization of the fair economic income
expectancy. As a practical matter, however, the exigencies of assessment resulted in
residential property usually being appraised on the basis of its market value as determined on
the basis of comparable sales. In contrast, commercial and other property was usually
appraised on the basis of cost less depreciation, or on its production of income.
It seems the Legislature, having determined that existing methods of assessment and
valuation had occasioned an inequitable disparity in the tax burdens imposed on property,
decided as part of the 1981 tax package to replace the existing valuation system with a system
based largely on the costs of improvements less applicable depreciation. See NRS 361.227
(effective July 1, 1983). The Legislature apparently concluded that the use of this new method
of valuation would help eliminate many of the inequities generated under the old system.
There remained the problem, however, of adjusting current assessed valuations to conform
to the valuations which would go into effect under the new system. Property in Nevada must
be physically reappraised at least once every five years; in order to make most effective
use of money and manpower, many assessors in Nevada utilize a "cyclical" or continuous
reappraisal scheme whereby approximately one-fifth of a jurisdiction's taxable property is
reappraised each year.
____________________

1
Hereinafter, this legislation will be referred to respectively as A.B. 369, S.B. 69 and S.B. 411.
be physically reappraised at least once every five years; in order to make most effective use of
money and manpower, many assessors in Nevada utilize a cyclical or continuous
reappraisal scheme whereby approximately one-fifth of a jurisdiction's taxable property is
reappraised each year. See NRS 361.260; Recanzone v. Nevada Tax Commission, 92 Nev.
302, 550 P.2d 401 (1976). Due to the widespread use of cyclical reappraisals, when the
Legislature amended the valuation system in 1981 a significant percentage of property in
Nevada was being taxed on the basis of valuations made as early as 1976. Further, under the
cyclical reappraisal system, property valued under the prior system would not be reappraised
until it came up for the routine five-year reappraisal. This meant that property last appraised
in 1981 would not come under the new system until its reappraisal in 1986.
In order to avoid a perceived injustice which would result if some property owners were
forced to pay inequitable taxes for the five-year period required for the normal cyclical
reappraisal, the 1981 tax package contained a mechanism for adjusting valuations appraised
under the prior system. This factoring system, contained in Section 31 of S.B. 69, provided:
Sec. 31. 1. Notwithstanding the provisions of NRS 361.225, except as provided in
section 32 of this act, all property subject to taxation must be assessed at 35 percent of
its adjusted cash value. The adjusted cash value is calculated by multiplying the full
cash value of the property by the factor shown in the following table for the class for
the fiscal year in which the property was most recently appraised:
Factor for
Factor for Other
Year of Appraisal Residential Improvements Property
1976-1977 or earlier 1.416 1.438
1977-1978 1.190 1.313
1978-1979 1.000 1.199
1979-1980 0.840 1.095
1980-1981 0.706 1.000
2. The assessment provided in subsection 1 must be used only for the levying of
taxes to be collected during the fiscal year 1981-1982 on all property to which they
apply.
3. As used in this section, residential improvement means a single-family
dwelling, a townhouse or a condominium, and its appurtenances.
As delineated in Section 31, property is to be assessed at 35 percent of its adjusted cash
value. In turn, this adjusted cash value" is to be calculated by multiplying the "full cash
value" of the property in question by a "factor" established by the Legislature.
cash value is to be calculated by multiplying the full cash value of the property in question
by a factor established by the Legislature. As conceived by the Legislature, it seems these
factors are weighted so that the valuations of property made earlier in the reappraisal cycle
will be adjusted to bring them into parity with the valuation of property assessed more
recently. The value given the factor applicable to any given year evidently reflects the
Legislature's considered analysis of the economic dislocations and disparate valuations which
had occurred during the early part of the current assessment cycle.
There are, however, two separate sets of weighted factors: one set for residential
improvements, and a second set for other property. Further, it is clear that for any given year
of appraisal the factors to be applied to residential improvements are less than the factors
applicable to other property. It necessarily follows that for any given year of appraisal,
residential improvements of a given full cash value will have a lower adjusted cash
value, and be subject to less tax liability, than other property of the same full cash value.
It is this differentiation in the factoring system which is at issue in the instant appeal.
Respondent taxpayers sought declaratory relief alleging, inter alia, that Section 31 violated
the uniform and equal rate of assessment and taxation mandated by Article 10, Section 1 of
the Nevada Constitution. After a trial, during which considerable testimony was adduced as
to the Legislature's intent in enacting the tax package, and concerning the projected effects of
the legislation, the district court determined that Section 31 violated Article 10, Section 1.
2
In so doing, we have concluded, the court erred.
[Headnotes 1-3]
Our analysis of Section 31 begins with the presumption of constitutional validity which
clothes statutes enacted by the Legislature. Viale v. Foley, 76 Nev. 149, 152, 350 P.2d 721
(1960). All acts passed by the Legislature are presumed to be valid until the contrary is clearly
established. Hard v. Depaoli et al., 56 Nev. 19, 26, 41 P.2d 1054 (1935). In case of doubt,
every possible presumption will be made in favor of the constitutionality of a statute, and
courts will interfere only when the Constitution is clearly violated. City of Reno v. County of
Washoe, 94 Nev. 327, 333-334, 580 P.2d 460 (1978); Mengelkamp v. List, 88 Nev. 542, 545,
501 P.2d 1032 (1972); State of Nevada v. Irwin, 5 Nev. 111
____________________

2
The district court also determined that the unconstitutional provisions of Section 31 could not be severed
from the remainder of the 1981 tax package, and that therefore the entire tax package must be stricken as
unconstitutional. Upon motion of appellants, the judgment of the court was stayed pending this appeal.
Nevada v. Irwin, 5 Nev. 111 (1869). Further, the presumption of constitutional validity places
upon those attacking a statute the burden of making a clear showing that the statute is
unconstitutional. Ottenheimer v. Real Estate Division, 97 Nev. 314, 315-316, 629 P.2d 1203
(1981); Damus v. County of Clark, 93 Nev. 512, 516, 569 P.2d 933 (1977); Koscot
Interplanetary, Inc. v. Draney, 90 Nev. 450, 456, 530 P.2d 108 (1974).
The district court concluded the factoring system set forth in Section 31 violated Article
10, Section 1 of the Nevada Constitution. Article 10, Section 1 provides in pertinent part:
The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of
all property, real, personal and possessory . . . . (Emphasis added.) The import of this
Uniform and Equal Clause has been discussed several times by this court. In the seminal case
of State of Nevada v. Eastabrook, 3 Nev. 173 (1867), we analyzed Article 10, Section 1 and
held:
We have no hesitation in saying that the constitutional convention, in using the
language last quoted, meant to provide for at least one thing in regard to taxation: that
is, that all ad valorem taxes should be of a uniform rate or percentage. That one species
of taxable property should not pay a higher rate of taxes than other kinds of property.
If the language we have quoted did not express this idea, then it was perfectly
meaningless.
3 Nev. at 177 (emphasis added). The interpretation of the Uniform and Equal Clause
established in Eastabrook has been approved by this court many times. See United States v.
State ex rel. Beko, 88 Nev. 76, 86-87, 493 P.2d 1324 (1972); Boyne v. State ex rel.
Dickerson, 80 Nev. 160, 166, 390 P.2d 225 (1964); State of Nevada v. Kruttschnitt, 4 Nev.
178, 200 (1868). Further, other jurisdictions having occasion to address virtually identical
constitutional provisions have reached similar results. See State ex rel. Stephan v. Martin, 608
P.2d 880, 886 (Kan. 1980); Wheeler v. Weightman, 149 P. 977 (Kan. 1915). Thus, faced with
the weight of authority interpreting Article 10, Section 1, the question before this court is
whether Section 31 requires one species of taxable property to pay a higher rate of taxes than
other kinds of property.
[Headnote 4]
In addressing this question, the crucial inquiry is the legislative intent and purpose for
enacting Section 31. It is well-established that judicial construction of legislation should be
based on legislative intent, and legislative intent is to be determined by looking at the
whole act, its object, scope and intent.
based on legislative intent, and legislative intent is to be determined by looking at the whole
act, its object, scope and intent. If possible, legislative intent should be determined by looking
at the act itself. Escalle v. Mark, 43 Nev. 172, 176, 183 P. 387 (1919); State v. Brodigan, 37
Nev. 245, 256, 141 P. 988 (1914) (Talbot, C.J., concurring); State v. Hamilton, 33 Nev. 418,
421-422, 111 P. 1026 (1910); In re Primary Ballots, 33 Nev. 125, 135, 126 P. 643 (1910);
State of Nevada v. Toll-Road Co., 10 Nev. 155, 160 (1875).
[Headnote 5]
In the instant case, the intent of the Legislature in enacting Section 31 is unequivocally
expressed in S.B. 69. Section 33 of S.B. 69 provides:
Sec. 33. The legislature finds that:
1. The factors prescribed in section 31 of this act for the respective years of
appraisal have the approximate effect of placing property appraised before the fiscal
year 1980-1981 on a parity with property appraised during that fiscal year, and the
respective classes of real property separately specified in that section on a parity with
one another.
2. Such an approximation is necessary in order to permit the orderly collection of
taxes ad valorem during the fiscal year 1981-1982.
3. Each of the classes of property excluded from the operation of section 31 of this
act is assessed pursuant to NRS in such a manner that no adjustment is required to place
all property within that class on a parity.
(Emphasis added.) Accordingly, it seems the expressed intent of the Legislature in enacting
Section 31 was not either to favor a particular class of property or to exempt a particular class
of property partially from the legitimate burdens of taxation. Rather, the Legislature intended
to correct a method of assessment and taxation which it perceived to be unjust and potentially
unconstitutional. As previously noted, legislative hearings and debate on the 1981 tax
package established that residential property was then usually appraised on the basis of
comparable sales, while commercial property was appraised primarily on the basis of cost
less depreciation or on the property's production of income. See 1977 Nev. Stat. 1318 (NRS
361.227). The Legislature came to the conclusion that, due to the economic forces at work
over the years, this method of valuation and appraisal had placed an inordinate and
undesirable burden on the residential property taxpayer. By the Legislature's own declaration,
the factoring system contained in Section 31 represents an attempt to rectify this situation
and to achieve parity in valuation between residential improvements and other property.
Section 31 represents an attempt to rectify this situation and to achieve parity in valuation
between residential improvements and other property. The question remains, however,
whether the factoring system contained in S.B. 69 nonetheless violates the constitutional
prohibition, as delineated in Eastabrook, that one species of taxable property not pay higher
taxes than other kinds of property.
[Headnote 6]
In this regard, we initially note that Section 31 does not expressly impose two different
rates of taxation. Both residential improvements and other property are to be taxed at the
same rate: 35 percent of adjusted cash value. If the Legislature had flatly mandated that
residential property be taxed at a lower rate than other property, and had provided no rationale
for such a disparity of treatment, prior case authority might well compel the conclusion that
such legislation was unconstitutional. For example, in Boyne v. State ex rel. Dickerson, 80
Nev. at 160, this court examined a statute which permitted the owner of land used exclusively
for agricultural purposes to contract with the county assessor for assessment and payment of
taxes based on the full cash value of the property for agricultural purposes, rather than on
its value for other purposes. The avowed purpose of this statute was to shift or defer the
burden of increased taxation on agricultural property caused by increased population
pressures and the growth of urban areas. Nonetheless, we found the statute unconstitutional,
because such a practice gave owners of agricultural property the very type of distinct tax
advantage prohibited by Article 10, Section 1. Of like import is State ex rel. Stephan v.
Martin, 608 p.2d at 880, which involved a flat, across-the-board reduction of 20 percent in the
appraised value of farm machinery and equipment, in order to avoid a severe economic
crisis confronting farmers and ranchers. This partial exemption was held to violate the Equal
and Uniform Clause of the Kansas Constitution. In contrast, on its face, the instant legislation
neither applies separate tax rates to different classes nor partially exempts a particular class of
property from the legitimate burdens of taxation.
It is true that Section 31 temporarily establishes two separate sets of factors to be used in
calculating the adjusted cash value on which tax liability is based. Furthermore, for any
given year of assessment, the factor for residential improvements is significantly less than the
corresponding factor for other property. Finally, as previously noted, for any given year, a
residential improvement with a full cash value identical to a given piece of non-residential
property will thus derive a lower "adjusted cash value" than the non-residential property,
and will therefore obtain a reduced assessment.
a lower adjusted cash value than the non-residential property, and will therefore obtain a
reduced assessment. However, while the district court concluded this procedure resulted in a
non-uniform and unequal method of assessment and taxation, we do not agree with this
characterization.
To the contrary, given the existing disparitiescaused by the prior use of cost minus
depreciation or income production valuation for commercial property, as opposed to
comparable sales valuation for residential propertyit appears to us that the factoring system
contained in Section 31 simply reflects the Legislature's considered judgment that residential
improvements have been over-valued and commercial property under-valued during recent
assessments. The factoring system contained in Section 31 thus appears to represent a
mechanism by which previously faulty valuations will be adjusted, to the best of the
Legislature's ability, thereby yielding the equal and uniform taxation required by our
Constitution.
In reaching this conclusion, we find it significant that S.B. 69 limits the use of the
factoring system to the brief transitional period required to phase out the valuations made
under the prior system and phase in the new valuations made pursuant to the 1981 tax
package. Effective July 1, 1983, all property subject to taxation must be assessed at 35
percent of its taxable value. See NRS 361.225. Further, effective July 1, 1983, taxable value
of property is to be determined under the new method of valuation which emphasizes cost
minus depreciation. See NRS 361.227. Finally, subsection 2 of Section 31 provides that the
assessment made under the factoring system must be used only for the levying of taxes to be
collected during the fiscal year 1981-1982 on all property to which they apply. Thus, it does
not appear that Section 31 violates the constitutional prohibition, as delineated in Eastabrook,
against taxing different species of property at different rates. Instead, it appears that Section
31 provides a limited adjustment mechanism, by which prior inequitable valuations my be
melded into the hopefully more uniform valuation and assessment procedures established
under the 1981 tax package.
Accordingly, because the factoring system contained in Section 31 of S.B. 69 does not
appear to offend the Equal and Uniform Clause contained in Article 10, Section 1 of the
Nevada Constitution, we need not consider whether Section 31 would be severable from the
remainder to the 1981 tax package. We note, however, that respondents have advanced a
number of additional constitutional challenges to the 1981 tax package, contending that even
if the district court erred in regard to Section 31, its judgment was nonetheless correct and
should be sustained.
should be sustained. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d 1155 (1981);
Sievers v. County Treas., Douglas Co., 96 Nev. 819, 618 P.2d 1221 (1980) (a correct
judgment should not be reversed simply because it is based on a wrong reason). We have
therefore examined respondents' additional arguments, and have found them to be without
merit.
Accordingly, the judgment of the district court is reversed.
Manoukian, C.J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
99 Nev. 142, 142 (1983) Tompkins v. Buttrum Constr. Co.
ANDREW H. TOMPKINS, Appellant, v. BUTTRUM CONSTRUCTION COMPANY OF
NEVADA, and Nevada State Bank, Special Administrator With General Powers,
Respondents.
No. 13463
March 9, 1983 659 P.2d 865
Appeal from grant of summary judgment and award of attorney's fees. Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
Property owner filed suit seeking to enforce a restrictive covenant in order to prevent
construction of a dwelling on a lot smaller than the subdivision's restrictive covenant
required. The district court determined that construction of the dwelling in question was not
prohibited by the restrictive covenant. Appeal was taken. The Supreme Court held that: (1)
the plain, popular and commonly understood meaning of the language was that no residence
was to be constructed on a lot of less than 40,000 square feet; (2) the fact that there had been
three violations of the restrictive covenant imposing a height requirement on dwellings and
two violations of the building site size requirement did not establish abandonment of the
restrictive covenant; and (3) failure by the original subdividers to comply with the restrictions
did not preclude enforcement of the covenant.
Reversed.
Lionel Sawyer & Collins, and Evan J. Wallach, Las Vegas, for Appellant.
Peter L. Flangas; Bell, Leavitt & Green, Las Vegas, for Respondents.
Albright, McGimsey & Stoddard, Las Vegas, for Amicus Curiae.
1. Covenants.
Rules governing construction of covenants imposing restrictions on use of real property are the same as
those applicable to any contract, i.e., words must be given their plain, ordinary and popular meaning.
2. Covenants.
Where restrictive covenant clearly stated that total area could only be used for single residential
purposes and could not be subdivided into lots or building sites of less than 40,000 square feet, no
residence could be constructed on lot of less than 40,000 square feet, even if lot was of that size prior to
existence of covenant.
3. Covenants.
Fact that there had been three violations of restrictive covenant limiting building height to one story did
not establish that lot size covenant requiring building site of not less than 40,000 square feet had been
abandoned.
4. Covenants.
Fact that there had been two violations of restrictive covenant imposing building site size requirement did
not indicate that lot owners in subdivision acquiesced in such general and substantial violations of
restrictive covenant so as to have abandoned 40,000 square foot building site size requirement.
5. Covenants.
Fact that original subdividers failed to comply with restrictive covenant imposing building site size
requirement did not preclude enforcement of 40,000 square foot building site requirement as against
property owner in subdivision who sought to construct dwelling on property less than 40,000 square feet in
size.
OPINION
Per Curiam:
Appellant owns a residence in an elite section of Las Vegas commonly known as Rancho
Circle. Adjacent to his property is unimproved property owned by Elizabeth Wells. The
properties owned by appellant and Wells, together with all other parcels in Rancho Circle, are
subject to the following restrictive covenant:
That portion of the Total Area' West of State Highway No. 5-C shall be used for single
residential purposes only and shall not be subdivided into lots or building sites of less
than forty thousand (40,000) square feet. No building shall be constructed upon the
premises Westerly of State Highway No. 5-C in excess of one (1) story in height. . . .
Wells contracted to sell her property to respondent Buttrum Construction Company of
Nevada (Buttrum). When appellant discovered that Buttrum had been issued a building
permit and intended to construct a house on Wells' property, he initiated suit against Wells
and Buttrum to enforce the 40,000 square foot building site requirement as found in the
restrictive covenant because the subject property contains only 30,974 square feet.1
Thereafter, Buttrum moved for summary judgment on the grounds that the restrictive
covenant was inapplicable and that it had been waived or abandoned.
foot building site requirement as found in the restrictive covenant because the subject
property contains only 30,974 square feet.
1
Thereafter, Buttrum moved for summary
judgment on the grounds that the restrictive covenant was inapplicable and that it had been
waived or abandoned. Wells joined in this motion.
2
The district court granted the motion for
summary judgment and this appeal followed. We reverse.
The district court interpreted the restrictive covenant to mean that construction of a
dwelling on a lot of less than 40,000 square feet is not prohibited where the lot has already
been subdivided; therefore, since the undersized lot is already in existence the covenant is not
applicable since no subdivision will be performed by Buttrum. Appellant contends that the
lower court improperly construed the restrictive covenant. We agree.
[Headnotes 1, 2]
The rules governing the construction of covenants imposing restrictions on the use of real
property are the same as those applicable to any contract, i.e., the words must be given their
plain, ordinary and popular meaning. South Shore Homes Ass'n v. Holland Holiday's, 549
P.2d 1035, 1042 (Kan. 1976); Collins v. Goetsch, 583 P.2d 353, 355 (Hawaii 1978). Here the
language of the covenant clearly states that the total area can only be used for single
residential purposes and cannot be subdivided into lots or building sites of less than 40,000
square feet. We conclude that the plain, popular and commonly understood meaning of the
language is that no residence can be constructed in Rancho Circle on a lot of less than 40,000
square feet. This construction of the restrictive covenant preserves the total area specified
in the covenant, as a residential area with building sites of no less than 40,000 square feet. To
construe the language so as to prohibit only subsequent purchasers of lots from subdividing
their individual lots in an inordinate construction which would not preserve the dimensional
integrity of Rancho Circle.
____________________

1
During oral argument, counsel for appellant disavowed any intent on the part of his client to invoke his
rights under the restrictive covenant in order to reduce the price of Wells' property to his own eventual
advantage. In fact, counsel indicated that Tompkins would match the Buttrum price, thereby eliminating any
such contention.

2
Wells was joined as a party because the sale of her property had not yet been consummated and she
remained the owner. In addition, during the pendency of this action, Wells died and her estate representative was
substituted in as a party. For convenience, we will continue to use Wells to refer to her and her estate.
[Headnote 3]
The district court also determined that since 1948, there have been five violations of the
covenants and conditions and that these violations are so general and substantial as to
constitute a waiver and abandonment of the restriction in question. We disagree for two
reasons. First, the district court relied upon three violations of the covenant restricting the
buildings to one story in height. However, the covenant at issue is one requiring a building
site of not less than 40,000 square feet. Consequently, three of the five violations relied upon
by the lower court in reaching its decision are irrelevant to the issue at hand and it was error
for the district court to rely on the three height violations. Gladstone v. Gregory, 95 Nev. 474,
596 P.2d 491 (1979).
[Headnote 4]
Secondly, in order to support a finding of abandonment, it must be shown that the lot
owners in Rancho Circle acquiesced in substantial and general violations of the covenant
within the restricted area. Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624
(1972); Gladstone v. Gregory, supra. We conclude that the two violations fail to indicate that
the lot owners acquiesced in such general and substantial violations of the restrictive
covenant so as to have abandoned the 40,000 square foot requirement. Of the two violations,
one lot contains 37,888 square feet which is slightly in excess of 5 percent below the
minimum lot size requirement of 40,000 square feet. The other non-conforming lot is
significantly undersized with 27,844 square feet. However, of the 45 lots in Rancho Circle,
this violation constitutes the only breach of any significance, and as such we hold that it is not
sufficient to constitute an abandonment or waiver of the restriction since such abandonment
must be established by clear and unequivocal evidence of acts of a decisive nature. Lindner
v. Woytowitz, 378 A.2d 212 (Md.App. 1977).
In addition, we have previously held that [a]s long as the original purpose of the
covenants can still be accomplished and substantial benefit will inure to the restricted area by
their enforcement, the covenants stand . . . (Citations omitted.) Western Land Co. v.
Truskolaski, supra at 205; Zupancic v. Sierra Vista Recreation, 97 Nev. 187, 194, 625 P.2d
1177 (1981). Rancho Circle is a highly regarded and exclusive residential development in Las
Vegas. The desire to preserve the privacy and exclusivity associated with these residences is a
purpose which can still be accomplished and can also be recognized as having real and
substantial value to the homeowners within the restricted area.
within the restricted area. Therefore, the restrictive covenant should be enforced.
[Headnote 5]
Next the district court concluded that a failure by the original subdividers to comply with
restrictions of their own creation is not a violation of such restrictions. The district court
relied upon the case of Western Land Co. v. Truskolaski, supra, in support of its conclusion.
3
We find that the lower court's position is unwarranted. The language from Western Land Co.
which was used by the district court in support of its conclusion is merely dicta and does not
in actuality support that conclusion. A close reading of that case reveals that one who creates
a restriction is not permitted to violate it, as reflected by the following language:
Even if this property is more valuable for commercial than residential purposes, this
fact does not entitle the appellant to be relieved of the restrictions it created, since
substantial benefit inures to the restricted areas by their enforcement. (Citations
omitted.)
Id. at 206. Therefore, we conclude that the respondents are required to comply with the
restrictive covenant even though the original creators of the restriction may have failed to
comply with it.
In view of our holding, it is unnecessary to consider other issues. Accordingly, we reverse
and remand the case for further proceedings consistent with this opinion.
Springer, Steffen, and Gunderson, JJ., and Barrett, D.J.,
4
and Zenoff, Sr. J.,
5
concur.
____________________

3
The language in Western Land Co. utilized by the district court, reads as follows: Paragraph 3 of the
restrictive agreement provides that no residential structure shall be placed on a lot comprising less than 6,000
square feet. Both lot 24 and 25 of block E contain less than 6,000 square feet and each has a house located on it.
This could hardly be deemed a violation of the restrictions imposed by the appellant inasmuch as it was the
appellant that subdivided the land and caused these lots to be smaller than 6,000 feet.

4
The Governor designated the Honorable John W. Barrett, Judge of the Second Judicial District Court, to sit
in the place of The Honorable Noel E. Manoukian, Chief Justice., Nev. Const., art. 6, 4.

5
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in the place of The
Honorable John C. Mowbray, Justice, who voluntarily disqualified himself in this case. Nev. Const., art. 6, 19;
SCR 10.
____________
99 Nev. 147, 147 (1983) Love v. State
JIMMY RAY LOVE, Appellant, v. THE STATE
No. 12836
March 10, 1983 659 P.2d 876
Appeal from judgment of conviction upon plea of nolo contendere, Ninth Judicial District
Court, Douglas County; Howard D. McKibben and Frank B. Gregory, Judges.
Defendant was convicted in the district court on his nolo contendere plea to conspiracy to
commit grand larceny, and he appealed. The Supreme Court held that record did not
adequately show that defendant's plea was knowingly and voluntarily entered.
Thomas E. Perkins, State Public Defender, and Robert A. Bork, Deputy State Public
Brian McKay, Attorney General, Carson City; Brent Kolvet, District Attorney, Douglas
1. Criminal Law.
In order to be constitutionally valid, a plea of guilty or nolo contendere must have been knowingly and
voluntarily entered; record must affirmatively show either that defendant himself, and not just his attorney,
understood elements of the offense to which plea was entered or that he made factual statements to court
which constitute an admission to offense pled to.
2. Criminal Law.
Where record was devoid of any showing that defendant understood nature of charge against him and its
elements, plea of nolo contendere was invalid and was to be set aside.
OPINION
Per Curiam:
Pursuant to a plea bargain, appellant pled nolo contendere to one count of conspiracy to
commit grand larceny, a gross misdemeanor. On appeal, he contends that his plea is
constitutionally infirm because the record does not adequately show it was knowingly and
voluntarily entered. We agree and reverse.
[Headnote 1]
In order to be constitutionally valid, a plea of guilty or nolo contendere must have been
knowingly and voluntarily entered.
99 Nev. 147, 148 (1983) Love v. State
Standen v. State, 99 Nev. 76, 657 P.2d 1159 (1983); Hanley v. State, 97 Nev. 130, 624 P.2d
1387 (1981). The record must reveal, inter alia, that the accused entered his or her plea with
an understanding of the charge and the elements of the offense. Hanley v. State, supra; Higby
v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970); see also, Heffley v. Warden, 89 Nev. 573, 516
P.2d 1403 (1973). To satisfy this requirement for a valid plea, the record must affirmatively
show either that the defendant himself (not just his attorney) understood the elements of the
offense to which the plea was entered . . . [or] has made factual statements to the court which
constitute an admission to the offense pled to. Hanley v. State, supra, 97 Nev. at 135, 624
P.2d at 1390 (footnote omitted).
[Headnote 2]
The record of the proceedings below demonstrates that appellant made no factual
statements that would constitute an admission of guilt. Moreover, there is nothing in the
record to indicate that appellant personally understood the elements of the offense of
conspiracy to commit grand larceny. The court below did not canvass appellant to determine
that he personally understood the elements of the offense, see NRS 174.035(1), and at no time
during the hearing at which appellant changed his plea were the elements of the offense even
mentioned.
1
Under these circumstances, with the record devoid of any showing that
appellant understood the nature of the charge against him and its elements, the plea of nolo
contendere is invalid and must be set aside. Standen v. State, supra; Hanley v. State, supra;
see Gonzales v. State, 96 Nev. 562, 613 P.2d 410 (1980).
The judgment of conviction is reversed. The plea of nolo contendere is set aside, and the
matter is remanded to the district court for further proceedings.
____________________

1
The relevant portion of the canvass of appellant is as follows:
THE COURT: . . . To the charge of Conspiracy to Commit Grand Larceny, how do you plead?
DEFENDANT LOVE: No contest, your Honor.
THE COURT: Mr. Bork [defense attorney] has advised you of all of the pleas that are available to
you, has he?
MR BORK: Yes, your Honor.
THE COURT: Have you advised him also of all of his constitutional rights, Mr. Bork?
MR. BORK: Yes, I have, your Honor.
THE COURT: You also advised him that the memorandum recites the penalties. Does he understand
the penalties that he is facing in this matter?
MR. BORK: I believe so, your Honor.
____________
99 Nev. 149, 149 (1983) Grant v. State
DAVID LEE GRANT aka BUBA DAVID LUMBO, Appellant,
v. THE STATE OF NEVADA Respondent.
No. 13079
March 10, 1983 659 P.2d 878
Appeal from order revoking probation, Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
The district court granted a motion revoking probation and imposed the original state
prison sentence and denied the defendant's motion to reduce the original sentence. Appeal
was taken. The Supreme Court held that: (1) once the defendant was sentenced and placed on
probation, he had begun to serve his sentence of imprisonment and the trial court was without
authority to reduce his sentence, and (2) the defendant was not entitled to credit against his
sentence for time he served in two residential drug treatment programs where there was no
indication of restraints on his liberty while he was in those programs.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
James Tufteland and Douglas McCarthy, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Generally trial court is without authority to reduce sentence of imprisonment once defendant has
begun to serve it. NRS 176.185, 176.185, subd. 4, 176.335, subd. 3.
2. Criminal Law.
Person on probation, while not imprisoned, is actually under sentence of imprisonment, the execution
of which has been suspended, and, therefore, trial court cannot reduce sentence once defendant has been
placed on probation. NRS 176.185, 176.185, subd. 4, 176.335, subd. 3.
3. Criminal Law.
Time spent by defendant in residential drug treatment program as special condition of probation
would not be credited against defendant's sentence when his probation was revoked where there was no
indication that there were any restraints on liberty during those programs. NRS 176.185, 176.185,
subd. 4, 176.335, subd. 3.
OPINION
Per Curiam:
Appellant pled guilty to one count each of second degree kidnapping and robbery. The
district court sentenced him to two concurrent fifteen-year terms, suspended the sentence,
and placed appellant on probation for a period not to exceed five years.
99 Nev. 149, 150 (1983) Grant v. State
two concurrent fifteen-year terms, suspended the sentence, and placed appellant on probation
for a period not to exceed five years. As a special condition of probation, appellant was
ordered to participate in a residential drug treatment program. He spent sixteen months in the
Fitzsimmons House program and was then transferred to My Family, Inc., a residential
program located near Riverside, California. Appellant subsequently left that program without
permission, and respondent moved to revoke his probation on that ground. The district court
granted the motion and imposed the original state prison sentence. In so doing the district
court denied appellant's motion to reduce the original sentence, concluding that it was without
authority to do so.
[Headnotes 1, 2]
Appellant contends that the district court erred by concluding that it lacked authority to
reduce the original sentence. We disagree. Generally, a trial court is without authority to
reduce a sentence of imprisonment once a defendant has begun to serve it. NRS 176.185(4);
Miller v. Hayes, 95 Nev. 927, 604 P.2d 117 (1979); State v. District Court, 85 Nev. 485, 457
P.2d 217 (1969). A term of imprisonment begins on the date sentence is imposed, NRS
176.335(3), and a grant of probation is a suspension of execution of a state prison sentence,
not a suspension of the sentence itself, see NRS 176.185. Consequently, a person on
probation while not imprisoned is actually under a sentence of imprisonment' the execution
of which has been suspended. Adams v. Warden, 97 Nev. 171, 172, 626 P.2d 259, 260
(1981). Thus, when appellant was sentenced and placed on probation, he had begun to serve
his sentence of imprisonment, and the district court correctly concluded that it was without
authority to reduce the sentence.
1

Appellant further contends that the district court erred by refusing to grant him credit
against his sentence for the time he served in the two residential drug treatment programs. In
Merna v. State, 95 Nev. 144, 591 P.2d 252 (1979), we held that time spent in a county jail as
a condition of probation must be credited against a state prison sentence imposed after
probation revocation. However, in Van Dorn v. Warden, 93 Nev.
____________________

1
Appellant relies primarily upon Miller and Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). Miller is
inapposite. Peters is distinguishable from the instant case, as in Peters the issue was whether the district court
had inherent authority to vacate a judgment of conviction premised upon a material mistake of fact. Appellant
does not contend that the judgment below is premised upon a mistake of fact. We express no opinion as to
whether Peters is authority for the proposition that a district court may modify a sentence after a defendant has
begun to serve it, on the basis of a mistake of fact affecting the sentence but not the judgment.
99 Nev. 149, 151 (1983) Grant v. State
524, 569 P.2d 938 (1977), we held that there is no similar entitlement to credit for time spent
on probation but not in actual confinement. Cf. NRS 176.055 (credit for pre-conviction time
served only granted for time spent in confinement).
[Headnote 3]
It may be that certain residential drug treatment programs so restrain the liberty of a
probationer that residence in such programs is tantamount to incarceration in a county jail; in
such cases credit should arguably be granted under Merna. In this case, however, we decline
to consider the issue
2
since the record is devoid of any evidence of the restraints on liberty
imposed by either Fitzsimmons House or My Family, Inc. Contrary to appellant's main
argument, the fact that he was not free to leave either program without violating his
probation, standing alone, does not necessarily indicate restraints on his liberty akin to
incarceration.
3

We have considered appellant's remaining assignment of error and found it to be without
merit. The order revoking probation is affirmed.
____________________

2
Most jurisdictions that have considered the issue do not grant credit for time served in residential programs
as a condition of probation. See Paul v. State, 560 P.2d 754 (Alaska 1977) (vocational training program); State
v. Babcock, 597 P.2d 1117 (Kan. 1979) (no credit for time spent in halfway house; statute provides for credit for
jail time only, and defendant not in custody of jail authorities); Petition of Sewell, 474 P.2d 146 (Mont. 1970)
(no credit for time served in State Industrial School) (dicta). See also Thomas v. United States, 327 F.2d 795
(10th Cir. 1964), cert. denied, 377 U.S. 1000 (1964). But see People v. Rodgers, 144 Cal.Rptr. 602 (Ct.App.
1978) (credit granted for time spent in Delancey Street halfway house, even though liberty not restrained to a
degree tantamount to jail incarceration, because defendant in custody within the meaning of Cal. Penal Code,
2900.5).

3
Although the record contains no evidence of the nature of the restraints on appellant's liberty, it does tend to
suggest that My Family, Inc. was not a locked-door facility.
____________
99 Nev. 152, 152 (1983) Von Zehner v. Truck Ins. Exch.
L. G. VON ZEHNER and GLORIA VON ZEHNER, Appellants, v. TRUCK INSURANCE
EXCHANGE; THE AMERICAN INSURANCE COMPANY; SCHNIDER BALCH
AGENCY; BOB BALCH; ROBERT J. DURFEE, Doing Business as VALLEY
FURNITURE; ELLEN DURFEE; BOB CANNON; THOMAS WHITE, Respondents.
No. 13591
March 10, 1983 659 P.2d 879
Appeal from order of dismissal for want of prosecution in favor of respondent Robert J.
Durfee and from summary judgment in favor of respondents Truck Insurance Exchange, Bob
Balch and Schnider Balch Agency, Eighth Judicial District Court, Clark County; Robert G.
Legakes, Judge.
Insureds appealed from judgment of the district court which dismissed claim for want of
prosecution as to party and granted summary judgment in favor of insurer and insurance
agency. The Supreme Court held that: (1) where release provision contained in draft
unambiguously described the payment as full tender of claim and insureds endorsed the draft
and received the proceeds, summary judgment for insurer was appropriate, and (2) trial court
did not abuse its discretion in dismissing for want of prosecution with respect to one party
who was not served for four years after complaint was filed.
Affirmed.
Pomeranz, Myers & Crockett, Las Vegas; and Dodell & Rosoff, Los Angeles, California,
for Appellants.
Cummins & White, and James D. Otto, Los Angeles, California; Paul C. Parraguirre and
Lorin D. Parraguirre, Las Vegas, for Respondent Balch.
Thorndal, Backus, Lyles & Maupin, and James G. Armstrong, Las Vegas, for Respondent
Truck Insurance Exchange.
Goodman, Oshins, Brown & Singer, and Kirby R. Wells, Las Vegas, for Respondent
Durfee.
1. Accord and Satisfaction.
Where release provision contained in draft unambiguously described payment as full tender of claim and
where payees endorsed such draft and received the proceeds, summary judgment in favor of maker was
appropriate.
2. Judgment.
Evidence did not raise genuine issue of fact as to payees' intent when they endorsed draft which clearly
stated that it was being tendered as payment in full of payee's claim.
Unless it is made to appear that there has been a gross abuse of discretion on the part of the trial court in
dismissing action for lack of prosecution, its decision will not be disturbed on appeal.
4. Pretrial Procedure.
Trial court did not abuse its discretion in dismissing complaint for lack of prosecution where complaint
was filed two years after fire destroyed building and one day before expiration of the statute of limitations
and plaintiffs made no effort to serve defendant for period in excess of four years.
OPINION
Per Curiam:
Appellants, Gloria and L. G. Von Zehner, purchased commercial property for $200,000 at
a bankruptcy auction in February, 1974. In August, 1974, appellants procured insurance
coverage for the property from respondent Truck Insurance Exchange (Truck). This insurance
policy was issued through respondent Balch of respondent Schnider Balch Agency and
provided for coverage up to $250,000. On August 15, 1974, respondent Durfee leased the
premises from appellants and began operating a retail furniture store. The property was
subsequently destroyed by fire on October 15, 1974.
In order to determine the exact amount of the compensible loss, appellants and respondent
Truck obtained bids for debris removal and reconstruction of the property. Appellants and
respondent Truck disagreed over the amount of the claim and the parties attempted to
negotiate a settlement of the dispute. To this end, counsel for Truck directed a series of letters
to appellants.
The correspondence between Truck and appellants had two purposes: (1) to present
Truck's $200,000 compromise settlement offer to appellants and, (2) in the event the offer
was unacceptable, to initiate a contractually agreed upon appraiser procedure to resolve the
impasse. This correspondence concluded with a letter from Truck to appellants, which read in
pertinent part:
We have been trying since May 16, when our appraiser was named, to get this matter
on to appraisal as required by the policy, but for one reason or another you have refused
to name an appraiser. I have asked you to consult with counsel on this matter in your
own behalf and reiterate that suggestion at this point since it is my client's intention to
adhere to the contract provisions between you as expressed in the policy at all times.
expressed in the policy at all times. For example, there is a time limit within which the
appraisal must be completed and if this is prevented by your failure to appoint an
appraiser, the condition will not be waived.
At this point I am enclosing herewith the company's draft in the sum of $200,000 in
keeping with its compromise settlement offer, the delivery of which does not in any
way admit its liability for such amount under the terms of the policy. This draft is
delivered in full and complete settlement of your claim under Policy No. 67-1567-28-92
with Truck Insurance Exchange. Its delivery does not in any manner alter our request
that your appraiser be appointed and that the appraisal proceed pursuant to the terms of
the policy. In the event, however, that such appraisal figure is less than $200,000, the
difference must be repaid to my client and your acceptance of the draft and continuing
with the appraisal process would simply acknowledge your agreement to such
condition.
(Emphasis added.)
In addition to the provisions contained in the letter, the $200,000 draft enclosed in the
letter contained the following release provision immediately above the endorsement signature
line: Endorsement of this draft constitutes a release of all claims, known or unknown, the
undersigned has or may have against the payor and any other persons on account of any and
all claims arising out of the loss referred to on the face hereof. Appellants endorsed this draft
and received payment of the $200,000. Appellants, however, never appointed an appraiser as
requested and the record contains no reference to any action in connection with the insurance
policy until appellants filed the instant suit on October 13, 1976some 14 months after their
acceptance of the $200,000 draft.
In their complaint appellants claimed they were misled into believing the $200,000 draft
was only a partial settlement of their claim. Appellants proceeded against respondents Truck,
Balch, Schnider Balch Agency and several other defendants for fraud, misrepresentation, bad
faith, and breach of contract. The complaint also contained a negligence cause of action
against respondent Durfee.
Appellants neglected to serve respondent Durfee with process until October 27,
1980some four years after the complaint was filed. Accordingly, Durfee successfully
moved to dismiss for want of prosecution pursuant to NRCP 41(e). Respondent Truck then
filed a motion for summary judgment on the grounds that there was an accord and
satisfaction between Truck and appellants.
on the grounds that there was an accord and satisfaction between Truck and appellants. Truck
also asserted that appellant's claim was barred by a one-year limitation provision contained in
the insurance policy. The district court agreed, and granted Truck's motion for summary
judgment.
Respondents Balch and Schnider Balch Agency also filed motions for summary judgment.
It appears these motions proceeded upon the ground that the release executed by appellants in
connection with their compromise settlement with Truck, Balch's principal, also released
Balch as well. These motions for summary judgment were granted; this appeal followed.
ACCORD AND SATISFACTION
[Headnote 1]
Summary judgment is proper whenever there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. NRCP 56(c); Nehls v.
Leonard, 97 Nev. 325, 328, 630 P.2d 258 (1981); Bader Enterprises, Inc. v. Becker, 95 Nev.
807, 809, 603 P.2d 268 (1979). Appellants contend that summary judgment in the instant case
was inappropriate as the existence of an accord and satisfaction is always a question of fact
which may not be resolved by summary judgment. This contention is meritless. In Sims v.
Veneman, 94 Nev. 344, 580 P.2d 466 (1978), the facts showed that the parties negotiated a
settlement and a draft was tendered which unambiguously described the payment as a full
settlement of the claim. The plaintiff then endorsed the draft and received the proceeds. We
upheld the district court's order granting summary judgment stating, These facts establish an
accord and satisfaction, as a matter of law, thereby settling appellant's claim. Id. at 345
(emphasis added). Similarly, the release provision contained in the draft presented in the
instant case unambiguously describes the payment as full tender of the claim. Appellants
endorsed the draft and received the proceeds. Given this record, we see no valid reason to
distinguish the instant case from Sims. Thus, summary judgment was appropriate.
[Headnote 2]
Appellants also contend that summary judgment was inappropriate because they did not
understand the legal effect of the release they signed. Appellants argue that their
misunderstanding of the transaction creates a factual issue which precludes summary
judgment. Cf. Pederson v. First Nat'l Bank of Nevada, 93 Nev. 388, 566 P.2d 89 (1977) (trial
court not compelled to accept defense of compromise and settlement where contervailing
evidence shows party receiving payment accepted it only as part payment of the original
obligation).
contervailing evidence shows party receiving payment accepted it only as part payment of the
original obligation). We have examined the record, however, and believe it belies appellants'
claim of misunderstanding. Appellants had originally insisted respondent Truck pay the
amount of the policy limit, $250,000. Appellants then engaged in a protracted series of
negotiations wherein numerous proposals and counter-offers directed toward complete
settlement were considered. Appellant Gloria Von Zehner admitted appellants had offered to
settle the claim for $203,000 just prior to accepting the draft for $200,000. Significantly,
appellants endorsed the draft, but never appointed an appraiser as they were requested if the
settlement was unacceptable. In fact, appellants remained silent regarding the insurance
policy and settlement until the instant lawsuit was filed. From this record, we do not believe
there was any issue of fact remaining as to appellants' intent when they endorsed the draft.
The compromise settlement extinguished the contractual liability of Truck and Truck's agents,
respondents Balch and Schnider Balch Agency. Accordingly, the grant of respondents'
motions for summary judgment was appropriate.
DISMISSAL FOR WANT OF PROSECUTION
Appellants additionally challenge the trial court's grant of respondent Durfee's motion to
dismiss for want of prosecution. Appellants' position is without merit.
[Headnote 3]
As previously noted, Durfee was not served with process until approximately four years
after the complaint in this action was filed. Durfee made his motion to dismiss pursuant to
NRCP 41(e), which provides in pertinent part: The court may in its discretion dismiss any
action for want of prosecution on motion of the defendant and after due notice to the plaintiff,
whenever plaintiff has failed for two years after action is filed to bring such action to trial.
Our role on appeal of the grant of such a motion is clear and well-defined. We simply
determine whether the district judge abused his discretion in granting the motion. Hassett v.
St. Mary's Hosp. Ass'n, 86 Nev. 900, 902, 478 P.2d 154 (1970). Unless it is made to appear
that there has been a gross abuse of discretion on the part of the trial court in dismissing an
action for lack of prosecution, its decision will not be disturbed on appeal. Id.
[Headnote 4]
We have reviewed the record, and find no abuse of discretion. Appellants filed their
complaint in October, 1973a full two years after the fire which destroyed their building
and one day before the expiration of the statute of limitations.
two years after the fire which destroyed their building and one day before the expiration of
the statute of limitations. Appellants made no effort whatsoever to serve process on Durfee
for a period in excess of four years. In the meantime, Durfee was not able to participate in
extensive pretrial negotiation and discovery. When appellants finally did serve Durfee by
publication in October, 1980, Durfee found himself facing liability alleged to be in excess of
$1,000,000 stemming from a fire which occurred over six years before. From this record, we
find the trial court committed no abuse of discretion when it dismissed appellants' cause of
action against Durfee.
Those other issues raised by appellants have been considered and are without merit.
Accordingly, we order the decision of the district court affirmed.
____________
99 Nev. 157, 157 (1983) Nationwide Ins. Co. v. Costa
NATIONWIDE INSURANCE COMPANY, Appellant, v.
DAVID L. COSTA and LINDA COSTA, Respondents.
No. 14296
March 10, 1983 659 P.2d 883
Appeal from order denying costs, First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Reversed.
Cromer, Barker, Michaelson, Gillock, & Rawlings, Ken Bick, Reno, for Appellant.
David L. Costa and Linda Costa, in proper person.
OPINION
Per Curiam:
This is an appeal from the district court's order denying appellant costs and disbursements
pursuant to NRS 18.020. Appellant filed a timely opening brief, but respondents have not
filed an answering brief.
On February 11, 1983, we ordered respondents to show cause why their failure to file a
brief should not be treated as a confession of error pursuant to NRAP 31(c). Respondents
have neither filed a brief nor responded to our order to show cause.
Cause appearing, we elect to treat respondents' conduct as a confession of error. NRAP
31(c); see also Smith v. Smith, 98 Nev. 395, 649 P.2d 1374 {19S2).
99 Nev. 157, 158 (1983) Nationwide Ins. Co. v. Costa
Nev. 395, 649 P.2d 1374 (1982). Accordingly, the order of the district court is reversed and
this matter is remanded with instructions to allow appellant its costs in accordance with NRS
18.020(3). See Gavin v. Rhoden, 97 Nev. 147, 625 P.2d 571 (1981).
____________
99 Nev. 158, 158 (1983) Harrah's Club v. State, Gaming Comm'n
HARRAH'S CLUB, a Nevada Corporation, Appellant, v. STATE OF NEVADA; NEVADA
GAMING COMMISSION and STATE GAMING CONTROL BOARD, Respondents.
No. 13441
March 10, 1983 659 P.2d 883
Appeal from order granting respondents' cross-motion for summary judgment, Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Appeal was taken from order of the district court in favor of State in declaratory judgment
action brought by casino. The Supreme Court held that casino's premium point disbursements
represented gaming losses deductible from winnings in calculating gross revenues subject to
gaming licensing fees.
Reversed.
Vargas & Bartlett, and John P. Sande, III, and Bruce A. Leslie, for Appellant.
Brian McKay, Attorney General, and Tudor Chirila, Deputy Attorney General, Carson
City; and James C. Giudici, Deputy Attorney General, Las Vegas, for Respondents.
Gaming.
Casino's premium point disbursements represented gaming losses deductible from winnings in calculating
gross revenues subject to gaming licensing fees; fact that casino could not win back premium points,
awarded with a given jackpot as set forth in a published payout schedule, did not indicate that such a
transaction was not a wager as opposed to a promotional expense. NRS 463.0161, 463.370,
463.3715.
OPINION
Per Curiam:
The facts underlying this appeal are not disputed. Appellant Harrah's Club, a Nevada
corporation engaged in casino gaming enterprises, maintains a premium point program
whereby coupons are issued to a casino patron winning certain slot machine jackpots or
bingo games.
whereby coupons are issued to a casino patron winning certain slot machine jackpots or bingo
games. The number of premium points won is determined by an established, published
payout schedule, and these points are paid out in addition to pecuniary winnings.
A player receiving premium points after a payout has the option of redeeming them either
for a cash certificate or merchandise at appellant's premium point redemption center-gift
shop. If the patron chooses to redeem the points for cash, the coupons are exchanged for a
cash certificate having a value of three-fourths of a cent per premium point. These cash
certificates may in turn be presented to the casino cashier for payment in the same manner as
chips or other gaming tokens. If the patron chooses to redeem the points for merchandise,
this may be done directly at the redemption center at a rate of one cent per premium point
toward the purchase price of the item selected.
The controversy which occasioned this appeal arose as a result of appellant's premium
point accounting practices. Gaming license fees are computed on the basis of gross revenues
from gaming operations. NRS 463.370. Gross revenue is broadly defined as the total of all
sums received as winnings less only the total of all sums paid out as losses by a state gaming
licensee. See NRS 463.0161.
1
In computing its gross revenue, appellant deducts as sums
paid out as losses the amount paid to patrons turning in their cash certificates and the
wholesale cost of merchandise that is allocated to premium point redemption credits.
It is appellant's practice of deducting the disbursements made in connection with the
premium point program from all sums received as winnings in calculating its gross revenues
which lead to this appeal. Respondent Gaming Control Board (Board) promulgated
Regulation 6.080(3) which provided: Gross revenue shall be computed without reference to
or deduction for any direct or indirect prizes, drawings, awards, benefits or other promotional
allowances, except cash at face value directly paid out as a result of a specific wager.
2
Pursuant to this regulation, the Board characterized appellant's premium point program as
promotional, disallowed all premium point deductions from gross gaming revenue, and
assessed appellant's license fees without allowing for premium point disbursements.
____________________

1
During the period relevant to this discussion, the definition of gross revenue was set forth in NRS
463.0114. This section has been repealed and replaced with NRS 463.0161. For the purposes of this discussion,
however, there is no difference between the two provisions.

2
Regulation 6.080 was subsequently amended, and no longer contains this restriction or its equivalent. The
restriction formerly contained in Regulation 6.080(3), however, has been codified in NRS 463.3715.
premium point program as promotional, disallowed all premium point deductions from gross
gaming revenue, and assessed appellant's license fees without allowing for premium point
disbursements.
Appellant sought a declaratory judgment to the effect that premium point disbursements
are deductible from the gross revenues upon which license fees are based. Appellant filed a
timely motion for summary judgment; respondents filed a cross-motion for summary
judgment. The district court concluded appellant's premium point system was promotional
within the meaning of Regulation 6.080(3), and granted respondents' motion for summary
judgment.
We disagree with the district court's conclusion. The dispositive issue presented in this
appeal is whether appellant's premium point disbursements are gaming losses deductible
from gaming winnings when calculating the gross revenues subject to gaming licensing fees.
We believe appellant's premium point disbursements do represent gaming losses, and as such
are deductible from winnings in calculating gross revenues.
We recognize that not all expenses incurred in connection with the operation of a gaming
establishment may be legitimately characterized as gaming losses. In most business
enterprises the usual method of increasing profits is to increase the number of transactions. In
turn, a common method of increasing the number of transactions is the use of marketing and
promotional activities. The gaming industry is no exception. As part of their marketing and
promotional activities, many casinos utilize gaming loss leaders such as free slot play,
promotional coupons or lucky bucks, and free wheel of fortune play. The casino patron
has no stake at risk in these promotional wagers, as they cost the patron nothing. Thus,
such promotional wagers can only produce losses.
There is an obvious distinction to be drawn between the losses generated by these kinds of
purely promotional activities and the losses generated by the premium point program at issue
in the instant appeal. Promotional activities and coupons occasion losses which are not the
result of actual wagering transactions, but rather marketing expenses which are the gaming
establishment's normal cost of doing business. In contrast, the losses resulting from
appellant's premium point program arise as the result of a legitimate wager. Both parties to
the transaction have a chance of gain and take a risk of loss. See Las Vegas Hacienda v.
Gibson, 77 Nev. 25, 28, 359 P.2d 85 (1961). The number of premium points to be awarded
with a given jackpot is set forth in a published payout schedule; the patron presumably
makes his wager anticipating both a pecuniary and premium point return.
presumably makes his wager anticipating both a pecuniary and premium point return. The
fact that Harrah's cannot win back premium points does not indicate that such a transaction is
not a wager. See Ex Parte Pierotti, 43 Nev. 243, 184 P. 209 (1919) (slot machine which pays
off in the form of cigars or drinks is a gaming device).
Thus, it appears that appellant's premium program produces gaming losses which may
be deducted from gaming winnings in calculating gross revenues for the purpose of
determining licensing fees. This conclusion is dispositive of the instant appeal, although there
remains an additional point that warrants further comment. Respondents maintain that if
gaming establishments are allowed to deduct the cost of merchandise purchased through the
premium point program as a gaming loss, a tremendous problem of skimming or
bookkeeping manipulation might arise. Respondents are apparently concerned that gaming
establishments might manipulate the cost of merchandise to an artificially high level, thereby
incurring greater gaming losses and depriving this state of revenue to which it is properly
entitled.
We are confident, however, that respondents' auditing and inspection powers are sufficient
to guard against such skimming or obvious restructuring of the cash value of merchandise
redeemed through a premium point program. For the reasons articulated above, therefore, we
hereby reverse the judgment of the district court, and order judgment be entered for appellant.
Manoukian, C. J., Springer, Mowbray, and Steffen, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
place and stead of The Honorable E. M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6,
19(1)(a) and 19(1)(c), and SCR 10.
____________
99 Nev. 162, 162 (1983) Board Med. Exam'rs v. Potter
BOARD OF MEDICAL EXAMINERS OF THE STATE OF NEVADA, Appellant and
Cross-Respondent, v. JAMES D. POTTER, M.D., Respondent and Cross-Appellant.
No. 13407
March 10, 1983 659 P.2d 868
Appeal and cross-appeal from order, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Appeal and cross-appeal were taken from an order of the district court reinstating
physician's license to practice medicine and remanding case to the State Board of Medical
Examiners for further hearing. The Supreme Court held that: (1) finding that physician had
been convicted of felony, as charged in complaint as independent basis for discipline, was not
clearly erroneous; (2) it would not be compatible with principles of due process to permit
Board to use physician's conviction for conduct which occurred before physician was put on
probation as ground for holding that physician violated his probation and thus finding that
physician was guilty of having violated probation was clearly erroneous and prejudiced
physician's substantial rights; and (3) remand to Board was necessary in order for Board to
determine what sanction, if any, should be imposed on charge which was supported by
evidence.
[Rehearing denied May 19, 1983]
Hawkins, Rhodes, Sharp, Barbagelata & Haase, and Lionel Sawyer & Collins, Las Vegas,
for Appellant and Cross-Respondent.
Reid & Alverson, Las Vegas, and Richard J. Prendergast, Chicago, Illinois, for
Respondent and Cross-Appellant.
1. Physicians and Surgeons.
Finding of State Board of Medical Examiners that physician had been convicted of felony, as charged
in complaint as independent basis for discipline, was not clearly erroneous in light of reliable, probative,
and substantial evidence on entire record, including certified copy of judgment of physician's conviction,
and reviewing court erred in substituting its judgment for that of Board. NRS 233B.140, 233B.140,
subds. 5, 5(e), 630.346.
It would not be compatible with principles of due process to permit State Board of Medical Examiners to
use physician's conviction for conduct which occurred before physician was put on probation as ground
for holding that physician violated his probation and therefore where no allegations
were set forth in complaint justifying revocation of probation aside from conviction,
Board's finding that physician was guilty of having violated probation was clearly
erroneous in light of reliable, probative, and substantial evidence on entire record and
prejudiced physician's substantial rights.
ground for holding that physician violated his probation and therefore where no allegations were set forth
in complaint justifying revocation of probation aside from conviction, Board's finding that physician was
guilty of having violated probation was clearly erroneous in light of reliable, probative, and substantial
evidence on entire record and prejudiced physician's substantial rights. NRS 233B.140, subds. 5, 5(e);
3. Administrative Law and Procedure.
Although statute setting forth procedure to be followed by district court in reviewing decision of
administrative agency does not specifically authorize district court to reverse decision of administrative
agency and then remand matter to agency for further proceedings, Legislature intended for reviewing court
to have power to reverse and remand decision which substantially prejudices rights of appellant and which
is clearly erroneous in view of reliable, probative, and substantial evidence of entire record. NRS
233B.140, subd. 5.
Where State Board of Medical Examiners revoked physician's license to practice medicine on basis of
two charges, only one of which was supported by record, and it was unknown whether Board would have
revoked physician's license without additional charge, remand to Board was necessary in order for Board to
determine what sanction, if any, should be imposed on charge which was supported by evidence. NRS
233B.140, subd. 5, 630.352, subd. 2.
OPINION
Per Curiam:
This is an appeal and cross-appeal from the order of the district court reinstating
respondent Potter's license to practice medicine and remanding the case to the appellant
Board of Medical Examiners of the State of Nevada for further hearing as they [sic] so
desire.
Potter began practicing medicine in Henderson, Nevada in 1963. In 1977, Potter was
convicted of conspiracy to commit mail fraud by the United States District Court for the
Western district of Pennsylvania. Disciplinary proceedings were initiated against Potter
before the Board as a result of the conviction. Following a hearing, the Board revoked Potter's
license to practice medicine in Nevada. The revocation was stayed, however, and Potter was
placed on probation for three years under certain specified terms, which included a forty-five
day suspension of Potter's license. The order also provided, in part, that the Board might
terminate probation and revoke Potter's license in the event the respondent is convicted of a
felony. The order became effective on September 26, 1978.
An indictment was filed in the United States District Court for the District of Nevada in
1978 charging Potter with fifty-four counts of unlawfully distributing controlled substances.
The jury returned a guilty verdict on all counts on September 21, 1978. The judgment of
conviction was entered on November 14, 1978. The conviction was subsequently affirmed on
appeal.
Disciplinary proceedings were again commenced against Potter before the Board on
October 21, 1980. The complaint charged Potter with having been convicted of a felony in the
United States District Court for the District of Nevada. The conviction was charged as a basis
for disciplinary action independent of the terms of the probation. See NRS 630.301(2)(b).
1
The conviction also served as the foundation for a second charge alleging a violation of the
terms and conditions of the probation set forth in the order which took effect on September
26, 1978. An evidentiary hearing was thereafter conducted. The Board found Potter guilty as
charged in the complaint and ordered that his license to practice medicine in Nevada be
revoked.
Potter subsequently filed a petition for judicial review in district court. Numerous
contentions were raised in support of the petition. The court reversed the order of revocation
and reinstated Potter's license because of the lack of evidence to sustain the findings of the
Board. The case was remanded to the Board for further hearing as they [sic] so desire.
This appeal and cross-appeal followed.
NRS 233B.140 sets forth the procedure to be followed by the district court in reviewing
the decision of an administrative agency. Subsection 5(e) provides, in relevant part, that an
agency decision may not be modified or reversed unless (1) the decision is clearly erroneous
in light of the reliable, probative, and substantial evidence on the entire record, and (2)
substantial rights of the appellant have been prejudiced as a result.
[Headnote 1]
A review of the findings of the Board reveals that a certified copy of the judgment of
Potter's conviction in the United States District Court for the District of Nevada was entered
into evidence at the hearing. In a disciplinary proceeding before the Board, a certified copy
of the record of a court showing a conviction is conclusive evidence of its occurrence.
____________________

1
NRS 630.301 provides, in relevant part, as follows:
The grounds for initiating disciplinary action under this chapter are:
. . .
2. Conviction of:
(a) A violation of any federal or state law regulating the possession, distribution or use of any
controlled substance as defined in chapter 453 of NRS or dangerous drug as defined in chapter 454 of
NRS;
(b) A felony; or
(c) Any offense involving moral turpitude . . .
before the Board, a certified copy of the record of a court showing a conviction is conclusive
evidence of its occurrence. NRS 630.346. Accordingly, the Board's finding that Potter had
been convicted of a felony, as charged in the complaint as an independent basis for discipline,
was not clearly erroneous in light of the reliable, probative, and substantial evidence on the
entire record. The district court erred in substituting its judgment for that of the Board. See
NRS 233B.140(5). To that extent, we reverse the judgment of the court below.
[Headnote 2]
A review of the record reveals that the Board also found Potter guilty of violating
probation by reason of the felony conviction. Undoubtedly, one of the purposes sought to be
achieved by the terms of probation was to prevent, or at least to discourage, Potter from
engaging in illegal and improper conduct. Utilizing Potter's conviction as a basis for revoking
his probation, however, would clearly not serve this purpose. Although the judgment of
conviction was entered after commencement of the probationary period, the conduct which
was the foundation for that conviction occurred before Potter was put on probation. It would
not be compatible with principles of due process to permit appellant to use the 1978
conviction as a ground for holding that Potter violated his probation.
No allegations were set forth in the complaint justifying revocation of probation aside
from the 1978 conviction. Accordingly, the Board's finding that Potter was guilty of having
violated probation was clearly erroneous in light of the reliable, probative, and substantial
evidence on the entire record. Furthermore, it is apparent that the finding prejudiced Potter's
substantial rights. Accordingly, we affirm the holding of the district court setting aside that
portion of the Board's order. See NRS 233B.140(5)(e).
[Headnote 3]
Potter contends on cross-appeal that the district court erred in remanding the case to the
Board for further hearing as the Board so desires. We disagree. NRS 233B.140(5) states in
relevant part, as follows:
The court may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are . . . .
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on
the whole record . . .
(Emphasis added). This provision does not specifically authorize the district court to reverse
the decision of an administrative agency and then to remand the matter to the agency for
further proceedings. It is reasonable to conclude, however, that the legislature intended for a
reviewing court to have the power to reverse and remand a decision which substantially
prejudices the rights of an appellant and which is clearly erroneous in view of the reliable,
probative and substantial evidence of the entire record.
[Headnote 4]
The Board revoked Potter's license on the basis of two charges, only one of which was
supported by the record. It is unknown whether the Board would have revoked respondent's
license without the additional charge. NRS 630.352(2) empowers the Board, and not a
reviewing court, to impose specific sanctions if the person charged in a complaint is found
guilty. Pursuant to NRS 233B.140(5), remand to the Board is necessary here in order for the
Board to determine what sanction, if any, should be imposed on the charge which was
supported by the evidence. See e.g., Biegler v. Nevada Real Est. Div., 95 Nev. 691, 601 P.2d
419 (1979)
____________
99 Nev. 166, 166 (1983) Los Angeles Airways v. Est. of Hughes
LOS ANGELES AIRWAYS, INC., a California Corporation, Appellant, v. THE ESTATE
OF HOWARD R. HUGHES; WILLIAM LUMMIS and FIRST NATIONAL BANK OF
NEVADA, Co-special Administrators of the Estate of HOWARD R. HUGHES,
DECEASED, Respondents.
No. 11130
March 10, 1983 659 P.2d 871
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Plaintiff brought action to recover for fraud, and breach of contract. The district court
granted defendants' motion for summary judgment, and plaintiff appealed. The Supreme
Court, David Zenoff, Sr. J., held that substantial fact issue existed as to defendant's
amenability to service of process while absent from the state, precluding summary judgment
based upon statute of limitations defense.
Brennan, D. J., and Manoukian, C. J., dissented.
Murphy, Thornton, Hinerfeld & Cahill, Los Angeles, and Richard D. Weisbart, Las Vegas,
for Appellant.
Morse-Foley, Las Vegas, for Respondents.
Judgment.
In action for fraud and breach of contract, substantial fact issue existed as to defendant's amenability to
service of process while absent from the state, precluding summary judgment based upon statute of
limitations defense. NRS 11.190, subds. 2(c), 3(d), 11.300.
OPINION
By the Court, Zenoff, Sr. J.:
1

Appellant, Los Angeles Airways, Inc. (hereinafter LAA), filed a lawsuit in district court
against respondents (hereinafter the Hughes interests) for fraud and breach of contract. The
Hughes interests moved for, and obtained, summary judgment, and this appeal followed.
The events giving rise to this lawsuit occurred in Nevada in the years 1968 through 1970,
and the applicable statutes of limitations for both the tort and contract causes of action
embodied in the lawsuit had begun to run by September 30, 1970. Howard Hughes left
Nevada in November, 1970, and apparently spent the rest of his life elsewhere. He died in
April, 1976. LAA filed the lawsuit on May 31, 1977.
Summary judgment was granted on the ground that the applicable statutes of limitations
had run.
2
The district court also found that the statutory limitations periods were not tolled
under NRS 11.300
3
during Howard Hughes' absence from Nevada, and therefore lapsed
before LAA filed its lawsuit against the Hughes interests.
____________________

1
The Chief Justice assigned The Honorable David Zenoff, Senior Justice, to participate in this case. Nev.
Const., art 6, 19(1)(c), SCR 10.

2
Under NRS 11.190(2)(c) and NRS 11.190(3)(d), the limitations periods applicable to the contract and fraud
causes of action are 4 years and 3 years, respectively.

3
If, when the cause of action shall accrue against a person, he be out of the state, the action may be
commenced within the time herein limited after his return to the state; and if after the cause of action shall
have accrued he depart the state, the time of his absence shall not be part of the time prescribed for the
commencement of the action.
against the Hughes interests. LAA's sole contention on appeal is that the trial court's
determination in this regard was incorrect. We agree, and therefore reverse and remand.
We have previously held that where a defendant is absent from the state, and there is a
genuine issue of fact as to his amenability to service of process, summary judgment is
precluded, and the tolling provision of NRS 11.300 may become operative. See Bank of
Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966). It has already been noted that in the
matter before us, Howard Hughes was absent from this state after November, 1970.
Additionally, the evidence submitted by LAA in opposition to the motion for summary
judgment was sufficient to create an issue of fact as to Howard Hughes' amenability to service
of process. Indeed, the record indicates that Howard Hughes purposefully arranged his living
situation to avoid being served with process. Although he apparently resided at various hotels
in North America and Europe after he left Nevada, Hughes ordinarily was not listed as a
resident or guest at these hotels. Moreover, through numerous security measures, intruders
such as process servers were prevented from seeing Howard Hughes or entering his quarters,
and Hughes' aides were instructed to refuse to accept registered or certified mail.
We recognize that in recent years, the continued viability of the tolling statute has been
called into question in light of the enactment of statutes making it possible to obtain
jurisdiction over defendants residing outside this state. Indeed, in granting summary judgment
the district court expressed the view that the enactment of NRS 14.065,
4
the so-called
long-arm statute, rendered the tolling statute virtually inapplicable. Nevertheless, we note
that in the number of years since the enactment of NRS 14.065 and similar provisions, the
legislature has not repealed the tolling provision, and we are reluctant to do so by judicial
declaration. See Duke University v. Chestnut, 221 S.E.2d 895 (N.C.Ct.App. 1976).
The judgment is reversed and remanded.
Springer and Gunderson, JJ., concur.
____________________

4
NRS 14.065 provides in pertinent part:
. . .
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated
in this subsection thereby submits himself and, if an individual, his personal representative to the
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business or negotiating any commercial paper within this state;
(b) Committing a tortious act within this state . . .
Brennan, D. J., dissenting, with whom Manoukian, C. J., joins:
The majority has found NRS 11.300
1
applicable to the instant case. I cannot agree. That
statute applies when a party leaves the state and thereafter returns, with the time that the party
is out of state excluded for the purpose of computing time regarding the statute of limitations.
Here, we do not have a defendant who has returned to the state. Further, there is a statute
governing personal service of process on a party who, as here, is outside the state, thus NRS
11.300 would not apply.
Rather, for purposes of this cause of action, the applicable statute is NRS 14.065,
2
the
so-called Long Arm Statute. This statute would allow for the personal service of process
upon a party outside this state provided there is a showing that that party transacted
business or negotiated commercial paper within this state.
____________________

1
If, when the cause of action shall accrue against a person, he be out of the state, the action may be
commenced within the time herein limited after his return to the state; and if after the cause of action shall
have accrued he depart the state, the time of his absence shall not be part of the time prescribed for the
commencement of the action.

2
1. Personal service of summons upon a party outside this state is sufficient to confer upon a court of
this state jurisdiction of the person of the party so served if:
(a) Such service is made by delivering a copy of the summons, together with a copy of the complaint,
to the party served in the manner provided by statute or rule of court for service upon a person of like
kind within this state; and
(b) Such party has submitted himself to the jurisdiction of the courts of this state in a manner provided
by this section.
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated
in this subsection thereby submits himself and, if an individual, his personal representative to the
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business or negotiating any commercial paper within the state;
(b) Committing a tortious act within this state;
(c) Owning, using or possessing any real property situated in this state;
(d) Contracting to insure any person, property or risk located within this state at the time of
contracting; or
(e) Living in the marital relationship within this state notwithstanding subsequent departure from this
state, as to all obligations arising for alimony, child support or property settlement, if the other party to
the marital relationship continues to reside in this state.
3. Only causes of action arising from these enumerated acts may be asserted against a defendant in an
action in which jurisdiction over him is based on this section.
4. The method of service provided in this section is cumulative, and may be utilized with, after or
independently of other methods of service.
upon a party outside this state provided there is a showing that that party transacted business
or negotiated commercial paper within this state. Such has been demonstrated here. Indeed,
the plaintiff-appellant has alleged in its complaint that the defendant-respondent had such
contact with the State of Nevada.
Therefore, appellant should have relied upon NRS 14.065(2)(a) and attempted personal
service upon respondent outside the state.
Instead, the majority has discussed the defendant's unamenability to the service of process
and hypothesized that, if the defendant is unamenable to service, there need not be an attempt
of service in this case.
The majority has further speculated that if the plaintiff would have filed a cause of action
within the statutory period (it did not) and attempted service upon the defendant (it did not),
that the defendant would have refused service. This speculation undermines the defendant's
constitutional privilege of due process and should not be allowed. The very essence of due
process is timely notice of any cause of action which could result in loss of freedom or
property.
In addition to a due process requirement that there be a reasonable relationship between
the defendant and the state seeking to exercise jurisdiction over him, there is also a due
process requirement that a reasonable method be used to notify the defendant of a pending
lawsuit so that he may have an opportunity to be heard.
This due process requirement of notice would be fulfilled by filing a lawsuit and making a
diligent effort to serve the defendant. This requirement was not met here, where appellant (1)
failed to file a complaint until nearly seven years after the cause of action accrued, until after
the statute of limitations had run, and until after Hughes' death; (2) never attempted to serve
Hughes while he was alive; and (3) offered proof of unamenability to service as the reason
for failing to have done anything sooner.
How is a defendant to oppose a plaintiff's claim that defendant could not have been served,
when plaintiff did not even attempt service during defendant's lifetime? The plaintiff, not the
defendant, has the right to assert or not to assert its cause of action. It is not the obligation of a
defendant to insist that the plaintiff sue him timely since a defendant has no control over what
a plaintiff chooses to do or not to do with its cause of action. Rather than a defendant saying,
sue me timely, it is the statute of limitations that speaks for him.
Whether it be plaintiff's neglect, forgiveness of a defendant's obligation, or for a host of
other reasons that a plaintiff permits the running of a statute of limitations, the true reason the
plaintiff allowed the statute of limitations to bar his claim is known only to him during the
period of time within which he could have asserted his cause of action, and his
self-serving declarations as to why he failed to file his cause of action within the statutory
period of time should not be allowed to overcome not only a defendant's constitutional
rights but also the limitations of action statutes of the State of Nevada.
plaintiff allowed the statute of limitations to bar his claim is known only to him during the
period of time within which he could have asserted his cause of action, and his self-serving
declarations as to why he failed to file his cause of action within the statutory period of time
should not be allowed to overcome not only a defendant's constitutional rights but also the
limitations of action statutes of the State of Nevada.
The majority has further found Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1
(1966), to be controlling for the proposition that the plaintiff has a right to trial regarding the
tolling issue whenever there is a dispute of fact whether the defendant had been amenable to
service of process during the limitation period.
In ruling that the appellant's cause of action was barred by the statute of limitations and not
tolled by NRS 11.300 and citing Friedman, this court held in Blotzke v. Christmas Tree, Inc.,
88 Nev. 449, 449 P.2d 647 (1972):
The non-resident contractor Beck was continuously engaged in business in Nevada and
amenable to both personal service of process and to substituted service thereof by
reason of the minimum contacts he had established with this state. [Citations
omitted.] His absence from the state is immaterial in these circumstances since he was
continuously liable to service of process.
Id. at 450.
Friedman does not apply to the facts of the instant case. There can be no question in the
case before us that Hughes was continuously liable to service under the Long Arm Statute
of NRS 14.065. How can the plaintiff be permitted to raise an issue of fact as to whether
Howard Hughes was amenable to service, when plaintiff made no effort to effectuate service?
In a case such as this, where the plaintiff's causes of action are included within the
parameters of NRS 14.065 and the majority desires a factual showing as to the party's
unamenability to service of process, it would seem more judicious to require that the plaintiff
file suit and attempt service of process under NRS 14.065. Later, prior to dismissal for want
of prosecution under NRCP 41(e), plaintiff could dismiss the suit without prejudice upon
proof of unamenability of the defendant to service. A plaintiff should not be allowed to sit on
its cause of action until a defendant dies and then have an evidentiary hearing to prove that
the defendant would not have accepted service of process even if service had been sought.
When it comes to concluding as a matter of law that because a party has on prior occasions
evaded service of process or has not been amenable thereto and, therefore, he would do
likewise on all future lawsuits, I believe that one does not know if a person is amenable to
service of process on any particular case until the suit is filed and service attempted.
not been amenable thereto and, therefore, he would do likewise on all future lawsuits, I
believe that one does not know if a person is amenable to service of process on any particular
case until the suit is filed and service attempted. To deny a party his constitutional right to
notice of a suit against him and his right to marshall his evidence and defenses in a timely
manner, denies him his due process right to notice.
The trial court's decision should be affirmed.
3

____________________

3
The Governor designated the Honorable James A. Brennan, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable John C. Mowbray, Justice, who voluntarily disqualified himself. Nev. Const.,
art. 6 4.
____________
99 Nev. 172, 172 (1983) Carbonneau v. Warden
JAMES R. CARBONNEAU, Appellant, v. WARDEN OF THE
No. 12635
March 10, 1983 659 P.2d 875
Appeal from district court order denying petition for post-conviction relief; First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Defendant, who was convicted of attempted escape, appealed from an order of the district
court denying post-conviction relief. The Supreme Court, Springer, J., held that inmate's
punitive segregation after he was apprehended in attempted escape did not constitute such
punishment as would, under double jeopardy clause, bar his conviction for criminal offense
of attempted escape.
Rehearing granted; previous opinion withdrawn; decision of the trial court affirmed.
[Reporter's note: Opinion 97 Nev. 489, 634 P.2d 1197 (1981), withdrawn.]
Michael K. Powell, Carson City, for Appellant.
Brian McKay, Attorney General, Robert C. Manley, and Charles P. Cockerill, Deputy
Attorneys General, Carson City, for Respondent.
Criminal Law.
Inmate's punitive segregation after he was apprehended in attempted escape did not constitute such
punishment as would, under double jeopardy clause, bar his conviction for criminal offense of attempted
escape. U.S.C.A.Const. Amend. 5; NRS 212.090.
OPINION
In Carbonneau v. Warden, 97 Nev. 489, 634 P.2d 1197 (1981), we held that petitioner
waived any defense of double jeopardy by failing to raise it in the district court.
On petition for rehearing our attention is called to the fact that petitioner Carbonneau did
bring a motion to dismiss the criminal information although such motion did not appear in the
record at the time our original opinion was issued in this case. Under these circumstances we
have decided to grant rehearing, to withdraw the original opinion issued in this matter and to
address now the constitutional double jeopardy arguments raised by Carbonneau.
On December 15, 1977 Carbonneau tried to escape from the Nevada State Prison. He was
apprehended and placed immediately in punitive segregation. Formal administrative
charges were filed by prison authorities. A hearing was held on December 29 and Carbonneau
was found guilty and sentenced to fifteen days punitive detention with credit being given
for the fifteen days served. On July 17, 1978 he pleaded guilty to the crime of attempted
escape, NRS 212.090, and judgment of conviction was entered on that date. He claims that
the July conviction is barred by the double jeopardy clause because such a conviction would
result in his being punished twice for the same conduct.
The question before us is whether or not the administrative sanction constitutes
punishment so as to be a bar to the later criminal conviction. This precise issue was decided
in the case of State v. Killebrew, 327 N.W.2d 155 (Wis.App. 1982).
In the Killebrew case it was held that thirty days' program segregation imposed on an
escaped prison inmate does not, of itself, constitute punishment within the constitutional
double jeopardy meaning of that term and that subsequent criminal prosecution was not
barred. The reasoning of the court was that prison authorities could legitimately impose
administrative sanctions reasonably related to recognized procedures in dealing with prison
discipline and control and that administrative action rather than punishment was central to
the imposed sanction. Consequently the segregation was held not to be a bar to later criminal
prosecution.
We agree with the reasoning in the Killebrew case and find the instant case to present even
a stronger argument for ruling that the segregation was administrative rather than punitive in
nature.
Although our prison code calls it punitive segregation rather than program segregation
there is no appreciable difference between the procedures in Killebrew and here. Killebrew
recognized that although there were punitive aspects to administrative segregation, any such
punishment was an incident of other proper governmental purposes, namely, institutional
control, correction of objectional behavior and rehabilitation. These factors are all involved
here.
There is an added factor in the case before us, and that is the nature of the segregation.
Caught in the act of attempting to escape, Carbonneau was segregated immediately from the
rest of the prison population clearly as a measure of necessary security. He remained in
segregation for fifteen days. On his fifteenth day of confinement he was tried administratively
and found guilty of attempted escape. He was given credit for time served and presumably
released. It would appear that Carbonneau's immediate and summary segregation was much
more administrative in nature than was the segregation in Killebrew and that his fifteen days'
segregation was an administrative expedient imposed apart from any possible intention to try,
convict and punish him.
Carbonneau's segregation does not constitute such punishment as would, under the double
jeopardy clause, bar his conviction for the criminal offense. The district court's denial of
appellant's petition for writ of habeas corpus is therefore affirmed.
Manoukian, C.J., Mowbray and Gunderson JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to participate in this case,
pursuant to Nev. Const. art. 6, 19; SCR 10.
____________
99 Nev. 174, 174 (1983) Melchor-Gloria v. State
FERNANDO MELCHOR-GLORIA, Appellant, v. THE
STATE OF NEVADA, Respondent
No. 12695
March 10, 1983 660 P.2d 109
Appeal from conviction of second-degree murder, Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
The Supreme Court held that: (1) there was no double jeopardy prohibition to retrying
defendant, and (2) trial court did not err when it refused to grant defendant's motion for
competency hearing.
not err when it refused to grant defendant's motion for competency hearing.
Affirmed.
William N. Dunseath, Public Defender, and Dennis E. Widdis, Deputy Public Defender,
Washoe County, for Appellant.
1. Criminal Law.
Generally, defendant's motion for, or consent to, mistrial removes any double jeopardy bar to
reprosecution. U.S.C.A.Const. Amend. 5; Const. Art. 1, 8.
2. Criminal Law.
Defendant's motion for, or consent to, mistrial does not remove double jeopardy bar to reprosecution in
those cases in which prosecutor intended to provoke mistrial or otherwise engaged in overreaching or
harassment; further, prosecutorial conduct that might be viewed as harassment or overreaching, even if
sufficient to justify mistrial on defendant's part, does not bar retrial absent intent on part of prosecutor to
subvert protections afforded by double jeopardy clause. U.S.C.A.Const. Amend. 5; Const Art. 1, 8.
3. Criminal Law.
Trial court's findings that prosecutor's opening statement referring to defendant's potentially inadmissible
statements did not constitute overreaching or harassment intended to goad defendant into moving for
mistrial were not clearly erroneous, and therefore there was no double jeopardy prohibition to retrying
defendant. U.S.C.A.Const. Amend. 5; Const. Art. 1, 8.
4. Mental Health.
Test to be applied in determining competency must be whether defendant has sufficient present ability to
consult with his lawyer with reasonable degree of rational understanding, and whether he has rational as
well as factual understanding of proceedings against him.
5. Criminal Law.
Hearing to determine defendant's competency is constitutionally and statutorily required where
reasonable doubt exists on issue.
6. Criminal Law.
Whether reasonable doubt exists as to defendant's competency to stand trial is raised is within discretion
of trial court.
7. Criminal Law.
Formal competency hearing is constitutionally compelled at any time there is substantial evidence that
defendant may be mentally incompetent to stand trial; in this context, there is substantial evidence if
evidence raises reasonable doubt about defendant's competency to stand trial, and once there is such
evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence.
8. Criminal Law.
On motion for competency hearing trial court's sole function is to decide whether there is any evidence
which, assuming its truth, raises reasonable doubt about defendant's competency.
If there is any evidence which, assuming its truth, raises reasonable doubt about defendant's competency,
failure of court to order formal competency hearing is abuse of discretion and denial of due process.
10. Criminal Law.
Trial court did not err when it refused to grant defendant's motion for competency hearing where
testimony offered did not raise reasonable doubt as to defendant's competency, rather, whatever questions
arose as to defendant's competency were occasioned by translation problems and defendant's limited
education.
OPINION
Per Curiam:
The instant appeal arises out of appellant Fernando Melchor-Gloria's conviction of
second-degree murder. The issues presented on appeal concern procedural aspects of
appellant's trial; accordingly, the factual setting of the crime underlying this appeal is set forth
in brief detail. The victim's body was discovered in appellant's hotel room in Reno, Nevada,
on the morning of July 27, 1979. The cause of death was a stab wound in the neck. Shortly
thereafter, appellant was arrested at the apartment of a friend. At the time of arrest police
recovered a knife which had been in appellant's possession; tests revealed the knife had
human blood under the hilt. Sharpening marks on the knife indicated it could have been
sharpened with a file found in appellant's apartment, and various blood traces were found on
clothing appellant had brought to the apartment. In addition, the victim's paycheck stub was
found in appellant's pocket.
At trial, appellant did not deny he stabbed the victim, but attempted to establish that the
killing was in self-defense. The prosecution, however, established several inconsistencies
which cast doubt on appellant's story. The jury apparently disbelieved appellant's version of
events, and found him guilty of second-degree murder. This appeal followed.
Double Jeopardy
The first issue presented by appellant arises out of a mistrial which was declared shortly
after the commencement of appellant's first trial. After his arrest, appellant made certain
incriminating statements while being interrogated by police investigators.
incriminating statements while being interrogated by police investigators. Appellant, a native
of Mexico, could not speak English fluently, and a police officer translated questions from
English to Spanish and appellant's responses from Spanish to English. This interrogation was
taped, and the initial transcripts made from the police officer's translations indicated appellant
had been properly admonished concerning his Miranda rights.
Before trial, the tape recording of the interrogation was given to a college Spanish
instructor, who made a Spanish-to-English translation of the entire interview. The translation
prepared by the instructor revealed that appellant had not been given complete Miranda
warnings prior to his interrogation by police.
1
The prosecutor received this taped translation
on Saturday, December 8, 1979, and received a corrected transcript of this second translation
by 9:30 a.m. Monday, December 10, 1979. Although the prosecutor read the transcripts while
preparing his opening statement, he did not review the portion of the transcript which
contained the Miranda warnings.
Defense counsel was aware of the deficiencies in the Miranda warnings, and met in
chambers with the prosecutor and judge prior to opening statements on Tuesday, December
11, 1979. At that time the issue of the admissibility of appellant's statements was discussed;
defense counsel came away from that meeting with the understanding an agreement had been
reached to the effect that the issue of the admissibility of appellant's statements would be
dealt with in an appropriate hearing.
After the meeting in chambers, however, the prosecutor commenced his opening statement
and began referring to appellant's potentially inadmissible statements. Defense counsel
objected, and in the ensuing bench conference the prosecutor successfully argued against
being limited in opening statement. The prosecutor later admitted that he made his argument
despite the fact that he had not read the relevant portion of the college instructor's transcript,
and in the face of defense counsel's representations appellant's statements were inadmissible.
In addition, the prosecutor acknowledged that should he be mistaken on the issue of
admissibility, a mistrial would have to be declared.
The prosecutor emphasized both the existence and content of appellant's incriminating
statements during the remainder of his opening statement. After opening statements were
completed and the first witness dismissed, a recess was called. The prosecutor then
interviewed one of the interrogating officers and reviewed the transcript with him.
____________________

1
While the officer advised appellant he had the right to remain silent and to have an attorney present,
appellant was not admonished that any statement he might make could be used against him in a court of law.
prosecutor then interviewed one of the interrogating officers and reviewed the transcript with
him. In the course of this interview, the prosecutor came to the conclusion that the Miranda
warnings given appellant were defective. Appellant's statements subsequently were
suppressed, and on defense motion, a mistrial without prejudice to the prosecution was
declared.
The issue this court must address on appeal is whether, under the particular facts of this
case, the Double Jeopardy Clause of the United States or Nevada Constitutions bars
appellant's retrial.
[Headnotes 1, 2]
As a general rule, a defendant's motion for, or consent to, a mistrial removes any double
jeopardy bar to reprosecution. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 2093
(1982) (Stevens, J., concurring); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547
(1971). There is an exception to this general rule which applies in those cases in which the
prosecutor intended to provoke a mistrial or otherwise engaged in overreaching or
harassment. Oregon v. Kennedy, 102 S.Ct. at 2093; United States v. Dinitz, 424 U.S. 600,
607, 96 S.Ct. 1075 (1976). Further, prosecutorial conduct that might be viewed as harassment
or overreaching, even if sufficient to justify a mistrial on defendant's motion, does not bar
retrial absent intent on the part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause. Oregon v. Kennedy, 102 S.Ct. at 2089. These double jeopardy
principles have been made obligatory upon the states. Benton v. Maryland, 395 U.S. 784,
793-796, 89 S.Ct. 2056 (1969).
The dispositive question is thus whether the prosecutor's conduct under the circumstances
of the instant case constitutes overreaching or harassment intended to goad appellant into
moving for a mistrial. In addressing this issue, we note the trial court came to the conclusion
that there was no prosecutorial overreaching. The court made an express finding there was no
intentional conduct on the part of the prosecutor which could be classified as bad faith. The
trial court also found that the prosecutor was not guilty of gross negligence. These appear to
represent findings of fact which must be sustained on appeal unless clearly erroneous. See
United States v. Green, 636 F.2d 925, 928 (4th Cir. 1980); United States v. Calderon, 618
F.2d 88, 90 (9th Cir. 1980).
[Headnote 3]
Our review of the record convinces us that the trial court's findings are not clearly
erroneous and therefore should be sustained on appeal. Although the trial court correctly
concluded the prosecutor had been negligent, we believe the relatively unusual factual
setting of the instant case partially mitigates the prosecutor's derelictions.
the prosecutor had been negligent, we believe the relatively unusual factual setting of the
instant case partially mitigates the prosecutor's derelictions. Appellant did not speak fluent
English, and the prosecutor could reasonably assume appellant had been properly admonished
when the first transcript of the interrogation so indicated. The prosecutor testified that he had
never experienced a similar problem before, and that he assumed the interrogation had been
properly conducted in light of the considerable experience of the investigating officers. The
prosecutor also stated he did not personally come to the conclusion the admonishments were
defective until he had had the opportunity to review the second transcript and interview one
of the interrogating officers. Finally, given the time sequence involved, the prosecutor
obtaining the second transcript shortly before trial, suggests the prosecutor's failure to review
the transcript is understandable, if not entirely excusable.
It is true that defense counsel warned the prosecutor of the defective admonishments
before the prosecutor began his opening statements. The prosecutor testified the reason he did
not pay particular attention to counsel's representations was that he felt they involved a
common defense ploy which was not entitled to much credence. Given the nature of the
adversary relationship between a prosecutor and defense counsel, this reaction appears
understandable, although not entirely commendable. Although we do not approve of the
prosecutor's conduct, it nonetheless appears that the trial court's finding that the prosecutor
did not intentionally engage in overreaching or harassment is not clearly erroneous. As a
result, we find that there was no double jeopardy prohibition to retrying appellant.
Competency Hearing
The second issue raised by appellant concerns the trial court's denial of a motion made for
a competency hearing. Defense counsel made this motion outside the presence of the jury in
the middle of trial. The court reconvened without the jury, and heard evidence from three
witnesses: Dr. Brandenburg, a clinical psychologist employed by the State of Nevada; Dr.
Chappel, a psychiatrist; and Gus Estrada, appellant's trial interpreter. At the conclusion of this
testimony, the trial court denied appellant's motion for a full competency hearing, finding that
no doubt had been raised as to appellant's competency to stand trial. Appellant now maintains
the denial of his request for a full competency hearing constitutes error. We disagree.
[Headnotes 4-6]
The test to be applied in determining competency must be whether [the defendant] has
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understandingand whether he has a rational as well as factual understanding of the
proceedings against him."
whether [the defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understandingand whether he has a rational as well as factual
understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80
S.Ct. 788 (1960). A hearing to determine a defendant's competency is constitutionally and
statutorily required where a reasonable doubt exists on the issue. Moore v. United States, 464
F.2d 663, 666 (9th Cir. 1972); Warden v. Conner, 93 Nev. 209, 210-211, 562 P.2d 483
(1977); NRS 178.400-178.440. Whether such a doubt is raised is within the discretion of the
trial court. Kelly v. State, 93 Nev. 154, 155, 561 P.2d 449 (1977); Williams v. State, 85 Nev.
169, 174, 451 P.2d 848 (1969), cert. den. 396 U.S. 916, 90 S.Ct. 239 (1969).
[Headnotes 7-9]
The court's discretion in this area, however, is not unbridled. A formal competency hearing
is constitutionally compelled any time there is substantial evidence that the defendant may
be mentally incompetent to stand trial. In this context, evidence is substantial if it raises a
reasonable doubt about the defendant's competency to stand trial. Once there is such evidence
from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence.
Moore v. United States, 464 F.2d at 666. The trial court's sole function in such circumstances
is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt
about the defendant's competency. Id. at 666. If such evidence exists, the failure of the court
to order a formal competency hearing is an abuse of discretion and a denial of due process.
Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836 (1966); Moore v. United States, 464 F.2d
at 666.
[Headnote 10]
The trial court based its conclusion there was no reasonable doubt as to appellant's
competency on medical testimony, the testimony of the trial interpreter, and its own
observations of appellant during the trial. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct.
896 (1975) (in determining whether competency hearing required, court focuses in on three
factors: the defendant's history of irrational behavior, his demeanor at trial, and prior medical
opinion of his competence to stand trial). We have reviewed the record, and conclude the trial
court's analysis is correct. The testimony offered does not, in our opinion, raise a reasonable
doubt as to appellant's competency. Dr. Chappel conceded during cross-examination that he
was not in a position to determine appellant's competency and that his opinion as to
appellant's competency was based in large part on tests administered by Dr.
opinion as to appellant's competency was based in large part on tests administered by Dr.
Brandenburg. Dr. Brandenburg in turn conceded that appellant understood the concepts of
murder, malice aforethought and premeditation if they were explained simplistically by an
interpreter. Gus Estrada, the interpreter, testified that even though there was occasionally
confusion in the exchanges between appellant and defense counsel, appellant knew what was
going on in his trial.
Based on this testimony, and our review of the record as a whole, we believe that whatever
questions arose as to appellant's competency were occasioned by translation problems and
appellant's limited education. As no reasonable doubt was raised as to appellant's lack of
rational or factual understanding of the proceedings, the trial court did not err when it refused
to grant appellant's motion for a competency hearing.
We have considered the other issues raised by appellant and find them to be without merit.
As there was no due process bar to appellant's retrial, and as the trial court did not err in
denying appellant's motion for a competency hearing, we hereby order his conviction
affirmed.
2
concur.
____________________

2
place and stead of The Hon. E. M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a)
and 19(1)(c), and SCR 10.
____________
99 Nev. 181, 181 (1983) Bolden v. State
RUDY BOLDEN, Appellant, v. THE STATE
No. 14056
March 11, 1983 659 P.2d 886
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
Defendant appealed from an order of the district court denying his petition seeking
post-conviction relief from his conviction of one count of robbery with use of a deadly
weapon. The Supreme Court held that: (1) defendant's claim that his trial counsel provided
him with constitutionally ineffective assistance could not have been raised and determined on
direct appeal due to the necessity of an evidentiary hearing to resolve questions of fact, and
thus the district court erred by determining that defendant had waived such claim by failing
to raise the issue on direct appeal, and {2) defendant's allegations that his trial counsel
was constitutionally ineffective were sufficient to entitle defendant to an evidentiary
hearing.
determining that defendant had waived such claim by failing to raise the issue on direct
appeal, and (2) defendant's allegations that his trial counsel was constitutionally ineffective
were sufficient to entitle defendant to an evidentiary hearing.
Reversed and remanded for evidentiary hearing.
Reid & Alverson, and Claude E. Zobell, Jr., Las Vegas, for Appellant.
1. Criminal Law.
Generally, a claim that could have been raised on direct appeal from a judgment of conviction, but was
not, is considered waived for purposes of subsequent proceeding for post-conviction relief. NRS
177.375, subd. 2(b).
2. Criminal Law.
Defendant's claim that his trial counsel provided him with constitutionally ineffective assistance, based as
it was upon factual allegations of petition and accompanying affidavit, could not have been raised and
determined on direct appeal due to necessity of an evidentiary hearing to resolve questions of fact, and thus
district court erred by determining that defendant had waived the claim for purpose of his petition seeking
post-conviction relief by failing to raise such issue on direct appeal.
3. Criminal Law.
If a petition for post-conviction relief contains allegations of fact outside the record which, if true, would
entitle petitioner to relief, and evidentiary hearing thereon is required.
4. Criminal Law.
Allegations in defendant's petition seeking post-conviction relief that his trial counsel was constitutionally
ineffective were sufficient to entitle defendant to an evidentiary hearing. NRS 177.365, subd. 1.
OPINION
Per Curiam:
Appellant was convicted, following a jury trial, of one count of robbery with use of a
deadly weapon. On direct appeal from the judgment of conviction, he argued only that the
evidence was insufficient to support the verdict. We affirmed the judgment. Bolden v. State,
97 Nev. 71, 624 P.2d 20 (1981). Appellant then filed a timely petition in the district court
seeking post-conviction relief, alleging that his trial counsel was constitutionally ineffective.
1
The petition was supported by an affidavit setting forth detailed factual allegations. Appellant
also filed an application for an evidentiary hearing on his petition.
____________________

1
Appellant's current counsel represented him neither at trial nor on direct appeal.
filed an application for an evidentiary hearing on his petition. The district court denied both
the application and the petition on the sole ground that appellant had waived the claim of
ineffective trial counsel by failing to raise the issue on direct appeal.
Appellant now argues that he did not waive the claim, and that the district court erred by
denying his petition without an evidentiary hearing to determine the truth or falsity of its
allegations. We agree.
[Headnotes 1, 2]
Generally, a claim that could have been raised on direct appeal from a judgment of
conviction, but was not, is considered waived for purposes of a subsequent proceeding for
post-conviction relief. Roseneau v. State, 90 Nev. 161, 521 P.2d 369 (1974); see NRS
177.375(2)(b). However, in Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981), we held
that because most claims of ineffective trial counsel involve questions of fact that can only be
resolved by the district court at an evidentiary hearing, the more appropriate vehicle for
presenting a claim of ineffective assistance of counsel is through post-conviction relief. 97
Nev. at 523, 634 P.2d at 1216. In the present case, appellant's claim that his trial counsel
provided him with constitutionally ineffective assistance, based as it is upon the factual
allegations of the petition and accompanying affidavit, could not have been raised and
determined on direct appeal due to the necessity of an evidentiary hearing to resolve questions
of fact. We conclude, therefore, that the district court erred by determining that appellant had
waived the claim.
2

[Headnotes 3, 4]
The state argues that even if the claim was not waived, based on the record appellant's
counsel was not ineffective, and no hearing need be granted. However, if a petition for
post-conviction relief contains allegations of facts outside the record which, if true, would
entitle the petitioner to relief, an evidentiary hearing thereon is required. Grondin v. State, 97
Nev. 454, 634 P.2d 456 (1981); Doggett v. State, 91 Nev. 768, 542 P.2d 1066 (1975). We
have examined the petition and supporting affidavit in the light of the entire record, including
the transcript of appellant's trial, and have concluded that the allegations entitle appellant to
an evidentiary hearing.
____________________

2
We express no opinion as to whether a claim of ineffective assistance of counsel is waived by the failure to
raise it on direct appeal when the claim was presented to the district court prior to the entry of a judgment of
conviction, e.g., by a motion for a new trial, and the defendant had the opportunity to request an evidentiary
hearing at that time.
The order denying the petition is reversed and the cause remanded to the district court for
an evidentiary hearing on the allegations of the petition. Since the petition raises a
constitutional question of fact, the district court shall order that appellant be present at that
hearing in accordance with the mandate of NRS 177.365(1).
____________
99 Nev. 184, 184 (1983) Alvis v. State, Gaming Control Bd.
NORMAN F. ALVIS, Appellant, v. STATE OF NEVADA, THE NEVADA GAMING
CONTROL BOARD, Presently Comprised of RICHARD W. BUNKER, JOHN H.
STRATTON, and DALE W. ASKEW, Members, Respondents.
No. 14656
March 28, 1983 660 P.2d 980
Appeal from order dismissing petition for judicial review and from order denying
rehearing, Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that: (1) notice of appeal was untimely; (2) order denying
rehearing was not appealable as special order made after final judgment; and (3) motion for
rehearing did not toll time in which notice of appeal could be filed.
Appeal dismissed.
Gentile & Massi, Las Vegas, for Appellant.
Brian McKay, Attorney General, James C. Giudici, Deputy Attorney General, Carson City,
for Respondents.
Notice of appeal from order dismissing petition for judicial review and order denying rehearing of that
decision, filed more than 30 days after notice of entry of order dismissing petition for judicial review, was
untimely. NRAP 4(a), 26(c).
Mere fact that order in point of time is made after final judgment has been entered does not render it
appealable as a special order; it must affect rights of parties growing out of final judgment. NRAP
3A(b)(2).
Order denying rehearing did not affect rights of parties as determined by prior order dismissing petition
for judicial review; therefore, order denying rehearing was not appealable as a special order made after
final judgment and notice of appeal from order dismissing petition for judicial review and from order
denying rehearing of that decision, filed more than 30 days after notice of entry of order
dismissing petition for judicial review but within 30 days of denial of motion for
rehearing was untimely.
decision, filed more than 30 days after notice of entry of order dismissing petition for judicial review but
within 30 days of denial of motion for rehearing was untimely. NRAP 3A(b)(2), 4(a), 26(c).
Motion for rehearing did not toll time in which notice of appeal could be filed. NRAP 4(a).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing a petition for judicial
review and from an order denying rehearing of that decision.
Alvis filed a complaint with the Gaming Control Board against a hotel and casino. The
Board issued a decision in favor of the club. Alvis thereafter petitioned the district court for
judicial review of the Board's decision. Respondents subsequently moved to dismiss for lack
of jurisdiction. The district court granted the motion and dismissed the petition. Notice of
entry of the order was served by mail on October 5, 1982.
Alvis subsequently moved for rehearing. The district court issued an order on January 3,
1983, denying the motion. Notice of entry of the order was served by mail on January 5,
1983. Alvis filed his notice of appeal on February 7, 1983. The notice of appeal listed both
the order denying the petition for judicial review and the order denying rehearing.
[Headnote 1]
Respondents have now filed a motion to dismiss the appeal. The motion principally asserts
that the notice of appeal was filed beyond the 30-day period specified in NRAP 4(a) and that
this court lacks jurisdiction to entertain the appeal. We agree.
NRAP 4(a) clearly provides that the notice of appeal must 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 this case, respondents served the notice of entry of the order dismissing the petition for
judicial review on October 5, 1982. The notice of appeal should have been filed no later than
November 7, 1982. See NRAP 26(c); NRAP 4(a). Alvis failed to file his notice of appeal
until February 7, 1983. The notice of appeal is untimely and this court may not, therefore,
consider the appeal. See Ross v. Giacomo, 97 Nev. 550, 635 P.2d 298 (1981).
We find no merit to the contentions presented by Alvis in his memorandum of authorities
opposing the motion to dismiss. In his first argument, Alvis asserts that the order issued by
the district court denying rehearing is a special order after final judgment and is,
therefore, independently appealable under NRAP 3A{b){2).
district court denying rehearing is a special order after final judgment and is, therefore,
independently appealable under NRAP 3A(b)(2).
[Headnotes 2, 3]
NRAP 3A(b)(2) permits a party to appeal from a special order made after final
judgment. Wilkinson v. Wilkinson, 73 Nev. 143, 145, 311 P.2d 735, 736 (1957) sets forth
the standard to be applied in analyzing whether an order filed after entry of judgment is
appealable:
The mere fact that the order in point of time is made after a final judgment has been
entered does not render it appealable. It must affect the rights of the parties growing out
of final judgment.
The order denying rehearing in this case did not affect the rights of the parties as determined
by the order dismissing the petition for judicial review. Accordingly, the order denying
rehearing is not appealable as a special order made after final judgment. Compare Bates v.
Nevada Savings & Loan Ass'n, 85 Nev. 441, 456 P.2d 450 (1969) (order granting rehearing
is appealable as a special order after final judgment).
Alvis also contends that we should follow authorities in certain other jurisdictions which
treat a motion for rehearing as a motion to alter or amend the judgment. By treating Alvis'
motion as such, the time to appeal would be tolled under NRAP 4(a).
[Headnote 4]
The rule is well-established in this jurisdiction that a motion for rehearing does not toll the
time in which a notice of appeal may be filed. Whitehead v. Norman Kaye Real Estate, 80
Nev. 383, 395 P.2d 329 (1964); NRAP 4(a). We are not inclined to reject that rule.
1

Accordingly, we hereby dismiss this appeal for lack of jurisdiction. See Ross v. Giacomo,
supra.
____________________

1
A review of the motion for rehearing reveals that Alvis merely sought reconsideration of the district court's
earlier order dismissing the petition for judicial review. It cannot reasonably be construed as a motion to alter or
amend the judgment pursuant to NRCP 59(e).
____________
99 Nev. 187, 187 (1983) Spilotro v. State ex rel. Gaming Comm'n
ANTHONY JOHN SPILOTRO, Appellant, v. THE STATE OF NEVADA, ex rel. NEVADA
GAMING COMMISSION; HARRY M. REID, as Chairman of the Nevada Gaming
Commission; and CLAIR HAYCOCK, GEORGE C. SWARTS, WALTER COX, and JACK
C. WALSH, as Members of the Nevada Gaming Commission, Respondents.
No. 12615
March 31, 1983 661 P.2d 467
Appeal from judgment affirming order of Nevada Gaming Commission excluding
appellant from licensed gaming establishments. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
The Supreme Court, Mowbray, J., held that: (1) where Gaming Commission did not make
any findings of basic fact to support its ultimate findings that appellant possessed a notorious
and unsavory reputation, had been convicted of crimes that would be felonies if committed in
Nevada or under federal law, and was a person whose presence in a licensed gaming
establishment would be inimical to interests of state and licensed gaming industry,
Commission order would be remanded for a statement of its factual basis; (2) statutes
authorizing exclusion of certain persons from licensed gaming establishments did not
unconstitutionally permit punishment of individuals on basis of status or reputation, did not
constitute a bill of attainder and were not facially overbroad; and (3) statutes authorizing
exclusionary list were valid as applied to appellant.
Affirmed in part; reversed and remanded in part.
[Rehearing denied September 19, 1983]
Goodman, Terry, Stein & Quintana and Martin J. Kravitz, Las Vegas, for Appellant.
Brian McKay, Attorney General, Patricia Becker, Deputy Attorney General, Carson City;
H. Leon Simon, Deputy Attorney General, Las Vegas, for Respondents.
Factual findings are required to assure reasoned decision making by administrative agency, assist affected
parties in preparing for judicial review, and enable the courts to review agency's action without intruding
on agency's fact-finding function.
2. Gaming.
Where Gaming Commission did not make any findings of basic fact to support its ultimate findings that
appellant possessed a notorious and unsavory reputation, had been convicted of crimes that would be
felonies if committed in Nevada or under federal law, and was a person whose
presence in a licensed gaming establishment would be inimical to interests of state
and licensed gaming industry, Commission order barring appellant from licensed
gaming establishments in Nevada would be remanded for a statement of its factual
basis.
would be felonies if committed in Nevada or under federal law, and was a person whose presence in a
licensed gaming establishment would be inimical to interests of state and licensed gaming industry,
Commission order barring appellant from licensed gaming establishments in Nevada would be remanded
for a statement of its factual basis. NRS 463.312, subd. 18, 463.315, subd. 11(c).
3. Constitutional Law; Gaming.
Statutes authorizing exclusion of certain persons from licensed gaming establishments did not
unconstitutionally permit punishment of individuals on basis of status or reputation, did not constitute a bill
of attainder and were not facially overbroad. NRS 463.151-463.155; U.S.C.A.Const. Amend. 1.
Mere association with a person or group cannot be made criminal.
5. Criminal Law.
State may not punish solely on basis of status or reputation.
A bill of attainder is any legislative act that applies to named individuals or any easily attainable group
in such a way as to inflict punishment on them without a judicial trial.
If a statutory enactment sets off criteria or a general definition describing those who fall within its
prohibitions, it is not a bill of attainder.
Function of overbreadth doctrine attenuates as the behavior forbidden by state moves from pure speech
toward conduct falling within scope of otherwise valid criminal laws that reflect legitimate state interests;
particularly where conduct and not merely speech is involved the overbreadth of the statute must not only
be real, but substantial as well, judged in relation to statute's plainly legitimate sweep. U.S.C.A.Const.
Amend. 1.
9. Constitutional Law; Gaming.
Classifications created by statutes authorizing exclusion of certain persons from licensed gambling
establishments were not suspect, did not infringe on any fundamental rights, and were rationally related to a
legitimate state purpose and therefore did not deprive appellant of his rights of association, travel, and
access to public places or to equal protection of laws; furthermore, inasmuch as appellant received notice
and a hearing prior to his exclusion, his due process rights were not violated. NRS 463.151-463.155;
OPINION
Appellant is challenging the constitutionality of NRS 463.151 through NRS 463.155 and
Nevada Gaming Commission Regulation 28 on numerous grounds. He also challenges the
adequacy of his hearing before the Commission, and the failure of the Commission to make
factual findings in support of its decision barring him from licensed gaming establishments
in Nevada.
of its decision barring him from licensed gaming establishments in Nevada. We hold that the
statutes and the Commission regulation in issue are constitutional. However, we reverse and
direct the district court to remand the case to the Commission for a statement of the basic
factual findings on which the Commission rested its ultimate finding that appellant fell within
the meaning of NRS 463.151(1) and Regulation 28.010.
THE FACTS
On December 7, 1978, the Nevada Gaming Commission issued an order placing appellant
Anthony J. Spilotro on its lists of persons to be excluded or ejected from licensed gaming
establishments throughout the State of Nevada. The exclusionary list was established
pursuant to NRS 463.151 through NRS 463.155 and Gaming Commission Regulation 28.
1
The Commission's order followed a hearing at which Spilotro had been represented by
counsel.
____________________

1
NRS 463.151 (as amended in 1981) provides as follows:
1. The legislature hereby declares that the exclusion or ejection of certain persons from licensed
gaming establishments which conduct pari-mutuel wagering or operate any horse race book, sports pool
or games, other than slot machines only, is necessary to effectuate the policies of this chapter and to
maintain effectively the strict regulation of licensed gaming.
2. The commission may by regulation provide for the establishment of a list of persons who are to be
excluded or ejected from any licensed gaming establishment which conducts pari-mutuel wagering or
operates any horse race book, sports pool or games, other than slot machines only. The list may include
any person whose presence in the establishment is determined by the board and the commission to pose a
threat to the interests of this state or to licensed gaming, or both.
3. In making that determination, the board and the commission may consider any:
(a) Prior conviction of a crime which is a felony in this state or under the laws of the United States, a
crime involving moral turpitude or a violation of the gaming laws of any state;
(b) Violation or conspiracy to violate the provisions of this chapter relating to:
(1) The failure to disclose an interest in a gaming establishment for which the person must
obtain a license; or
(2) Willful evasion of fees or taxes;
(c) Notorious or unsavory reputation which would adversely affect public confidence and trust that
the gaming industry is free from criminal or corruptive elements; or
(d) Written order of a governmental agency which authorizes the exclusion or ejection of the person
from an establishment at which gaming or pari-mutuel wagering is conducted.
4. Race, color, creed, national origin or ancestry, or sex must not be grounds for placing the name of a
person upon the list.
As appellant does not allege that he has been charged with a violation of the regulations promulgated under
this section, we shall evaluate the statute as amended.
represented by counsel. He had been given the opportunity to present evidence and to
cross-examine witnesses. In its decision, the Commission stated the statutory grounds for
entering an order of exclusion. The Commission did not make any further findings of fact in
support of its decision.
Spilotro is subject to a gross misdemeanor charge if he enters the premises of a licensed
gaming establishment while he is on the list.
2
He does not allege that he has been charged
with such a violation.
[Headnote 1]
Spilotro petitioned for judicial review of the Commission's order. The district court
affirmed the order, upholding the constitutionality of the statutes authorizing the exclusionary
list and holding that the order was supported by substantial evidence in the record. This
appeal followed.
THE COMMISSION FAILED TO MAKE THE
NECESSARY FACTUAL FINDINGS
NRS 463.312(18) provides that:
[a]fter the hearing of a contested matter, the Commission shall render a written decision
on the merits which must contain findings of fact, a determination of the issues
presented and the penalty to be imposed, if any; and shall thereafter make and enter its
written order in conformity to such decision. (Emphasis added.)
Nevada Gaming Commission Regulation 28.070(1) makes NRS 463.312(18) applicable to
hearings under NRS 463.153. Factual findings are required to assure reasoned decision
making by the administrative agency, assist the affected parties in preparing for judicial
review, and enable the courts to review the agency's action without intruding on the agency's
fact-finding function. See State, Dep't of Commerce v. Hyt, 96 Nev. 494, 611 P.2d 1096
(1980); Pub. Serv. Comm'n v. Continental Telephone Co., 94 Nev. 345, 580 P.2d 467 (1978);
Nevada Tax Comm'n v. Hicks, 73 Nev. 115, 122, 310 P.2d 852, 855 (1957); In re Sturm, 521
P.2d 97 (Cal. 1974); Application of Hawaii Elec. Light Co., Inc., 594 P.2d 612 (Hawaii
1979).
____________________

2
NRS 463.155 provides as follows:
Any person who has been placed on the list of persons to be excluded or ejected from any licensed
gaming establishment pursuant to NRS 463.151 is guilty of a gross misdemeanor if he thereafter enters
the premises of a licensed gaming establishment which conducts pari-mutuel wagering or operates any
horse race book, sports pool or games, other than slot machines only, without first having obtained a
determination by the commission that he should not have been placed on the list of persons to be
excluded or ejected.
[Headnote 2]
In the instant case, the Commission did not make any findings of basic fact to support its
ultimate findings that Spilotro possessed a notorious and unsavory reputation, had been
convicted of crimes that would be felonies if committed in Nevada or under federal law, and
was a person whose presence in a licensed gaming establishment would be inimical to the
interests of the State and the licensed gaming industry. Thus, the Commission made
absolutely no attempt to comply with the dictates of NRS 463.312(18). We therefore reverse,
and order the district court to remand this case to the Gaming Commission for a statement of
the factual basis for its order. NRS 463.315(11)(c).
Appellant's other contentions would be certain to reappear following reissuance of the
Commission's written order. We therefore shall dispose of them at the present time.
THE STATUTES AUTHORIZING THE EXCLUSION-
ARY LIST ARE VALID ON THEIR FACE
[Headnote 3]
Appellant first contends that NRS 463.151 through NRS 463.155 are unconstitutional on
their face because they permit punishment of individuals on the basis of status or reputation.
He relies on City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967), in which we
invalidated a disorderly conduct ordinance that did not require the doing of an act or the
presence of criminal intent before imposing punishment. The city of Reno had attempted to
supply these elements by inference from the past history or reputation of the defendant and
his association with others bearing the same burden.
[Headnotes 4, 5]
Mere association with a person or group cannot be made criminal. Scales v. United States,
367 U.S. 203 (1961); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980). The State may
inflict punishment only if the accused has committed some act or engaged in some behavior
that society has an interest in preventing; thus, the State may not punish solely on the basis of
status or reputation. Powell v. Texas, 392 U.S. 514 (1968) (plurality opinion); Robinson v.
California, 370 U.S. 660, 666 (1962). However, appellant's reliance on City of Reno v.
District Court is misplaced, for two reasons. First, the purpose of the statutes is regulatory,
not penal. The exclusionary list is designed not to punish those listed for past bad behavior,
but to protect the interests of the State and the licensed gaming industry, by avoiding any
potentially significant criminal or corruptive taint and thus maintaining public confidence
and trust in the gaming industry.
corruptive taint and thus maintaining public confidence and trust in the gaming industry. See
Nevada Tax Comm'n v. Hicks, supra, 73 Nev. at 119, 310 P.2d at 854; NRS 463.130(1)(c);
NRS 463.151(1) & (3)(c). See also State, Nev. Gaming Comm'n v. Glusman, 98 Nev. 412,
651 P.2d 639 (1982).
Additionally, the statutes require the commission of an act before imposing any criminal
sanctions. A person must first be listed by the Gaming Commission, and then the listed
person must enter the premises of a licensed gaming establishment to commit the gross
misdemeanor set forth in NRS 463.155. As will be discussed below, the State may validly
prohibit a listed person from entering such establishments. The situation is akin to that found
in Powell v. Texas, supra, where the High Court upheld the conviction of a chronic alcoholic
who violated a statute prohibiting persons from being found in a state of intoxication in any
public place. 392 U.S. at 517, 532. The dangers of harassment and unfettered police
discretion pointed out in City of Reno are not here present. See Dinitz v. Christensen, 94 Nev.
230, 577 P.2d 873 (1978). In sum, the statutes authorizing the exclusionary list do not permit
criminal punishment on the basis of status or reputation.
[Headnotes 6, 7]
Appellant also challenges the statutes on their face as constituting a bill of attainder. This
contention is meritless. A bill of attainder is any legislative act that applies to named
individuals or an easily ascertainable group in such a way as to inflict punishment on them
without a judicial trial. United States v. Brown, 381 U.S. 437, 448-49 (1965), citing United
States v. Lovett, 328 U.S. 303, 315-16 (1946); Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348
(1977). On the other hand, if the enactment sets out criteria or a general definition describing
those who fall within its prohibitions, it is not a bill of attainder. In the instant case, NRS
463.155 sets forth the elements of the gross misdemeanor, but leaves the determination of a
particular defendant's guilt to the courts. Hence, it is not a bill of attainder. See Oueilhe v.
Lovell, supra. The other statutory provisions lack any punitive purpose, and therefore cannot
be bills of attainder. For the same reason, contrary to appellant's contention, they do not
inflict a cruel and unusual punishment, upon appellant or anyone else. See Trop v. Dulles,
356 U.S. 86, 94-97 (1958).
Appellant lastly challenges the statutes on their face as overbroad. He contends that
because the statutes (as written at the time of his hearing) permitted the Commission to
exclude persons from any establishment that is licensed to operate any gambling game,
including slot machines, the statutes impermissibly swept constitutionally protected
conduct within their ambit, and must be declared invalid on their face.
gambling game, including slot machines, the statutes impermissibly swept constitutionally
protected conduct within their ambit, and must be declared invalid on their face. However,
the Legislature amended the statutes in 1981 to exclude licensed gaming establishments that
contained slot machines only. Since Spilotro does not allege that he has been charged with a
violation of the statutes, we shall analyze the statutes as they presently exist. See Western
Beverage, Inc. v. State, 532 P.2d 930, 932 (Idaho 1974).
[Headnote 8]
The overbreadth doctrine traditionally has been reserved for statutes regulating First
Amendment rights. See State, Nev. Gaming Comm'n v. Glusman, supra. It is based on the
assumption that a statute regulating First Amendment freedoms may cause persons not before
the court to refrain from constitutionally protected conduct; hence, the defendant may
challenge the statute even if it would continue to prohibit his own conduct after it was
sufficiently narrowed. Broadrick v. Oklahoma, 413 U.S. 601, 610-12 (1973). However, as the
High Court noted in Broadrick, the function of the overbreadth doctrine attenuates as the
behavior forbidden by the State moves from pure speech toward conduct falling within the
scope of otherwise valid criminal laws that reflect legitimate state interests. [P]articularly
where conduct and not merely speech is involved . . . the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep. 413 U.S. at 615.
The statutes involved in the instant case are not in any way directed toward the regulation
of speech or association, and do not infringe on any First Amendment rights. The First
Amendment protects the freedom to associate for the promotion of political and social ideas,
not association purely for social or economic purposes. State, Nev. Gaming Comm'n v.
Glusman, supra. See Lewitus v. Colwell, 479 F.Supp. 439, 444-45 (D.Md. 1979). See also
Healy v. James, 408 U.S. 169, 181 (1972); Bates v. Little Rock, 361 U.S. 516, 523 (1960).
Cf. Woloson v. Sheriff, 93 Nev. 283, 564 P.2d 603 (1977) (First Amendment interests not
involved where transaction does not involve communication of an idea from one person to
another, affect the political process, provide information on matters of public importance, or
otherwise contribute to the exchange of ideas).
Even if some First Amendment right were incidentally affected, the statutes as amended
would not be overbroad, as they are narrowly drawn to fit their intended purpose. Listed
persons are excluded only from gaming establishments operating more than slot machines,
i.e., casinos, and exclusion is an appropriate means of protecting the State's paramount
interest in maintaining public confidence and trust in the gaming industry.
appropriate means of protecting the State's paramount interest in maintaining public
confidence and trust in the gaming industry.
THE STATUTES AUTHORIZING THE EXCLUSIONARY LIST ARE
VALID AS APPLIED TO APPELLANT
[Headnote 9]
Appellant contends that his placement on the exclusionary list deprived him of several
constitutional rights. First, he argues that he has been denied his rights of association, travel,
and access to public places. These contentions are meritless. The lack of infringement on
appellant's First Amendment rights has already been discussed. He does not allege that the
State has sought to burden his membership in any particular group. Similarly, appellant has
not been denied his constitutional right to travel. See Griffin v. Breckenridge, 403 U.S. 88,
105 (1971). The amended statutes exempt from their scope gaming establishments containing
slot machines only, thereby allowing appellant access to airline and bus terminals and other
facilities of interstate commerce.
Appellant does not have a constitutional right of access to businesses, such as casinos, that
are generally open to the public. Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736 (6th
Cir.), cert. denied, 449 U.S. 996 (1980); Flores v. Los Angeles Turf Club, Inc., 361 P.2d 921,
924 (Cal. 1961). He does not allege that the State listed him because of his race, religion,
national origin, or any other constitutionally suspect reason. Cf. Gilmore v. City of
Montgomery, 417 U.S. 556 (1974) (Equal Protection Clause bars city from limiting access to
public recreational facilities to racially segregated private schools and groups affiliated with
such schools); Perry v. Sindermann, 408 U.S. 593, 597 (1972) (even though the government
may deny a valuable government benefit to a person for numerous reasons, it may not do so
because of that person's constitutionally protected speech or associations). Therefore,
appellant has not been denied any right of access to public places.
For the above reasons, appellant's contention that he has been denied equal protection of
the laws is also meritless. The classifications created by the statutes are not suspect, do not
infringe on any fundamental rights, and are rationally related to a legitimate State purpose.
Appellant has not been singled out on any improper basis for listing. See State, Nev.
Gaming Comm'n v. Glusman, supra; Cairns v. Sheriff, 89 Nev. 113, 115-16, 508 P.2d 1015,
1017 (1973).
Lastly, appellant argues that the statutes and the administrative hearing that he received
violate due process principles. As already discussed, the statutes are a reasonable method of
achieving the legitimate end of protecting the State's vital gaming industry, and thus
comply with substantive due process. Appellant is entitled to certain procedural due
process rights, i.e., notice and an opportunity to be heard, because the State's action
places his reputation at stake.
achieving the legitimate end of protecting the State's vital gaming industry, and thus comply
with substantive due process. Appellant is entitled to certain procedural due process rights,
i.e., notice and an opportunity to be heard, because the State's action places his reputation at
stake. Wisconsin v. Constantineau, 400 U.S. 433, 436-37 (1971). However, appellant
received notice and a hearing in this case, as prescribed by NRS 463.153. He cites no
authority that would require the State to grant a hearing prior to the Gaming Control Board's
provisional order placing him on the list.
At appellant's hearing, considerable hearsay evidence was placed before the Commission.
As the Commission did not make any findings of fact, we shall not address appellant's
objections that the Commission relied exclusively on hearsay evidence and listed him solely
on the basis of his reputation. However, we will note that NRS 463.312(13)(f) provides that
[a]ny relevant evidence may be admitted and is sufficient to support a finding if it is the sort
of evidence on which responsible persons are accustomed to rely in the conduct of serious
affairs, whether or not the evidence is hearsay.
3
State of Nevada v. Rosenthal, 93 Nev. 36,
44, 559 P.2d 830, 835 (1977). See Richardson v. Perales, 402 U.S. 389, 402-07 (1971).
Moreover, the Commission had before it evidence that appellant had been convicted of a
felony in federal court, in addition to several government-sponsored reports that identified
appellant as affiliated with organized crime.
In sum, we uphold NRS 463.151 through NRS 463.155 and Gaming Commission
Regulation 28 as constitutional on their face and as applied to appellant. However, we reverse
and direct the district court to remand the case to the Gaming Commission for a statement of
the facts on which it relied in placing appellant on the exclusionary list.
Manoukian, C. J., and Springer, J., concur.
Gunderson, J., and Schouweiler, D. J.,
1
concurring: In general, we agree with our
brethren. However, we feel one point should be amplified, i.e., that the court's decision
today does not validate all of counsel's various contentions concerning the sweep of NRS
463.151 through NRS 463.155.
____________________

3
Gaming Commission Regulation 28.010(3) describes the sorts of evidence that may establish a notorious or
unsavory reputation, including identification of a person's criminal activities in published reports of various
federal and state legislative bodies which have inquired into various aspects of criminal activities . . . . The
regulation mentions the McClellan Committee (Senate Subcommittee on Investigation), the Chicago Crime
Commission, the New York Waterfront Commission, and the California Crime Commission as possible sources
of such reports.

1
The Governor designated the Honorable Robert L. Schouweiler, Judge of the Second Judicial District
Court, to sit in the place of Senior Justice David Zenoff, who was unavailable to sit. (Justice Zenoff had been
sitting with the court pursuant to general order of assignment by the Chief Justice, in place of Justice Cameron
Batjer, who had retired.) Nev. Const., art. 6, 4.
In general, we agree with our brethren. However, we feel one point should be amplified,
i.e., that the court's decision today does not validate all of counsel's various contentions
concerning the sweep of NRS 463.151 through NRS 463.155.
For example, respondent's counsel has asserted, in effect, that NRS 463.151 through NRS
463.155 should be construed so as to preclude an excluded person from entering upon any
property owned by a gaming licensee, under any circumstances. In counsel's view, the statute
applies even though the portion of the premises visited is not devoted to gaming, and even
when it is entered in the exercise of fundamental constitutional rights.
Thus, if we understand counsel's contentions, an excluded person could not even enter
the Union Plaza Hotel in Las Vegas en route to the railway station, which is situated within
that hotel. This is so, respondent's counsel seems to contend, even though the direct route
through the hotel to the station is far from the casino, and the station itself is about a city
block distant from any gaming activities. From comments at oral argument, we gather
respondent's counsel also may think that an excluded person could neither lawfully attend
political events on the non-gaming portion of a gaming licensee's premises, nor visit any of
the professional practitioners such as physicians who commonly occupy office space in
hotel-casino complexes, nor pursue any other legitimate pursuits on the non-gaming portion
of a gaming licensee's premises. Indeed, as respondent's counsel would construe NRS
463.151 through NRS 463.155, an excluded person traveling by bus through Nevada could
not even visit the lavatories in several of our established bus stations, or eat at the lunch
counters during rest stops, because those facilities are in buildings also occupied by casinos.
On the other hand, appellant's counsel urges that such draconian applications of NRS 463.151
through NRS 463.155 would unduly impinge on constitutional rights and freedoms.
Of course, the cases imagined by the parties' counsel are not now, and may never be,
before this court. Upon remand to the Gaming Commission, findings of fact may or may not
be made that will support an order placing appellant on the list of excluded persons.
Thereafter, appellant and law enforcement officers might or might not act in ways which
would raise, in concrete factual settings, constitutional issues that are now purely
hypothetical. It is not the function of this court to provide abstract answers to moot or
hypothetical questions. See, e.g., Williams v. State, 97 Nev. 1, 5 n. 4, 620 P.2d 1263 (1981);
Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210 (1979); Union Pacific R.R. Co. v. Adams,
77 Nev. 282, 290, 362 P.2d 450 {1961).
(1961). Moreover, all statutes should be construed so as to render them constitutional,
whenever possible, Anaya v. State, 96 Nev. 119, 123, 606 P.2d 156 (1980), and criminal
statutes must be strictly construed. Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191 (1975).
____________
99 Nev. 197, 197 (1983) Barlow v. Director, Dep't Prisons
BOYD CLAYBURN BARLOW, Appellant, v. DIRECTOR, NEVADA
DEPARTMENT OF PRISONS, Respondent.
No. 13176
March 31, 1983 660 P.2d 1005
Appeal from order denying a post-conviction petition for writ of habeas corpus, First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
After being convicted of sexual assault, defendant sought postconviction relief by way of
habeas corpus. The district court denied relief and defendant appealed. The Supreme Court
held that record did not demonstrate that defendant's plea was entered knowingly and
voluntarily.
Donald K. Pope, Reno, for Appellant.
Brian McKay, Attorney General, Robert C. Manley, Deputy Attorney General, Carson
City, for Respondent.
1. Criminal law.
Where judge did not personally address defendant at time the guilty plea was entered to determine if
defendant understood the elements of the offense and where defendant made no factual statements which
would constitute admission of guilt, the plea was not knowingly and voluntarily entered.
2. Criminal Law.
Fact that defendant waived reading of information at arraignment hearing almost six months before
the day he entered his plea of guilty was insufficient to show that defendant understood the elements of
the offense.
OPINION
Per Curiam:
Appellant was convicted of one count of sexual assault pursuant to a guilty plea. He
sought a writ of habeas corpus in the district court, contending that the record did not show
that the plea was made knowingly and voluntarily. The district court denied relief, and this
appeal followed.
99 Nev. 197, 198 (1983) Barlow v. Director, Dep't Prisons
[Headnote 1]
A review of the record on appeal reveals that the trial judge did not personally address
appellant at the time the guilty plea was entered to determine if appellant understood the
elements of the offense to which he was pleading. Furthermore, appellant made no factual
statements on the record which would constitute an admission of guilt. The record therefore
does not demonstrate that the plea was entered knowingly and voluntarily. See Standen v.
State, 99 Nev. 76, 657 P.2d 1159 (1983); Hanley v. State, 97 Nev. 130, 624 P.2d 1387
(1981).
[Headnote 2]
Respondent contends that we should nevertheless conclude that appellant understood the
elements of the offense since he waived the reading of the information at his arraignment
hearing, almost six months before the day he entered his guilty plea. We find this to be
insufficient to meet the requirements set forth in Hanley. See Standen v. State, supra.
Accordingly, we hereby reverse the order of the district court. The plea of guilty is set
aside, and the matter is remanded to the district court for further proceedings.
____________
99 Nev. 198, 198 (1983) Felt v. Meagher
MICHELLE T. FELT, Special Administratrix of the Estate of E. H. BROWN, Deceased,
Appellant, v. MELINDA MEAGHER and DOUGLAS R. PIKE, Respondents.
No. 12998
March 31, 1983 660 P.2d 1006
Appeal from judgment of dismissal; Eighth Judicial District Court, Clark County; William
P. Beko, Judge.
Appeal was taken from judgment of the district court dismissing action to set aside money
judgment in separate interpleader action. The Supreme Court held that action was not barred
on basis that party had opportunity to litigate her right to certain money proceeds in action
instituted by her in 1978.
Thomas E. Shulman, Las Vegas, for Appellant.
Martin R. Boyers, Donald L. Wood, Las Vegas, for Respondents.
1. Judgment.
Doctrine of collateral estoppel generally provides that issues which have actually been decided
against the party in a prior proceeding may be relied upon by an opponent in a
subsequent case, even though opponent was not a party to prior action.
which have actually been decided against the party in a prior proceeding may be relied upon by an
opponent in a subsequent case, even though opponent was not a party to prior action.
2. Judgment.
Action to set aside money judgment in a separate interpleader action was not barred on the basis that one
party had the opportunity to litigate her right to certain money proceeds in an action instituted by her in
1978 where issue of party's entitlement was not decided against her in the 1978 action but was decided in
her favor, and although party could have litigated her claim against another party as well as the original
party in her 1978 lawsuit, the other could not invoke the doctrine of collateral estoppel to prevent the
instant party from pursuing the case.
OPINION
Per Curiam:
This is an appeal from a judgment of dismissal in an action to set aside a money judgment
in a separate interpleader action. The sole issue presented is whether the district court erred in
concluding that the action was barred because Felt had the opportunity to litigate her right to
certain money proceeds in an action instituted by her in 1978. Because the district court's
conclusion was erroneous, we reverse and remand.
Felt is the administratrix of the estate of one E. H. Brown, who was allegedly robbed and
murdered by a William Cody in 1978. The subject matter of this appeal is the sum of
$19,500, which apparently was deposited in an account at the Aladdin Hotel in Las Vegas by
Cody in his own name and in that of respondent Meagher. Felt contends that the money was a
portion of a larger sum taken from Brown by Cody.
Felt's claim to the money in the Aladdin account is one of multiple conflicting claims
thereto. This case is the fourth in a series of cases regarding the proper disposition of the
money. In the first such case, Meagher, unable to withdraw the money from the Aladdin
account, retained respondent Pike, an attorney, to retrieve the fund. On March 2, 1978, Cody
executed a confession of judgment in favor of Pike. Shortly thereafter, Pike executed upon
and obtained the $19,500 in the account.
The second lawsuit was initiated by Felt on March 24, 1978, to marshal her decedent's
assets, including the money in the Aladdin account. Cody, Meagher, and another party were
named as defendants, but only Cody was served with process. Felt eventually obtained a
money judgment against Cody.
Subsequently, Cody asserted that he was entitled to the money previously contained in the
Aladdin account. In light of the conflicting claims, Pike filed the third lawsuit, an
interpleader action.
the conflicting claims, Pike filed the third lawsuit, an interpleader action. Pike named as
defendants Cody and Meagher, but not Felt. Only Meagher filed an answer. On March 16,
1979, the district court entered a judgment awarding $13,000 to Meagher and $6,500 to Pike.
Felt subsequently moved to intervene in the interpleader action, but her motion was denied as
untimely.
Felt then filed this lawsuit, an independent action to vacate the judgment in the
interpleader action, claiming that the judgment was obtained by extrinsic fraud on the part of
Pike and Meagher. Pike and Meagher moved to dismiss Felt's independent action of four
separate grounds. The district court dismissed this lawsuit, stating as follows:
Since [Felt] had a full and fair opportunity to litigate the issue [of her entitlement to the
money in the Aladdin account] in [her 1978 action], it matters not that [Meagher] did
not participate in the prior proceeding, although she was named as a defendant, but not
served despite the fact she was within the jurisdiction at all times. Therefore . . . [Felt's]
complaint should be dismissed according to the doctrine of collateral estoppel.
We disagree with the district court's reasoning.
[Headnotes 1, 2]
The doctrine of collateral estoppel generally provides that issues which have actually been
decided against a party in a prior proceeding may be relied upon by an opponent in a
subsequent case, even though the opponent was not a party to the prior action. Norman v.
Murray First Thrift & Loan Co., 596 P.2d 1028 (Utah 1979). Here, the issue of Felt's
entitlement was not decided against her in the 1978 action to marshal the money in the
Aladdin account. On the contrary, the issue was decided in Felt's favor. Consequently,
although Felt could have litigated her claim against Meagher as well as Cody in her 1978
lawsuit, Meagher may not invoke the doctrine of collateral estoppel to prevent Felt from
pursuing the case at hand. See Moss v. Jones, 225 A.2d 369 (N.J.Super.Ct.App.Div. 1966)
(plaintiff not precluded from suing automobile owner by reason of his having sued driver
alone in prior action wherein plaintiff obtained a judgment that was unsatisfied). Accordingly,
the judgment of the district court is reversed, and the matter is remanded for further
proceedings.
1

____________________

1
Chief Justice Noel E. Manoukian voluntarily disqualified himself from the decision in this case.
____________
99 Nev. 201, 201 (1983) Sarman v. District Court
EDWIN CARL SARMAN and LOIS ELIZABETH RABE SARMAN, as Co-Executors of
the Estate of ELIZABETH SCHULZ RABE, and as Guardians and Next Friends of
MICHAEL L. SARMAN and PAUL ANDREW SARMAN, Minor Children, Appellants, v.
THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Douglas; ROBERT COWLES; and LESTER BERKSON, Respondents.
No. 13015
March 31, 1983 660 P.2d 990
Appeal from order dismissing action to set aside sale of real property confirmed in
collateral probate proceeding. Ninth Judicial District Court, Douglas County; Joseph O.
McDaniel, Judge.
Coexecutors of decedent's estate brought action to set aside sale of real property confirmed
in collateral probate proceeding. The district court dismissed the complaint, and plaintiffs
appealed. The Supreme Court held that lack of compliance with notice statute in the probate
proceeding did not deprive probate court of jurisdiction to enter order confirming the sale.
Affirmed.
[Rehearing denied August 24, 1983]
George W. Abbott, Minden, for Appellants.
C. Nicholas Pereos, Reno; Lester H. Berkson, Stateline, for Respondents.
1. Executors and Administrators.
Statute requiring notice of time and place of sale of real property from a decedent's estate serves purposes
of advertising the sale to potential bidders and serving constructive notice on all heirs so that they may
have opportunity to contest the sale. NRS 148.220.
A lack of sufficient notice to heirs may prevent probate court from gaining jurisdiction to confirm sale of
real property from a decedent's estate. NRS 148.220.
Lack of compliance with notice of sale statute in probate proceeding did not, under the circumstances,
deprive probate court of jurisdiction to enter order confirming sale of real property from decedent's estate.
NRS 148.220.
OPINION
Per Curiam:
Appellants seek to attack collaterally a probate court order confirming the sale of certain
real property of the Rabe estate to the Nature Conservancy.
to the Nature Conservancy. They suggest that errors occurred during the probate proceeding
that deprived the probate court of jurisdiction to confirm the sale. We hold that none of the
alleged errors affected the jurisdiction of the probate court over the sale, and we affirm the
district court's order dismissing appellants' complaint.
THE FACTS
Elizabeth Schulz Rabe died in July 1967. Her will was admitted to probate the following
December. Appellants Edwin Carl Sarman and Lois Elizabeth Rabe Saram, who were the
primary beneficiaries under the will, were appointed co-executors of the estate. The assets of
the estate consisted primarily of land. To satisfy a substantial federal estate tax, appellants
elected to sell certain Lake Tahoe property which belonged to the estate.
The Tahoe Regional Planning Agency later gave the Tahoe property a land use
classification that adversely affected its market value. Appellants were unable to sell the
property. Interest on the unpaid estate tax, and on a substantial loan to the estate that was
secured by the Tahoe property and that was in default, accrued rapidly. Finally, with the
appellants' consent the probate court appointed a Special Court Aide to assist appellants in
finding a purchaser for the property.
After negotiations, The Nature Conservancy, a publicly-supported nonprofit corporation,
agreed to purchase the property for $3,650,000. It was agreed by all the parties that title
would be transferred to the U.S. Forest Service when the Congress appropriated funds to
reimburse the Conservancy. The Court Aide had not complied with NRS 148.220, which
requires that notice of a sale of estate property be published in a local newspaper three times
during the two weeks prior to the sale.
The Court Aide filed a petition to confirm the sale. Appellants opposed the sale on various
grounds and obtained a delay of the hearing on the petition so that notice of the hearing could
be given to all interested parties.
Following proper notice and a contested hearing on the petition, the probate court entered
an order confirming the sale. Appellants then moved for a new trial or an amendment of the
order of confirmation. The motion was denied. The co-executors then deeded the Tahoe
property to the Nature Conservancy, which deeded the property to the Forest Service a few
months later.
After deeding the property to the Conservancy, the co-executors appealed the order
denying their motion for a new trial. However, they subsequently stipulated to a dismissal of
that appeal without prejudice. Thereafter, they filed an independent action to set aside the
sale of the property.
action to set aside the sale of the property. On respondents' motion, the district court
dismissed the complaint. This appeal followed.
THE ORDER CONFIRMING SALE IS NOT VULNER-
ABLE TO COLLATERAL ATTACK
[Headnote 1]
Appellants urge that the lack of compliance with NRS 148.220
1
stripped the district court
of jurisdiction to confirm the sale of the property, thus rendering the order confirming the sale
void and subject to collateral attack. The statute serves two purposes: one purpose is to
advertise the sale to potential bidders, see NRS 148.240; the second purpose is to serve
constructive notice on all heirs, so that they may have the opportunity to contest the sale.
Kline v. Shoup, 226 P. 729 (Idaho 1923); Lamont v. Vinger, 202 P. 769 (Mont. 1921). See
Pease v. Stamps, 350 P.2d 965 (Okla. 1960). This later function is important where the
decedent dies intestate and not all heirs are known to the executors of the estate.
[Headnote 2]
The advertising requisite does not go to jurisdiction, but rather achieves the legislative
purpose of promoting competitive estate sales. On the other hand, a lack of sufficient notice
to the heirs may prevent the probate court from gaining jurisdiction to confirm the sale of real
property. Where the record affirmatively shows that insufficient notice was given, the order
confirming the sale may be attacked in a separate proceeding as void for lack of jurisdiction.
Robinson v. Spittler, 129 P.2d 181 (Okla. 1942). See Kline v. Shoup, supra. Cf. In re
Hegarty's Estate, 45 Nev. 145, 199 P. 81 (1921) (where notice for probate of will not
published at least 10 days prior to admission of will to probate, as required by statute, order
void for lack of jurisdiction and vulnerable to collateral attack).
[Headnote 3]
In the case at bar the decedent died testate. The will directed that the subject property be
sold to pay the estate taxes and the costs of administration. Unlike a situation involving
intestate succession, the title to the property did not pass to the heirs on the decedent's
death; moreover, all beneficiaries of the estate were known to the executors.
____________________

1
1. Notice of the time and place of sale of real property must be published in a newspaper published in
the county in which the land or some portion thereof lies, if there is one so published (if none, then in
such paper as the court or judge may direct) for 2 weeks, being 3 publications, 1 week apart, before the
day of sale, or, in the case of a private sale, before the day on or after which the sale is to be made.
the decedent's death; moreover, all beneficiaries of the estate were known to the executors.
Notice of the hearing on the proposed order confirming the sale was sent to those
beneficiaries. It was at the confirmation hearing that the probate court considered the
propriety and circumstances of the sale, and the court at that hearing had jurisdiction over the
subject matter and all interested parties. We therefore hold that the lack of compliance with
NRS 148.220 in the probate proceeding did not deprive the probate court of jurisdiction to
enter the order confirming the sale. The district court properly dismissed appellants' collateral
attack on the order.
Appellant's other contentions on appeal are without merit. We therefore affirm the
judgment of the district court.
2

____________________

2
Chief Justice Manoukian voluntarily disqualified himself from the consideration of this case.
____________
99 Nev. 204, 204 (1983) Sagebrush Ltd. v. Carson City
SAGEBRUSH LIMITED, a Nevada Limited Partnership; SAGEBRUSH PROPERTIES,
INC., General Partner, Appellants, v. CARSON CITY, CARSON CITY BOARD OF
SUPERVISORS, CARSON CITY PLANNING DEPARTMENT, and CARSON CITY
PLANNING DIRECTOR, Respondents.
No. 14143
March 31, 1983 660 P.2d 1013
Appeal from judgment for defendants following non-jury trial. First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Subdivider sued local government entities alleging that their failure to forward a copy of a
tentative subdivision map to a state agency was negligent and resulted in their incurring
expenses in seeking approval of the subdivision. The district court rendered judgment for the
defendants and subdivider appealed. The Supreme Court, Mowbray, J., held that the statute
requiring local governments to forward copies of tentative subdivision maps to various state
agencies for review, did not create a duty on the part of the local governments towards
subdividers, the violation of which would be negligence per se.
Affirmed.
Smith & Gamble, Ltd., Carson City, for Appellants.
William A. Maddox, District Attorney, and David I. Nielsen, Deputy District Attorney,
Carson City, for Respondents.
1. Negligence.
Violation of statute may constitute negligence per se only if injured party belongs to class of persons that
statute was intended to protect, and injury is of type that statute was intended to prevent.
2. Negligence.
Whether legislative enactment provides standard of conduct in particular situation, making violation
thereof negligence per se, is question of statutory interpretation and construction for court.
3. Municipal Corporations.
Statute requiring local governments to forward copies of tentative subdivision maps to various state
agencies for review did not create duty on part of public officials towards subdividers, the violation of
which would be negligence per se. NRS 278.335, subd. 1.
OPINION
Appellants contend that NRS 278.335(1), which requires local governments to forward
copies of tentative subdivision maps to various state agencies for review, creates a duty on the
part of respondents toward appellants, the violation of which is negligence per se. We
disagree, and therefore affirm the judgment of the district court.
THE FACTS
Carson Tahoe Ventures, appellants' predecessor in interest, submitted a tentative map for
the so-called Lahontan Subdivision to the Carson City Planning Commission on February 1,
1978. Appellants subsequently acquired the property proposed to be subdivided. The City
failed to submit a copy of the tentative map to the Division of Water Resources of the State
Department of Conservation and Natural Resources. The City had been on notice since July
1977 that it was to forward all tentative subdivision maps to the Division of Water Resources
for comment in conformance with NRS 278.330(3) and NRS 278.335(1).
The Carson City Board of Supervisors approved appellants' tentative map on March 15,
1978. Appellants, who had divided development of the subdivision into three phases because
of the City's growth management ordinance, began to prepare final maps for all three phases.
The maps for the second and third phases (Units Two and Three) were prepared some thirty
to sixty days later than the map for the first phase (Unit One).
The Division of Water Resources gave its approval of the final map of Unit One on June 8,
1978, apparently without having seen a tentative map. In the fall of 1978, however, the State
Engineer placed a moratorium on the approval of subdivisions in the Eagle Valley area,
because a newly-released U.S. Geological Survey study showed a significant decrease in
water availability in that area.
State Engineer placed a moratorium on the approval of subdivisions in the Eagle Valley area,
because a newly-released U.S. Geological Survey study showed a significant decrease in
water availability in that area. Because the Division had not received the tentative map for the
Lahontan Subdivision, it treated the final maps for Units Two and Three as tentative maps.
Because the Division had not received the maps prior to the release of the USGS report, it
refused to approved them.
After receiving notice in November 1978 that Units Two and Three were going to be
treated as new subdivisions and that approval of new subdivisions in Carson City was
unlikely in the near future, appellants sold the Lahontan Subdivision to the Medical Clinic of
Sacramento for $1,900,000. Appellants agreed to waive the interest on the Clinic's
$1,400,000 promissory note for whatever period following April 15, 1979 that approval by
the State Engineer was not forthcoming.
The Division disapproved Units Two and Three in a May 24, 1979 letter to appellants.
Eventually appellants and the Medical Clinic sought Carson City approval of a Planned Unit
Development at the Lahontan site; unlike a subdivision, a PUD did not at that time require
Division of Water Resources approval. The Carson City Board of Supervisors approved the
proposed PUD on November 15, 1979; interest on the Medical Center note was reinstated as
of that date.
Appellants subsequently filed their complaint in the instant action, alleging that the City's
failure to submit their tentative map to the Division was negligent and a proximate cause of
their loss of $81,698 in interest on the Medical Center note. They also sought to recover the
cost of preparing the final maps for the abandoned subdivision and the additional cost of
preparing a Planned Unit Development proposal. After a bench trial, the district court
concluded that NRS 278.335 does not of itself establish a duty of care running from
respondents to appellants, that the City's violation of the statute was therefore not negligence
per se, and that the City did not otherwise violate a duty of reasonable care owed to
appellants. This appeal followed entry of judgment for respondents.
NO STATUTORY DUTY OF CARE
At the time the events in the instant action took place, NRS 278.335 provided in relevant
part as follows:
1. A copy of the tentative map shall be forwarded by the local government to the
division of water resources of the state department of conservation and natural
resources and the health division of the department of human resources, or the local
representative acting for the health division for review.
resources, or the local representative acting for the health division for review.
. . . .
5. Each reviewing agency shall within 15 days from the receipt of the tentative map
file its written comments with the planning commission or the governing body
recommending approval, conditional approval or disapproval and stating the reason
therefor.
1

Appellants contend that by failing to forward the tentative map of the Lahontan Subdivision
to the Division of Water Resources in violation of NRS 278.335 (1), respondents were
negligent as a matter of law.
Section 286 of the Restatement (Second) of Torts provides several criteria for judicial
adoption of the requirements of a legislative enactment as the standard of conduct of a
reasonable person. Section 286 reads as follows:
The court may adopt as the standard of conduct of a reasonable man the requirements
of a legislative enactment or an administrative regulation whose purpose is found to be
exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded,
and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
See Bill Stremmel Motors v. First Nat'l Bank, 94 Nev. 131, 134, 575 P.2d 938, 940 (1978)
(damaged commercial lender is member of class of persons for whose benefit Legislature
created statutory duty of car dealers to forward reports to the Dept. of Motor Vehicles listing
security interests in cars sold); Scott v. Smith, 73 Nev. 158, 160-61, 311 P.2d 731, 732 (1957)
(overruled on other grounds, 79 Nev. 328, 383 P.2d 368) (plaintiff must show that purpose of
ordinance was to protect against the harm that occurred; in this respect, the court is concerned
with the persons, interests, and hazards that the ordinance was designed to reach). See also
Sobrio v. Cafferata, 72 Nev. 145, 149-150, 297 P.2d 828, 830 (1956).
____________________

1
In 1979 the Legislature amended subsection (1), changing the word shall to must and adding the
division of environmental protection to the list of state agencies which are to receive copies of each tentative
map. 1979 Nev. Stat. at 704. Shall and must are both imperative terms. See Thomas v. State, 88 Nev. 382,
498 P.2d 1314 (1972).
[Headnotes 1, 2]
Therefore, violation of a statute may constitute negligence per se only if the injured party
belongs to the class of persons that the statute was intended to protect, and the injury is of the
type that the statute was intended to prevent. Iverson v. Solsberry, 641 P.2d 314, 316
(Colo.App. 1982); Namauu v. City and County of Honolulu, 614 P.2d 943, 946 (Hawaii
1980); Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla. 1980); Bob Godfrey
Pontiac, Inc. v. Roloff, 630 P.2d 840, 844-45 (Or. 1981). See generally Prosser, Handbook of
the Law of Torts 36 at 190-202 (4th ed. 1971). Whether a legislative enactment provides a
standard of conduct in the particular situation presented by the plaintiff is a question of
statutory interpretation and construction for the court. Sobrio v. Cafferata, 72 Nev. at 150,
297 P.2d at 830.
[Headnote 3]
Appellants contend that one of the purposes of NRS 278.335 is to protect subdividers
against the risk of bureaucratic problems that arise or conditions on final approval that are
established after the local governing body has approved the tentative map. In essence, they
argue that the Legislature intended local government approval of the tentative map to indicate
prior approval by all relevant governmental agencies, so that subdividers could rely on such
approval in seeking buyers and spending money on final map preparation.
Appellants attempt to support their argument in two ways. First, they point to the
amendment of the word shall to must in 1979 as evidence of the priority that the
Legislature placed on the transmission of tentative maps to the reviewing agencies. As
discussed in footnote 1, supra, this change had no substantive effect.
Second, appellants note that NRS 278.335(5) sets a 15-day time limit for each agency to
file its written comments with the local planning commission or governing body. Appellants
apparently believe that NRS 278.350
2
would operate to grant automatic approval of a
tentative map if any one reviewing agency failed to return its comments to the planning
commission or governing body within 15 days. They reason that because NRS 27S.350 was
designed to protect subdividers, the requirement that the local government must forward
the tentative map to the reviewing agencies is also intended to protect subdividers, since
receipt of the map by an agency is needed to trigger the 15-day time limit.
____________________

2
1. The time limit for acting and reporting on a tentative or final map may be extended by mutual
consent of the subdivider and the governing body or planning commission, as the case may be.
2. If no action is taken within the time limits set forth in NRS 278.010 to 278.630, inclusive, a
tentative map as filed shall be deemed to be approved, and the clerk of the governing body shall certify
such approval.
because NRS 278.350 was designed to protect subdividers, the requirement that the local
government must forward the tentative map to the reviewing agencies is also intended to
protect subdividers, since receipt of the map by an agency is needed to trigger the 15-day time
limit. However, there is no set time period within which the local government must forward
the tentative map to the reviewing agencies.
Appellants provide no indication that NRS 278.335(1) is anything other than a law enacted
solely to promote the public interest in careful land use planning and to ensure that all
environmental, health, safety, and conservation requirements are met before a subdivision is
approved.
3
They have not shown that the statute was intended to protect subdividers as a
class, or to protect against the sorts of harms that occurred in this case. Therefore, the district
court was correct in holding that NRS 278.335(1) does not establish a standard of conduct
applicable to appellants' negligence action, and that respondents' violation of the statute was
not negligence per se. We affirm the judgment of the district court.
4

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

3
Appellants cite Pennyton Homes, Inc. v. Planning Bd. of Stanhope, 189 A.2d 838 (N.J.Super. 1963), aff'd,
197 A.2d 870 (1964), in support of their contention that NRS 278.335 and tentative map approval are intended
to protect subdividers as a class against changes occurring subsequent to the tentative map approval. However,
Pennyton Homes was not a negligence case; rather, it involved interpretation of New Jersey's Municipal
Planning Act, which expressly provided that tentative approval of a subdivision plat would confer on the
applicant the right for a three-year period to rely on the general terms and conditions on which the tentative
approval had been granted. See 197 A.2d at 871.

4
As appellants did not appeal the finding of the district court regarding the absence of ordinary negligence,
we shall not discuss the issue.
____________
99 Nev. 209, 209 (1983) Ford v. State
DEBORAH FORD aka DEBORAH FORD FERGUSON, Appellant,
v. THE STATE OF NEVADA, Respondent.
No. 13872
March 31, 1983 660 P.2d 992
Appeal from a jury conviction of first degree murder. Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
The Supreme Court held that: (1) defendant was not entitled to an instruction that oral
admissions are to be viewed with caution; {2) defendant was not entitled to an instruction
that her testimony was entitled to same consideration as the testimony of any other
witness; {3) the admission of a hearsay declaration of a cofelon was harmless error; and
{4) an instruction that murder committed in the perpetration of robbery carried with it
conclusive evidence of malice aforethought did not violate the statute providing that
instructions dealing with presumptions against accused must be in permissive terms.
99 Nev. 209, 210 (1983) Ford v. State
caution; (2) defendant was not entitled to an instruction that her testimony was entitled to
same consideration as the testimony of any other witness; (3) the admission of a hearsay
declaration of a cofelon was harmless error; and (4) an instruction that murder committed in
the perpetration of robbery carried with it conclusive evidence of malice aforethought did not
violate the statute providing that instructions dealing with presumptions against accused must
be in permissive terms.
Affirmed.
Wiener, Waldman & Gordon, Las Vegas, for Appellant.
1. Criminal Law.
It was not error to refuse to give instruction where law encompassed therein was substantially covered by
another instruction given to the jury.
2. Criminal Law.
Defendant charged with homicide was not entitled to instruction providing that oral admissions are to be
viewed with caution.
3. Criminal Law.
Defendant was not entitled to instruction that jury should give her testimony the same consideration given
the testimony of any other witness in the case. NRS 175.171.
4. Criminal Law.
In first degree murder prosecution, admission of hearsay declaration of cofelon was harmless error in
light of overwhelming evidence of defendant's guilt.
5. Criminal Law.
In prosecution for first degree murder in course of robbery, instruction that murder committed in
perpetration or attempted perpetration of robbery carried with it conclusive evidence of malice
aforethought did not violate statute providing that instructions dealing with presumptions against accused
must be in permissive terms, since instruction merely stated law of felony-murder doctrine, rather than
instructing jury to find presumed fact against defendant. NRS 47.230, 200.030, subd. 1(b).
OPINION
Per Curiam:
In the evening of March 15, 1979, appellant, along with Brian Murphy and Alex Chupa,
went to the Sahara Hotel in Las Vegas in order for appellant to lure a male out into the
parking lot so that the other two could rob him. While appellant was in the Sahara, appellant
met two men: the victim, Gary Wonnacott, and his friend Richard Gross.
99 Nev. 209, 211 (1983) Ford v. State
Gary Wonnacott, and his friend Richard Gross. After a brief conversation, appellant stated
that she had a car out back in the parking lot and suggested that they go someplace for a
drink. As they got to the parking lot, Gross remembered that he had had his car valet parked;
therefore, he said that he would go get his car and would meet appellant and Wonnacott at
Caesar's Palace.
Appellant then led Wonnacott down a row of cars in the Sahara parking lot where Murphy
was waiting. Thereafter Wonnacott was robbed and murdered. His body was found lying face
down between two parked cars by patrons of the Sahara. He had been shot in the head and a
watch and approximately $500 had been removed from his person. Appellant was
subsequently charged with and convicted of first degree murder after a jury trial.
1
She was
sentenced to life imprisonment with the possibility of parole. We affirm.
On appeal, appellant argues that the district court erred by refusing to give three
instructions which she had proffered. The first instruction tendered by appellant which was
refused by the lower court provided that mere presence at the scene of the crime does not
constitute aiding and abetting. Appellant contends that since the instruction she offered is a
correct statement of the law, the trial court erred by refusing to give it. We disagree.
[Headnote 1]
We have consistently held that it is not error to refuse to give an instruction when the law
encompassed therein is substantially covered by another instruction given to the jury. Hooper
v. State, 95 Nev. 924, 604 P.2d 115 (1979); McKenna v. State, 96 Nev. 811, 618 P.2d 348
(1980). This is so even though the offered instruction correctly states the law. Roland v.
State, 96 Nev. 300, 301, 608 P.2d 500, 501 (1980). Here, the jury was properly instructed
regarding aiding and abetting. It is apparent from the record that appellant's proposed
instruction was more than adequately covered by another instruction actually given to the
jury. Accordingly, the district court did not err by refusing appellant's instruction.
During the trial, Jeffrey Moore
2
testified that about a week after the killing Brian Murphy
had told him about the incident in the Sahara parking lot. As a result of this conversation,
Moore then asked appellant what happened the night of the shooting; whereupon, appellant
stated that she had gone into the Sahara to bring a guy out to where Murphy was waiting.
____________________

1
After plea negotiations, Murphy pleaded guilty to first degree murder.

2
Jeffrey Moore and his wife, Judith, shared a house with Murphy and Chupa.
99 Nev. 209, 212 (1983) Ford v. State
the Sahara to bring a guy out to where Murphy was waiting. In addition, appellant told Moore
that they got $600 off the victim and had split it three ways. Judith Moore also testified at
appellant's trial. Judith stated that she asked appellant how she could let Brian [Murphy] do
something like that, and appellant said that she needed the money to get her car windows
tinted. In light of the Moores' testimony, appellant requested an instruction which provided
that oral admissions are to be viewed with caution. Such an instruction was ultimately refused
by the trial court.
[Headnote 2]
We have previously ruled on the propriety of an instruction of this nature in Beasley v.
State, 81 Nev. 431, 404 P.2d 911 (1965). There, we held the trial court did not err by refusing
to give the requested instruction because such a cautionary instruction is not required by
statute nor is it the law of either Nevada or the United States. Beasley is dispositive of this
issue; thus, we conclude that the trial court did not err by failing to give appellant's proposed
instruction.
[Headnote 3]
Appellant was convicted of first degree murder the third time she went to trial on the
charge. During the first trial, appellant testified in her own behalf. However, in the instant
case, she chose not to testify, but rather chose instead to rely upon the transcript of her
testimony in the prior proceeding. In light of these circumstances, appellant requested the
following instruction:
You are instructed that you are not to draw any inference or conclusion from the fact
that the defendant did not testify again but rather chose instead to rely upon the
transcript of her testimony given in a prior proceeding, and you are to give her
testimony the same consideration given to the testimony of any other witness in the
case.
In refusing to give this proposed instruction, the district judge noted that he would be willing
to give a Carter v. Kentucky, 450 U.S. 288 (1980) type of instruction,
3
but he would not
give the instruction in its present form because he believed the last clause of the instruction
was in error. After the judge made this comment, appellant's counsel failed to request that a
Carter instruction be given. Thus, we conclude appellant has waived any objection as to this
type of instruction.
____________________

3
In Carter, the United States Supreme Court held that a state trial judge has a constitutional obligation, upon
proper request, to instruct the jury that no negative inference can be drawn from the defendant's failure to testify.
99 Nev. 209, 213 (1983) Ford v. State
any objection as to this type of instruction. Therefore, the only remaining question is whether
the district court erred by refusing to instruct the jury that appellant's testimony should be
given the same consideration as that given to any other witness. We conclude that it did not.
In Graves v. State, 82 Nev. 137, 140, 413 P.2d 503, 505 (1966), we held:
Matters of fact, including the credibility of witnesses, are for jury resolution. For this
reason, it is permissible to instruct generally that the jury is the sole judge of the
credibility of all witnesses, but impermissible to single out the testimony of one and
comment upon its quality or character.
In addition, NRS 175.171 specifically provides that no special instruction shall be given
relating exclusively to the testimony of the defendant. Accordingly, we conclude that the
district court did not err by refusing to instruct the jury that the defendant's testimony should
be given the same consideration as that given to any other witness. The general instruction on
the credibility of all witnesses given in the instant case was more than sufficient.
[Headnote 4]
The next assignment of error raised by appellant is that the district court erred by admitting
a hearsay declaration of Brian Murphy. Appellant's argument is meritorious.
During direct examination, Moore testified as to what occurred at the house he shared with
Murphy shortly after Moore saw a news bulletin regarding the shooting. When Murphy,
Chupa and appellant arrived back at the house, Moore asked them if they had just shot the
guy behind the Sahara. Murphy responded in the negative. The prosecutor then asked Moore
what prompted him to ask such a question of these three individuals. Moore said the question
was prompted by a conversation he had with Murphy approximately two weeks before the
shooting incident. Moore was then asked what Murphy had said during that conversation.
Appellant's counsel immediately objected on the grounds of hearsay. The district court
overruled the objection and allowed Moore to testify as follows:
Well, he was talking about how he was broke. I told him if he's so broke, to go out and
get a job. Then he said to me that it's real easy to go behind a hotel and just rob tourists
in the parking lot, that he had done it many times.
Although we agree with appellant that the foregoing testimony is hearsay, i.e., an
out-of-court statement being offered to prove the truth of the matter asserted, we believe
that the admission of such testimony constitutes harmless error under the circumstances
of this case.
99 Nev. 209, 214 (1983) Ford v. State
is hearsay, i.e., an out-of-court statement being offered to prove the truth of the matter
asserted, we believe that the admission of such testimony constitutes harmless error under the
circumstances of this case. For example, appellant testified that she had taken her car to the
Sahara and that she had gone into the hotel for the satisfaction of Murphy because he wanted
her to lure somebody out. She further admitted that she met the victim and Gross at the
Sahara and led them outside to the parking lot. In fact, appellant admitted everything except
the actual killing, including the fact that she, along with Murphy and Chupa, left the Sahara
together after the shooting and returned to the house shared with the Moores. All of this
testimony, combined with the testimony of the Moores (discussed above) and the fact that
appellant's fingerprints were found at the crime scene is overwhelming evidence of appellant's
guilt, which renders any error harmless. See Hendee v. State, 92 Nev. 669, 557 P.2d 275
(1976).
[Headnote 5]
Finally, over appellant's objection, the court gave the following instruction:
There are certain kinds of murder which carry with them conclusive evidence of malice
aforethought. One of these classes of murder is murder committed in the perpetration or
attempted perpetration of robbery. Therefore, a killing which is committed in the
perpetration or attempted perpetration of robbery is deemed to be murder of the first
degree, whether the killing was intentional, unintentional or accidental. The specific
intent to perpetrate or attempt to perpetrate robbery must be proven beyond a
reasonable doubt.
Appellant contends that this instruction violates NRS 47.230 which sets forth general
guidelines as to the presumptions against the accused in criminal cases.
4
We disagree.
____________________

4
1. In criminal actions, presumptions against an accused recognized at common law or created by
statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt,
are governed by this section.
2. The judge shall not direct the jury to find a presumed fact against the accused. . . .
3. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge
shall give an instruction that the law declares that the jury may regard the basic facts as sufficient
evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact
established guilt or an element of the offense or negative defense, the judge shall instruct the jury that its
existence must, on all the evidence, be proved beyond a reasonable doubt.
99 Nev. 209, 215 (1983) Ford v. State
Although it is true that NRS 47.230(3) expressly provides that instructions dealing with
presumptions against the accused must be in permissive terms, Barnett v. State, 96 Nev. 753,
754, 616 P.2d 1107, 1107 (1980), we believe that the instruction in question merely states the
law of the felony murder doctrine rather than instructs the jury to find a presumed fact against
the accused. In other words, whenever death occurs during the perpetration or attempted
perpetration of certain enumerated felonies, our statutes define this as first degree murder. See
NRS 200.030(1)(b). The felonious intent involved in the underlying felony may be transferred
to supply the malice necessary to characterize the death a murder; hence, there is no need to
prove or presume the existence of malice aforethought. Therefore, since malice is implied
under the felony murder doctrine, the jury need not make an independent finding of malice.
We conclude that the instruction given does not violate NRS 47.230.
Finding no error, we affirm the judgment below.
____________
99 Nev. 215, 215 (1983) Aluevich v. Harrah's
NADA NOVAKOVICH ALUEVICH, Appellant, v. HARRAH'S, a Nevada Corporation;
HARRAH'S CLUB, a Nevada Corporation; HOLIDAY INNS, INC., a Tennessee
Corporation; L. MEAD DIXON; LLOYD DYER; ROMANO ANDREOTTI; MAURICE
SHEPPARD; BOB CONTOIS; and GEORGE POORE, Respondents.
No. 13533
March 31, 1983 660 P.2d 986
Appeal from an involuntary dismissal of L. Mead Dixon pursuant to NRCP 41(b); a
directed verdict dismissing appellant's claims of tortious breach of an implied duty of good
faith and fair dealing, unfair competition and defamation and dismissing Maurice Sheppard
and Robert Contois from the suit pursuant to NRCP 50(a); and a jury verdict in respondents'
favor on appellant's claim of fraud. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Lessee whose lease had been cancelled brought action against lessor, claiming tortious
breach of implied duty of good faith and fair dealing, unfair competition and defamation. The
district court dismissed claims of tortious breach of an implied duty of good faith and fair
dealing, unfair competition and defamation, and entered judgment against lessee on claim
of fraud.
defamation, and entered judgment against lessee on claim of fraud. An appeal was taken. The
Supreme Court, Manoukian, C. J., held that where lessee was an experienced businessperson
and attorney, and unqualified termination privilege giving lessor option to cancel lease upon
90 days written notice was subject of negotiations for ten years and, although cancellation
privilege remained unqualified, lessee continued to renew subleases throughout ten-year
period, implied covenant of good faith and fair dealing would not be extended to lease.
Affirmed.
[Rehearing denied July 29, 1983]
Springer, J., dissented.
Nicholas J. Drakulich and Nada Novakovich, Reno, for Appellant.
Vargas & Bartlett, Reno, for Respondents.
Landlord and Tenant.
Where lessee was an experienced businessperson and attorney, and unqualified termination privilege
giving lessor option to cancel lease upon 90 days written notice was subject of negotiations for ten years
and, although cancellation privilege remained unqualified, lessee continued to renew subleases throughout
ten-year period, implied covenant of good faith and fair dealing would not be extended to lease.
OPINION
By the Court, Manoukian, C. J.:
This appeal concerns the scope of an implied covenant of good faith and fair dealing.
Finding that courts have not extended such a covenant to commercial leases between two
sophisticated parties who are not otherwise bound by any special element of reliance or
fiduciary duties, we affirm the directed verdict dismissing appellant's claim for tortious
breach of an implied duty of good faith and fair dealing.
Appellant is a Reno attorney who, from 1968 to 1978, operated Luke's Gift Shoppe and
Luke's Nevada Photo Service at the northwest corner of Second and Virginia Streets on the
ground floor of the Byington Building. Appellant occupied that building under a succession
of subleases from Harrah's Club. Since 1968, all of the subleases between appellant and
Harrah's Club have contained a provision which granted Harrah's Club the option to cancel
this lease upon ninety (90) day's written notice to [appellant]. Appellant now claims that
throughout all lease negotiations, the respondents orally assured her that the ninety day
termination privilege would not be exercised unless she operated unrestricted or
unlimited gaming in the gift shop or the shop became cluttered with too much
merchandise.
all lease negotiations, the respondents orally assured her that the ninety day termination
privilege would not be exercised unless she operated unrestricted or unlimited gaming in the
gift shop or the shop became cluttered with too much merchandise. None of those
restrictions, however, appeared in any of the written lease agreements; the termination
privilege contained in all of the subleases was absolutely unqualified.
On October 2, 1978, pursuant to the termination privilege contained in the 1978 sublease,
Harrah's served notice on appellant of its intention to cancel the sublease. The effective date
of cancellation was January 1, 1979, but Harrah's granted an extension until February 29,
1979. Appellant vacated the premises on that date. Following the cancellation, appellant filed
a complaint which alleged numerous claims for relief. Because all other claims are meritless,
we shall address only appellant's contentions regarding the tort action for breach of an
implied duty of good faith and fair dealing.
The court below held that no genuine issue as to any material fact existed regarding the
bad faith claim and granted a directed verdict, pursuant to NRCP 50(a), in respondents'
favor. Appellant argues that the lower court's ruling was erroneous, in that, evidence was
presented which showed that respondents terminated the 1978 sublease to usurp a profitable
business that she had operated on the demised premises for several years.
In U.S. Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070 (1975), 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 its insured for a loss covered by the policy. Id. at 620, 540 P.2d
at 1071. Appellant requests this court extend such a cause of action to her case. The tort
recognized in Peterson, however, arose out of a need for special protection of insureds 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. See Comment, The New Tort of Bad Faith
Breach of Contract: Christian v. American Home Assurance Corp., 13 Tulsa L.J. 605,
613-616 (1977-78). The dissent correctly notes that an implied covenant of good faith and
fair dealing has mainly been implied in contractual relations which involve a special element
of reliance such as that found in partnership, insurance and franchise agreements. The case
relied on by the dissent concerned a situation where one party has traditionally held vastly
superior bargaining powerthe termination of a salesperson's "at will" employment
contract.

salesperson's at will employment contract. Fortune v. National Cash Register Co., 364
N.E.2d 1251, 1253 (Mass. 1977).
In the present case, the appellant is an experienced businessperson and an attorney. The
unqualified termination privilege was the subject of negotiations for ten years. Although the
cancellation privilege remained unqualified, appellant continued to renew the subleases. The
relationship between appellant and respondent was that of lessee and lessor. We do not find,
in the present case, the special element of reliance which prompted this court in Peterson to
recognize a cause of action in tort for the breach of an implied covenant of good faith and fair
dealing.
We have considered the remaining assignments of error and find them to be without merit.
Therefore, the lower court's involuntary dismissal and directed verdict and the jury's verdict
in respondents' favor are affirmed.
Mowbray and Steffen, JJ., and Zenoff, Sr. J.,
1
concur.
There is evidence in this record that respondents, Harrah's, Harrah's Club and Holiday
Inns, Inc. did not act in good faith in performance and enforcement of the March 1, 1978,
lease agreement. I would remand this case to the trial court for jury consideration of
appellant's claim for breach of implied covenant of good faith and fair dealing.
Because we are reviewing a verdict granted pursuant to NRCP 50(a), we must view the
evidence and all inferences in the light most favorable to the party against whom the motion
was made. Connell v. Carl's Air Conditioning, 97 Nev. 436, 438, 634 P.2d 673 (1981);
Drummond v. Mid West Growers, 91 Nev. 698, 542 P.2d 198 (1975).
Since 1968, Aluevich operated a gift shop and photography business under a succession of
subleases from Harrah's. All of the leases before 1978 provided for a flat monthly rental fee to
be paid by Aluevich. On June 30, 1977, Aluevich notified Harrah's of her intention to renew
the 1973 lease. During lease renewal negotiations Harrah's disclosed that it was considering
establishing its own gift shop business on the premises and requested sales data from
Aluevich. Aluevich refused to provide this information. Aluevich introduced at trial a
Harrah's memorandum, circulated before the execution of the 1978 renewal, in which
mention was made of a recommendation to "take over this operation when the lease
expires in February, 197S."
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Chief Justice,
pursuant to Nev. Const., art. 6, 19.
take over this operation when the lease expires in February, 1978. Another pre-lease
memorandum in the record refers to the profit potential from operating Luke's Gift Shoppe
as a Harrah's entity.
Aluevich claims that to obtain the gross and the net sales figures of her business, Harrah's
proposed the negotiation of a percentage lease in which these figures would necessarily have
to be disclosed. Aluevich accepted this proposal. The lease as renewed provided for rental on
a percentage basis and for disclosure of profit figures. It also contained a provision which
permitted Harrah's to terminate the lease on 90 days' notice to Aluevich. According to
Aluevich, however, agents of Harrah's told her that the termination right would be exercised
only if Aluevich were to put gaming into the lease premises or if the premises were allowed
to become cluttered or unkept.
After the renewal in March of 1978, Harrah's continued to move toward takeover by
making projections of anticipated profits from a proposed Harrah's operation in the subject
area. Harrah's admitted it had, prior to termination, projected an annual pre-tax profit of
$800,000 by operation of a business similar to that of Aluevich. Harrah's also admitted that
Aluevich's lease was terminated because Harrah's earnings and projected earnings were
falling. Lloyd Dyer, president of Harrah's in 1978, testified that Aluevich was a good tenant
and ran a good store.
Seven months after execution of the lease and after Aluevich had disclosed the closely
guarded profit and income figures, Harrah's gave termination notice under the 90-day clause.
Respondents have not alleged that Aluevich defaulted on any of the provisions of the lease.
Aluevich vacated pursuant to the notice and Harrah's proceeded, as it had previously
indicated, to conduct a retail business in the subject premises.
In sum, Aluevich's position is that a jury could have reasonably inferred that Harrah's did
not deal fairly with Aluevich in that it had no intention of allowing Aluevich to remain on the
premises for the duration of the lease term but rather that its intention was to obtain
Aluevich's business figures and then take over the business at an early and convenient date.
Harrah's position is not that Aluevich has failed to present a case which would, if believed,
form the basis for a bad faith action against Harrah's. Rather, Harrah's argues that an action
for breach of an implied duty of good faith and fair dealing will lie only with relation to
insurance and franchise contracts. Also, Harrah's contends that the parol evidence rule
prohibits consideration of any oral representations regarding termination to Aluevich's lease
which contradict the clear meaning of the unqualified termination clause.
Although many of the cases which recognize an implied covenant of good faith and fair
dealing involve insurance and franchise contracts, I see no reason to restrict actions arising
therefrom to these kinds of contracts. In U.S. Fidelity v. Peterson, 91 Nev. 617, 540 P.2d
1070 (1975), this court imposed a duty on insurers to deal fairly and in good faith with their
insureds. That duty arose from the premise that an implied covenant of good faith and fair
dealing exists in every contract, that neither party should be permitted to do anything which
will injure the right of the other to receive the benefits of the agreement. See Silberg v.
California Life Insurance Co., 521 P.2d 1103, 1108 (Cal. 1974); Gruenberg v. Aetna Ins. Co.,
510 P.2d 1032, 1036 (Cal. 1975); Comunale v. Traders & Gen. Ins. Co., 328 P.2d 198, 200
(Cal. 1958). In Mitchell v. Bailey & Selover, 96 Nev. 147, 605 P.2d 1138 (1980), this court
applied the obligation of good faith and fair dealing contained in the U.C.C., see NRS
104.1203, to the enforcement of a warehouseman's lien. Under these rulings it is indeed
difficult to maintain such a restricted approach to bad faith actions as is taken by the majority.
See Restatement (Second) of Contracts 205 (1981).
A leading example of recognition of this type of action may be found in Fortune v.
National Cash Register Company, 364 N.E.2d 1251 (Mass. 1977), in which it was held that
although a salesman's employment contract was terminable at will, there was still an
independent action for breach of the implied obligation of good faith where the salesman was
found to have been discharged in order to avoid payment of a bonus. In Fortune the
salesman's employment was terminated shortly after his company received a $5,000,000 order
from his territory. The jury found that the defendant acted in bad faith when it terminated the
salesman's employment and awarded damages. The Supreme Judicial Court of Massachusetts
upheld the jury verdict, recognizing the general right of an employer to terminate at will but
also recognizing an independent breach of contract action because the parties to contracts
and commercial transaction must act in good faith toward each other. This holding is
buttressed by Professor Summer's observation that when parties agree to an at will
termination power, they usually agree merely to the grant of a power and not also to the grant
of a power to abuse that power. R. Summers, Good Faith in General Contract Law and the
Sales Provisions of the Uniform Commercial Code, 54 Va.L.Rev. 195, 197-98 (1968).
In deciding this case it is not necessary to pronounce any general rules as to when and
under what contractual circumstances an action for breach of the duty of good faith and
fair dealing would lie.
general rules as to when and under what contractual circumstances an action for breach of the
duty of good faith and fair dealing would lie. In contract law, good faith is an excluder. It
is a phrase without general meaning of its own and serves to exclude a wide range of
heterogeneous forms of bad faith. In a particular context the phrase takes on a specific
meaning, but usually this is only by way of contrast with the specific form of bad faith
actually or hypothetically ruled out. Id. at 201. Good faith, then, takes on specific and
variant meanings by way of contrast with the specific and variant forms of bad faith which,
[based on the law's standard of fairness which all people ought to observe in their dealings
with each other], judges decide to prohibit. Id. at 202-04. I would hold only that in this case
a jury would be justified, if it accepted the position of Aluevich, in finding that there was an
obligation of good faith and fair dealing imposed on Harrah's in the performance and
enforcement of the subject lease contract, that Harrah's breached that obligation, and that
Harrah's was responsible for damages resulting from such breach. Cf. Fortune, 364 N.E.2d at
1257.
With regard to Harrah's contention that parol evidence cannot be used to contradict the
clear terms of the termination clause, I would simply say that the evidence outlined above is
offered for the purpose of supporting an independent action for violation of the implied
covenant or obligation of good faith. Such evidence does not serve to cancel or alter the
termination privilege. Assuming an unqualified right on the part of Harrah's to terminate the
lease, the question remains as to whether the conduct complained of, if believed by a jury,
would support an action for damages against Harrah's for violation of the implied covenant of
good faith and fair dealing. I believe it does and would reverse on this issue and remand for
trial.
____________
99 Nev. 222, 222 (1983) State Farm v. All Electric, Inc.
STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. ALL ELECTRIC, INC.,
and LEWIS BUILDING CO., INC., Respondents.
No. 13228
ROYAL GLOBE INSURANCE COMPANIES; CHRIS K. BRANDT and IDA MAE
BRANDT, Appellants, v. ARTHUR V. ADAMS, dba ADAMS CONSTRUCTION
COMPANY, INC., and NOVIKOFF ENGINEERS, Respondents.
No. 13443
March 31, 1983 660 P.2d 995
Consolidated appeals from summary judgments; Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge (Case No. 13228); J. Charles Thompson, Judge (Case No.
13443).
The district court granted summary judgment in favor of contractors and engineering firm
on ground that suits against them were barred by statute providing that party could not sue
any person who was engaged in design, planning, supervision, or observation of construction
project after six-year period from substantial completion of project. Insurance company,
representing interests of insured property owners, appealed. The Supreme Court, Manoukian,
C.J., held that statute providing immunity after six-year period for architects and contractors,
while denying such immunity to owners and material suppliers, was unconstitutional as
violative of equal protection of law.
[Rehearing in case No. 13443 denied June 20, 1983]
Springer, J., dissented.
Edwards, Hunt, Pearson & Hale, Las Vegas, for Appellant State Farm Fire and Casualty
Company.
Cromer, Barker, Michaelson, Gillock and Rawlings; Michael K. Mansfield; Beckley,
Singleton, DeLanoy & Jemison; Lyles and Austin; Las Vegas, for Respondents All Electric,
Inc., and Lewis Building Co., Inc.
Galatz, Earl & Biggar, Las Vegas, Amicus Curiae.
Morse-Foley (representing Essex Chemical Corp.), Las Vegas, Amicus Curiae.
Lionel, Sawyer & Collins and Steve Morris (representing MGM) Las Vegas, Amicus
Curiae.
Greenman, Goldberg & Raby (representing Royal Globe Insurance Companies);
Goodman, Oshins, Brown & Singer (representing Chris K. Brandt and Ida Mae Brandt), Las
Vegas, for Appellants.
Cromer, Barker, Michaelson, Gillock & Rawlings and Walter R. Cannon (representing
Arthur V. Adams dba Adams Construction Company, Inc.); Beckley, Singleton, DeLanoy &
Jemison; Nitz & Schofield; Dickerson, Miles, Pico & Mitchell and Eleissa C. Lavelle
(representing Novikoff Engineers), Las Vegas, for Respondents.
While equal protection clause does not deny State Legislature power to classify, such classifications must
be reasonable, and, where no suspect classification or fundamental right is involved, courts' role is to
determine whether classification bears rational relationship to legislative purpose sought to be effected.
U.S.C.A.Const. Amend. 14; Const. Art. 4, 21.
To satisfy equal protection requirements, legislative classifications must apply uniformly to all who are
similarly situated. U.S.C.A.Const. Amend. 14; Const. Art. 4, 21.
Although act of legislature is presumed to be constitutional, court's usual deference to legislative
declarations cannot be given where evidence of unconstitutional discrimination in statutory classification is
clear. U.S.C.A.Const. Amend. 14; Const. art. 4, 21.
4. Courts.
While United States Supreme Court's dismissal of appeal for lack of substantial federal question has
limited precedential value, dismissal is generally binding adjudication of merits.
5. Constitutional Law; Negligence.
There was no rational basis for granting immunity to architects and contractors on construction project
six years after substantial completion, while denying such immunity to others involved in project, such as
owners and material suppliers, and thus, statute providing such immunity for architects and contractors
only was unconstitutional as violative of state and federal equal protection guarantees. NRS 11.205;
U.S.C.A.Const. Amend. 14; Const. Art. 4, 21.
OPINION
These consolidated appeals by appellant insurance companies primarily involve the
constitutionality of NRS 11.205.
1
That statute essentially provides that six years after
substantial completion of a construction project, a party may not sue any person who was
engaged in the design, planning, supervision or observation of the construction project or
in the construction itself.
____________________

1
Actions for damages for injury to person or property or wrongful death caused by deficiency in
design, planning, supervision of construction or construction of improvements to real property.
1. No action in tort, contract or otherwise shall be commenced against any person performing or
furnishing the design, planning,
That statute essentially provides that six years after substantial completion of a construction
project, a party may not sue any person who was engaged in the design, planning, supervision
or observation of the construction project or in the construction itself. This protection,
however, does not extend to anyone who is also an owner or occupier of the land. See NRS
11.205(3). The statute abolishes certain claims for relief rather than extinguishing a remedy as
is the case with the limitation statute. See Nevada Lakeshore Co. v. Diamond Elec., Inc., 89
Nev. 293, 511 P.2d 113 (1973).
The district court granted summary judgment in favor of each respondent on the ground
that the suits were barred under NRS 11.205. Appellants, representing the interests of insured
property owners, contend that the statute violates the equal protection and due process clauses
of the state and federal constitutions. In agreeing, we conclude that the equal protection claim
is dispositive, and find it unnecessary to discuss the due process contention.
The Fourteenth Amendment to the United States Constitution forbids enactments that
deny to any person . . . the equal protection of the laws. Article 4, section 21, of the Nevada
Constitution requires that all laws be general and of uniform operation throughout the
State. We have previously held that the standard for testing the validity of legislation under
the equal protection clause of the state constitution is the same as the federal standard. See
Laakonen v. District Court, 91 Nev.
____________________
supervision or observation of construction, or the construction, of an improvement to real property more
than 6 years after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or construction
of such an improvement; or
(b) Injury to real or personal property caused by any such deficiency; or
(c) Injury to or wrongful death of a person caused by any such deficiency.
2. Notwithstanding the provisions of NRS 11.190 and subsection 1 of this section, where injury
occurs in the sixth year after substantial completion of such an improvement, an action for damages for
injury to property or person, damages for wrongful death resulting from such injury or damages for
breach of contract may be commenced within 1 year after the date of such injury, irrespective of the date
of death, but in no event may an action be commenced more than 7 years after the substantial completion
of the improvement.
3. Where an action for damages for wrongful death or injury to person or property caused by any
deficiency in an improvement to real property is brought against a person in actual possession or control
as owner, tenant or otherwise of such improvement, the limitation prescribed by this section shall not be a
defense for such person.
506, 538 P.2d 574 (1975). Consequently, we believe that the following analysis can be
applied equally to the state and federal equal protection challenges.
[Headnote 1]
Although the equal protection clause does not deny the state legislature the power to
classify, such classifications must be reasonable. Morey v. Doud, 354 U.S. 457 (1957). And
where, as here, no suspect classification or fundamental right is involved, our role is to
determine whether the classification bears a rational relationship to the legislative purpose
sought to be effected. Dandridge v. Williams, 397 U.S. 471 (1970); Laakonen v. District
Court, supra.
[Headnote 2]
Legislative classifications must apply uniformly to all who are similarly situated, and the
distinctions which separate those who are included within a classification from those who are
not must be reasonable, not arbitrary. See Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260
N.W.2d 548 (Minn. 1977). The statute in question singles out architects and contractors, and
insulates them from liability on the expiration of six years. The same statute excludes from its
protection, those similarly situated, such as owners and material suppliers. The question, then,
is whether there is a reasonable basis for treating architects and contractors engaged in the
improvement of real property as a distinct and separate class for the purpose of granting
immunity from suit.
A review of the cases involving the constitutionality of statutes similar to Nevada's,
demonstrate that the several jurisdictions deciding the question are about evenly split.
Respondents argue that a legitimate distinction exists between those included and those
excluded from the statute's protection, i.e., those who own or occupy land. They essentially
argue that control over the property is the crucial factor. Specifically, they assert that a tenant
or landowner may fail to maintain the property adequately or may materially alter the existing
improvements. They state that those within the statute's protective shield, such as architects
and contractors, are entitled to such protection because they have no control over a project
once it is completed and have no opportunity to prevent an abuse by the occupier.
[Headnotes 3, 4]
Respondents place great reliance on the Arkansas Supreme Court decision of Carter v.
Hartenstein, 455 S.W.2d 918 (Ark. 1970), appeal dismissed, 401 U.S. 901 (1971). There, the
Arkansas court stated that: "[p]art of acceptance [of completed construction] is to accept
some future responsibility for the condition of the premises. . . .
Arkansas court stated that: [p]art of acceptance [of completed construction] is to accept
some future responsibility for the condition of the premises. . . . To say that there can be no
limitation in perpetuity against a designer or erector of a structure would be in effect to
discriminate against professional builders and designers. Id. at 920. We remain unpersuaded
by Carter.
2
Although an act of the legislature is presumed to be constitutional, State ex rel.
Tidvall v. Eighth Judicial District Court, 91 Nev. 520, 539 P.2d 456 (1975), our usual
deference to legislative declarations cannot be given where the evidence of discrimination is
so clear, as it is in the present case.
[Headnote 5]
After thoroughly considering this important question, we are satisfied that the better
reasoned cases are those which have struck such statutes as being constitutionally infirm
because they improperly grant immunity from suit to a certain class of defendants, without a
reasonable basis for that classification. See McClanahan v. American Gilsonite Co., 494
F.Supp. 1334 (D.Colo. 1980); Fujioka v. Kam, 514 P.2d 568 (Hawaii 1973); Skinner v.
Anderson, 231 N.E.2d 588 (Ill. 1967); Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260
N.W.2d 548 (Minn. 1977); Loyal Order of Moose, Lodge 1785 v. Cavaness, 563 P.2d 143
(Okla. 1977); Broome v. Truluck, 241 S.E.2d 739 (S.C. 1978); Kallas Millwork Corporation
v. Square D Co., 225 N.W.2d 454 (Wis. 1975); Phillips v. ABC Builders, Inc., 611 P.2d 821
(Wyo. 1980).
3

The Illinois Supreme Court was the first to declare a statute, similar to the one in
question,4 unconstitutional on equal protection grounds.
____________________

2
The statute in Carter was similar to that in issue in the immediate case and the equal protection challenge
was similar as well. The Arkansas Supreme Court upheld the validity of the statute and appeal was taken to the
United States Supreme Court. There, the appeal was dismissed for lack of a substantial federal question. While
such a dismissal has limited precedential value, the dismissal is generally a binding adjudication of the merits.
Hicks v. Miranda, 422 U.S. 332 (1975). Nevertheless, at least six jurisdictions have held similar statutes to be
unconstitutional since the Carter dismissal in 1971. Obviously, those jurisdictions do not believe the summary
disposition in Carter is binding. We agree. Although Carter may be very persuasive, we do not believe it is
dispositive of this appeal. See Justice Brennan's concurrence in Mandel v. Bradley, 432 U.S. 173 (1977), (State
courts should give appropriate but not conclusive weight to summary dispositions).

3
It should be noted that other courts, in addition to those cited, have held similar statutes unconstitutional;
however, they have done so on grounds other than equal protection. See, e.g., Bagby Elevator and Electric
Company, Inc. v. McBride, 291 So.2d 306 (Ala.1974); Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973).
similar to the one in question,
4
unconstitutional on equal protection grounds. See Skinner v.
Anderson, supra. The rationale in Skinner has been relied upon heavily in subsequent
decisions in other jurisdictions. In discussing the discriminatory impact of the statute upon
others similarly situated, the court in Skinner stated:
If, as the defendant suggests, the objective of the statute is to require trials of actions
based upon defects in construction to be held within a relatively short time after the
work is completed, that objective is achieved . . . in a discriminatory fashion.
[O]f all those whose negligence in connection with the construction of an improvement
to real estate might result in damages to property or injury to persons more than four
years after construction is completed, the statute singles out the architect and contractor
and grants them immunity. It is not at all inconceivable that the owner or person in
control of such an improvement might be held liable for damage or injury that results
from a defective condition for which the architect or contractor is in fact responsible.
Not only is the owner or person in control given no immunity; the statute takes away
his action for indemnity against the architect or contractor.
The arbitrary quality of the statute clearly appears when we consider that architects and
contractors are not the only persons whose negligence in the construction of a building
or other improvement may cause damage to property or injury to persons. If, for
example, four years after a building is completed a cornice should fall because the
adhesive used was defective, the manufacturer of the adhesive used is granted no
immunity. And so it is with all others who furnish materials used on constructing the
improvement. But if the cornice fell because of defective design or construction, for
which an architect or contractor was responsible, immunity is granted. It cannot be said
that the one event is more likely than the other to occur within four years after
construction is completed.
Id. at 590-91.
Similarly, the Hawaii Supreme Court struck down a statute similar to NRS 11.205. See
Fujioka v. Kam, supra. In addressing what it considered to be an irrational statutory
classification, the Fujioka court concluded that the statute grants
____________________

4
The Illinois statute contained a four year limitation period as opposed to the six year period of NRS 11.205.
immunity to those who, but for the statute, would or could be primarily responsible for the
losses, while the owners are exposed to liability for the damages caused by the negligence of
the engineer and contractor. That court went on to state:
The cause of the injuries is the same, the plaintiff is the same and the injuries are the
samebut under the statute the plaintiff may not recover from the engineer and the
contractor even though the negligence of the engineer and the contractor may have been
the sole proximate cause of the injuries suffered by the plaintiff. However, the plaintiff
may recover damages from the owners, and the owners will have no right to have the
engineer and the contractor reimburse or contribute to them the amount of damages
they are required to pay the plaintiff. We are unable to see any rational basis for
treating the engineer and the contractor differently from the owners under the same
circumstances. (Emphasis supplied.)
Id. at 571.
We find the rationale of Skinner and Fujioka both persuasive and applicable to our
interpretation of NRS 11.205. Although respondents contend that a legitimate distinction
exists between architects and contractors as opposed to owners and manufacturers, we
conclude that there is no rational basis for making such a distinction so as to justify granting
immunity to one group while at the same time denying it to another.
Although a tenant, landowner or other occupier may allow the property to fall into
disrepair or may materially alter existing improvements, the difficulty of defending such a
suit after the expiration of the six year period is largely theoretical. For instance, the plans and
specifications of architects, engineers, general contractors and most subcontractors are
approved by governmental agencies and become public records. See Nevada Administrative
Code 239.050 (1982). Therefore, rarely would the modification of an existing building be
so substantial within the six year period as to preclude the tracing of liability to the party or
parties who should assume responsibility for injuries or loss. Additionally, builders and
contractors are usually corporate bodies with a continuity of existence. As such, the concerns
of proof and tracing are virtually unfounded since these entities would normally be easily
located. Conversely, materialmen and suppliers are often disadvantaged because their
materials and workmanship become an integral part of the structure, concealed from view and
vulnerable to the elements. These persons are at the mercy of others who handle the
construction, or who may be responsible for the on going maintenance of the building.
Moreover, as recognized in Skinner and Fujioka, if we were to uphold the statute, we
envision too many inequities and hardships to those who are left uninsulated from
liability, because of the statute's inherent unfairness.
Fujioka, if we were to uphold the statute, we envision too many inequities and hardships to
those who are left uninsulated from liability, because of the statute's inherent unfairness. If we
were to uphold the statute, any tort action against designers, architects, suppliers and
subcontractors would be barred after six years irrespective of whether or not the defect was
apparent, or could have been discovered with reasonable diligence. See Loyal Order of
Moose, Lodge 1785 v. Cavaness, 563 P.2d 143 (Okla. 1977).
The legislature has the power to create statutory classifications; however, to survive
constitutional challenge, any discrimination must satisfy important legislative objectives and,
of course, be reasonable. Loyal Order of Moose, Lodge 1785, supra; Reed v. Reed, 404 U.S.
71 (1971). In the instant case, we believe it is clear that NRS 11.205 arbitrarily discriminates
against a certain class of individuals, i.e., owners and material suppliers. Public policy
reasons may exist to justify precluding legitimate claims from being litigated after the lapse
of a certain number of years. If, as here, however, one class of defendants is arbitrarily
excluded from this protection, the equal protection clauses of the state and federal
constitutions are violated.
The equal protection question is dispositive of this appeal. We therefore decline to
consider the other issues or contentions raised by the parties. Accordingly, the judgment of
the lower court is reversed and the case remanded for further proceedings consistent with this
holding.
Steffen and Gunderson, JJ., and Zenoff, Sr. J.,
5
concur.
I dissent and would uphold the legislature's action and uphold the statute's
constitutionality.
Appellant insurance companies, representing interests of insured property owners, have
challenged the constitutionality of NRS 11.205
1
on several grounds, but primarily on the
grounds that the statute violates due process and equal protection guarantees of the state and
federal constitutions. Appellants are joined by several amici curiae.
____________________

5
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in the place of
The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev. Const., art. 6, 19, SCR 10.

1
11.205 Actions for damages for injury to person or property or wrongful death caused by deficiency
in design, planning, supervision of construction or construction of improvements to real property.
1. No action in tort, contract or otherwise shall be commenced against any person performing or
furnishing the design, planning,
I conclude that the statute is constitutionally valid.
NRS 11.205 frees certain design professionals and contractors engaged in the building
construction industry from civil liability relating to real property improvements six years
following substantial completion of the project. NRS 22.105 is a statute of repose. See
Nevada Lakeshore Co. v. Diamond Elec., Inc., 89 Nev. 293, 511 P.2d 113 (1973). The statute
functions to abolish certain claims for relief rather than to cut off a remedy as is the case with
a limitation statute. It immunizes those engaged in the design, planning, supervision or
construction of real property improvements six, and in certain instances seven, years from
completion regardless of the date of discovery of any defect and regardless of the nature of
the claim.
DUE PROCESS
Because of the repose granted by the statute, injured parties may be deprived of certain
claims for damages arising out of negligent design or construction, and defendant landowners
may find themselves unable to obtain indemnity or contribution from other tortfeasors
because the six-year statutory period has elapsed.
In this case there can be no doubt that the statute has eradicated valuable substantive
rights, but this does not require an invalidation of the statute on constitutional grounds. The
legislature is free to create rights and is equally free to abrogate rights which have not yet
vested.
____________________
supervision or observation of construction, or the construction, of an improvement to real property more
than 6 years after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or construction
of such an improvement; or
(b) Injury to real or personal property caused by any such deficiency; or
(c) Injury to or wrongful death of a person caused by any such deficiency.
2. Notwithstanding the provisions of NRS 11.190 and subsection 1 of this section, where injury
occurs in the sixth year after substantial completion of such an improvement, an action for damages for
injury to property or person, damages for wrongful death resulting from such injury or damages for
breach of contract may be commenced within 1 year after the date of such injury, irrespective of the date
of death, but in no event may an action be commenced more than 7 years after the substantial completion
of the improvement.
3. Where an action for damages for wrongful death or injury to person or property caused by any
deficiency in an improvement to real property is brought against a person in actual possession or control
as owner, tenant or otherwise of such improvement, the limitation prescribed by this section shall not be a
defense for such person.
rights which have not yet vested. O'Brien v. Hazelet & Erdal, 299 N.W.2d 336 (Mich. 1980);
Howell v. Burk, 568 P.2d 214 (N.M.App. 1977), cert. denied, 569 P.2d 413 (N.M. 1977).
Examples of this proper exercise of legislative power are found in the legislative elimination
of claims for criminal conversation and alienation of affection. With reference to the statute
in question the legislature has in similar fashion eliminated the right to sue the enumerated
building professionals after the passage of the statutory six-year period. This the legislature
clearly has the power to do, and requirements of due process of law are met if the statute
bears a rational relationship to a legitimate state purpose. See Klein v. Catalano, 437 N.E.2d
514 (Mass. 1982). The subject statute's placing of a time limitation on the potential liability
of designers and contractors is clearly carrying out a proper and legitimate legislative
purpose, namely, keeping such persons from remaining potentially liable for the lifetime of a
building or for their own lifetimes. This kind of enduring liability could severely hamper the
ability of those engaged in building construction to defend against lawsuits and could thwart
creative developments in construction and design. The statute is not violative of
constitutional due process rights, state or federal.
2

EQUAL PROTECTION
The foundation of appellants' case is their contention that the statute violates state and
federal guarantees of equal protection of the laws. The fourteenth amendment to the United
States Constitution forbids enactments that deny to any person . . . the equal protection of
the laws. Article 4, section 21, of the Nevada Constitution requires that all laws be general
and of uniform operation throughout the State. In my opinion the statute is in harmony with
both federal and state constitutions.
This court has previously viewed the foregoing federal and state constitutional provisions
as being synonymous. See Laakonen v. District Court, 91 Nev. 506, 538 P.2d 574 (1975).
There being no reason to depart from that view in the immediate case, I believe that identical
analysis may be applied to the state and federal equal protection challenges.
____________________

2
Appellants also have argued that wholly blameless landowners may be required to bear liability for the
negligence of architects to contractors. I disagree. A plaintiff may not recover against a landowner without first
proving the negligence of the landowner. See Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (Mowbray,
J., dissenting). And though a negligent landowner may be unable to obtain contribution from construction
industry tortfeasors of equal or greater culpability, this possibility is not unique to the immediate situation.
state and federal equal protection challenges. A statute which is not based upon a suspect
classification and which does not impinge on a fundamental right satisfies the equal
protection clause if the classification is rationally related to legitimate government interest.
Dandridge v. Williams, 397 U.S. 471 (1970); Laakonen v. District Court, supra.
The parties apparently agree that the statute has a legitimate purpose: providing repose for
otherwise indefinite potential liability. The capacity of the statute to achieve that objective is
not challenged. The gist of appellants' objection to the statute is that it unfairly discriminates
against others similarly situated, most notably landowners and occupiers and suppliers of
materials.
A legitimate distinction exists between those engaged in the design, supervision and
construction of real property improvements and those who own or occupy land. A primary
factor in the distinction is control over the property. A tenant or landowner may allow the
property to fall into disrepair or may improperly modify existing improvements. Since an
architect or contractor generally has no control over a project once it is completed, there is no
opportunity to prevent abuse of property. I believe that [p]art of acceptance [of completed
construction] is to accept some future responsibility for the condition of the premises. . . . To
say that there can be no limitation in perpetuity against a designer or erector of a structure
would be in effect to discriminate against professional builders and designers. Carter v.
Hartenstein, 455 S.W. 2d 918, 920 (Ar. 1970), appeal dismissed, 401 U.S. 901 (1971).
I also believe that a valid distinction exists between suppliers of materials and other
members of the construction industry.
3

The distinction lies in the quality control attainable in the mass production of materials.
Each construction project is in a certain sense unique because of environmental differences
and variations in design, while manufactured materials are ordinarily the product of
standardized processes. The advantage of standardization is that it gives material men greater
control over their products; the great degree of control justifies a longer time period for
potential liability.
____________________

3
In Jasinski v. Showboat Operating Co., 459 F.Supp. 309 (D.Nev. 1978), the court interpreted NRS 11.205
to mean that suppliers of materials were included within the protection of the statute. In reaching Since a
legitimate distinction exists between this conclusion, the court relied upon our decision in Nevada
Lakeshore, supra. I would reject this interpretation. The holding in Nevada Lakeshore concerned only a
statutory interpretation of the running of the time periods and should not be construed as an interpretation of the
application of the statute to specific parties.
Since a legitimate distinction exists between the class of person protected by the statute
and those excluded from its protection, I conclude that the statute offends neither the state nor
the federal equal protection clauses.
4

CONCLUSION
If this court were to uphold the validity of NRS 11.205 it would join a substantial majority
of those jurisdictions with similar statutes which have also concluded that this form of
legislation is constitutional. In doing so I recognize the hardship that some injured parties
may suffer; still, the legislature has apparently weighed these factors against those favoring
the granting of a time-limited immunity to designers and builders. The Nevada Supreme
Court should not interfere with legislative determinations that are made within constitutional
bounds.
I would affirm the judgment of the district court.
____________________

4
As an independent basis for upholding the statute against a federal equal protection challenge, I am
persuaded that the decision in Carter v. Hartenstein, supra, is dispositive of the issue. The statute under attack in
Carter was nearly identical to that in issue in the immediate case, and the equal protection challenge was
virtually the same as well. Following the Arkansas Supreme Court decision upholding the validity of the statute,
appeal was taken to the United States Supreme Court. There the appeal was dismissed for lack of substantial
federal question. Although such a dismissal has limited precedential value, affirming only the judgment without
accepting the reasoning of the lower court, the dismissal is nonetheless a binding adjudication of the merits.
Mandel v. Bradley, 432 U.S. 173 (1977); Hicks v. Miranda, 422 U.S. 332 (1975). Because of the virtual identity
of the statutes, both of which exclude possessors of land and suppliers of materials. I believe that Carter controls
in the present case.
____________
99 Nev. 233, 233 (1983) State, Nev. Tax Comm'n v. Obexer & Son
STATE OF NEVADA and NEVADA TAX COMMISSION, Appellants,
v. OBEXER & SON, INC., Respondent.
No. 13843
March 31, 1983 660 P.2d 981
Appeal from order granting summary judgment. First Judicial District Court, Carson City;
Michael R. Griffin, Judge.
California boat dealer who held seller's permit issued by Nevada voluntarily collected and
remitted to Nevada Department of Taxation tax on sales in which Nevada purchasers took
delivery at dealer's place of business in California. When California notified dealer that
California sales tax was due and owing on all sales to Nevada purchasers who took delivery
in California, dealer brought action for refund of taxes paid to Nevada.
owing on all sales to Nevada purchasers who took delivery in California, dealer brought
action for refund of taxes paid to Nevada. The district court granted summary judgment in
favor of boat dealer, and State appealed. The Supreme Court held that: (1) State could not
constitutionally impose either sales tax or obligation of collecting use tax on out-of-state boat
dealer, but (2) State had right to retain taxes boat dealer voluntarily collected prior to State's
participation in Multi-state Tax Compact.
Brian McKay, Attorney General, and David M. Norris, Deputy Attorney General, Carson
City, for Appellants.
Lionel Sawyer & Collins, and M. Kristina Pickering and Cynthia A. Pappas and Richard
G. Campbell, Reno, for Respondent.
1. Taxation.
To be subject to state sales tax, sale must be made in state. NRS 372.105.
2. Taxation.
To impose liability for collection of use tax on out-of-state seller, there must be constitutionally sufficient
relationship or nexus between seller and taxing state, such as maintenance by seller of officers, agents,
salespersons, or property in state. NRS 372.185; St. 1955, ch. 397, 1 et seq.
3. Taxation.
Out-of-state boat dealer who merely possessed state seller's permit and made occasional delivery of
goods to state was liable for neither sales tax nor use tax relating to out-of-state sales to state residents.
NRS 372.105, 372.185, 372.630 subd. 1, 488.075, subd. 1(a); St. 1955, ch. 397, 1 et seq.
4. Taxation.
Actions to recover taxes paid are equitable in nature, and burden of proof is on taxpayer to show that
taxing body holds money that in equity and good conscience it has no right to retain.
5. Taxation.
Statutes allowing taxpayers to claim and sue for refunds permit recovery only where taxpayer himself has
borne financial burden of tax; if taxpayer making claim has collected tax from his customers, he has
suffered no loss or injury, and is not entitled to credit or refund even if tax was paid erroneously. NRS
372.630, 372.680.
6. Taxation.
Prior to State's participation in Multi-state Tax Compact, State had right to retain taxes out-of-state boat
dealer collected from its customers who were state residents, as, had dealer not paid sum, customers would
have had to remit the same sum when registering their boats in State; for taxes paid to State by boat dealer
during State's membership in Compact, however, dealer was entitled to refund, as, under Compact.
under Compact. State was obligated to credit sales or use taxes paid in another state against use taxes due
in its own state. NRS 372.630, 372.680, 488.065, subd. 1, 488.075, subd. 1; NRS 376.010,
376.010, art. 5, subd. 1 (Repealed); West's Ann.Cal.Rev.&T.Code, 38001, 38006, art. 5, subd. 1.
OPINION
Per Curiam:
Appellants assert that the State of Nevada has the right to retain sales or use taxes
voluntarily remitted to it by respondent over a three-year period. The district court ordered a
full refund of the amount in controversy. Unable to obtain a stay, appellants have complied
with the district court order. On the basis of the equities established by operation of NRS
488.075 on the one hand and the Multistate Tax Compact on the other, we hold that the State
of Nevada has the right to retain the taxes remitted by respondent during 1974 and 1975, but
that respondent is entitled to a refund of the amounts remitted in 1976. We therefore affirm in
part and reverse and remand in part for further proceedings consistent with this opinion.
THE FACTS
Respondent Obexer & Son, Inc. (Obexer) is a boat dealer with its sole place of business in
Homewood, California. At all times relevant to these proceedings, Obexer has held a seller's
permit issued by the Nevada Department of Taxation. Over the period in issue here, January
1, 1974 to December 31, 1976, Obexer voluntarily collected and remitted to the Department
of Taxation a tax on sales in which Nevada purchasers took delivery at Obexer's place of
business in California. It is the tax on these sales, amounting to $15,362.00, which is in issue
in the instant case.
Obexer characterizes the taxes, which it paid and now seeks to have refunded, as sales
taxes paid under NRS 372.105. The State characterizes the taxes as use taxes paid under NRS
372.185. The State alleges that Obexer obtained a seller's permit and collected and remitted
these taxes for the convenience of its Nevada customers, who would otherwise have had to
pay use tax directly to the Department of Taxation before registering their boats with the
Department of Wildlife pursuant to NRS 488.075(1)(a).
Obexer did not collect California sales tax from its Nevada customers who took delivery at
its place of business in California. After Obexer paid the Nevada tax in question, California
audited Obexer's sales records for the period July 1, 1973 to September 30, 1976, and
determined that California sales tax was due and owing on all sales to Nevada purchasers
who took delivery in California.
audited Obexer's sales records for the period July 1, 1973 to September 30, 1976, and
determined that California sales tax was due and owing on all sales to Nevada purchasers
who took delivery in California. California assessed a deficiency of about $37,000.00 against
Obexer, who paid the tax.
Obexer then petitioned the Nevada Department of Taxation for a refund of the taxes it had
paid on those sales which were subsequently taxed by California. The Department and the
Tax Commission denied the petition, on the ground that the amounts remitted constituted use
taxes properly payable to Nevada.
On August 26, 1980, Obexer filed suit against the Tax Commission for a refund of the
taxes paid. Both parties moved for summary judgment based on a stipulated statement of
facts and a partial administrative record of the proceedings before the Commission. The
district court ruled for Obexer, on the ground that the State Of Nevada could not have
imposed a sales tax nor required Obexer to collect a use tax on the sales in question, and that
the payments therefore constituted taxes erroneously or illegally collected or computed
within the meaning of NRS 372.630(1). This appeal followed.
SALES AND USE TAXES
Nevada imposes a tax on all retail sales of tangible personal property in the state, and also
imposes a tax on the storage, use or other consumption of tangible personal property in the
state. 1955 Nev. Stat. ch. 397 at 766-67, 769. The user or consumer is legally liable for the
latter tax, but a receipt from a retailer authorized to collect the tax showing that the tax has
been paid relieves the purchaser from further liability. Id. at 769. If Nevada sales tax is
assessed on the sale of property, the storage, use or other consumption of that property is
exempt from the use tax. Id. at 773.
The sales tax and the use tax are complementary. While the former is an important fiscal
measure, the latter is designed to remove the incentive for consumers to purchase goods in
states having a smaller sales tax than Nevada's. Thus, the use tax protects the revenue
generated by the sales tax. See Miller Bros. Co. v. Maryland, 347 U.S. 340, 343 (1954). See
also National Geographic Society v. Cal. Bd. of Equalization, 430 U.S. 551, 555 (1977);
Phillips v. Oklahoma Tax Comm'n, 577 P.2d 1278, 1282-83 (Okla. 1978).
[Headnotes 1-3]
There is no question that Nevada could not constitutionally impose either a sales tax or the
obligation of collecting a use tax on Obexer.
on Obexer. To be taxable in the state, the sale must be made in the state, and the sales in issue
took place in California. See Phillips v. Oklahoma Tax Comm'n, 577 P.2d at 1282. See also
Miller Bros. Co. v. Maryland, 347 U.S. at 345-46; McLeod v. Dilworth Co., 322 U.S. 327
(1944). To impose liability for the collection of a use tax on an out-of-state seller, there must
be a constitutionally sufficient relationship or nexus between the seller and the taxing state,
such as the maintenance by the seller of offices, agents, salespersons, or property in the state.
National Geographic Society, 430 U.S. at 556-57. See Scripto, Inc. v. Carson, 362 U.S. 207
(1960). [D]ue process requires some definite link, some minimum connection, between a
state and the person, property or transaction it seeks to tax. Miller Bros. Co., 347 U.S. at
344-45. Obexer's occasional delivery of goods in Nevada is not adequate to establish such a
connection. See id. at 346-47. Obexer's possession of a Nevada seller's permit is similarly
inadequate. See American Oil Co. v. Neill, 380 U.S. 451, 458-59 (1965).
THE RIGHT TO A REFUND
[Headnote 4]
The district court was mistaken, however, in holding that Nevada's inability to impose a
tax burden on Obexer determined whether or not Obexer was entitled to a refund. Actions to
recover taxes paid are equitable in nature, and the burden of proof is on the taxpayer to show
that the taxing body holds money that in equity and good conscience it has no right to retain.
El Tejon Cattle Co. v. County of San Diego, 60 Cal.Rptr. 586, 595 (Ct.App. 1967); Hawes v.
Smith, 169 S.E.2d 823, 824 (Ga.App. 1969). Such would be accomplished by establishing
the plaintiff's right to the money and the defendant's possession. 169 S.E.2d at 824
(emphasis in original). See Estate of Kasishke v. Oklahoma Tax Comm'n, 541 P.2d 848, 852
(Okla. 1975) (a claim for refund is one for money had and received, and taxpayer must
establish that he has in fact overpaid his tax to recover).
[Headnote 5]
Nevada has statutes allowing taxpayers to claim and sue for refunds,
1
thus precluding the
State from asserting the common law defense of voluntary payment.
____________________

1
1. If the department determines that any amount, penalty or interest has been paid more than once or
has been erroneously or illegally collected or computed, the department shall set forth that fact in the
records of the department and certify to the state board of examiners the amount collected in excess of the
amount legally due
law defense of voluntary payment. Hawes v. Smith, 169 S.E.2d at 824. See W.F. Monroe
Cigar Co. v. Dep't of Revenue, 365 N.E.2d 574, 575 (Ill.App. 1977); Scoa Industries, Inc. v.
Howlett, 337 N.E.2d 305, 311 (Ill.App. 1975); Occidental Life of California v. State, 589
P.2d 673 (N.M. 1979); Mercury Machine Importing Corp. v. City of New York, 144 N.E.2d
400, 404 (N.Y. 1957). However, such statutes permit recovery only where the taxpayer
himself has borne the financial burden of the tax. If the taxpayer making the claim has
collected the tax from his customers, he has suffered no loss or injury, and is not entitled to a
credit or refund even if the tax was paid erroneously. W.F. Monroe Cigar Co., 365 N.E. 2d at
575. See Washington Plaza Assocs. v. State Bd. of Assessment Appeals, 620 P.2d 52, 53
(Colo.App. 1980).
[Headnote 6]
In the instant case, Obexer collected the Nevada tax from its customers, and then remitted
the tax to the State. Had Obexer not done so, Nevada residents subject to the use tax would
have had to satisfy their tax liability prior to registering their boats with the Department of
Wildlife, as required by law. NRS 488.075(1). See NRS 488.065(1). Thus, Obexer was
merely a conduit for the revenue, and would be unjustly enriched if the State were forced to
return to it all of the taxes that it collected from its Nevada customers. See Decorative
Carpets, Inc. v. State Bd. of Equalization, 373 P.2d 637, 638 (Cal. 1962).
On the other hand, both Nevada and California were members of the Multistate Tax
Compact between January 1, 1976 and December 31, 1976. NRS 376.010 (repealed 1981
Nev. Stat. Ch. 181, at 350). See Cal. Rev. & Tax. Code 38001 (West 1979); 1974 Cal. Stat.
ch. 93, at 207. The Compact enables purchasers to credit the sales or use taxes paid in one
state against the use taxes due in another. Article V, 1. So, during part of the period in issue
in the instant case, Nevada purchasers could have credited the California sales tax against the
Nevada use tax, had they been required to pay the former. If Obexer had not erred, and had
collected and remitted the California sales tax during 1976, the Multistate Tax Compact
would have prevented Nevada from collecting any use tax on the boats purchased during
that year.
____________________
and the person from whom it was collected or by whom paid. If approved by the state board of
examiners, the excess amount collected or paid must be credited on any amounts then due from the
person under this chapter, and the balance refunded to the person, or his successors, administrators or
executors.
2. Any overpayment of the use tax by a purchaser to a retailer who is required to collect the tax and
who gives the purchaser a receipt therefor pursuant to sections 34 to 38, inclusive, of the Sales and Use
Tax Act (chapter 397, Statutes of Nevada 1955) and NRS 372.210 to 372.255, inclusive, must be
credited or refunded by the state to the purchaser.
See NRS 372.680.
Obexer had not erred, and had collected and remitted the California sales tax during 1976, the
Multistate Tax Compact would have prevented Nevada from collecting any use tax on the
boats purchased during that year.
Because Nevada received the 1976 taxes solely as a result of Obexer's error, and was not
otherwise entitled to the money, Nevada has no equitable right to retain those revenues. As
Obexer was eventually forced to pay California sales tax on the transactions in issue,
refunding to it the Nevada taxes remitted in 1976 would not give Obexer a windfall, and
would have the same effect on Nevada's revenues as if Obexer had collected and remitted the
California tax in the first place.
Obexer argues that because Nevada could not constitutionally impose a sales tax or the
burden of collecting a use tax on it, all of the taxes it paid arose from exempt transactions
under NRS 372.265,
2
and were therefore erroneously or illegally collected or computed
under NRS 372.630(1).
3
In light of the boat registration statutes, however, Obexer has not
shown that it is more entitled to the amounts collected in 1974 and 1975 than the State of
Nevada, even if the procedure by which Nevada came by the sums might be considered
irregular. The idea upon which . . . a suit [for refund] is predicated is that the [taxing body]
has received that which in justice it ought not to retain, and, therefore, when the proceedings
have been simply irregular, the action will not lie. El Tejon Cattle Co., 60 Cal.Rptr. at 595.
Therefore, we hold that Nevada may retain the amounts that Obexer remitted to it during the
1974 and 1975, but must refund the amounts remitted in 1976, when the Multistate Tax
Compact was in force in both Nevada and California. We accordingly affirm in part and
reverse and remand in part for further proceedings consistent with this opinion.
____________________

2
There are exempted from the taxes imposed by this chapter the gross receipts from the sale of, and the
storage, use or other consumption in this state of, tangible personal property the gross receipts from the
sale of which, or the storage, use or other consumption of which, this state is prohibited from taxing
under the Constitution or laws of the United States or under the constitution of this state.

3
See footnote 1, supra. The district court erroneously found that Obexer had been subjected to double
taxation by having to pay the California sales tax after collecting and remitting the Nevada tax. Double
taxation occurs only where there is imposition of the same tax by the same taxing authority on the same subject
matter. Cedar Valley Leasing, Inc. v. Iowa Dept. of Revenue, 274 N.W.2d 357, 361 (Iowa 1979); Guess v.
Riverside Farms, Inc., 340 S.2d 6, 9 (Miss. 1976). There is no double taxation where the taxes are imposed by
different states. See Diefendorf v. Gallet, 10 P.2d 307, 316 (Idaho 1932).
____________
99 Nev. 240, 240 (1983) Servaites v. Lowden
JOHN J. SERVAITES, Appellant, v. PAUL W.
LOWDEN, Respondent.
No. 13912
March 31, 1983 660 P.2d 1008
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
Holder sued guarantor to enforce promissory note. The district court rendered summary
judgment for the holder and guarantor appealed. The Supreme Court held that: (1) issues of
material fact existed precluding summary judgment; (2) the guarantor was not barred from
litigating question under the doctrine of res judicata or collateral estoppel where he was not
party to the bankruptcy proceeding in which the question arose and did not litigate that
question, which was settled by stipulation; and (3) the guarantor was not liable for attorney's
fees where there was no express provision for such liability.
Gladstone & Stark, Las Vegas, for Appellant.
Raggio, Wooster & Lindell, and Richard F. Cornell, Reno, for Respondent.
1. Judgment.
Mere filing of cross motions for summary judgment does not relieve trial court of its obligation to
determine whether any genuine issue of material fact exists for trial.
2. Judgment.
While cross motions for summary judgment on same legal theories and same material facts may be
indicative of nonexistence of factual dispute, trial court must rule separately on each party's motion and, if
genuine issue of material fact remains, both motions must be denied.
3. Judgment.
Court should exercise great care in granting summary judgment; litigant has right to trial where slightest
doubt as to facts exists.
In evaluating propriety of grant of summary judgment, Supreme Court will review evidence in light most
favorable to party against whom summary judgment was rendered.
Where secured creditor following default and repossession chooses to accept collateral in complete
satisfaction of debt, creditor foregoes right to deficiency judgment against principal debtor. NRS
104.9505, subd. 2.
6. Judgment.
In action to enforce promissory note against guarantor, issues of material fact existed as to
whether creditor accepted collateral in complete satisfaction of debt, and as to
whether there was release or novation of original note, precluding summary
judgment.
material fact existed as to whether creditor accepted collateral in complete satisfaction of debt, and as to
whether there was release or novation of original note, precluding summary judgment.
7. Judgment.
Person who was not party to bankruptcy proceeding and did not litigate question which was settled by
stipulation was not precluded from litigating that question under doctrines of res judicata and collateral
estoppel.
8. Guaranty.
Where contract provision for payment of legal costs related only to proceedings to collect on note,
guarantor was not liable for attorney's fees incurred in suit to enforce guaranty agreement where there was
no express provision in guaranty agreement for such liability.
OPINION
Per Curiam:
Respondent Lowden seeks to enforce a promissory note that appellant Servaites signed as
guarantor. Servaites contends on appeal that numerous actions by Lowden operated to
discharge him as guarantor. The district court awarded summary judgment to Lowden on the
basis of the guaranty contract. As we believe that the state of the record before the district
court made summary judgment improper, we reverse and remand for a full trial on the merits.
THE FACTS
In a promissory note dated October 26, 1976, Joseph O'Rayeh promised to pay respondent
Lowden $11,500 plus interest on or before January 1, 1977, in consideration of a prior loan.
O'Rayeh also promised to pay attorney's fees in any action instituted to enforce the note.
Appellant Servaites signed the note expressly as a guarantor of payment, in consideration of a
separate $35,000 loan to him from Lowden.
The promissory note was made pursuant to a written agreement between Servaites and
Lowden also dated October 26, 1976. In addition to noting the $11,500 loan to O'Rayeh that
Servaites had guaranteed to repay, the agreement included the following:
1. To fully collateralize both the $11,500 note and a separate $35,000 note
evidencing the loan from Lowden to Servaites, Servaites pledged as security 37 percent
of the issued stock of Hi-Tide, Inc., a Nevada corporation (of which Servaites was
President and majority shareholder).
2. Herbert Waldman, an attorney, would hold the stock certificates and executed
stock powers. He would transfer the certificates to Lowden on request following a
default, and would return them to Servaites if the latter did not default.
transfer the certificates to Lowden on request following a default, and would return
them to Servaites if the latter did not default.
3. Servaites agreed to assign to Lowden as additional collateral a $50,000
promissory note.
4. On payment of the $11,500 and $35,000 notes on or before January 1, 1977,
Lowden would direct Waldman to return all security to Servaites.
On February 17, 1977, Lowden requested by letter that Waldman transfer the Hi-Tide
stock to him because of Servaites' default on the $35,000 note. On February 18, Waldman by
letter notified Servaites that he was going to transfer the shares to Lowden. Lowden now
swears in the action at bar that he has never been in personal possession of any Hi-Tide
shares; however, in an agreement with Hi-Tide, Inc., dated April 11, 1977, Lowden
acknowledged ownership of 25 percent of the corporation's outstanding stock.
In the April 11 agreement, Hi-Tide, Inc. (by Joseph O'Rayeh, Vice President)
assumed an obligation to repay to Lowden the sum of $35,000 loaned to John Servaitis
[sic] on October 26, 1976, to be loaned to Corporation by Servaitis [sic] for corporate
purposes, and the sum of $11,500 loaned to Joseph O'Rayeh on September 19, 1975,
and renewed on October 26, 1976.
Lowden also acknowledged receiving the 25 percent stock interest in Hi-Tide in
consideration of having loaned the $35,000 to Servaites, and agreed to sell the stock back if
the $35,000 and $11,500 loans were repaid along with certain additional consideration.
Servaites was not a party to this agreement.
On July 19, 1977, Lowden and Hi-Tide, Inc. (by Joseph O'Rayeh) entered into an
agreement modifying the April 11 agreement. Among other things, the July 19 agreement
extended the times for payment by Hi-Tide and deemed Hi-Tide to be the owner of the shares
previously held by Lowden so long as Hi-Tide was not in default. As with the April 11
agreement, Servaites was not a party.
Hi-Tide, Inc. subsequently filed a Chapter XI proceeding and was discharged as a
bankrupt. Although Lowden presented several claims in the bankruptcy proceeding, he
stipulated to the disallowance of a $12, 937.50 claim that he later contended represented the
$11,500 debt (plus interest) of O'Rayeh and Servaites.
On June 10, 1980, Lowden demanded that Servaites pay him $11,500 plus interest as
guarantor of O'Rayeh's October 26, 1976 promissory note pursuant to NRS 104.3416. He then
filed a complaint against O'Rayeh and Servaites seeking payment of the debt, stating that he
had not received any money from either O'Rayeh or Servaites in satisfaction of the note.
O'Rayeh defaulted, and a default judgment for the entire amount due was entered against him
on August 13, 1980. Lowden subsequently moved for summary judgment against Servaites.
Asserting that his obligation had been discharged, Servaites cross-moved for summary
judgment against Lowden. Lowden filed several affidavits and documents in support of his
motion. Servaites did not file any affidavits; rather, he relied on the documents and answers
to interrogatories that Lowden had filed.
The district court granted Lowden's motion for summary judgment. This appeal followed.
THE GRANT OF SUMMARY JUDGMENT
WAS IMPROPER
[Headnotes 1, 2]
The mere filing of cross-motions for summary judgment does not relieve the trial court of
its obligation to determine whether any genuine issue of material fact remains for trial.
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d 996 (1982). See Midland Ins. v.
Yanke Plumbing & Heating, 99 Nev. 66, 657 P.2d 1152 (1983); Young Electric Sign Co. v.
State, Dept. Hwys., 98 Nev. 536, 654 P.2d 1028 (1982); Molino v. Asher, 96 Nev. 814, 817
n.2, 618 P.2d 878, 879 n.2 (1980). While cross-motions for summary judgment on the same
legal theories and the same material facts may be indicative of the nonexistence of a factual
dispute, see Schlytter v. Baker, 580 F.2d 848, 850 (5th Cir. 1978), the trial court must rule
separately on each party's motion, and if a genuine issue of material fact remains, both
motions must be denied. See Midland Ins. v. Yanke Plumbing & Heating, supra; Cheqer v.
Painters & Decorators, supra. Accord Securities & Exch. Comm'n v. Am. Commodity Exch.,
546 F.2d 1361, 1365 (10th Cir. 1976). See also Heyman v. Commerce & Industry Ins. Co.,
524 F.2d 1317, 1320 (2d Cir. 1975); Eby v. Reb Realty, Inc., 495 F.2d 646, 649 n.4 (9th Cir.
1974).
[Headnotes 3, 4]
A court should exercise great care in granting summary judgment; a litigant has the right
to a trial where the slightest doubt as to the facts exists.
as to the facts exists. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). In
evaluating the propriety of a grant of summary judgment, we will review the evidence in the
light most favorable to the party against whom summary judgment was rendered. Id.;
McDermond v. Siemens, 96 Nev. 226, 607 P.2d 108 (1980).
[Headnote 5]
The record in the case at bar reveals that the district court overlooked certain conflicts in
the evidence. For example, Servaites argued that Lowden had accepted and retained the
security that had been given for the $11,500 and $35,000 notes in complete satisfaction of the
debts, thus extinguishing the obligation to which his guaranty was collateral. Where a secured
creditor following default and repossession chooses to accept the collateral in complete
satisfaction of the debt under NRS 104.9505(2),
1
the creditor foregoes the right to a
deficiency judgment against the principal debtor. White & Summers, Uniform Commercial
Code 26-8 at 1104-08 (2d ed. 1980). However, we need not decide whether a creditor's
acceptance and retention of the collateral discharges the wholly independent obligation of a
guarantor, see Thomas v. Valley Bank of Nevada, 97 Nev. 320, 629 P.2d 1205 (1981), as the
materials that Lowden placed before the district court did not establish whether or not he had
accepted and retained the collateral.
[Headnote 6]
Lowden by affidavit swore that he has never been in personal possession of any Hi-Tide
shares. In the April 11 agreement with Hi-Tide, however, Lowden acknowledged that he had
received a 25 percent interest in Hi-Tide in consideration of having loaned $35,000 to
Servaites, and that he was the owner of those shares. Moreover, the letters to and from
Herbert Waldman indicate that Lowden received the Hi-Tide stock that Waldman had
been holding as security for the two promissory notes.
____________________

1
In any other case involving consumer goods or any other collateral a secured party in possession may,
after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such
proposal shall be sent to the debtor if he has not signed after default a statement renouncing or modifying
his rights under this subsection. In the case of consumer goods no other notice need be given. In other
cases notice shall be sent to any other secured party from whom the secured party has received (before
sending his notice to the debtor or before the debtor's renunciation of his rights) written notice of a claim
of an interest in the collateral. If the secured party receives objection in writing from a person entitled to
receive notification within 21 days after the notice was sent, the secured party must dispose of the
collateral under NRS 104.9504. In the absence of such written objection the secured party may retain the
collateral in satisfaction of the debtor's obligation.
Herbert Waldman indicate that Lowden received the Hi-Tide stock that Waldman had been
holding as security for the two promissory notes. Lowden's sworn statement that he never had
personal possession of any Hi-Tide shares certainly does not conclusively establish that he
had not received ownership and control of the stock. There is a disparity between the 37
percent of outstanding Hi-Tide stock given as collateral and the 25 percent of 100 percent
of the shares allegedly received by Lowden, but the disparity could have been caused by
differences in definition or an increase in the number of issued shares. In light of this material
factual dispute, the district court erred in granting summary judgment for Lowden. We
therefore reverse and remand for a full trial on the merits.
Servaites contends that even if Lowden had not executed on the collateral, summary
judgment should have been entered for Servaites on his other defenses. He argues that the
April 11 agreement as modified by the July 19 agreement constituted a release or suspension
of Lowden's rights as against O'Rayeh, the maker of the subject note, and that the release or
suspension was accomplished without Servaites' consent, thus discharging him as guarantor
under NRS 104.3606.
2
See Lee Federal Credit Union v. Gussie, 542 F.2d 887 (4th Cir.
1976) (applying Virginia law); Citizens State Bank v. Beermann Bros. Dehy., 198 N.W.2d
458 (Neb. 1972); Bank of Waynesboro v. Ghosh, 576 S.W.2d 759 (Tenn. 1979). Servaites
also contends that the April 11 and July 19 agreements constituted a novation of the original
note without his consent, absolving him of liability on the note. See Williams v. Crusader
Disc. Corp., 75 Nev. 67, 334 P.2d 843 (1959).
The April 11 agreement states that Hi-Tide, Inc. has assumed an obligation to repay to
Lowden. . . . The use of the word assumed could be construed as a release, suspension, or
novation of Lowden's rights as against O'Rayeh. Lowden argues that he intended the later
agreements only to add a second guarantor for the original obligation. Where, as here, the
crucial factual dispute concerns characterization of a party's conduct, which in turn involves
elusive questions of intent and motive, summary judgment is inappropriate. Feminist
Women's Health Center, Inc. v. Mohammad, 586 F.2d 530, 54S {5th Cir.
____________________

2
1. The holder discharges any party to the instrument to the extent that without such party's consent
the holder:
(a) Without express reservation of rights releases or agrees not to sue any person against whom the
party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce
against such person. . . .
548 (5th Cir. 1978), cert. denied, 444 U.S. 924 (1979). See Poller v. Columbia Broadcasting
System, Inc., 368 U.S. 464, 473 (1962). See also Admiralty Funds v. Tabor, 677 F.2d 1297,
1298-99 (9th Cir. 1982); Prochaska v. Marcoux, 632 F.2d 848, 851 (10th Cir. 1980), cert.
denied, 451 U.S. 984 (1981). On the record in the case at bar, summary judgment was not
proper on the issues concerning the effect of the April 11 and July 19 agreements on
Servaites' contract of guaranty.
[Headnote 7]
Servaites is correct in contending that the district court erred in holding that he was bound
by the finding of the bankruptcy court that Hi-Tide was not obligated to Lowden for the
$11,500 debt under the April 11 and July 19 agreements. Servaites was not a party to the
bankruptcy proceeding, nor did he litigate the question, which was settled by stipulation
between Lowden and Hi-Tide. The doctrines of res judicata and collateral estoppel therefore
do not apply. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979); Blonder-Tongue
Laboratories, Inc. v. University Foundation, 402 U.S. 313 (1971). See also Bernhard v. Bank
of America Nat. Trust & Sav. Ass'n, 122 P.2d 892, 895 (Cal. 1942).
[Headnote 8]
In response to respondent Lowden's request for attorney's fees on appeal, we note that
where a contract provision for payment of legal costs relates only to proceedings to collect on
the note, the guarantor is not liable for attorney's fees incurred in suits to enforce the guaranty
agreement unless there is an express provision for such liability. Securities Investment Co. v.
Donnelley, 89 Nev. 341, 349, 513 P.2d 1238, 1243 (1973). See Peoples Bank & Trust Co. v.
Warner, 535 P.2d 1132, 1135 (Colo.App. 1975) (guaranty contract may be narrower than
contract between creditor and principal debtor, and where guaranty contract does not provide
for costs of collection or attorney's fees, judgment for attorney's fees improper). As the
provision for attorney's fees in O'Rayeh's $11,500 note relates only to actions to enforce
collection of this note and refers in the singular to the undersigned, and the entirely
separate guaranty clause makes no provision for attorney's fees, Lowden is not entitled to
such fees from Servaites.
3
As the district court erred in granting summary judgment and
holding that Servaites was barred from contesting the bankruptcy court's findings, we
reverse and remand for a full trial on the merits.
____________________

3
Although Servaites also requests attorney's fees, attorney's fees may not be awarded in the absence of a
statute, rule, or contract provision permitting such an award. Locken v. Locken, 98 Nev. 369, 650 P.2d 803
(1982); Consumers League of Nevada v. Southwest Gas, 94 Nev. 153, 576 P.2d 737 (1978).
As the district court erred in granting summary judgment and holding that Servaites was
barred from contesting the bankruptcy court's findings, we reverse and remand for a full trial
on the merits.
4
concur.
____________________

4
of The Honorable E. M. Gunderson, Justice, pursuant to the Nevada Constitution, art. 6, 19(1)(a) and 19(1)(c),
and SCR 10.
____________
99 Nev. 247, 247 (1983) Stanfill v. State
BOBBY DEAN STANFILL, Appellant, v. THE STATE
No. 12806
March 31, 1983 660 P.2d 1003
Appeal from judgment of conviction and sentence for possession of a stolen credit card,
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The Supreme Court held that where defendant could have been prosecuted under either of
two statutes, which mandated different punishments for what appeared to be the same act, the
statutes insofar as permitting defendant to be incarcerated for either misdemeanor or felony,
in discretion of prosecutor, violated equal protection clause of Fourteenth Amendment, and
modification of sentence was accordingly required.
Affirmed in part and remanded for new sentence.
[Rehearing denied June 24, 1983; see 99 Nev. 499, 665 P.2d 1146 (1983)]
Thomas E. Perkins, Public Defender, and Robert A. Bork, Deputy Public Defender, Carson
City, for Appellant.
Brian McKay, Attorney General, and William A. Maddox, District Attorney, Carson City,
for Respondent.
State may not prescribe different penalties for same offense without violating equal protection clause of
Fourteenth Amendment, and where statute prescribes different punishments or different degrees of
punishment for same acts committed under same circumstances by persons in like situations, equal
protection clause is violated.
persons in like situations, equal protection clause is violated. NRS 205.690-205.750, 205.690, subd.
2, 205.760, 205.760, subd. 2(b); U.S.C.A.Const. Amend. 14.
2. Constitutional Law; Receiving Stolen Goods.
Where defendant found guilty of possession of stolen credit card could have been prosecuted under either
of two statutes, which mandated different punishments for what appeared to be the same act, the statutes
insofar as permitting defendant to be incarcerated for either misdemeanor or felony, in discretion of
prosecutor, violated equal protection clause of Fourteenth Amendment, and modification of sentence was
accordingly required. NRS 205.690, subd. 2, 205.760; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
On January 6, 1980, appellant, Bobby Dean Stanfill, attempted to purchase a leather belt
from a Carson City merchant with a Mastercharge card issued in the name of William F.
Colm. A store clerk testified that appellant presented a Mastercharge card along with a belt
valued at $17.54, and indicated his desire to purchase the belt. Thereafter, the clerk called for
an authorization on the purchase and was advised the card was invalid. The Mastercharge
authorization representative told the clerk to stall the purchaser until police could be
summoned. A short time later the police arrived and arrested Stanfill.
Stanfill was later charged with possession of a stolen credit card, and indicted pursuant to
NRS 205.690(2). Thereafter, a jury found Stanfill guilty of possession of a stolen credit card.
On appeal, Stanfill claims the statutes governing the offense with which he was charged
allow for arbitrary enforcement in violation of his equal protection rights.
In the instant case, Stanfill was charged with violating NRS 205.690(2), a felony. Under
the statutory scheme, however, Stanfill could also have been charged with violating NRS
205.760. This statute requires proof of essentially the same elements as NRS 205.690(2), but
permits offenses involving less than $100 to be punished as misdemeanors.
NRS 205.690(2), states in pertinent part:
[A]ny person who possesses a credit card without the consent of the cardholder and
with the intent to circulate, use, sell or transfer the card with intent to defraud shall be
punished by imprisonment in the state prison for not less than 1 year nor more than 6
years, and may be further punished by a fine of not more than $5,000.
The jury was also instructed on NRS 205.760, which provides in pertinent part:
1. Any person who, with intent to defraud:
(a) Uses a credit card for the purpose of obtaining money, goods, property, services
or anything of value where such credit card was obtained or retained in violation of
NRS 205.690 to 205.750, inclusive, or where such person knows the credit card is
forged, expired or revoked; or
(b) Obtains money, goods, property, services or anything else of value by
representing, without the consent of the cardholder, that he is the authorized holder of a
specified card or that he is the holder of a card where such card has not in fact been
issued,
is guilty of a public offense and shall be punished as provided in subsection 2.
2. Where the amount of money or the value of the goods, property, services or other
things of value so obtained in any 6-month period is:
(a) $100 or more, the violator shall be punished by imprisonment in the state prison
for not less than 1 year nor more than 10 years, or by a fine of not more than $10,000,
or by both fine and imprisonment.
(b) Less than $100, the violator shall be punished for a misdemeanor.
(Emphasis added.)
Stanfill contends the aforementioned statutes require essentially the same elements of
proof, thereby giving the district attorney unbridled discretion to prosecute the crime as a
misdemeanor or felony.
[Headnote 1]
A state may not prescribe different penalties for the same offense without violating the
Equal Protection Clause of the Fourteenth Amendment. Spillers v. State, 84 Nev. 23, 31, 436
P.2d 18 (1968). Likewise, where a statute prescribes different punishments or different
degrees of punishment for the same acts committed under the same circumstances by persons
in like situation[s], the Equal Protection Clause is violated. State v. Pirkey, 281 P.2d 698,
702 (Or. 1955); see also Olsen v. Delmore, 295 P.2d 324 (Wash. 1956); State v. Rentfrow,
552 P.2d 202 (Wash.App. 1976).
[Headnote 2]
Here, the statutes in question mandate different punishments for what appear to be the
same act.
for what appear to be the same act. NRS 205.690(2) requires proof of: (1) possession of a
credit card; (2) without the consent of the cardholder; (3) with intent to circulate, use, sell or
transfer; and (4) with intent to defraud. In comparison, NRS 205.760(1) requires proof of: (1)
use of a credit card; (2) without the consent of the cardholder; (3) to obtain money, goods,
property, services or anything of value where such credit card was obtained or retained in
violation of NRS 205.690 to 205.750; and (4) with the intent to defraud.
A review of the two statutes in question suggests the elements of proof are essentially the
same. Indeed use of a credit card as required by NRS 205.760(1) necessarily implies
possession of a credit card, as required by NRS 205.690(2). The penalty contained in NRS
205.690(2) imposes a sentence of one to six years with the possibility of a fine not to exceed
$5,000; whereas, NRS 205.760(2)(b) treats the crime as a misdemeanor if the value of the
goods involved does not exceed $100.00. Here, Stanfill attempted to purchase a belt with a
retail value of $17.54. Nonetheless, he was charged under the felony statute rather than the
misdemeanor statute. A comparison of the other elements contained in the statutes does not
establish an intelligent standard for distinguishing the conduct proscribed by the two statutes.
1
As to offenses involving less than $100, NRS 205.760 and NRS 205.690(2) appear to
prescribe different degrees of punishment for acts committed under the same circumstances
by persons in like situations. We therefore conclude that insofar as the statutes in question
permitted appellant to be incarcerated for either a misdemeanor or for a felony, in the
discretion of the prosecutor, they violated the Equal Protection Clause of the Fourteenth
Amendment. The sentence must therefore be modified. Lapinski v. State, 84 Nev. 611, 446
P.2d 645 (1968).
2
Other contentions have been considered.
____________________

1
In 1971, Attorney General Robert List testified before the Assembly Committee on Judiciary regarding the
statutory scheme at issue. The legislative minutes provide:
Testimony from ROBERT LIST, NEVADA ATTORNEY GENERAL; He stated he has sent a copy
of a letter setting forth an objection to AB 27. Sections 15 and 16 of the bill would purport to give the
district attorney discretion whether to prosecute under the statute as a felony or a misdemeanor for the
same act. Such a provision in law has been held unconstitutional. The Lapinski case, 84 Nev. 611
concerned a similar statute allowing the district attorney to prosecute as a felony or a gross misdemeanor,
and the court held that the district attorney had to decide how to prosecute. That is one flaw in the bill.

2
In Lapinski, this court concluded that NRS 205.272, the taking of a vehicle without the consent of the
owner, was unconstitutional because it allowed the district attorney discretion to decide whether the defendant
Other contentions have been considered. In the context of this case, the claimed errors are
deemed not to have prejudiced appellant's rights.
Remanded for further proceedings consistent with this decision.
____________________
should be charged with a felony, gross misdemeanor, or a misdemeanor. This court discussed the constitutional
infirmity of the statute, and stated: While the conduct prohibited is clearly defined, the concomitant punishment
is not. This allows arbitrary law enforcement which cannot be contenanced [sic]. 84 Nev. at 613, Accordingly,
we remanded for imposition of a proper sentence.
____________
99 Nev. 251, 251 (1983) Marshall Earth Resources v. Parks
MARSHALL EARTH RESOURCES, INC., a Texas Corporation,
Appellant, v. V. J. PARKS, Respondent.
No. 13988
April 21, 1983 661 P.2d 875
Appeal from an order denying motion for change of venue. Third Judicial District Court,
Churchill County; Stanley A. Smart, Judge.
Corporate defendant appealed from order of the district court which denied motion for
change of venue. The Supreme Court held that foreign corporation which was not qualified to
do business in the state did not have residence in any particular county for venue purposes.
Affirmed.
Hill, Cassas, deLipkau and Erwin, and Frank W. Thompson, Reno, for Appellant.
Diehl, Evans & Associates, and Lyman F. McConnell, Fallon, for Respondent.
1. Corporations.
Foreign corporation which had not filed certificate of corporate existence with county clerk of any county
had not qualified to do business in the state. NRS 80.010, subd. 1(b).
2. Corporations.
Corporation which is not qualified to do business in the state has not established residence in any
particular county for venue purposes. NRS 13.010 subd. 1, 80.010, subd. 1(b).
3. Corporations.
Statute specifying proper venue where defendant's county of residence is unknown applies where
defendant is not considered a resident of any county, as in the case of a foreign corporation not qualified to
do business. NRS 13.040, 80.010, subd. 1(b).
OPINION
Per Curiam:
Respondent filed a complaint in Churchill County against appellant, a foreign corporation
and a co-defendant. Hugh Roy Marshall, alleging breach of an employment contract.
Appellant made a motion for change of venue to either Washoe County or Nye County, in
which its co-defendant did not join. The motion was denied, and this appeal followed.
Appellant relies on the language of NRS 13.010(1) in support of its argument that its
motion for change of venue should have been granted. That statute states:
When a person has contracted to perform an obligation at a particular place, and resides
in another county, the action must be commenced, and, subject to the power of the
court to change the place of trial as provided in this chapter, must be tried in the county
in which such obligation is to be performed or in which he resides; and the county in
which the obligation is incurred shall be deemed to be the county in which it is to be
performed, unless there is a special contract to the contrary.
The referenced statute applies only where the contracting obligor resides in a Nevada
county other than the county where the obligation is to be performed.
[Headnote 1]
Appellant, a Texas corporation, at the time it moved for a change of venue, had not filed a
certificate of corporate existence with the county clerk of any county, as required by NRS
80.010(1)(b). For that reason, it had not qualified to do business in this state.
[Headnote 2]
Although NRS 80.210 declares that a foreign corporation not qualified to do business in
this state shall not be allowed to commence, maintain or defend any action, this Court has
stated that a plaintiff waives its right to question capacity to defend when it sues such a
corporation and compels it to appear and answer. Walker Bank and Trust Co. v. Smith, 88
Nev. 502, 501 P.2d 639 (1972); Scott v. Day Bristol Consolidated Mining Co., 37 Nev. 299,
142 P. 625 (1914). Nonetheless, that corporation has not established residency in any
particular county for venue purposes. See Easton v. Superior Ct. of San Diego, 12 Cal.App.3d
243, 90 Cal.Rptr. 642 (1970); Searls v. Greyhound Corporation, 180 Cal.App.2d 463, 4
Cal.Rptr. 206 (1960); Warren v. Ritter, 142 P.2d 948 {Cal.App.
(Cal.App. 1943). Since appellant has not established residency for venue purposes, it cannot
rely on NRS 13.010 to locate proper venue in this case.
NRS 13.040 specifies proper venue where a defendant's county of residency is unknown:
In all other cases, the action shall be tried in the county in which the defendants, or any
one of them, may reside at the commencement of the action; or, if none of the
defendants reside in the state, or if residing in the state the county in which they so
reside be unknown to the plaintiff, the same may be tried in any county which the
plaintiff may designate in his complaint; . . .
The statute equally applies where a defendant is not considered a resident of any county for
venue purposes.
The record before this Court does not indicate appellant's co-defendant's place of
residence, and appellant has not argued that any reference should be made to that residence in
establishing proper venue. Accordingly, we conclude that no consideration of appellant's
co-defendant's residence need be made here in analyzing proper venue for appellant.
Since our holding regarding appellant's residential status and entitlement to NRS 13.010(1)
is dispositive of this appeal, we find it unnecessary to consider other issues.
[Headnote 3]
Under NRS 13.040, venue in an action against appellant is proper in any county designated
in the plaintiff's complaint; here, Churchill County. The district court properly denied
appellant's motion for change of venue from Churchill County. We therefore affirm the order
of the district court.
____________
99 Nev. 253, 253 (1983) Layton v. State
JOHNNY LEE LAYTON and EDWARD D. ECKERT, Appellants,
No. 13427
April 21, 1983 661 P.2d 877
Consolidated appeals from judgments of conviction of one count each of attempted murder
and battery with a deadly weapon, First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
The Supreme Court held that where at joint trial one defendant refused to reveal identity of
accomplice, stating only that codefendant had not been involved, defendants' right to
present evidence on their own behalf was not violated by striking defendant's testimony
as sanction for refusal to identify admitted accomplice.
codefendant had not been involved, defendants' right to present evidence on their own behalf
was not violated by striking defendant's testimony as sanction for refusal to identify admitted
accomplice.
Affirmed.
Robert C. Herman, John C. DeGraff, Carson City, for Appellants.
Brian McKay, Attorney General, and Dan R. Reaser, Deputy Attorney General, Carson
1. Witnesses.
Where at joint trial defendant refused to reveal identity of accomplice, stating only that codefendant had
not been involved, defendants' right to present evidence on their own behalf was not violated by striking
defendant's testimony as sanction for his refusal to identify admitted accomplice, especially as defendant
was repeatedly warned of the consequences and given opportunity to comply and identity of accomplice
was relevant and material.
2. Witnesses.
A witness may not take the stand to testify and then refuse to answer questions on cross-examination
relating to testimony given on direct examination.
3. Witnesses.
If a witness refuses to answer cross-examination relating to his direct testimony it is within the trial
court's discretion to apply any of several sanctions, including striking all of the witness' testimony,
imposing contempt, permitting prosecutors to comment to jury on the unprivileged refusal to answer,
permitting prosecutor to impeach witness by continuing to elicit his unprivileged refusal to answer and
instructing jury that it may take refusal to answer into account in reaching a verdict.
4. Witnesses.
When deciding sanction for witness' refusal to answer cross-examination relating to his direct testimony a
trial court should take into consideration a defendant's right to present evidence on his own behalf.
5. Witnesses.
Sanction of striking testimony for failure to answer cross-examination relating to direct testimony applies
to both defense witnesses and the defendant.
6. Witnesses.
Sanction of striking testimony for refusal to answer cross-examination relating to direct testimony may
only be applied when the witness refuses to answer questions which relate to relevant and material issues
and it is abuse of discretion to strike testimony for refusal to answer questions involving merely collateral
matters.
7. Witnesses.
If defendant refuses to answer cross-examination relating to its direct testimony, the trial court should not
strike his testimony without first making defendant aware of the possible consequences of his refusal to
answer, and give him a fair opportunity to answer.
OPINION
Per Curiam:
Following a joint trial, a jury found both appellants Layton and Eckert guilty of one count
of attempted murder and one count of battery with a deadly weapon. They now appeal their
convictions.
At trial, Eckert testified that he and an unidentified accomplice had been involved in the
attack on the victim. On cross-examination, however, Eckert refused to reveal the identity of
his accomplice, stating only that Layton had not been involved in the attack. As a sanction for
his refusal to identify his accomplice, the trial court instructed the jury to disregard Eckert's
testimony in its entirety.
[Headnote 1]
Both appellants assert that the trial court erred in its decision to strike Eckert's testimony,
contending that their right to present evidence on their own behalf was thereby violated. We
disagree.
[Headnotes 2, 3]
A witness may not take the stand to testify and then refuse to answer questions on
cross-examination relating to his testimony given on direct examination. See United States v.
Panza, 612 F.2d 432, 438 (9th Cir. 1979) cert. denied, 447 U.S. 925 (1980). If a witness
refuses to answer such questions, it is within the trial court's discretion to apply any of several
sanctions against the witness, including the sanction of striking all of the witness' testimony.
1
See United States v. Panza, supra.
[Headnotes 4-7]
Although a trial court should always take into consideration a defendant's right to present
evidence on his own behalf, the sanction of striking testimony may nevertheless be applied to
both a defense witness and to a defendant testifying on his own behalf. See United States v.
Panza, supra at 438-39; People v. Carter, 293 N.W.2d 681, 685 (Mich.Ct.App. 1980); Peters
v. State, 233 N.W.2d 420, 428 (Wis. 1975). This sanction may only be applied, however,
when the witness refuses to answer questions which relate to relevant and material issues.
See, e.g., Peters v. State, supra at 427-28. It would be an abuse of discretion to strike
testimony for a refusal to answer questions involving merely "collateral" matters.
____________________

1
Other available sanctions include imposing contempt, permitting the prosecutor to comment to the jury on
the unprivileged refusal to answer, permitting the prosecutor to impeach the witness by continuing to elicit his
unprivileged refusal to answer, and instructing the jury that it may take the witness' refusal to answer into
account when reaching a verdict. See United States v. Panza, supra at 437, 439.
involving merely collateral matters. See United States v. Panza, supra at 438-39; Peters v.
State, supra at 427-28. Furthermore, a district court should not strike a defendant's testimony
without first making the defendant aware of the possible consequences of his refusal to
answer, and giving him a fair opportunity to answer. See United States v. Panza, supra at 439.
In the present case, Eckert was repeatedly warned that his testimony would be stricken if
he refused to reveal the identity of his accomplice, and he was then given ample opportunity
to comply. Moreover, the identity of his accomplice was clearly relevant and material to the
issue of the guilt or innocence of both of the appellants. As such, we find no abuse of
discretion in the trial court's decision to strike the testimony.
The judgments of conviction are therefore affirmed.
____________
99 Nev. 256, 256 (1983) City of Las Vegas v. Macchiaverna
CITY OF LAS VEGAS, Appellant, v. PAMELA
MACCHIAVERNA, Respondent.
No. 13313
April 21, 1983 661 P.2d 879
Appeal from judgment, Eighth Judicial District Court, Clark County; Addeliar D. Guy,
Judge.
City appealed from judgment entered by the district court in favor of property owner in
zoning dispute. The Supreme Court held that since ordinance was not uncertain or ambiguous
and clearly zoned subject property for commercial purposes, district court properly ordered
city to issue business license to property owner.
Affirmed.
George F. Ogilvie, City Attorney, Christopher G. Gellner and Michael L. Peters, Deputy
City Attorneys, Las Vegas, for Appellant.
R. Paul Sorenson, and Patrick R. Doyle, Las Vegas, for Respondent.
1. Statutes.
When the language of a statute is plain, its intention must be deduced from such language, and the court
has no right to go beyond it.
2. Zoning and Planning.
Where zoning ordinance clearly zoned subject property as commercial, the ordinance was not uncertain
or ambiguous and thus the court would deduce the intention of the city commission from
the language of the ordinance and would not consider extrinsic evidence that the city
commission intended to zone the property as residential and that the commercial
designation was simply a mistake.
court would deduce the intention of the city commission from the language of the ordinance and would not
consider extrinsic evidence that the city commission intended to zone the property as residential and that
the commercial designation was simply a mistake.
OPINION
Per Curiam:
This is an appeal from a judgment in favor of a property owner in a zoning dispute. We
affirm.
In 1966, the Las Vegas City Commission enacted an ordinance which designated the
property involved in this case as a commercial zone (C-1).
1
Years earlier, this property had
been improved with guest houses, gardens, and recreational facilities, including a miniature
train with tracks. The City of Las Vegas concedes that the ordinance on its face clearly zoned
the property as C-1. City's position throughout these proceedings, however, has been that the
city commission intended to zone the property as residential (R-1), and that the C-1
designation was simply a mistake.
In early 1975, respondent Macchiaverna and her husband became interested in the subject
property as a potential site for a child care facility. After purchasing the property,
Macchiaverna and her husband sought to obtain permission to operate a child care facility on
the property. They were, however, unsuccessful.
Macchiaverna subsequently initiated this action seeking, among other things, declaratory
relief granting her permission to operate a child care facility on the property. Following a
court trial, the district judge concluded that the property in question was in fact zoned C-1.
The district court entered judgment for Macchiaverna and ordered City to issue a business
license to her.
[Headnotes 1, 2]
On appeal City contends, in part, that because the city commission did not intend in 1966
to zone the property as C-1, the property was not so zoned. City supports its contention by
relying on the following rule of statutory construction:
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained, will prevail over the
literal sense.
____________________

1
The applicable ordinance, which is designated Ordinance No. 934-90, amended Title XI, Chapter 1, Section
3 of the Municipal Code of the City of Las Vegas, Nevada, 1960 Edition. The portion of the ordinance
specifically applicable to this case is designated Z-4-66.
the literal sense. [Citations omitted.] The meaning of words used in a statute may be
sought by examining the context and by considering the reason or spirit of the law or
the causes which induced the legislature to enact it. The entire subject matter and the
policy of the law may also be involved to aid in its interpretation, and it should always
be construed so as to avoid absurd results. [Citations omitted.]
Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 458-59
(1972) (quoting O'Meara v. Ross, 20 Nev. 61, 63, 14 P. 827, 828 (1887); Ex parte
Siebenhauer, 14 Nev. 365, 368 (1879)). City contends that this rule controls in this case,
because extrinsic evidence indicated that the C-1 zoning designation of the property in
question would lead to absurd results. We disagree with this contention. When the language
of a statute is plain, its intention must be deduced from such language, and the court has no
right to go beyond it. Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979)
(quoting State ex rel. Hess v. Washoe County, 6 Nev. 104, 107 (1870)). See also School
Trustees v. Bray, 60 Nev. 345, 109 P.2d 274 (1941). In the matter before us, the ordinance
clearly zoned the subject property C-1. The ordinance was not uncertain or ambiguous. We
therefore hold that the rule stated in Cirac is controlling. Compare State v. Burke, 598 P.2d
395 (Wash. 1979) (where regulation contained a number, the mere reading of which disclosed
an error, court gave effect to the intent of drafter).
Accordingly, the district court correctly ruled that the subject property was in fact zoned
C-1. It is therefore unnecessary to consider City's contention that the district court erred in
finding that Macchiaverna justifiably relied on the zoning ordinance. The judgment of the
district court is affirmed.
____________
99 Nev. 259, 259 (1983) Hines v. Plante
THOMAS K. HINES, M.D., JOHN MARSHALL and EUGENE CHENEY, Appellants, v.
ROBERT PLANTE, Individually, and ROBERT PLANTE, ex rel. PLUMBAGO MINING
CORP., INC., Respondents.
No. 13214
April 21, 1983 661 P.2d 880
Appeal from order appointing receiver and order denying motion to set aside receivership,
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
1

Appeal was taken from order of the district court appointing receiver for a corporation and
order denying motion to set aside receivership. The Supreme Court held that it was abuse of
discretion to establish and maintain receivership where, among other things, party seeking a
receiver did not attempt to show likelihood of success in the underlying action.
Stephen C. Mollath, Reno, for Appellants.
Carl F. Martillaro, Carson City; Kenneth J. Jordan, Carson City, for Respondents.
1. Receivers.
Appointment of a receiver pendente lite is a harsh and extreme remedy which should be used sparingly
and only when the securing of ultimate justice require it and if the desired outcome may be achieved by
some method other than appointing a receiver, that course should be followed.
2. Corporations.
It was error to establish receivership for mining corporation in action by holder of 46 percent of capital
stock against holder of 28 1/2 of the shares where latter contributed bulk of moneys used to finance the
enterprise and former did not show that he was likely to prevail on the merits and receivership was
established because operator engaged to extract underground ore was physically interfering with other
stockholder's access to the mine site. NRS 78.650.
OPINION
Per Curiam:
This appeal is taken from an order appointing a receiver, and from an order denying a
motion to terminate the receivership.
____________________

1
Appellants filed a Motion to Discharge Receiver and Recovery Property and Franchise to Corporation in
this matter, in which they improperly support their contentions on appeal with evidence not included in the
record. See Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). Our disposition of this appeal, however,
renders this defect inconsequential.
For the reasons stated below, we believe that the district court committed reversible error in
establishing and maintaining the receivership, and we therefore reverse and remand.
In May 1977, appellant Hines and respondents (hereinafter Plante) entered into an
agreement whereby Plante transferred certain mining rights under an existing lease
arrangement, to the Plumbago Mining Corporation (hereinafter Plumbago). In return, Plante
received forty-six percent of the capital stock in Plumbago, and the remaining fifty-four
percent was divided between appellants Hines and Marshall.
After approximately one year, it was apparent that the Plumbago mining and milling
enterprise was not productive, and that its assets were insufficient to meet certain of its
obligations. Consequently, in an effort to make the enterprise more profitable, Plumbago
entered into a Joint Mining Operation Agreement with one Errol Christman, whereby
Christman agreed to extract the underground ore of the mine and deliver it to the mill. In
return, Christman was to receive fifty percent of the proceeds received by Plumbago for its
processed ore.
In October, 1979, Plante commenced a lawsuit against Hines, alleging various instances of
misconduct by Hines in connection with the management of Plumbago. Plante sought, among
other relief, to have a receiver appointed.
In June, 1980, a hearing was held in district court to determine whether a receiver should
be appointed. In July, 1980, the court below entered an order in which it declined to appoint a
receiver. Instead, the court ordered Hines and Christman to submit monthly reports to the
court concerning all mining and milling operations on the Plumbago property. The court also
appointed Plante as representative of all minority shareholders, and decreed that he was to
have access to the Plumbago property in order to oversee all operations.
As a result of evidence adduced at a subsequent hearing, indicating that Christman had
denied Plante access to the mine, the court entered an order on October 13, 1980, appointing
two receivers to supervise the Plumbago operation.
On October 20, 1980, Hines terminated Christman's association with Plumbago by
purchasing Christman's rights derived from the 1978 Joint Mining Operation Agreement.
Noting that it had largely been Christman's actions that prompted the appointment of a
receiver, Hines then moved to terminate the receivership on the ground that Christman was
no longer associated with Plumbago. The district court denied this motion, however, stating
that there were no changed circumstances warranting termination of the receivership, and
decreeing that the receivership continue in order to protect Plumbago assets.
The sole issue on appeal is whether the district court abused its discretion in establishing
and maintaining the receivership.
2

[Headnote 1]
The appointment of a receiver pendente lite is a harsh and extreme remedy which should
be used sparingly and only when the securing of ultimate justice requires it. Bowler v.
Leonard, 70 Nev. 370, 269 P.2d 833 (1954). A corollary of this rule is that if the desired
outcome may be achieved by some method other than appointing a receiver, then this course
should be followed. State v. District Court, 406 P.2d 828 (Mont. 1965); see also Hawkins v.
Aldridge, 7 N.E.2d 34 (Ind. 1937).
The reasons for the above rules are fundamental: appointing a receiver to supervise the
affairs of a business is potentially costly, as the receiver typically must be paid for his or her
services. A receivership also significantly impinges on the right of individuals or corporations
to conduct their business affairs as they see fit, and may endanger the viability of a business.
3
The existence of a receivership can also impose a substantial administrative burden on the
court.
In the case at hand, the district court established the receivership because Christman was
physically interfering with Plante's access to the Plumbago mine site.
4
The lesser remedy of
injunctive relief, although available, was not invoked. Cf. Hobbs v. Tom Reed Gold Min. Co.,
129 P. 781 (Cal. 1913) {mandamus available to compel corporate officers to provide
stockholder access to company mine); State v. District Court of Ninth Judicial Dist.,
____________________

2
Appointment of a receiver where a corporation is involved is the subject of NRS 78.650. That provision
provides in pertinent part:
1. Any holder or holders of one-tenth of the issued and outstanding capital stock may apply to the
district court, held in the district where the corporation has its principal place of business, for an order . . .
appointing a receiver . . . and by injunction restrain the corporation from exercising any of its powers or
doing business whatsoever, except by and through a receiver appointed by the court, whenever:
. . .
(b) Its trustee or directors have been guilty of fraud or collusion or gross mismanagement in the
conduct or control of its affairs; or
(c) Its trustees or directors have been guilty of misfeasance, malfeasance or nonfeasance . . .
2. The application may be for the appointment of a receiver, without at the same time applying for
the dissolution of the corporation, and notwithstanding the absence, if any there be, of any action or other
proceeding in the premises pending in such court.

3
This danger is exacerbated here, where the appointed receivers apparently did not have extensive mining
experience.

4

As previously indicated, the record also reveals allegations of financial misdealings by Hines in handling
Plumbago's affairs. However, the record in this appeal does not provide adequate substantiation of these
allegations to warrant the appointment of a receiver.
(mandamus available to compel corporate officers to provide stockholder access to company
mine); State v. District Court of Ninth Judicial Dist., 406 P.2d 828 (Mont. 1965)
(receivership of corporation vacated by extraordinary writ where bank seeking receivership
could have simply foreclosed on corporation stock constituting security for loans to
third-party stockholders).
[Headnote 2]
Other circumstances in this case also persuade us that establishing a receivership was
error. First, the record indicates that Hines contributed the bulk of the monies used to finance
the Plumbago enterprise. Cf. Mann v. Friden, 287 P.2d 961 (Col. 1955) (appointment of
receiver held erroneous partly because party opposing appointment contributed entire capital
of business). Second, in seeking the receivership, Plante did not attempt to show that it was
likely that he ultimately would be entitled to a judgment in the underlying action. See
Hawkins.
The district court orders are reversed, and the matter is remanded with instructions to
discharge the receiver. The receiver shall be ordered to render an accounting of the
corporation's affairs, and to return all records and property to the corporation.
____________
99 Nev. 262, 262 (1983) Liggett v. State Indus. Ins. System
JAMES LIGGETT, Appellant, v. STATE INDUSTRIAL INSURANCE
SYSTEM, an Agency of the State of Nevada, Respondent.
No. 14055
April 21, 1983 661 P.2d 882
Appeal from order affirming administrative decision, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Appeal was taken from an order of the district court affirming administrative appeals
officer's decision dismissing claimant's workers' compensation claim. The Supreme Court
held that appeals officer properly dismissed claim of claimant who failed to appear at prior
hearing, even though hearing before appeals officer is de novo.
Affirmed.
J. Michael Nave, Las Vegas, for Appellant.
Darla Anderson, Las Vegas, for Respondent.
Workers' Compensation.
Appeals officer properly dismissed workers' compensation claim of claimant who failed to appear at prior
hearing, even though hearing before appeals officer is de novo. NRS 616.5412, 616.5422.
OPINION
Per Curiam:
This is an appeal from an order of the district court affirming a decision made by an
administrative appeals officer. The appeals officer dismissed Liggett's worker's compensation
claim, and Liggett now contends that the district court should have reversed that dismissal.
We disagree and therefore affirm.
On June 4, 1981, while Liggett was receiving worker's compensation for an industrial
injury, he requested respondent to substitute a chiropractor for his assigned medical doctor.
Respondent refused the request, and Liggett appealed to a hearings officer. A hearing was
scheduled for September 15, 1981. Liggett did not appear at the hearing, however, and he did
not contact the hearings officer to request a continuance. A few days later the hearings officer
dismissed the appeal.
Liggett then filed an appeal with an appeals officer of the Department of Administration.
Respondent moved to dismiss the appeal on the ground that Liggett had failed to appear at the
September 15, 1981, hearing. The appeals officer granted the motion to dismiss, finding that
Liggett had abandoned his claim by failing to appear at the earlier hearing. Liggett
subsequently filed a petition for judicial review of the appeals officer's order, and as
mentioned earlier, the district court affirmed. Liggett has now appealed to this court.
A party aggrieved by an administrative decision of a hearings officer may appeal that
decision to an appeals officer. NRS 616.5422. Liggett contends that because the appeals
officer conducts a hearing de novo, the appeals officer must disregard Liggett's failure to
appear at the earlier hearing. Thus, Liggett argues that the appeals officer should not have
summarily dismissed Liggett's claim. We reject this contention.
The legislature has enacted a multi-tiered administrative review process which
contemplates a hearing and decision by a hearings officer before any review by an appeals
officer. NRS 616.5412 et seq. There is no indication in the statutory framework that a
worker's compensation claimant should be allowed to bypass the hearings officer level and
yet obtain a hearing de novo before the appeals officer. We would nullify the orderly statutory
process for handling of worker's compensation claims if we were to adopt Liggett's position.
In opposition to respondent's motion to dismiss Liggett's claim before the appeals officer,
Liggett tendered no excuse whatsoever for his failure to appear at the September 15, 1981,
hearing. Therefore, the appeals officer was fully justified in ruling that Liggett had abandoned
his claim by failing to appear at the earlier hearing, and the appeals officer did not err by
dismissing the appeal. Consequently, the district court did not err by affirming that dismissal.
We note that Liggett has raised a due process argument regarding the initial dismissal at
the hearings officer level. The argument was not made in the district court, and even on
appeal the argument was made for the first time in Liggett's reply brief. We therefore decline
to consider the due process argument.
Affirmed.
____________
99 Nev. 264, 264 (1983) Ramey v. State
ODUS DWIGHT RAMEY, Appellant, v. THE
No. 14339
April 21, 1983 661 P.2d 1292
Appeal from judgment of conviction and order denying motion to withdraw guilty plea,
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted on guilty plea in the district court of assault with a deadly
weapon, and he appealed. The Supreme Court held that record did not affirmatively show that
plea was knowingly and voluntarily entered, and thus it had to be set aside.
Abbatangelo & Watkins, Las Vegas, for Appellant.
Criminal Law.
Where trial court did not canvass defendant to determine whether he understood range of possible
punishments that could flow from his guilty plea, and record was utterly devoid of any indication that
defendant understood the consequences of pleading guilty, record did not affirmatively show that plea was
knowingly and voluntarily entered, and thus it had to be set aside.
99 Nev. 264, 265 (1983) Ramey v. State
OPINION
Per Curiam:
Under the rational of North Carolina v. Alford, 400 U.S. 25 (1970), appellant entered a
plea of guilty to one count of assault with a deadly weapon. He later moved to withdraw the
plea on several grounds, including his lack of understanding of the consequences of his plea.
The district court denied the motion and sentenced appellant to six years in prison. Appellant
now contends that his guilty plea must be set aside because the record does not affirmatively
show it was knowingly and voluntarily entered. Specifically, appellant argues that the record
does not affirmatively show he understood the consequences of his plea, including the range
of possible punishments. We agree.
The court below did not canvass appellant to determine whether he understood the range
of possible punishments that could flow from his plea, and the record is utterly devoid of any
indication that appellant understood the consequences of pleading guilty. Thus, the record
does not affirmatively show the plea was knowingly and voluntarily entered, and the plea
must therefore be set aside. See Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); see also
NRS 174.035(1).
The judgment of conviction is reversed. The plea of guilty is set aside, and the matter is
____________
99 Nev. 265, 265 (1983) Russell v. State
GARY RUSSELL, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 13181
April 21, 1983 661 P.2d 1293
Appeal from judgment of conviction of one count of grand larceny, First Judicial District
The Supreme Court held that juror's action in driving from defendant's place of
employment to scene of crime and informing other jurors of the time it took to travel the
distance constituted juror misconduct requiring reversal, since the information disclosed by
juror related to crucial aspect of defense, defendant's case was significantly harmed by his
inability to cross-examine juror concerning the many variables which may have affected his
driving time, and evidence presented against defendant was not so overwhelming as to
render the misconduct harmless beyond a reasonable doubt.
which may have affected his driving time, and evidence presented against defendant was not
so overwhelming as to render the misconduct harmless beyond a reasonable doubt.
Powell and Ray, Carson City, for Appellant.
Brian McKay, Attorney General; William A. Maddox, District Attorney, and Robert B.
Walker, Jr., Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Juror misconduct is particularly egregious where juror has engaged in independent research of the
facts.
2. Criminal Law.
In prosecution for grand larceny, in which defense counsel argued that defendant would not have been
able to get to the scene of the crime from his place of employment in time to commit the offense, juror's
action in driving from defendant's place of employment to the scene of crime and then informing other
jurors of the time it took to travel that distance constituted juror misconduct requiring reversal, since
information disclosed by juror related to a crucial aspect of defense, defendant's case was significantly
harmed by his inability to cross-examine juror concerning variables which may have affected his driving
time, and evidence against defendant was not so overwhelming as to render the misconduct harmless
beyond a reasonable doubt.
OPINION
Per Curiam:
Appellant was convicted by a jury of one count of grand larceny, and he now appeals this
conviction. Appellant primarily contends that the trial court abused its discretion in denying
his motion for a new trial, which was based on the theory of juror misconduct. We agree.
At appellant's trial in Carson City, appellant's employer testified that appellant had been at
work in Reno on the day the offense occurred until approximately 5:00 p.m., and perhaps
even later. The offense had taken place in Carson City sometime between 5:30 p.m. and 5:45
p.m. During closing argument, appellant's counsel argued that appellant would not have been
able to get to Carson City from Reno in time to commit the offense. No evidence was
presented at trial, however, concerning the actual travel time between Reno and Carson City.
During a recess in the trial proceedings, a juror drove to Reno, and then measured the time
it took him to drive to Carson City from appellant's place of employment in Reno. During the
jury's deliberations, he informed the other jurors that it had taken him twenty-five minutes to
travel this distance.
Upon being informed of the juror's actions, appellant brought a motion for a new trial. At
the hearing on this motion, the trial court apparently agreed with appellant that the juror's
actions constituted misconduct, but concluded that the misconduct was harmless beyond a
reasonable doubt. See State v. Thacker, 95 Nev. 500, 596 P.2d 508 (1979); Barker v. State, 95
Nev. 309, 594 P.2d 719 (1979).
Given the facts as described above, we conclude that the trial court abused its discretion in
finding the misconduct harmless beyond a reasonable doubt.
[Headnotes 1, 2]
First, as noted in the Barker case, juror misconduct is particularly egregious where, as
here, the juror has engaged in independent research of the facts. 95 Nev. at 312. Moreover,
the information disclosed by the juror related to a crucial aspect of appellant's defense.
Appellant's case was therefore significantly harmed by his inability to cross-examine the
juror, during the trial, concerning the many variables which may have affected his driving
time. Lastly, we cannot classify the evidence presented against appellant as being so
overwhelming as to render the juror's misconduct harmless beyond a reasonable doubt.
1

Accordingly, appellant's conviction is hereby reversed, and the matter is remanded to the
district court for a new trial.
2

____________________

1
The trial court concluded that the juror's misconduct was harmless beyond a reasonable doubt primarily
because the travel time between Reno and Carson City was a matter of common knowledge. Even if this could
serve as a basis for rendering misconduct harmless beyond a reasonable doubt, we do not agree with the trial
court that the driving time between two exact points in Reno and Carson City can be categorized as common
knowledge. There are simply too many variables which can affect driving time, including weather conditions,
traffic conditions and the driver's speed.

2
Appellant also contends that the district court erred by admitting certain prior inconsistent statements of
witness Laird. For the guidance of the trial court upon remand, we have considered this contention and we find it
without merit. Laird's prior inconsistent statements were admissible. See NRS 51.035.
____________
99 Nev. 268, 268 (1983) Public Serv. Comm'n v. Southwest Gas
PUBLIC SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of
Nevada, Appellant and Cross-Respondent, v. SOUTHWEST GAS CORPORATION, a
Nevada Corporation, Respondent and Cross-Appellant.
No. 12047
PUBLIC SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of
Nevada, Appellant, v. SIERRA PACIFIC POWER COMPANY, a Nevada Corporation,
Respondent.
No. 12052
April 21, 1983 662 P.2d 624
Appeal from orders setting aside administrative decisions of the Public Service
Commission and ordering refunds of utility charges; First Judicial District Court, Carson
City; Stanley A. Smart, Judge.
Public Service Commission appealed from orders of the district court setting aside the
Commission's order effecting rate redesign and ordering refunds of utility charges made
pursuant to the Commission's order. The Supreme Court, Springer, J., held that: (1) general
notice given relative to proceedings initiated by utilities as rate increase applications was
inadequate notice of the Commission's action in changing rate design to eliminate block rate
pricing and, hence, all matters relating to rate design were improperly heard and decided; (2)
Commission's order effecting rate redesign, that is, change in form of rate structure,
constituted regulation governed by rule-making requirements of the Administrative
Procedure Act; (3) Commission's order effecting rate redesign did not enjoy statutory
presumption or validity, in absence of compliance with procedural rule-making safeguards of
notice and hearing, and order so entered was void and of no effect at any time; (4) the district
court was within its authority, on judicial review of the Commission's order, in requiring that
certain refunds and surcharges be made upon invalidation of the order; and (5) failure of
industrial consumers to apply for injunction to enjoin enforcement of void order did not per
se preclude consumers from seeking refund of moneys improperly charged as result of void
order.
Affirmed.
Mills Lane, District Attorney, Thomas F. Riley, Deputy District Attorney, Washoe County;
Zev Kaplan, Carson City, for Appellant.
Guild, Hagen & Clark, Reno, for Southwest Gas, Allison, Brunetti, MacKenzie, Hartman,
Soumbeniotis & Russell, Carson City, for Nevada Industrial Customers.
Vargas, Bartlett & Dixon, Reno; Lionel Sawyer & Collins and M. Kristina Pickering,
Reno; Paul H. Lamboley, Reno, for Sierra Pacific.
Jones, Jones, Bell, LeBaron, Close & Brown, Las Vegas, for Southern Cal Edison.
Neyhart, Anderson, Nussbaum, Reilly & Freitas, and Sanford N. Nathan, San Francisco,
for Amicus Curiae.
Inherent in any notice and hearing requirement are propositions that notice will accurately reflect subject
matter to be addressed and that hearing will allow full consideration of it.
2. Public Utilities.
General notice given relative to proceedings initiated by utilities as rate increase applications was
inadequate notice of Public Service Commission action in changing rate design to eliminate block rate
pricing and failed to afford utilities opportunity to oppose proposed rate design change; hence, all matters
relating to rate design were improperly heard and decided, notwithstanding that some perceptive users may
have presented evidence which the Commission could use as basis for an order. U.S.C.A.Const. Amend.
14.
Public Service Commission order effecting rate redesign, that is, change in form of rate structure,
constituted a regulation, governed by rule-making requirements of the Administrative Procedure Act, in
view of fact that order was prospective and intended to implement general Commission policy of
eliminating block rate pricing, a policy of such major concern and significance as to preclude its
characterization as merely adjudication in contested case; hence, order entered without compliance with
statutory notice provisions was void and of no effect. NRS 233B.010 et seq., 233B.038, subd. 1,
233B.060.
Public Service Commission's order effecting utility rate redesign, that is, change in form of rate structure,
which order constituted a regulation subject to rule-making requirements of the Administrative Procedure
Act, did not enjoy statutory presumption of validity between time of its entry and time it was vacated on
judicial review, in absence of compliance by the Commission with procedural safeguards of notice and
hearing; order so entered was void and of no effect at any time. NRS 233B.010 et seq., 233B.060, subd.
6, 704.130, subd. 1, 704.540-704.580, 704.550, subd. 1.
The district court acted within its authority, on judicial review of rate design order of the Public Service
Commission, in ordering that certain refunds and surcharges be made upon invalidation of the
Commission's order on basis of the Commission's failure of compliance with
procedural rule-making safeguards of notice and hearing.
Commission's order on basis of the Commission's failure of compliance with procedural rule-making
safeguards of notice and hearing. NRS 233B.140, subd. 5, 233B.060, subd. 6.
Failure of industrial consumers to apply for injunction against enforcement of Public Service
Commission's void order effecting rate redesign, that is, change in form of rate structure, did not per se
preclude consumers from seeking refund of moneys improperly charged as result of void order; such
application was not condition precedent to return to status quo prior to issuance of void order. NRS
704.550.
Refunds to industrial consumers, resulting from entry by the Public Service Commission of invalid order
effecting rate redesign, that is, change in form of rate structure, did not constitute improper retroactive
rate-making, but, instead, merely recognized that charges could not be validly grounded on void order.
NRS 233B.060, 233B.140, subd. 5, 704.550.
OPINION
These consolidated appeals
1
arise out of two judicial review proceedings wherein the
district court set aside administrative decisions made by the Public Service Commission
(PSC). The principal and dispositive issue in both of these appeals is whether or not proper
and jurisdictional notice was given of the administrative proceedings. The district court held
that notice was not sufficient in either case and that, therefore, all administrative orders in
these two matters are void. We agree and affirm the judgment of the district court.
Notice
The problem with notice in these cases is that the PSC attempted to effect a rate redesign
for Southwest Gas Corporation (hereafter Southwest) and for Sierra Pacific Power
Company (hereafter Sierra) without ever giving public notice of its intention to do so.
The two subject administrative proceedings were initiated by the utilities as rate increase
applications. Rate design proceedings, however, were initiated by the PSC. Rate design
changes are substantially different from changes in rate. Rate design refers to the form of rate
structure wherein different unit rates are charged to different classes of customers based upon
the cost of service to the class. In the mentioned rate increase application proceedings the
PSC moved to change the utilities' rate design by eliminating "block rate pricing."
____________________

1
The court has determined that consolidation of these appeals will assist in their disposition. NRAP 3(b).
design by eliminating block rate pricing. This was to be accomplished by gradually
flattening the rate schedule, that is to say, by decreasing the unit rate charged to low volume
users and increasing the unit rate charged to high volume customers. Ultimately, it was the
intention of the PSC to eliminate block rates entirely and require a single unit rate for all
customers, large or small.
[Headnote 1]
This court, in Nevada Power Co. v. Public Serv. Comm'n, 91 Nev. 816, 544 P.2d 428
(1975), determined that in the State of Nevada the public, who is served by the utility, has a
statutory right to both notice of a utility's rate increase application, including its contents, and
notice of a Commission hearing on any such rate application. Id. at 820. Inherent in any
notice and hearing requirement are the propositions that the notice will accurately reflect the
subject matter to be addressed and that the hearing will allow full consideration of it. In
Nevada Power, above, this court, citing the U.S. Supreme Court in Gonzales v. United States,
348 U.S. 407 (1955), and cases cited therein, stated: A hearing is not meaningful without an
awareness of the matters to be considered. 91 Nev. at 824.
[Headnote 2]
The subject matter of the PSC action, change in rate design, does not appear in the notices
given in these cases. Consequently, all matters relating to rate design were improperly heard
and decided.
[Headnote 3]
The PSC contends that general notice was afforded by the following language contained in
the notices: All rate schedules, special charges, service contract rules and regulations
pertaining to Applicant's operation are subject to review in this proceeding. Such general
language clearly could not and did not give the utilities an opportunity to oppose the proposed
change in the rate design. As a result they understandably did not prepare evidence relating to
rate design. The general notice is clearly inadequate for this purpose.
It is not enough that some users may have been extremely perceptive and presented
testimony which the PSC could then use as a basis for an order. The notice must be specific
enough to alert all interested persons of the substance of the hearing. See Wagner Electric
Corporation v. Volpe, 466 F.2d 1013, 1019-20 (3rd Cir. 1972).
In the Nevada Power case, this court quoted from the PSC's order in which the PSC made
the following declaration: [A] person examining these applications should be able to rely
on the factors stated by the Applicant in its applications . . . .
[A] person examining these applications should be able to rely on the factors stated by
the Applicant in its applications . . . . Therefore, were the Commission to hear and issue
orders on matters not submitted by the Applicant in its application, there would to that
extent be a denial of fairness and due process through inadequate Notice.
91 Nev. at 819.
The PSC recognizes that it should not hear matters and issue orders on matters not
submitted by the applicant nor provided for with some degree of specificity in the notice.
Such would be and is a denial of fairness and due process through inadequate Notice.
Appeal No. 12047; April, 1976 Rehearing
On February 18, 1976, a Notice of Rehearing was issued in the case of PSC Docket No.
241 (Appeal No. 12047). The notice specified and was limited to the issue of rate design.
The PSC argues that any defect in the original notice was cured by the notice of rehearing.
Whether the notice of rehearing in fact cured any defects in the original notice turns on
whether the PSC action in affecting a rate design order constituted the adoption of a general
regulation such as defined in NRS 233B.038.
2

The trial court concluded that in instituting changes in rate design the PSC was in effect
promulgating a regulation which was of such general consequence and impact as to be
governed by the rule-making requirement of the Administrative Procedure Act. The court
further concluded that since the PSC did not follow the requirements specified in the
provisions of NRS Chapter 233B in adopting such an amendment, it engaged in an unlawful
procedure which should be declared null and void. We agree.
____________________

2
NRS 233B.038 provides as follows:
233B.038 Regulation defined. Regulation means an agency rule, standard, directive or statement
of general applicability which effectuates or interprets law or policy, or describes the organization,
procedure or practice requirements of any agency. The term includes a proposed regulation and the
amendment or repeal of a prior regulation, but does not include:
1. A statement concerning only the internal management of an agency and not affecting private rights
or procedures available to the public;
2. A declaratory ruling;
3. An intraagency memorandum;
4. An agency decision or finding in a contested case; or
5. A regulation concerning the use of public roads or facilities which is indicated to the public by
means of signs and signals.
A regulation is a rule, standard, directive or any statement of general applicability which
effectuates or interprets policy of the agency concerned. NRS 233B.038. Although the order
changing Southwest's rate design is directed to Southwest only, it certainly has a general
applicability which affects other gas utilities and their customers. Also, the decision to
flatten Sierra's rates appears from the record to be part of a general policy to move to full
volumetric pricing for all utilities. The order is of such major policy concern and of such
significance to all utilities and consumers that it cannot be characterized as a simple
adjudication in a contested case and thus outside of the statutory definition of a regulation.
See NRS 233B.038(1).
The order is prospective and general in nature; and the intent to adopt this new rate design
should properly be done by the rule making process rather than by a purely judicial method of
evolving rules on a case by case basis.
The trial judge saw this point and expressed it thus:
If an administrative agency needs to adopt a regulation which comes within the
definition of that term as found in the Administrative Procedure Act, then it is, in my
opinion, essential that the agency proceed in accordance with the provisions of the Act.
This is required, in my opinion, because of the great scope of authority vested in
administrative agencies, the broad discretion allowed to them in the exercise of that
authority, because of the impact of their actions on the vital interest of all citizens of
this state, including the business entities and other persons who come before that
agency, and because the deference accorded their determinations by the courts on
judicial review. . . .
If the procedures of 233B are followed there will be adequate notice given to all
persons who will be immediately or may be in the future affected by the proposed
regulation. They will be afforded an opportunity to appear at hearings and to offer
evidence and argument in support of or in opposition to the proposed regulation. The
agency and its staff will have the benefit of various opposing views on the subject, and
who knows, in the process the agency might even change its position and modify or
even withdraw a proposed regulation. . . .
If the PSC order in this case constituted a regulation, as we hold it does, then it is not valid
unless the notice provisions of NRS 233B.060 were complied with. They were not. We agree
with the trial court that the order following the April, 1976 rehearing is also void and of no
effect.
Effect of a Void Order: Propriety of Refunds
[Headnote 4]
Given the invalidity of the PSC order for the reasons stated, there is still a question
concerning the effect of the order between the time it was entered and the time it was vacated
by judgment of the district court. We hold that because of improper notice the PSC order was
void and was of no effect at any time; consequently the granting of refunds for payments
made under the void order was proper.
The PSC is a creature of the legislature; rate making is a legislative process. The power to
prescribe rates for a common carrier or a public utility company is a legislative function as
distinguished from judicial power . . . which the legislature has really exercised in the first
instance by prescribing that all rates shall be just and reasonable. Garson v. Steamboat Canal
Co., 43 Nev. 298, 312, 185 P. 801, 805 (1919).
The legislature has decreed that [a]ll rates . . . [prescribed by the PSC] shall be prima
facie lawful, from the date of the order until changed or modified by the commission, or in
pursuance of NRS 704.540 to 704.580, inclusive.
3
NRS 704.130(1). This court has held
that the PSC may establish procedures as may be required to carry into effect the legislative
intention expressed in the [NRS] . . . so long as such procedures comply with the
requirements of due notice and hearing on such factual issues. . . . Southwest Gas Corp. v.
Public Serv. Comm'n, 92 Nev. 48, 61, 546 P.2d 219, 227 (1976).
The statutory presumption of validity of the agency's order assumes that the order was
promulgated in accordance with law and in abidance with the requirements of due notice and
hearing. The legislature and this court have insisted that procedural safeguards be observed.
For example, NRS 233B.060(6) requires: No regulation adopted after July 1, 1965, is valid
unless adopted in substantial compliance with this chapter but no objection to any regulation
on the ground of noncompliance with the procedural requirements of this section may be
made more than 2 years after its effective date.
4

This court has held as invalid PSC orders adopted without compliance with the procedural
safeguards of the Administrative Procedure Act. In Checker, Inc. v. Public Serv. Comm'n, 84
Nev. 623, 446 P.2d 981 (1968), this court invalidated a commission order because the order
had been issued ex parte and without notice and hearing.
____________________

3
NRS 704.540 to 704.580 provides for judicial review of commission orders. NRS 704.550(1) provides in
part, however, [i]n any event all rates, charges and regulations of the commission shall be deemed reasonable
and just until set aside by the court . . . .

4
Prior to 1977 this section was section 5 of NRS 233B.060.
parte and without notice and hearing. The court ruled that [t]he Commission cannot act
without notice and a reasonable opportunity to be heard and must act within constitutional
limits. 84 Nev. at 634. The court found the Commission to be without jurisdiction because it
had not complied with the notice and hearing requirements imposed by the legislature.
In Gibbens Co. v. Archie, 92 Nev. 234, 548 P.2d 1366 (1976), the court held an agency
regulation invalid and therefore without force as to those parties who had entered a timely
objection to a regulation promulgated in violation of the Administrative Procedure Act. The
court held:
By enacting the Nevada Administrative Procedure Act, it is clear our legislature
intended to establish minimum procedural requirements governing the
regulation-making process of state agencies. NRS 233B.020. Those procedural
requirements mandate that, prior to the adoption, amendment, or repeal of any
regulation, an agency first must give at least thirty days' notice of its intended action
and the time, place, and manner in which interested persons may present their views.
NRS 233B.060(1) and (2). Further, the agency must afford interested persons an
opportunity to submit, orally or in writing, data, views or arguments. NRS 233B.060(3).
Where required, such minimum procedural requirements may not be ignored.
92 Nev. at 235 (emphasis added).
As recently as 1981, in State Bd. Equal. v. Sierra Pac. Power, 97 Nev. 461, 634 P.2d 461
(1981), this court affirmed the policy whereby a state agency's failure to follow the
Administrative Procedure Act will invalidate any regulation issued in violation of the notice
and hearing requirements. The court stated that the Commission is free to amend its
regulations; it need only follow the provisions of NRS 233B.060 which are meant to
establish minimum procedural requirements governing the regulation-making process of state
agencies.' Gibbens Co. v. Archie, supra, 235. 97 Nev. at 465.
[Headnote 5]
The remaining question is whether the trial court acted properly, in administrative review,
when it ordered refunds for monies paid under the void orders.
The limitations and duties of the courts to review PSC decisions are delineated in NRS
233B.140(5) of the Administrative Procedure Act:
5. The court shall not substitute its judgment for that of the agency as to the weight
of the evidence on questions of fact. The court may affirm the decision of the agency or
remand the case for further proceedings.
remand the case for further proceedings. The court may reverse or modify the decision if
substantial rights of the appellant have been prejudiced because the administrative findings,
inferences, conclusions or decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
. . . .
In State Bd. Equal., above, this court sustained a district court order which required the
refund of certain monies collected pursuant to a regulation later determined to be invalid. As
said before, the presumption of validity attaches only to lawfully promulgated orders. Courts
in other jurisdictions, after invalidating a commission decision, regulation, or order, have
issued commands requiring refunds or surcharges. See Application of Hawaii Elec. Light Co.,
594 P.2d 612, 627 (Hawaii 1979) (In the interim pending the outcome of the Commission's
further consideration of the reasonableness of the residential rate structure, the [previously
approved] structure is to be maintained.); California Mfrs. Ass'n v. P.U.C., 595 P.2d 98, 103
(Cal. 1979) ([T]he commission shall order refunds and surcharges, if appropriate . . .).
The Texas Court of Civil Appeals, dealing with a problem similar to the one before us,
held that an order directing refunds or surcharges was within a court's or a commission's
power and stated:
In the context of the present case,
5
no person can have a vested right in any rate
other than the last legal or official rate promulgated by the Commission . . . . In the
present case, the Commission directed that such new rates be implemented effective
February 28, 1981. If these new official or legal rates are finally adjudged valid, the
judgment pronouncing their validity relates back to February 28, 1981, and they are
valid ab initio. No one ever had a right thereafter to charge or pay for the utility's
services according to any other system of rates. If these new official or legal rates are
finally adjudged invalid, they were never effective at all to vest a right in anyone . . . .
____________________

5
Appeal from judgment denying temporary injunction of final order of the Public Utility Commission
requiring that company commence charging for its services so as to produce specified increase in annual revenue
and requiring company to refund monies previously collected under system of charges producing higher
increase.
Southwestern Bell Tel. Co. v. Public Util. Comm'n, 615 S.W.2d 947, 957 (Tex.Civ.App.
1981), aff'd, 622 S.W.2d 82 (Tex. 1981) (emphasis added).
Under the Nevada statutes and authorities cited above the district court was within its
authority when it ordered that certain refunds and surcharges be made upon invalidation of
the PSC's rate design order.
Waiver: Retroactive Rate Making
[Headnote 6]
We have held that the order in question is void and unenforceable. Appellants claim,
however, that the large industrial consumers, notably Sierra, by failing to move for a stay
pursuant to NRS 704.550
6
waived their right to receive refunds. They cite Garson v.
Steamboat Canal, 43 Nev. 298, 185 P. 801 (1919), in support of their contention that the
courts are constitutionally precluded from ordering refunds on review. Our reading of the case
reveals no support for such contention. Moreover, NRS 704.550 does not make application
for injunction a condition for return to the status quo prior to the issuance of a void order.
The Colorado Supreme Court has held that a petition for stay, coupled with a suspending
bond, is not a condition precedent to seeking reimbursement. Mountain States Tel. & Tel. Co.
v. Public Util. Comm'n, 502 P.2d 945 (Colo. 1972). In that case, however, it was a citizens
group, not the utility, which had sought the review in district court. On the other hand, it was
the utility that was forced to make the refund because of an invalid rate order. There is broad
language in the case stating that obtaining a stay was unnecessary.
____________________

6
NRS 704.550 in pertinent part provides as follows:
704.550 Injunction to suspend, stay commission order: Time for application; suspension of schedule
of rates; bond of public utility to keep suspended rates in effect and secure refunds, overpayments; refund
procedure.
. . . .
2. If an injunction is granted by the court and the order complained of is one which permanently
suspends a schedule of rates and charges or a part thereof filed by any public utility pursuant to NRS
704.070 to 704.110, inclusive, or which otherwise prevents such schedule or part thereof from taking
effect, the public utility complaining may keep in effect or cause to be put into effect, as the case may be,
the suspended schedule or part thereof pending final determination by the court having jurisdiction, by
filing a bond with the court in such amount as the court may fix, conditioned upon the refund to persons,
firms, companies or corporations entitled thereto of the amount of the excess if the rate or rates so
suspended are finally determined by the court to be excessive.
In City of Los Angeles v. Public Util. Comm'n, 497 P.2d 785 (Cal. 1972), the California
Public Utilities Service Commission granted Pacific Telephone and Telegraph Company a
substantial rate increase. The order was challenged in a judicial review, and it was concluded
that pending determination of the claim the increased revenues would be collected by the
company pursuant to a partial stay order and would be subject to refund. The Supreme Court
of California held, upon a determination that the ordered rate increase was invalid, that the
money collected pursuant to the stay should be refunded. Id. at 803.
Hawaii has also assumed the validity of surcharges and refunds derived from reallocation
of rate spreads following the annulment of a commission order. See Application of Hawaii
Elec. Light Co., above.
We hold that failure to apply for injunction to enjoin enforcement of a void order does not
per se avoid a refund of monies improperly paid as a result of the void order.
[Headnote 7]
Appellants claim that refunds are improper because they constitute improper retroactive
rate making. We disagree. The refund order of the district court is not a form of retrospective
legislation; it is merely a recognition that charges cannot be validly grounded on a void order.
The judgment of the district court in both appeals is affirmed in all respects.
Manoukian, C.J., and Mowbray, Steffen, and Gunderson, JJ., concur.
____________
99 Nev. 278, 278 (1983) State ex rel. Welfare Div. v. Vine
STATE OF NEVADA, by and Through the WELFARE DIVISION OF THE
DEPARTMENT OF HUMAN RESOURCES and MARTHA VINE,
Appellants, v. JOHN M. VINE, Respondent.
No. 13727
WELFARE DIVISION OF THE STATE OF NEVADA, DEPARTMENT OF HUMAN
RESOURCES, Appellant, v. JOHN MICHAEL VINE and MARTHA JO VINE,
Respondents.
No. 14264
April 21, 1983 662 P.2d 295
Consolidated appeals from dismissal of RURESA action and order denying motion to
intervene. Eighth Judicial District Court; Robert G. Legakes, Judge; Addeliar D. Guy, Judge.
State filed action against former husband under the Revised Uniform Reciprocal
Enforcement of Support Act seeking both reimbursement for past welfare assistance
payments and future support for his daughter. Former husband moved to correct parental
rights termination order nunc pro tunc, and the State moved to intervene. The district court,
Addeliar D. Guy, J., dismissed the RURESA action and entered order denying State's motion
to intervene, and consolidated appeals were taken. The Supreme Court, Mowbray, J., held
that: (1) order terminating former husband's parental rights also completely extinguished all
of his legal duties and responsibilities with respect to his daughter, and (2) nunc pro tunc
amendment of termination order was correction of a clerical rather than judicial
omission.
Affirmed.
Brian McKay, Attorney General, Roger D. Comstock, Deputy, Nancy Ford Angres,
Deputy, Carson City; Terrance P. Marren, Deputy, Las Vegas, for Appellants.
Robert K. Dorsey, Las Vegas, for Respondent.
1. Parent and Child.
Order terminating former husband's parental rights under statute for failure to pay court-ordered child
support also completely extinguished all of his legal duties and responsibilities with respect to his
daughter, and thus the State had no basis for its action against him under the Revised Uniform Reciprocal
Enforcement of Support Act. NRS 128.110.
2. Judgment.
Nunc pro tunc amendment of order terminating parental rights to include termination of parental
duties was correction of a clerical rather than judicial omission, precluding State from intervening in
action for correction of the order.
OPINION
In these cases the State of Nevada seeks to establish that an order terminating parental
rights does not by operation of law also terminate a parent's obligation of child support. In
light of the interlocking nature of parental rights and responsibilities, and the intention of the
Legislature as evidenced by the legislative scheme, we construe the term parental rights to
include both parental rights and parental obligations. Therefore, we affirm the judgment of
the district court in both Case No. 13727 and Case No. 14264.
THE FACTS
John M. Vine and Martha Jo Vine were granted a decree of divorce in Clark County on
August 26, 1974. Martha Jo Vine was awarded custody of their year-old daughter, Amanda
Leigh Vine, and John Vine was ordered to pay $50.00 per month for child support.
On July 15, 1975, Judge Addeliar D. Guy issued an order terminating all parental rights of
John Vine with respect to his daughter, on the basis of Vine's complete failure to provide her
with support or attention. The judge decreed that all parental rights of John Michael Vine,
with respect to Amanda Leigh Vine, be, and they are hereby terminated and said child is
declared free from any and all custody and control of said John Michael Vine. Martha Jo
Vine received sole parental rights over her daughter.
John Vine entered an appearance in the divorce and parental rights termination
proceedings, but did not contest the actions of the court. He states that he consented to the
termination of his parental rights on the express representation of Mrs. Vine's attorney that
the termination order would cut off his support obligation.
On June 12, 1981, the State of Nevada filed an action against John Vine under the Revised
Uniform Reciprocal Enforcement of Support Act, seeking both reimbursement for past
welfare assistance payments and future support for Amanda Vine. In defense, John Vine
produced the July 15, 1975 order terminating his parental rights. Judge Legakes dismissed the
State's petition. The appeal in Case No. 13727 followed.
While the above appeal was pending, John Vine moved to correct the 1975 parental rights
termination order nunc pro tunc, asserting that it was the intention and understanding of all
the parties that the order terminated his parental duties as well as his parental rights. Judge
Guy granted the motion on April 19, 1982, amending the order to provide that all parental
rights and duties of John Michael Vine . . . are . . . terminated. . . . (Emphasis added.)
On May 21, 1982, the State of Nevada moved to intervene in the above action and obtain
relief from, or a stay of, the amended order. The State argued that the nunc pro tunc
amendment improperly altered the substance as well as the form of the prior order. The State
also suggested that if the parental rights termination order cut off Amanda Vine's right to
support, the failure to provide her with a guardian ad litem, notice, and a hearing in that
proceeding violated her due process rights.
Judge Guy denied the State's motion to intervene. He specifically found that, at the time
the order terminating parental rights was entered, all parties and the court understood and
intended that the order would terminate in all respects the parental relationship between John
Vine and Amanda Vine, including the former's obligation of support. The appeal in Case No.
14264 followed, and was eventually consolidated with Case No. 13727.
EFFECT OF AN ORDER TERMINATING
PARENTAL RIGHTS
Appellants' central argument is that the Legislature was aware of the difference between
rights on the one hand and responsibilities or obligations on the other, and the absence of the
latter terms from NRS 128.110
1
indicates the Legislature's intention that parental
responsibilities such as child support should continue despite a termination of parental rights.
Appellants note that NRS 127.160 expressly provides that entry of a final decree of adoption
relieves the natural parents of all parental responsibilities for, as well as rights over, the
adopted child.
2
They also point out that while NRS 128.015 defines "parent and child
relationship" to include both rights and obligations,3 NRS 12S.110 does not state that an
order terminating parental rights shall sever the parent and child relationship.
____________________

1
In 1975, NRS 128.110 provided as follows:
Whenever the procedure described in this chapter has been followed, and upon making the finding
required by NRS 128.105 at a hearing upon the petition, the court shall make a temporary or final written
order, signed by the judge presiding in such court, judicially depriving the parent or parents of the
custody and control of, and terminating the parental rights of the parent or parents with respect to such
minor person, and declaring such person to be free from such custody or control, and placing those rights
in some person or agency qualified by the laws of this state to provide services and care to children, or to
receive any children for placement. Whenever a temporary order is made, the court shall retain
jurisdiction of the matter and may thereafter, and upon such notice as shall be required by the court, hear
further evidence and may enter any order which could have been made on the completion of the original
hearing.
NRS 128.110 was amended in 1981 to alter some terminology and remove the provisions for temporary orders,
making all such orders final. The language concerning the effect of the order remains substantially unchanged.

2
After a decree of adoption is entered, the natural parents of an adopted child shall be relieved of all
parental responsibilities for such child, and they shall not exercise or have any rights over such adopted
child or his property. The child shall not owe his natural parents or their relatives any legal duty nor shall
he inherit from his natural parents or kindred.
parent and child relationship to include both rights and obligations,
3
NRS 128.110 does
not state that an order terminating parental rights shall sever the parent and child relationship.
Appellants conclude that only a final decree of adoption operates to terminate both the rights
and responsibilities of a parent.
We must disagree. In Roelfs v. Sam P. Wallingford, Inc., 486 P.2d 1371 (Kan. 1971), the
Kansas Supreme Court construed a statute much like NRS 128.110. The statute provided that
when the court adjudged a parent or parents to be unfit, it could make an order permanently
depriving such parents, or parent, of parental rights and commit the child to an appropriate
person or institution. On the basis of the strong language of the statute, the general tenor and
purpose of the act, and the reciprocal nature of the rights and duties arising from the
parent-child relationship, the court determined that an order terminating parental rights under
the statute also cut off all parental obligations, including the obligation of support. See In
Interest of Ingold, 610 P.2d 130 (Kan.App. 1980); In Interest of Wheeler, 601 P.2d 15
(Kan.App. 1979). We find the reasoning in Roelfs persuasive.
This Court has already stated its awareness of the seriousness and of the terrible finality
of a decree terminating parental rights. Carson v. Lowe, 76 Nev. 446, 451, 357 P.2d 591,
594 (1960). See Chapman v. Chapman, 96 Nev. 290, 295, 607 P.2d 1141, 1145 (1980)
(termination of parental rights is drastic measure; evidence in case does not clearly show that
severance of all ties with natural parent will serve child's best interests). We note that in 1981
the Legislature enacted NRS 128.120,
4
demonstrating the legislative intention to make
termination orders binding and irrevocable as to both child and parents.
The general purpose of Chapter 128 is to provide a method for ending the parent-child
relationship, where doing so is necessary to further the best interests of the child. See NRS
128.00S{2){c); NRS 12S.090.
____________________

3
1. Parent and child relationship includes all rights, privileges and obligations existing between
parent and child, including rights of inheritance.
2. As used in this section, parent includes an adoptive parent.

4
Any order made and entered by the court under the provisions of NRS 128.110 is conclusive and
binding upon the person declared to be free from the custody and control of his parent or parents . . . .
After the making of the order, the court has no power to set aside, change or modify it, but nothing in this
chapter impairs the right of appeal.
128.005(2)(c); NRS 128.090. In NRS 128.005(2)(a), the Legislature found and declared that
[s]everance of the parent and child relationship is a matter of such importance in order to
safeguard the rights of parent and child as to require judicial determination. As noted above,
NRS 128.015 defines parent and child relationship to include obligations as well as rights.
Moreover, NRS 424.080 refers to the termination of both parental rights and duties by
order of a court of competent jurisdiction.
5

We believe that these various statutory provisions adequately demonstrate the legislative
intention to have an order terminating parental rights completely sever the parent-child
relationship, terminating all rights and obligations of both parent and child. Complete
severance of the relationship removes all connections which may otherwise engender feelings
of continuing attachment or right, and gives the child an unrestrained opportunity to prepare
for a new home environment. We therefore adopt the position of the court in Anguis v.
Superior Court, 429 P.2d 702 (Ariz.App. 1967), as follows:
[W]e construe the term parental rights in the broader term as the sum total of the
rights of the parent or parents in and to the child as well as the rights of the child in and
to the parent or parents. In other words, we construe parental rights to include both
parental rights and parental obligations.
Id. at 705. See Sernaker v. Ehrlich, 86 Nev. 277, 281, 468 P.2d 5, 7 (1970) (dicta) (within
parental rights' there are parental duties', few of which [the father] performed . . . .).
[Headnote 1]
The purpose of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA)
is to improve and extend the enforcement of existing duties of support against persons
presently legally liable for such support. Moffat v. Moffat, 612 P.2d 967, 975 (Cal. 1980). See
State ex rel Welfare Div. v. Hudson, 97 Nev. 386, 389, 632 P.2d 1148, 1149 (1981). See also
NRS 130.030; NRS 425.360(1). Because the 1975 order terminating John Vine's parental
rights under NRS 128.110 also completely extinguished all of his legal duties and
responsibilities with respect to his daughter, the State has no basis for its RURESA action
against him.
____________________

5
Except in proceedings for adoption, no parent may voluntarily assign or otherwise transfer to another his
rights and duties with respect to the permanent care, custody and control of a child under 18 years of age,
unless parental rights and duties have been terminated by order of a court of competent jurisdiction.
completely extinguished all of his legal duties and responsibilities with respect to his
daughter, the State has no basis for its RURESA action against him. We therefore affirm the
judgment of the district court dismissing the State's RURESA petition in Case No. 13727.
[Headnote 2]
As the order terminating parental rights also terminated John Vine's parental duties, the
nunc pro tunc amendment of the 1975 order, while superfluous, was not erroneous.
Moreover, the district judge specifically found that the court and the parties had intended the
order, at the time it was entered, to eliminate all of John Vine's parental rights and
obligations, including the obligation of child support. Hence, the nunc pro tunc amendment
may be considered correction of a clerical rather than judicial omission, as the omission
cannot reasonably be attributed to the exercise of judicial consideration or discretion.
Channel 13 of Las Vegas v. Ettlinger, 94 Nev. 578, 580, 583 P.2d 1085, 1086 (1978), quoting
Marble v. Wright, 77 Nev. 244, 248, 362 P.2d 265, 267 (1961). See Smith v. Epperson, 72
Nev. 66, 69-70, 294 P.2d 362, 363-64 (1956); Wallace v. Wallace, 520 P.2d 1221, 1224-25
(Kan. 1974). We therefore affirm the judgment of the district court denying the State's motion
to intervene in Case No. 14264.
We have considered the other contentions raised by the appellants and found them to be
without merit. We affirm the judgments in both appeals.
____________
99 Nev. 284, 284 (1983) Collins v. Union Fed. Savings & Loan
ERNEST J. COLLINS, Appellant, v. UNION FEDERAL SAVINGS AND LOAN
ASSOCIATION, aka FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, et al.,
Respondents.
No. 12961
April 21, 1983 662 P.2d 610
Appeal from order granting summary judgment. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Debtor filed suit against bank and officers thereof, alleging intentional interference with
prospective economic advantage and contractual relationships, civil conspiracy,
disparagement, interference with a fair and open trustee sale, usurious interest, and wrongful
foreclosure sale.
and wrongful foreclosure sale. The district court entered summary judgment for defendants
on certain claims, and plaintiff appealed. The Supreme Court, Manoukian, C. J., held that: (1)
interest payments, for purpose of usury calculations, must be prorated over entire term of
contract; (2) Federal Bank Board's late charge regulation preempted application of any state
law concerning the imposition, assessment or collection of late charges to federal savings and
loan associations; therefore, the late charges assessed and collected by bank in the instant case
did not constitute an unreasonable assessment of liquidated damages and were properly not
calculated as interest in usury calculation; (3) while interest may not be charged against sums
not disbursed to the borrower, a material issue of fact existed in the instant case as to whether
plaintiff had control over loan proceeds deposited in loan-in-process account; (4) defendants
were properly granted summary judgment as to the claims for disparagement, intentional
interference with prospective economic advantage and contractual relations, and chilling
foreclosure sale; and (5) summary judgment was also properly entered dismissing the civil
conspiracy claim.
Affirmed in part; reversed in part; and remanded.
Roger A. Bergmann, Reno, for Appellant.
Vargas & Bartlett, Reno; McKenna, Conner & Cuneo, Los Angeles, California, for
Respondents.
1. Appeal and Error; Judgment.
When both parties have filed motions for summary judgment with respect to a particular issue, they are
normally precluded from arguing on appeal that the lower court erred in granting summary judgment
because a genuine issue of material fact exists; however, the fact that both parties moved for summary
judgment on a particular issue does not constitute a waiver of the judicial determination of whether a
material issue of fact exists on either side of the case.
2. Usury.
Although 1979 amendment of Nevada usury statute increased the maximum rate of interest from 12
percent to 18 percent per annum, it also included a provision making the increased rate inapplicable to any
loan contract made before the amendment's effective date; thus, the lower court did not err in utilizing 12
percent per annum as the maximum rate of interest for the loan agreement in question, which was executed
in 1973. NRS 99.050; St. 1979, c. 498, 4.
3. Usury.
While debtor argued that transaction with bank involved two separate loans, a construction loan and a
take-out loan, and while he further argued that the construction loan, viewed separately, was usurious,
the lower court properly determined that only one loan was contemplated by the loan
agreements, since no evidence was presented by affidavit, or otherwise, that the
parties intended the loan documents to create two separate loans, and since the loan
documents unambiguously contemplated one loan.
one loan was contemplated by the loan agreements, since no evidence was presented by affidavit, or
otherwise, that the parties intended the loan documents to create two separate loans, and since the loan
documents unambiguously contemplated one loan.
4. Contracts.
General presumption is that where two or more written instruments are executed contemporaneously, the
documents evidence but a single contract if they relate to the same subject matter and one of the two refers
to the other.
5. Usury.
Usurious character of a transaction is determined as of the time of its inception. NRS 99.050.
6. Usury.
Actual life of a loan is not to be considered when determining whether the loan is usurious. NRS
99.050.
7. Usury.
Although 1973 usury statute provided that a contracted rate of interest could not exceed the rate of 12
percent per annum, that statute did not mean that the interest rate could not exceed 12 percent annually or
12 percent for any one year; the words twelve percent per annum referred to the rate of interest and not
the time of payment; thus, interest payments, for the purpose of usury calculations, were to be prorated over
the entire term of the contract. NRS 99.050.
8. Usury.
Trial court properly concluded, as a matter of law, that expenses for title insurance, recording fees, tax
service fees, and loan application fees should not be added to the amount of interest paid for purposes of
computing usury, where bank president submitted an affidavit stating that all of the disputed charges were
actual expenses incurred by the bank in establishing and servicing the loan, and where, conversely, the
debtor provided no documentation in support of his allegations that the service fees charged at the
inception of the loan should be calculated as interest. NRS 99.050; NRCP 56(c).
9. Usury.
Actual and reasonable expenses incurred as part of a loan transaction do not constitute interest for
purposes of usury. NRS 99.050.
10. Judgment.
Although a motion for summary judgment should be denied if the record below is inadequate for
consideration of the constitutional issue presented or to determine whether genuine issues of material fact
exist, a case may be disposed of by summary judgment if the constitutional question has been foreclosed by
previous decisions.
11. States.
Federal regulations have no less preemptive effect than federal statutes, and when an administrator
promulgates a regulation intended to preempt state law, the regulation will be upheld unless it exceeded the
administrator's statutory authority or constituted an abuse of the administrator's discretion.
12. States; Usury.
Federal Bank Board's late charge regulation preempted application of any state law concerning the
imposition, assessment or collection of late charges to federal savings and loan associations; therefore, the
late charges assessed and collected by bank in the instant case did not constitute an
unreasonable assessment of liquidated damages and were properly not calculated as
interest in usury calculation.
instant case did not constitute an unreasonable assessment of liquidated damages and were properly not
calculated as interest in usury calculation.
13. Judgment.
Since both parties presented conflicting evidence concerning the exclusion of certain enumerated
amounts from usury calculations, entry of summary judgment in respect thereto was inappropriate. NRCP
56; NRS 99.050.
14. Judgment.
Summary judgment may be granted when, as a matter of law, the moving party is entitled to judgment
because there is no genuine issue as to any material fact, but summary judgment may not be used as a
shortcut for the resolving of disputes upon facts material to determination of the legal rights of the parties.
NRCP 56.
15. Usury.
General rule precludes charging interest on sums which have not been disbursed to the borrower. NRS
99.050.
16. Usury.
A loan is disbursed if the borrower has control over the proceeds.
17. Judgment.
While the general rule precludes charging interest on sums which have not been disbursed to the
borrower, a material issue of fact existed in the instant case, precluding entry of summary judgment, as to
whether debtor had control over loan proceeds deposited in loan-in-process account in the debtor's name.
18. Judgment.
Although summary judgment motions which are not supported by any competent evidence should not be
considered, uncertificated documents may be considered if not challenged. NRCP 56.
19. Judgment.
The party against whom summary judgment is sought is not entitled to a trial simply because he has
asserted a cause of action to which state of mind is a material element; there must be some indication that
he can produce the requisite quantum of evidence to enable him to reach the jury with his claim.
20. Judgment.
Evidence introduced in support of or opposition to a motion for summary judgment must be admissible
evidence. NRCP 56(e).
21. Judgment.
Although the party opposing a motion for summary judgment is entitled to all favorable inferences from
the pleadings and documentary evidence, the opposing party is not entitled to build a case on the gossamer
threads of whimsey, speculation and conjecture.
22. Judgment.
As debtor's affidavit in opposition to the summary judgment motion of bank and bank officers failed to
show that the debtor could produce the requisite quantum of evidence to enable him to reach the jury with
his claims of disparagement, intentional interference with prospective economic advantage and contractual
relation, and chilling foreclosure sale, summary judgment was properly granted defendants as to those
claims, even though they turned on the bank officers' state of mind. NRCP 56.
23. Judgment.
A trial court may, in its sound discretion, refuse to grant summary judgment if the motion is made at an
early stage of discovery because the court feels that further development is needed to assist it in its
decision. NRCP 56.
When a decision lies within the sound discretion of the lower court, the Supreme Court may overturn that
decision only if it is manifestly against the clear weight of evidence.
25. Judgment.
Since appellant, against whom summary judgment was entered on his claims for disparagement,
intentional interference with prospective economic advantage and contractual relations, and chilling
foreclosure sale, had more than two years to participate in discovery and knew the names and positions of
all the prospective buyers of his commercial property, the trial court did not abuse its discretion in granting
defendants' motion for summary judgment, notwithstanding appellant's claim that summary judgment was
inappropriate because discovery was at an early stage. NRCP 56.
26. Conspiracy.
An actionable civil conspiracy is a combination of two or more persons who, by some concerted action,
intend to accomplish some unlawful objective for the purpose of harming another which results in damage.
27. Conspiracy.
Agents and employees of a corporation cannot conspire with their corporate principal or employer where
they act in their official capacities on behalf of the corporation and not as individuals for their individual
advantage.
28. Conspiracy.
Although an action for civil conspiracy does include a state of mind issue which is usually
inappropriate for disposition by way of summary judgment, plaintiff debtor, who claimed that bank officers
conspired with one another and with prospective purchasers of the debtor's property to induce the
purchasers not to buy or lease hotel from plaintiff, failed to show that he could produce the requisite
quantum of evidence to enable him to prove that the bank officers were acting as individuals in their
individual capacities; accordingly, summary judgment was properly entered dismissing the claim for civil
conspiracy.
29. Mortgages.
An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that, at the
time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of
performance existed on the mortgagor's or trustor's part which would have authorized the foreclosure or
exercise of the power of sale.
30. Judgment.
Because the material issue of fact in wrongful foreclosure claim turned on whether bank and its officers
breached loan agreement by charging interest in excess of the legal and contractual rates, lower court erred
in granting summary judgment dismissing the wrongful foreclosure claim. NRCP 56.
Where an appellate court in deciding an appeal states a principle or rule of law, necessary to the decision,
the principle or rule becomes the law of the case and must be adhered to on all issues in which the facts are
substantially the same throughout the case's subsequent progress both in the lower court and on subsequent
appeals.
OPINION
By the Court, Manoukian, C. J.:
This appeal involves diverse legal questions all incidental to a $1,500,000 loan secured by
a deed of trust on commercial property, the execution of the power of sale pursuant to said
deed and a summary judgment entered against the appellant, Ernest Collins, debtor and
trustor.
In 1973, Collins owned a parcel of real property on Fourth Street in Reno. In March of that
year, Collins entered into a mortgage loan contract with respondent First Federal Savings and
Loan Association, by which First Federal loaned $1,500,000 to Collins to finance the
construction of a hotel on his property.
1
The loan agreement included a promissory note,
bearing interest at an annual rate of 8.5 percent, a deed of trust, a Loan Settlement Statement,
a Building Loan Agreement and a Financing Statement.
The promissory note specified that Collins was to repay First Federal in 240 equal monthly
installments. The installments, in the amount of $12,078.45, were to commence on February
1, 1974. In the event the installments were more than thirty days late, First Federal retained
the right to increase the rate of interest on the unpaid portion of the principal sum at 1 percent
per annum during the period of delinquency. The Loan Settlement Statement reiterated some
of the provisions of the promissory note and modified others. It provided that interest would
not run for a ninety day period and that interest only payments of $10,624.50 would be due
after the ninety day period until the February payments were to begin. That document also
provided that Collins was to contribute $85,360.36 in personal funds, $48,850.36 of which
was to be applied to loan costs and title search charges, and the remaining $36,510.00 of
which was allocated to a Loan-in-Process (LIP) account in Collins' name.
____________________

1
When the contract was executed, First Federal was known as Union Federal Savings and Loan Association.
Hereinafter we shall refer to First Federal Savings and Loan Association as First Federal.
Collins was charged an initial loan fee (points) of 2.5 percent of the loan amount ($37,500),
a title policy premium ($3,000), recording fees ($8.00), tax service fee ($43), application fee
($265), and $8,034.36 in prepaid interest for the period June 7-July 7, 1973.
The Building Loan Agreement set out the method of disbursement for the loan proceeds.
Those funds, along with Collins' personal funds, were placed in the LIP account. The monies
deposited in that account were to be disbursed at the request of the contractor and with the
approval of Collins and First Federal.
The business opened in January 1974 under the name of the Reef Hotel. It was
economically unsuccessful and Collins made several attempts to dispose of the property by
sale or lease. Collins suspended payment to First Federal in May 1975. First Federal initiated
foreclosure proceedings on July 16, 1975.
According to First Federal officers, they encouraged Collins to cure the default and
granted several postponements of the foreclosure sale to enable Collins to secure a buyer or
lessee. In his deposition, Collins admitted that although he could have arranged financing to
meet his delinquencies with First Federal, he made a conscious choice not to pay the
Association. A foreclosure sale occurred on January 15, 1976, under the supervision of
Lawyers Title Insurance, trustee. First Federal submitted the only bida credit bid in the
amount of the indebtedness ($1,586,872). First Federal subsequently resold the hotel property
with a substantial credit component.
Collins' initial complaint and amended complaint, filed in July 1976 and June 1977,
respectively, alleged intentional interference with prospective economic advantage and
contractual relationships, civil conspiracy, disparagement and interference with a fair and
open trustee sale. Collins sought imposition of a constructive trust on any money realized by
First Federal from the foreclosure sale together with general and punitive damages.
In August 1979, Collins filed a Supplemental Complaint at the direction of the trial court.
In that complaint, Collins additionally alleged that the interest charged by First Federal was
usurious and constituted a breach of contract. He further alleged that because of the excess
interest, he was not in default when the notice of default was filed, and as a consequence, the
foreclosure sale was wrongful. Collins also alleged that the late charges asserted by First
Federal were illegal and should be considered as interest for the purpose of usury
calculations.
Respondents filed three motions for summary judgment encompassing all of appellant's
claims. Appellant filed a motion for partial summary judgment on the usury and late
chargeJpenalty claims.
motion for partial summary judgment on the usury and late charge/penalty claims. The trial
court granted respondents' motions as to the chilling the sale claim, the intentional tort
claims, the wrongful foreclosure claim and the usury claim. It also determined, as a matter of
law, that the officers were not personally liable to Collins and that punitive damages were not
recoverable. A breach of contract claim (charging interest in excess of 8.5 percent) remains
undetermined.
A. Usury Claim.
2

1. Applicable Rate.
[Headnotes 1, 2]
The trial court's ruling implicitly adopted a rate of 12 percent per annum as the applicable
rate of interest for appellant's usury claim. Respondents, however, urge that for the purposes
of this appeal the correct rate of interest is 18 percent per annum. In 1973, when the loan
agreement was executed, NRS 99.050 provided for a maximum interest rate of 12 percent per
annum. NRS 99.050 was amended in 1979. See 1979 Nev. Stats. Ch. 498. Although that
amendment increased the maximum rate to 18 percent per annum, it also included a provision
making the increased rate inapplicable to any loan contract made before the amendment's
effective date. Id. at 4. Thus, the lower court did not err in utilizing 12 percent per annum as
the maximum rate of interest.
2. One vs. Two Loans.
[Headnote 3]
Appellant next contends that the transaction with First Federal involved two separate
loans: a construction loan from March 1973 to December 1973; and a "take-out" loan
commencing January 1974 and running for a period of twenty years.
____________________

2
Both parties filed motions for summary judgment with respect to the usury and late charges issues. When
this occurs, the parties are normally precluded from arguing on appeal that the lower court erred in granting a
summary judgment because a genuine issue of material fact exists. Exchange Bank v. Strout Realty, 94 Nev. 86,
575 P.2d 589 (1978); Estate of Sawyer v. Ygnacio Medical Center, 92 Nev. 171, 547 P.2d 317 (1976); State ex
rel. Welfare v. Capital Convalescent Center, Inc., 92 Nev. 147, 547 P.2d 677 (1976); City of Las Vegas v.
Cragin Industries, Inc., 86 Nev. 933, 478 P.2d 585 (1970). The fact that both parties moved for summary
judgment on a particular issue, however, does not constitute a waiver of a judicial determination of whether a
material issue of fact exists on either side of the case. Midland Insurance Company v. Yanke Plumbing &
Heating, Inc., 99 Nev. 66, 657 P.2d 1152 (1983). See also Young Electric Sign Co. v. State, 98 Nev. 536, 654
P.2d 1028 (1982); cf. Cheqer, Inc. v. Painters and Decorators Joint Committee, Inc., 98 Nev. 609, 655 P.2d 996
(1982), (cross motions for summary judgment on two separate legal theories). Accord Securities & Exchange
Com'n v. Am. Commodities Exch., 546 F.2d 1361, 1365 (10th Cir. 1976). Thus, we must review the record to
determine whether a genuine issue of material fact exists.
March 1973 to December 1973; and a take-out loan commencing January 1974 and running
for a period of twenty years. According to appellant, the Building Loan Agreement
established a separate construction agreement, while the Promissory Note and Deed of Trust
created a permanent financing agreement for a period of 240 months. If the construction
loan is viewed separately from the take-out loan, appellant asserts that the construction
loan would be usurious. The lower court, however, determined that only one loan was
contemplated by the loan agreements. We agree.
[Headnote 4]
The general presumption is that where two or more written instruments are executed
contemporaneously the documents evidence but a single contract if they relate to the same
subject matter and one of the two refers to the other. McClean v. Hillman, 352 S.W.2d 310,
313 (Tex.Civ.App. 1962). Cf. Haspray v. Pasarelli, 79 Nev. 203, 380 P.2d 919 (1963)
(separate memorandum part of contract for purposes of statute of frauds); Bowker v.
Goodwin, 7 Nev. 135 (1871) (separate agreement part of promissory note for purposes of
revenue stamp requirement). In the present case, the loan documents constitute the only
evidence offered in support of or in opposition to the motion for summary judgment which is
relevant to the issue of the number of loans. No evidence was presented by affidavit, or
otherwise, that the parties intended those documents to create two separate loans. The
documents are unambiguous with respect to this issue. Cf Mullis v. Nevada National Bank,
98 Nev. 510, 654 P.2d 533 (1982) (ambiguous contracts can create triable issue of fact). All
the relevant documents were executed by the same parties on March 7, 1973. All of those
documents address the same subject mattera $1,500,000 loan between appellant and
respondent First Federal. The Building Loan Agreement states that deposit of the loan
proceeds in the LIP account shall conclusively be deemed a full and complete consideration
for [the promissory] note and Deed of Trust . . . . Because no genuine issue of material fact
existed, the trial court did not err in finding, as a matter of law, that only one loan was
contemplated by the loan agreements. See generally McPherron v. McAuliffe, 97 Nev. 78,
624 P.2d 21 (1982).
3. Duration of the Loan.
[Headnotes 5, 6]
The lower court held that the amounts of interest paid by Collins must be amortized over
the life of the loan as originally provided in the promissory note and other loan documents.
Collins, however, challenges that ruling, arguing that for the purposes of usury calculations,
interest should be prorated over the "actual" life of the loan, i.e., from the inception of the
loan to the date of default or that interest should be calculated for each year of the loan.
purposes of usury calculations, interest should be prorated over the actual life of the loan,
i.e., from the inception of the loan to the date of default or that interest should be calculated
for each year of the loan. Collins ignores a fundamental principle of usury lawthat [t]he
usurious character of a transaction is determined as of the time of its inception. Curtis v.
Securities Acceptance Corp., 91 N.W.2d 19, 26 (Neb. 1958) (emphasis added). The actual
life of the loan is not to be considered when determining whether a loan is usurious. Watson
Const. Co. v. Amfac Mortgage Corp., 606 P.2d 421 (Ariz.App. 1979).
[Headnote 7]
Nevertheless, Collins contends that NRS 99.050 (1973) should be interpreted to mean that
if interest charged on a loan exceeds 12 percent of the outstanding principal for any one year,
then the loan is usurious. Although NRS 99.050 (1973) provides that a contracted rate of
interest may not exceed the rate of 12 percent per annum, that statute does not mean that the
interest rate cannot exceed 12 percent annually or 12 percent for any one year. The words
twelve percent per annum refer to the rate of interest and not the time of payment.
Montgomery Federal Savings & Loan Ass'n v. Baer, 308 A.2d 768, 771 (D.C. Cir. 1973).
Thus, interest payments, for the purpose of usury calculations, must be prorated over the
entire term of the contract. See Tanner Development Co. v. Ferguson, 561 S.W.2d 777 (Tex.
1977); see also Sharp v. Mortgage Security Corp. of America, 9 P.2d 819 (Cal. 1932).
4. Additional Charges as Interest for Usury Purposes.
[Headnote 8]
Collins contends that the trial court erred in concluding, as a matter of law, that expenses
for title insurance, recording fees, tax service fees and loan application fees should not be
added to the amount of interest paid for purposes of computing usury. The loan settlement
agreement reflects that approximately $3,316 in various fees was paid at the inception of the
contract.
[Headnote 9]
The well-settled rule is that actual and reasonable expenses incurred as part of a loan
transaction do not constitute interest for purposes of usury. See, e.g., Harris v. Guaranty
Financial Corp., 424 S.W.2d 355 (Ark. 1968); Klett v. Security Acceptance Co., 242 P.2d
873, 884 (Cal. 1952); Pushee v. Johnson, 166 So. 847 (1936). Respondents attached to their
motion for summary judgment an affidavit by Marvin Wholey, president of First Federal.
Wholey swore that he was acquainted with the service fees charged appellant.
service fees charged appellant. His affidavit states that all of the disputed charges were actual
expenses incurred by First Federal in establishing and servicing the loan. Collins' opposition
papers are silent as to any specific facts showing that there is a genuine issue as to the
reasonableness or actual expense of the service fees charged.
NRCP 56(e) provides that when a motion for summary judgment is made and supported as
provided in Rule 56, an adversary party who does not set forth specific facts showing a
genuine issue to be resolved at trial may have a summary judgment entered against him. Van
Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981); Bird v. Casa Royale
West, 97 Nev. 67, 624 P.2d 17 (1981). Collins provided no documentation in support of his
allegations that the service fees charged at the inception of the loan should be calculated as
interest. Thus, the lower court properly granted respondents' motion for summary judgment.
5. Late Charges.
The promissory note executed by the parties contained a provision that allowed First
Federal to increase the rate of interest upon the balance of the note one per cent (1 percent)
per annum during the period that [any] delinquency continues. Pursuant to this provision,
First Federal collected approximately $5,700 in late charges. Appellant argues that the late
charges collected by First Federal should be nullified as a penalty under state law because
they constitute an unreasonable assessment of liquidated damages. Additionally, Collins
contends that under state law, the late charges he paid should be added in the usury
calculation as interest. See, e.g., Garrett v. Coast and So. Federal Savings and Loan Ass'n,
511 P.2d 1197 (Cal. 1973) (late charges invalid unless reasonably related to actual damages);
Consolidated Loans, Inc. v. Smith, 190 So.2d 522 (La.App. 1966) (late charges constitute
additional interest). The lower court found that the federal regulations which permit federal
savings and loan associations to include late charge provisions in their loan agreements, see
12 C.F.R. 545.8-3 (1982), preempt any state law purporting to govern this question.
Appellant argues, however, that the lower court improperly granted summary judgment in
respondents' favor because the question of whether state law governs the validity of the late
charges imposed on appellant's loan by First Federal involves complex constitutional issues
of large public import.
[Headnote 10]
Although it is true that a motion for summary judgment should be denied if the record
below is inadequate for consideration of the constitutional issues presented or to determine
whether genuine issues of material fact exist, see, e.g.,
whether genuine issues of material fact exist, see, e.g., Carter v. Stanton, 405 U.S. 669 (1972)
(record inadequate); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (genuine issue of
material fact present), a case may be disposed of by summary judgment if the constitutional
question has been foreclosed by previous decisions. Agustin v. Quern, 611 F.2d 206 (7th Cir.
1979). See also Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of
Customs, 459 F.2d 676 (3d Cir. 1972) (summary judgment for government affirmed in action
challenging constitutionality of Trading with the Enemy Act), cert. denied, 409 U.S. 933
(1972); Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968)
(constitutionality of Trading with the Enemy Act upheld on motion for summary judgment),
cert. denied, 394 U.S. 977 (1969); Hawthorne v. United States, 115 F.2d 805 (5th Cir. 1940)
(constitutionality of cotton-marketing quota provisions of the Agricultural Adjustment Act
upheld after lower court rendered summary judgment in government's favor). In Agustin v.
Quern, supra, the circuit court affirmed the district court's summary judgment denying the
plaintiff's claim that a retrospective application of an amendment to a state law was
tantamount to an ex post facto law. There, a well-developed body of ex post facto law
permitted the lower court to render a summary judgment.
3
Id. at 209.
Recently, the U.S. Supreme Court held that regulations issued by the Federal Bank Board
allowing federal savings and loan associations to include in their loan agreements due-on-sale
clauses preempted California decisional law which prohibited those clauses as unreasonable
restraints on alienation.
4
Fidelity Federal Savings and Loan Ass'n v. de la Cuesta, 102 S.Ct.
3014 (1982) (Rhenquist, Stevens, J.J., dissenting). Because the federal regulations
authorizing the imposition of late charges were adopted in the same document as were the
due-on-sale regulations, see 12 C.F.R. 545.6-11(d)-(f) (1977); 41 Fed. Reg. 6283 (1976), and
shared equally the Bank Board's expressions of preemptive intent, see 41 Fed. Reg. 6283,
6284 {1976), we hold that Fidelity, supra, is dispositive of the preemption issue.
____________________

3
The district court in Agustin relied on a well-developed body of ex post facto law in reaching its opinion. In
the instant case, however, the lower court granted the summary judgment before the U.S. Supreme Court handed
down Fidelity Federal Savings and Loan Ass'n v. de la Cuesta, 102 S.Ct. 3014 (1982). Nevertheless, if a
decision below is correct, it will not be disturbed on appeal even though the lower court relied upon wrong
reasons. Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155 (1981). Thus, it is immaterial that the
lower court did not rely upon Fidelity in granting respondents' motion for summary judgment.

4
See Wellenkamp v. Bank of America, 582 P.2d 970 (Cal. 1978).
(1976), we hold that Fidelity, supra, is dispositive of the preemption issue.
In the preamble accompanying the final publication of the late charge regulation, the Board
explained its intent that the late charges imposed by federal savings and loans be governed
exclusively by federal law. 41 Fed. Reg. 18286, 18287 (1976). The Board stated that it was
and is the Board's intent to have late charges . . . of federal associations governed exclusively
by federal law. Therefore, charging of late charges . . . by federal associations shall be
governed and controlled solely by 545.6-11 [now 12 C.F.R. 545.8-3 (1982)]. . . . Federal
associations shall not be bound by or subject to any conflicting state law which imposes
different late charges . . . nor shall federal associations attempt to impose a higher late charge
than permitted in 545.6-11(e) . . . on the ground that such higher charge is permissible
under state law. 41 Fed. Reg. 18286, 18287 (1976) (emphasis added). The Board has
unequivocally expressed its determination to displace state law respecting the imposition of
late charges.
5

[Headnotes 11, 12]
Federal regulations have no less preemptive effect than federal statutes . . . . When [an]
administrator promulgates regulation intended to pre-empt state law the regulation will be
upheld unless it exceeded the administrator's statutory authority or constituted an abuse of the
administrator's discretion. Fidelity, 102 S.Ct. 3022. After reviewing the language and history
of the Home Owners' Loan Act of 1933, 48 Stat. 128, as amended, 12 U.S.C. 1461 et seq.
(1976 ed. and Supp. IV), in light of the court's decision in Fidelity, there is no doubt that the
promulgation of 12 C.F.R. 545.8-3(d) was within the administrator's statutory authority and
did not constitute an abuse of discretion. See Fidelity, 102 S.Ct. at 3025-3031. Accordingly,
we hold that the Board's late charge regulation preempts application of any state law
concerning the imposition, assessment or collection of late charges to federal savings and
loan associations.
____________________

5
We recognize that the Board's expression of preemptive intent is somewhat stronger regarding due-on-sale
clauses. In 1982, the Board reaffirmed its intent that the due-on-sale practices of federal savings and loan
associations shall be governed exclusively by the Board's regulations in preemption of and without regard to
any limitations imposed by state law on either their inlusion [sic] [in a loan contract or their exercise upon sale
of the encumbered property]. 12 C.F.R. 556.9(f)(2) (1982). This reaffirmation, however, was motivated by
several state court decisions which had expressed uncertainty regarding the Board's intent that its due-on-sale
provisions should govern exclusively. See 46 Fed. Reg. 39123, 39124 (1981). Thus, the Board's subsequent
confirmation of the preemptive nature of its due-on-sale regulations should not be interpreted as indicating that
the Board is not as resolute in its intent that the federal late charge regulations also provide the exclusive law on
that issue.
preempts application of any state law concerning the imposition, assessment or collection of
late charges to federal savings and loan associations. Therefore, the late charges assessed and
collected by First Federal do not constitute an unreasonable assessment of liquidated damages
and were properly not calculated as interest.
6
See C.F.R. 545.6-11(d) (1977); 41 Fed. Reg.
6283, 6284 (1976) (amendments proposed February 6, 1976.)
6. Usury Calculations.
[Headnote 13]
Appellant contends that the lower court erred in making factual determinations when
granting respondents' motion for summary judgment regarding the exclusion of certain items
of interest for the purpose of the usury calculations. Specifically, appellant claims that the
trial court erred in excluding from its usury calculations the following amounts: (1)
$21,166.66 as an erroneous entry of interest paid and reversal of said charge; (2) $95,331.70
as a year to date compilation of interest and not a separate charge of interest; (3) $3,000 as an
erroneous entry of late charges as interest; (4) $7,433.42 as an erroneous entry for late charges
and reversal thereof. Since both parties presented conflicting evidence concerning the
exclusion of the above-enumerated amounts from the usury calculations, appellant argues that
the lower court should not have granted the motion for summary judgment. We agree.
[Headnote 14]
Summary judgment may be granted when, as a matter of law, the moving party is entitled
to judgment because there is no genuine issue as to any material fact. McPherron v.
McAuliffe, 97 Nev. 78, 79, 624 P.2d 21 (1982); NRCP 56(c). Summary judgment, however,
may not be used as a shortcut to the resolving of disputes upon facts material to the
determination of the legal rights of the parties. Parman v. Petricciani, 70 Nev. 427, 436, 272
P.2d 492, 496 (1954). See also Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533
(1982). Our review of the record indicates that a genuine issue of material fact exists with
respect to whether First Federal improperly charged Collins the above enumerated amounts
as interest due on his loan.
____________________

6
Appellant claims that since the loan contract was executed prior to the effective date of the Bank Board's
1976 late charge regulation, application of that regulation would be retrospective, violating the presumption that
regulations operate prospectively. See, e.g., Greene v. United States, 376 U.S. 149 (1964). The Bank Board's
Resolution No. 76-100, however, both proposes new regulations and interprets a regulation which was effective
when the loan agreement was executed. Administrative interpretations of rules and regulations often are
employed by appellate courts presented with the task of interpreting the same regulations. Appellant's
retrospective argument is simply inapposite.
charged Collins the above enumerated amounts as interest due on his loan.
7. Interest on Undisbursed Funds.
[Headnotes 15-17]
Appellant contends that the trial court erred in determining, as a matter of law, that the
amount of interest charged may be computed against a principal sum which has not been
disbursed to the borrower. The general rule precludes charging interest on such sums. See,
e.g., Carson Meadows, Inc. v. Pease, 91 Nev. 187, 533 P.2d 458 (1975); accord Tri-County
Federal Savings and Loan Ass'n of Waldorf v. Lyle, 371 A.2d 424 (Md.App. 1977); Miller v.
First State Bank, 551 S.W.2d 89 (Tex.Civ.App. 1977), modified, 563 S.W.2d 572 (Tex.
1978); 92 A.L.R. 3d 769 8 (1979). A loan is disbursed if the borrower has control over
the proceeds. See American Acceptance Corp. v. Schoenthaler, 391 F.2d 64 (5th Cir. 1968),
cert. denied, 392 U.S. 928 (1968); Williamson v. Clark, 120 So.2d 637 (Fla.App. 1960);
Knight v. First Federal Savings & Loan Ass'n, 260 S.E.2d 511 (Ga.App. 1979); Tri-County,
supra. In the instant case, the material issue of fact is whether Collins had control over the
loan proceeds deposited in the LIP account. We conclude that a genuine issue exists
concerning that material question of fact.
[Headnote 18]
The Building Loan Agreement attached to respondents' motion for summary judgment is
the only evidence which addressed the issue of control of the funds deposited in the LIP
account.
7
The Agreement provided that the proceeds deposited in the LIP account would be
disbursed only to provide funds for the construction of the Reef Hotel and in accordance with
either the Five Payment Plan or the Loan Order Plan. The Five Payment Plan stated
that funds would be disbursed from the LIP account, subject to First Federal's approval, when
the contractor submitted a request for payment based upon actual work completed which was
approved by owner.
____________________

7
Although respondents' motion incorporated copies of an application for loan, a promissory note, a deed of
trust, and the Building Loan Agreement, none of the documents were properly authenticated. See Hosmer v.
Avayu, 97 Nev. 584, 636 P.2d 875 (1981); NRCP 56(e). Accord Hamilton v. Keystone Tankship Corp., 539
F.2d 684 (9th Cir. 1976). The affidavit attached to respondents' motion did not address the control issue.
Although summary judgment motions which are not supported by any competent evidence should not be
considered, see Hosmer, at 587, 636 P.2d at 876, uncertificated documents may be considered if not challenged.
Cinocca v. Baxter Laboratories, Inc., 400 F.Supp. 527 530 (D.Okla. 1975). Such was the case in the instant
proceedings.
owner. The Loan Order Plan provided that either Collins or the contractor or both of them
could obtain funds for construction by presenting to First Federal a written loan disbursement
warrant drawn upon the monies in the LIP account. The warrant constituted a representation
that the funds withdrawn would be used in the construction. Although this method of
disbursement was not subject to First Federal's approval, the Association did have the power
to require Collins and the contractor to produce receipted bills and releases of lien rights
concerning the construction of the Reef Hotel prior to disbursement of funds.
The question confronting this court is whether the above-mentioned agreement vested
sufficient control over the LIP account in appellant so that the loan proceeds were
disbursed, allowing First Federal to charge interest on the full amount of the loan from its
outset and without regard to the actual disbursement of funds to appellant. The Maryland
Court of Appeals considered a similar issue in Tri-County, supra. There, the Maryland court
found that although the lender had charged interest on the full amount of the construction
loan, 75 percent of the principal had never been subject to the borrower's control, rendering
the loan usurious. In Tri-County, however, the funds held in reserve for later payment to
materialmen were deposited in the lender's general account with a different bank. The account
was used for payment of employees' salaries and other monthly expenses of the lender. Id. at
425. See also American Acceptance Corp. v. Schoenthaler, 391 F.2d 64 (5th Cir. 1968), cert.
denied, 392 U.S. 928 (1968); Williamson v. Clark, 120 So.2d 637 (Fla.App. 1960). In Knight
v. First Federal Savings & Loan Ass'n, 260 S.E.2d 511 (Ga.App. 1979), the borrower
contended that an escrow account into which he was obligated to tender $100,000 on a
$2,000,000 loan created an accumulation of undisbursed funds upon which interest was
improperly charged. Additionally, the borrower asserted that because the lender's approval of
withdrawals was required, it had full use of the fund. The Georgia court, however, ruled that
the borrower's later allegation was not supported by the record. Since both lender and
borrower were permitted to use the fund only for the replacement and maintenance of the
collateral (a college dormitory and furnishings and appliances located therein), the court held
that the escrow fund did not create a usurious loan. Id. at 515. See also Deposit Guaranty
National Bank v. Shipp, 205 So.2d 101 (La.App. 1967).
In the present case, the record does not reveal whether the loan proceeds were in fact
deposited into the LIP account or retained in First Federal's general account.
retained in First Federal's general account. Additionally, no evidence was presented to the
lower court that established which of the two disbursement plans the parties utilized. Our
review of the materials submitted in support of and in opposition to the cross motions for
summary judgment demonstrates that a genuine issue as to the material fact of control
exists. See Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 (1982).
B. Tortious Causes of Action.
Collins contends that the lower court erroneously granted respondents' motion for
summary judgment which dismissed appellant's causes of action for disparagement,
intentional interference with prospective economic advantage and contractual relations, civil
conspiracy, breach of fiduciary duty, wrongful foreclosure and chilling the sale against the
respondents, First Federal, Wholey, Small and Dwyer. Collins contests that ruling, arguing
that since all of the above claims for relief turned on questions of fact concerning the
respondents' state of mind, summary judgment was an inappropriate disposition. See, e.g.,
Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530 (5th Cir. 1978), cert.
denied, 444 U.S. 924 (1979); Croley v. Matson Navigation Co., 434 F.2d 73 (5th Cir. 1970).
[Headnote 19]
Collins' argument is grounded on a well-established rule of law. Nevertheless, a party
against whom summary judgment is sought is [not] entitled to a trial simply because he has
asserted a cause of action to which state of mind is a material element. There must be some
indication that he can produce the requisite quantum of evidence to enable him to reach the
jury with his claim. Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir. 1975), cert denied, 425
U.S. 904 (1976). See also Moran v. Bench, 353 F.2d 193 (1st Cir. 1965), cert. denied, 384
U.S. 906 (1966); Arsenault v. Allegheny Airlines, Inc., 485 F.Supp. 1373 (D.Mass. 1980),
aff'd, 636 F.2d 1199 (1st Cir. 1980), cert. denied, 454 U.S. 821 (1981). In Hahn, the appellant
suffered a summary judgment as to his claim under 42 U.S.C. 1983. Appellant's response to
the respondent's motion for summary judgment in Hahn was comprised of four affidavits and
documentary evidence which merely duplicated the allegations contained in appellant's
complaint, asserted that certain issues could only be resolved by trial and promised that
evidence would be offered at trial in support of the complaint. Hahn, 523 F.2d at 467.
Although the First Circuit noted that great circumspection is required where summary
judgment is sought on an issue involving state of mind," the district court's summary
judgment was upheld.
on an issue involving state of mind, the district court's summary judgment was upheld. Id at
468. In Moran, the district court granted a motion for summary judgment against appellant's
claims under 42 U.S.C. (1983) and 1985. In support of the motion for summary judgment, the
respondents had explicitly denied, in their affidavits, all allegations of improper behavior.
Appellant's affidavit in response to the respondents' motion for summary judgment merely
asserted that the respondents had conspired to deprive appellant of his civil rights. Appellant
did not indicate precisely with whom the respondents conspired nor any facts tending to
establish the existence of a conspiracy. Moran, 353 F.2d at 194. As in Hahn, the First Circuit
again noted that courts should be cautious in resolving cases involving conspiracy or states of
mind by summary judgment. Nevertheless, the Moran court held that by the bare use of the
word conspiracy,' with no supporting facts that tend to show the existence of an unlawful
agreement or prima facie improper behavior, [appellant] has not met the burden of countering
affidavits making such explicit denials. Id. at 195.
1. Disparagement, Intentional Interference With Prospective Economic Advantage and
Contractual Relation, and Chilling the Sale.
Several of Collins' claims for relief (disparagement, intentional interference with
prospective economic advantage and contractual relations, and chilling the sale) share at least
one similar element. See Crockett v. Sahara Realty Corp., 95 Nev. 197, 591 P.2d 1135 (1979)
(interference with prospective advantage); Feminist Women's Health Center, supra
(interference with contractual relations); Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989
(1963), cert. denied, 382 U.S. 844 (1965) (chilling foreclosure sale). These claims are
supported by Collins' allegation that First Federal, via its officers, Wholey, Small and Dwyer
wrongfully acted to discourage buyers from dealing with Collins, thereby preventing the sale
or lease of the Reef Hotel prior to foreclosure and depressing the amount bid for the Reef
Hotel at the foreclosure sale.
In their motion for summary judgment, respondents produced affidavits from Dwyer,
Wholey and Small stating that they never spoke to any of the prospective buyers that Collins
produced before the foreclosure sale outside of his presence; that they never suggested to any
of the prospective buyers that a better deal for the Reef Hotel could be made by First Federal
after the foreclosure sale; and that they never acted to discourage prospective bidders from
attending the foreclosure sale. In his deposition, Collins stated that he believed First Federal
had purposefully discouraged several potential buyers by informing them that Collins was
in default on his payment, that there were liens against the property, and that the entire
loan was due and payable and not assumable.
purposefully discouraged several potential buyers by informing them that Collins was in
default on his payment, that there were liens against the property, and that the entire loan was
due and payable and not assumable. Additionally, Collins asserts that he believed First
Federal's officers told prospective buyers not to deal with Collins but to wait until after the
foreclosure sale and deal with First Federal directly.
[Headnotes 20-25]
For the most part, Collins' allegations are based on inadmissible evidence. In his affidavit,
Collins relies, to a large extent, on hearsay statements of the prospective buyers. Evidence
introduced in support of or opposition to a motion for summary judgment must be admissible
evidence. See NRCP 56(e). Although the party opposing a motion for summary judgment is
entitled to all favorable inferences from the pleadings and documentary evidence, see Mullis
v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 (1982), the opposing party is not
entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.
Hahn, 523 F.2d at 467. Collins' affidavit in opposition to the motion for summary judgment
failed to show that he could produce the requisite quantum of evidence to enable him to reach
the jury with his claims. Thus, we affirm the summary judgment as to appellant's claims for
disparagement, intentional interference with prospective economic advantage and contractual
relations and chilling the foreclosure sale, even though these claims for relief turn on the
respondents' state of mind.
8

____________________

8
Appellant, however, argues that because discovery was in its initial stages and none of the prospective
buyers which Collins had contacted had been deposed, the motion for summary judgment should have been
denied. A trial court may, in its sound discretion, refuse to grant summary judgment if the motion is made at an
early stage of discovery because the court feels that further development is needed to assist it in its decision. 10
Wright & Miller, Federal Practice & Procedure: Civil 2728 at 558 (1978). When a decision lies within the
sound discretion of the lower court, this court may overturn that decision only if it is manifestly against the clear
weight of evidence. Cf. Loyalty Dev. Co., Ltd. v. Wholesale Motors, Inc., 605 P.2d 925 (Hawaii 1980)
(judgment granting relief from forfeiture); Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147 (1979)
(order denying injunctive relief). Appellant filed his complaint on July 26, 1976. 2.He filed an amended
complaint joining First Federal's officers and adding the chilling the sale claim on June 17, 1977. Respondents
filed their motion for summary judgment on February 6, 1979. The judge granted the motion on August 25,
1980. Since the appellant had more than two years to participate in discovery and knew the names and positions
of all the prospective buyers, the trial court did not abuse its discretion in granting the motion for summary
judgment.
2. Civil Conspiracy.
[Headnotes 26, 27]
An actionable civil conspiracy is a combination of two or more persons who, by some
concerted action, intend to accomplish some unlawful objective for the purpose of harming
another which results in damage. Wise v. Southern Pacific Co., 35 Cal.Rptr. 652 (Cal.App.
1963); Bliss v. Southern Pacific Co., 321 P.2d 324 (Ore. 1958). Collins alleged that the
respondents conspired with one another and with each or all of the prospective purchasers of
the Reef Hotel to induce the prospective purchasers not to purchase or lease the Reef Hotel
from Collins. The respondents, at that time, were First Federal and three of its officers,
Dwyer, Wholey and Small. Agents and employees of a corporation cannot conspire with their
corporate principal or employer where they act in their official capacities on behalf of the
corporation and not as individuals for their individual advantage. Wise, 35 Cal.Rptr. at 665;
Bliss, 321 P.2d at 328-329. If Dwyer, Small and Wholey were not acting as individuals for
their individual advantage, no unlawful combination of persons would exist, upon which
Collins could premise his claim of civil conspiracy. Thus, one of the material issues of fact
regarding Collins' civil conspiracy claim for relief is whether Dwyer, Wholey and Small were
acting as individuals for their individual advantage.
9

[Headnote 28]
Collins' response to the motion for summary judgment did not contain any facts which
would suggest that the respondents Wholey, Dwyer and Small were acting as individuals for
their individual benefit. In fact, Collins' amended complaint alleged that the respondents, at
all material times, acted in their representative, agency or employment capacity. . . .
Although an action for civil conspiracy does include a state of mind issue which is usually
inappropriate for disposition by way of summary judgment, Collins has failed to show that he
could produce the requisite quantum of evidence to enable him to prove that Wholey, Dwyer
and Small were acting as individuals in their individual capacities. See Hahn, supra.
Accordingly, the summary judgment dismissing appellant's claim for civil conspiracy is
affirmed.10
____________________

9
It is suggested that in order to prevent Collins from selling or leasing the Reef Hotel or to chill the
foreclosure sale, Dwyer, Wholey and Small, as agents of First Federal, conspired with the prospective
purchasers which Collins had procured. Collins, however, did not show by admissible evidence in his affidavits
that specific material factual issues concerning his civil conspiracy claim must be resolved. See NRCP 56(e).
Thus, the lower court was correct in granting summary judgment for respondents on this claim.
summary judgment dismissing appellant's claim for civil conspiracy is affirmed.
10

3. Wrongful Foreclosure.
[Headnote 29]
An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can
establish that at the time the power of sale was exercised or the foreclosure occurred, no
breach of condition or failure of performance existed on the mortgagor's or trustor's part
which would have authorized the foreclosure or exercise of the power of sale. See Munger v.
Moore, 89 Cal.Rptr. 323 (Cal.App. 1970); Spires v. Lawless, 493 S.W.2d 65 (Mo.App.
1973); League City State Bank v. Mares, 427 S.W.2d 336 (Tex.Civ.App. 1968). Therefore,
the material issue of fact in a wrongful foreclosure claim is whether the trustor was in default
when the power of sale was exercised. Collins argues that because the respondents breached
the loan agreement by charging interest in excess of the contractual rate (8.5 percent per
annum) and the legal rate (12.0 percent per annum), he was not in default when the power of
sale was exercised by First Federal. Thus, Collins concludes First Federal wrongfully
foreclosed his interest in the Reef Hotel.
[Headnotes 30, 31]
We have already held that Collins' usury claims concerning interest charged on
undisbursed funds and certain ledger calculations must be remanded for trial. Additionally,
we believe Collins' breach of contract claim survived the respondents' motion for summary
judgment.
11
That claim is awaiting trial in the district court and is not now before this court.
Because the material issue of fact in the wrongful foreclosure claim turns on whether the
respondents breached the loan agreement by charging interest in excess of the legal and
contractual rates, the lower court erred in granting a summary judgment dismissing the
wrongful foreclosure claim.12 Thus, the lower court's summary judgment dismissing the
wrongful foreclosure claim is reversed and the cause of action is remanded for trial along
with the remaining breach of contract claim and the usury claims concerning interest
charged on undisbursed funds and the alleged "bookkeeping errors."
____________________

10
Since we have upheld the summary judgment dismissing appellant's claims for disparagement, intentional
interference with prospective economic advantage and contractual relations, civil conspiracy, breach of fiduciary
duty and chilling the sale, it is not necessary to decide with respect to those claims whether the summary
judgment dismissing First Federal's officers Dwyer, Wholey and Small was proper. See Gordon v. Lynch, 77
Nev. 344, 364 P.2d 889 (1961).

11
Although respondents' motion for summary judgment encompassed all of the claims for relief contained in
Collins' Supplemental Complaint, the lower court's findings of fact and conclusions of law did not address
Collins' breach of contract claim. Additionally, the lower court expressly determined that under NRCP 54(b), no
just reason existed for delaying entry of a final judgment regarding the usury cause of action. In their brief
respondents concede that the breach of contract was not adjudicated by the lower court's summary judgment.
the lower court erred in granting a summary judgment dismissing the wrongful foreclosure
claim.
12
Thus, the lower court's summary judgment dismissing the wrongful foreclosure
claim is reversed and the cause of action is remanded for trial along with the remaining
breach of contract claim and the usury claims concerning interest charged on undisbursed
funds and the alleged bookkeeping errors.
____________________

12
Appellant's breach of contract claim appears to be premised on the same allegations which purportedly
supported appellant's usury cause of action, i.e., that the parties created two loans, that the late charges constitute
a penalty, that certain bookkeeping errors by First Federal improperly increased the amount of interest charged
appellant, that certain service fees actually constituted interest and that First Federal charged interest on
undisbursed funds. We have decided that, as to all of the above-mentioned claims, except the interest on
undisbursed funds and the bookkeeping errors claims, the lower court properly granted summary judgment in
respondents' favor. Where an appellate court in deciding an appeal states a principle or rule of law, necessary to
the decision, the principle or rule becomes the law of the case and must be adhered to on all issues in which the
facts are substantially the same throughout the case's subsequent progress both in the lower court and on
subsequent appeals. LoBue v. State ex rel. Dep't of Highways, 92 Nev. 529, 554 P.2d 258 (1976). Although we
do not now decide the issue because the claim for breach of contract is not properly before us, see generally,
Matyasovich v. Petricciani, 60 Nev. 366, 110 P.2d 206 (1941), and we have remanded the wrongful foreclosure
claim, the doctrine of law of the case would appear to preclude appellant from premising the contractual and
wrongful foreclosure claim on legal theories which are substantially the same as those decided in this appeal.
____________
99 Nev. 305, 305 (1983) Lanoue v. State
DENNIS RAYMOND LANOUE, Appellant, v. THE
No. 13718
April 21, 1983 661 P.2d 874
Appeal from judgment of conviction of sexual assault, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of sexually assaulting his ten-year-old
daughter, and he appealed. The Supreme Court held that trial court abused its discretion in
finding victim's five-year-old sister competent to testify, and in view of fact that State
conceded at oral argument that such testimony contributed to the verdict, the error could
not be considered harmless.
testimony contributed to the verdict, the error could not be considered harmless.
Morgan D. Harris, Public Defender, and William P. Henry, Deputy Public Defender,
1. Criminal Law.
On review of a finding of competency, Supreme Court is not confined to a review of the voir dire
examination, but may look to the subsequent testimony as well, which may support a finding of competence
if clear, relevant and coherent, and Supreme Court will not disturb a finding of competency absent a clear
abuse of discretion.
2. Criminal Law; Witnesses.
In prosecution in which defendant was convicted of sexually assaulting his ten-year-old daughter, trial
court abused its discretion in finding that victim's five-year-old sister was competent to testify, and in view
of fact that State conceded that such testimony contributed to the verdict, the error could not be considered
harmless.
OPINION
Per Curiam:
Appellant was convicted of sexually assaulting his ten-year-old daughter, Cassandra
Lanoue, and sentenced to life in prison. On appeal, he contends that the district court erred by
finding a five-year-old witness competent to testify. We agree.
Appellant was initially charged with committing an act of fellatio with Cassandra, and one
act each of fellatio and cunnilingus with Cassandra's friend, twelve-year-old Jennifer.
1
As
part of its case in chief, the prosecution sought to introduce testimony of appellant's other
daughter, five-year-old Dawn Lanoue. After conducting a voir dire examination, the district
court declared her a competent witness. She was then permitted to testify concerning an
uncharged act of prior sexual misconduct (sexual intercourse between appellant and
Cassandra) that Dawn allegedly observed on an unspecified date. Appellant argues that even
if Dawn's testimony was admissible on substantive grounds, e.g. to show intent, see NRS
48.045(2); Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978), the district court's
determination of competency was erroneous and Dawn should not have been allowed to
testify.
____________________

1
Appellant was acquitted of the two charges involving Jennifer.
court's determination of competency was erroneous and Dawn should not have been allowed
to testify.
[Headnote 1]
The standard of competence for a chid witness is that the child must have the capacity to
receive just impressions and possess the ability to relate them truthfully. Wilson v. State, 96
Nev. 422, 423, 610 P.2d 184, 185 (1980). On review of a finding of competency, we are not
confined to a review of the voir dire examination, but may look to the subsequent testimony
as well, which may support a finding of competence if clear, relevant and coherent,' and we
will not disturb a finding of competency absent a clear abuse of discretion. Id., quoting
Terrible v. State, 78 Nev. 159, 160, 370 P.2d 51 (1962).
Both the voir dire and testimony of Dawn Lanoue reveal serious deficiencies in her ability
to receive accurate impressions of events and truthfully relate them. Although she was
permitted to testify regarding an event that allegedly took place some months prior to trial,
she could not recall events which had transpired in the courtroom within the previous
one-half hour. Her testimony was considerably vague on several material matters. At one
point she stated she did not know what it meant to tell the truth. She twice stated it was bad
to tell the truth, and several times indicated considerable confusion concerning the concepts
of truth and falsehood.
The court below was not without doubt regarding Dawn's competency, stating at one point
that the only way these questions are going to be answered is if they're placed in her mouth
and we go through something that's rehearsed.
2
The court, while allowing Dawn to testify,
initially ruled her testimony admissible only to show the credibility of the witnesses, and
for no other purpose.
3
The witness' subsequent trial testimony is not clear, relevant and
coherent, and suggests a substantial amount of coaching and rehearsing, a factor decidedly
relevant in child-witness competency determinations. See Wilson v. State, supra at 427
(Manoukian, J., dissenting); see also Jordan v. People, 419 P.2d 656 (Colo. 1966), cert.
denied, 386 U.S. 992 (1967).
[Headnote 2]
From our review of the voir dire and testimony, we conclude that the district court
abused its discretion by finding the witness competent.
____________________

2
Respondent contends that this remark was addressed to a particularly narrow line of questioning abandoned
by the district attorney. We disagree, and consider the remark directed to the witness' responses to all the
questions asked.

3
This ruling was later reversed by the district court, and the jury was instructed that Dawn's testimony was
admissible on substantive grounds.
that the district court abused its discretion by finding the witness competent. Since counsel
for respondent conceded at oral argument that Dawn Lanoue's testimony contributed to the
verdict, the error cannot be considered harmless and mandates reversal of the judgment.
Accordingly, we need not reach the other contentions raised by appellant.
4

The judgment of conviction is reversed and the matter is remanded to the district court for
further proceedings.
____________________

4
For the guidance of the district court and the parties in the event of retrial, we note that it appears the
uncharged acts of sexual misconduct testified to by the witness Valarie O. would be admissible to show intent.
See Findley v. State, supra; McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978).
____________
99 Nev. 308, 308 (1983) Rowland v. Lepire
GLEN E. ROWLAND, MARTIN L. ROWLAND and ROWLAND CORPORATION,
Appellants, v. EUGENE LEPIRE and JUDY LEPIRE, Respondents.
No. 13495
April 29, 1983 662 P.2d 1332
Appeal from judgment awarding damages and providing other relief. First Judicial District
Appeal was taken from a judgment of the district court in favor of homeowners in suit
against builders alleging breach of contract and slander of title. The Supreme Court, held that:
(1) substantial evidence supported findings of trial court and did not require conclusion as
matter of law that express contract was abandoned; (2) evidence failed to establish element of
malice, and therefore owners could not recover under theory of slander of title; (3) owners
were not entitled to award of attorney fees; and (4) evidence was insufficient to support
finding that the two officers, directors and shareholders of construction corporation were its
alter ego so as to justify piercing corporate veil.
Smith & Gamble, Ltd., Carson City, for Appellants.
William Jac Shaw, Carson City, for Respondents.
It is prerogative of trier of fact to evaluate credibility of witnesses and determine weight of their
testimony.
Where there is substantial evidence to support findings of trial court, Supreme Court will affirm judgment
even though evidence is conflicting.
3. Contracts.
Only in rare circumstances will changes in course of construction be so extensive as to require conclusion
as matter of law that a contract was abandoned.
4. Contracts.
Substantial evidence supported findings that contract for a construction of home had been modified but
that no abandonment had occurred.
Requisites to action for slander of title are that words spoken be false, that they be maliciously spoken
and that plaintiff sustain some special damage as a direct and natural result of their having been spoken.
In order to prove malice in action for slander of title it must be shown that defendant knew statement was
false or acted in reckless disregard of its truth or falsity.
Where defendant has reasonable grounds for belief in his claim, he has not acted with malice so as to give
rise to action for slander of title.
Evidence of a defendant's reliance on advice of counsel tends to negate evidence of malice in action for
slander of title.
Evidence, while supporting findings that lien statement stating that homeowners owed money to builders
was false, and that owners suffered pecuniary losses as a result of lien filed by builders, was insufficient to
establish malice on part of builders so as to support recovery by homeowners on theory of slander of title;
there was a legitimate business dispute between builders and owners, and former relied upon
recommendations of their former attorney and acted upon those recommendations.
Court relied on its erroneous finding of malice in cause of action for slander of title as basis for awarding
punitive damages to homeowners, therefore, award of punitive damages was improper.
11. Costs.
Attorney fees are not recoverable absent statute, rule or contractual provision to contrary.
12. Costs.
Where construction contract, while providing that if builders were required to retain counsel for purpose
of enforcing agreement, owners agreed to pay attorney fees, contained no reciprocal provision for benefit
of owners, owners were not entitled to attorney fees; finding of fact implying right to attorney fees
stemmed from trial court's conclusion that owners were entitled to fees under theory of mutuality of
remedy, for which there was no factual or legal support.
13. Damages.
Attorney fees are not properly awarded as special damages for breach of contract.
Trial court in suit by homeowners against builders for, inter alia, slander of title, were not entitled to an
award of attorney fees as special damages; trial court's conclusion that builders committed slander of title
was not supported by evidence.
15. Corporations.
In order to apply alter ego doctrine to pierce corporate veil, following requirements must be met:
corporation must be influenced and governed by person asserted to be its alter ego; there must be such
unity of interest and ownership that one is inseparable from other; and facts must be such that adherence to
fiction of separate entity would, under circumstances, sanction fraud or promote injustice.
16. Corporations.
Although evidence did show that construction corporation was undercapitalized and that there was little
existence separate and apart from the two officers, directors and shareholder, evidence was insufficient to
support finding that latter were alter ego of corporation so as to justify piercing of corporate veil.
OPINION
Per Curiam:
This is an appeal involving construction of a substantial residence by appellant, Rowland
Corporation, for respondents, Eugene and Judy Lepire, husband and wife. Appellants contend
that the trial court committed several errors in (1) finding that the express contract between
appellants and respondents was modified rather than abandoned; (2) finding sufficient
evidence supported respondents' claim of slander of title; (3) awarding respondents punitive
damages; (4) awarding respondents attorney's fees; and (5) finding sufficient evidence upon
which to base application of the alter ego doctrine.
Appellants Glen Rowland and Martin Rowland are officers, directors and shareholders of
the Rowland Corporation. In July of 1977, the Rowland Corporation was issued a class B-2
general contractor's license with an authorized limit of $60,000. In April of 1978, appellants
entered into a contract with the Lepires to construct a home for them in Carson City. The
contract was for a total price of $119,000, less certain offsets and plus any extras the Lepires
might request during the course of construction. The contract provided for four progress
payments through completion. It did not provide for a completion date.
Construction began in April of 1978. During the course of construction, numerous changes
were requested by the Lepires. Among other things, these changes increased the floor space in
the house from 4,500 square feet to 6,500 square feet and raised the house several inches.
raised the house several inches. The foundations and outside dimensions remained the same.
The Lepires made payments on the contract ahead of schedule and paid for extra labor and
materials as requested.
In early December, problems began developing between the parties. A lien claim by a
subcontractor hired pursuant to a contract with the Rowland Corporation had been filed in
October of 1978. In addition, the Meek Lumber Company gave notice of its intent to file a
lien against the residence. During this same period, Glen Rowland prematurely requested an
additional payment.
These events precipitated a meeting between Glen Rowland and the Lepires on December
13, 1978. The district court found that an oral modification of the contract resulted from that
meeting. Shortly thereafter, a controversy arose at the job site, causing the Rowlands to refuse
further performance despite requests for completion by the Lepires. Instead, the Rowlands,
upon advice of their attorney, filed a lien against the project for $68,000 on December 22,
1978. Recordation of the lien resulted in the Lepires' loss of an anticipated loan to be secured
by the home. They were, nevertheless, able to obtain a personal loan at a higher interest rate.
As a consequence, the Lepires commenced this action in April of 1979, alleging breach of
contract, slander of title and defamation. The defamation claim was later dismissed. In
August 1979, the Rowland Corporation filed suit against the Lepires, alleging breach of
contract, unjust enrichment and abuse of process. The two cases were eventually consolidated
and the Rowland Corporation complaint was treated as a counterclaim in the Lepires' suit.
Subsequently, a bench trial was conducted. The lower court found that the express contract
had been modified and that appellants had materially breached the contract. Predicated on the
foregoing findings and conclusions, the court awarded damages for the cost of completion,
for the cost of correcting defective construction and for paying bills which the Rowland
Corporation had incurred and was obligated to pay. Additionally, the court found that the lien
made of record by the corporation constituted slander of title and awarded special damages
and punitive damages in the amount of $15,000. Further, the court awarded the Lepires
$12,000 in attorney's fees. Finally, the court found that the Rowland Corporation was the alter
ego of Glen Rowland and Martin Rowland and entered a personal judgment against the
Rowlands in the approximate sum of $65,000. Appellants appeal, challenging every portion
of the judgment.
1. The Express Contract.
Appellants initially contend that the lower court erred in failing to find that the express
contract between the parties was abandoned. They contend that because the completed house
varied extensively from the house they contracted to build, the original contract was
abandoned. They assert that because the express contract was abandoned, they are entitled to
a quantum meruit recovery. Appellants rely on the case of Paterson v. Condos, 55 Nev. 134,
28 P.2d 499 (1934), to establish this position.
In Paterson, the trial court had found that where the provisions of an express contract were
extensively changed during the course of construction, the express contract had been
abandoned with the consent, acquiescence and direction of the defendant. On appeal, we held
there was sufficient evidence to support the trial court's conclusion. In the present case, no
such finding was made by the trial court; rather, it found that the contract had been modified
and, impliedly, that no abandonment had occurred.
[Headnotes 1-4]
On appeal, the issue before this court is whether the lower court's finding is supported by
substantial evidence. Jacobson v. Best Brands, Inc., 97 Nev. 390, 632 P.2d 1150 (1981);
Clark Co. Sports v. City of Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980). It is the prerogative
of the trier of fact to evaluate the credibility of witnesses and determine the weight of their
testimony. Jacobson v. Best Brands, Inc., supra. Where there is substantial evidence to
support the findings of the trial court, this court will affirm the judgment even though the
evidence is conflicting. Id.; Clark Co. Sports v. City of Las Vegas, supra. Only in rare
circumstances will changes in the course of construction be so extensive as to require the
conclusion as a matter of law that a contract was abandoned. Modern Builders, Inc. of
Tacoma v. Manke, 615 P.2d 1332 (Wash.Ct.App. 1980). Our review of the record
demonstrates that the evidence in support of the findings of the trial court is substantial and
does not require a conclusion as a matter of law that the express contract was abandoned.
In light of our resolution of the issue of the existence of an express contract, the issue of
whether unclean hands bars appellants' rights to a quantum meruit recovery need not be
addressed.
2. Slander of Title.
Appellants next contend that the evidence does not support the trial court's finding that
their actions in perfecting the labor and materialmen's lien constituted slander of title. We
agree.
[Headnote 5]
The requisites to an action for slander of title are that the words spoken be false, that they
be maliciously spoken and that the plaintiff sustain some special damage as a direct and
natural result of their having been spoken. Potosi Zinc Co. v. Mahoney, 36 Nev. 390, 135 P.
1078 (1913); see also Summa Corp. v. Greenspun, 98 Nev. 528, 655 P.2d 513 (1982); Soller
Corp. v. W.B.C. Development, 96 Nev. 704, 615 P.2d 956 (1980).
In the instant case, the evidence establishes that the Lepires did not owe any money to the
Rowlands. In that the lien stated the Lepires did owe money to the Rowlands, this statement
was false. The evidence also establishes that the Lepires suffered pecuniary losses as a result
of the lien. These damages resulted from the fact that the Lepires were required to pay higher
interest rates for a personal loan when the loan secured by the property was denied due to the
lien. However, the evidence fails to establish the element of malice.
[Headnotes 6-8]
In order to prove malice it must be shown that the defendant knew that the statement was
false or acted in reckless disregard of its truth or falsity. See Howard v. Schaniel, 169
Cal.Rptr. 678 (Ct.App. 1980); Pecora v. Szabo, 418 N.E.2d 431 (Ill.App.Ct. 1981);
Restatement (Second) of Torts 623A (1977); Restatement (Second) of Torts 624 (1977).
Where a defendant has reasonable grounds for belief in his claim, he has not acted with
malice. Merchants Nat. Bank of Mobile v. Steiner, 404 So.2d 14 (Ala. 1981); Whildin v.
Kovacs, 403 N.E.2d 694 (Ill.App.Ct. 1980). Additionally, evidence of a defendant's reliance
on the advice of counsel tends to negate evidence of malice. Cavin Memorial Corporation v.
Requa, 85 Cal.Rptr. 107 (Ct.App. 1970); Board of County Com'rs, Etc. v. Goldenrod Corp.,
601 P.2d 360 (Colo.Ct.App. 1979); Harper v. Goodin, 409 N.E.2d 1129 (Ind.Ct.App. 1980).
[Headnote 9]
In the present case, Martin Rowland testified that the Lepires had always made payments
when requested and that he had not submitted a bill for the amount of the lien prior to
perfecting the lien. He stated, however, that the Rowlands had been ejected from the job site
by the Lepires and that he had been told by Glen Rowland that Gene Lepire had refused to
pay any more money. He testified that he went to see an attorney concerning the problems
with the Lepires and thereafter followed his attorney's advice. He testified that he assumed his
counsel had sent a request for payment. He also testified that the amount of the lien was
arrived at after consulting with his attorney; however, he could not demonstrate how the
figure was arrived at at the time of the trial.
amount of the lien was arrived at after consulting with his attorney; however, he could not
demonstrate how the figure was arrived at at the time of the trial. He did state that the figure
was the difference between the amount of money paid and the amount that was due for
completed work. He also stated at one point that the amount owed was $47,000. He stated
that he believed the amount of the lien was owed to the Rowland Corporation. When
questioned as to why he had caused the lien to be personally delivered to the bank from which
the Lepires were seeking their loan, Martin Rowland denied having done so, but he stated that
he was aware that his attorney had caused it to be delivered. He further testified that this was
the first lien he had filed and did not think delivery of the lien to the bank was unusual.
Glen Rowland testified that Gene Lepire had told him on the day they were ejected from
the job site that there would be no more money. He testified that the lien procedure was
initiated on the advice of the Rowlands' former counsel. He testified he had no idea how the
amount of the lien was arrived at, though he had discussed some figures with Martin, his
father. Glen also testified that he knew the Lepires were attempting to obtain a loan. When
questioned as to whether he informed his former attorney that the Lepires were trying to
arrange for a loan from First National Bank, he stated that although he could not recall doing
so, it was possible. From this and related testimony, the lower court found:
The recording of the lien was without right, wilful and intentional and done with
careless disregard for the rights of the plaintiff.
There was malicious intent on behalf of the defendants and each of them, in so
recording the lien claim.
While acknowledging that the trial court was able to observe the witnesses and judge their
credibility, we fail to discern, from this record, that substantial evidence supported the trial
court's finding of malice. Indeed, here, we perceive that a legitimate business dispute arose
between a contractor and an owner. This dispute caused the Rowlands to seek the advice of
counsel. The record reveals that the Rowlands relied upon the recommendations of their
former attorney and acted upon those recommendations. It does not indicate that they
believed filing the lien was improper. Such evidence does not support a finding that the lien
was maliciously filed. See Cavin Memorial Corporation v. Requa, supra; Board of County
Com'rs, Etc. v. Goldenrod Corp., supra; Harper v. Goodin, supra.
3. Punitive Damages.
[Headnote 10]
The trial court relied on its finding of malice in the cause of action for slander of title as
the basis for awarding punitive damages. As we have held that the finding of malice is not
supported by evidence in the record, the award of punitive damages based on that finding
must also be reversed.
4. Attorney's fees.
Appellants contend that the trial court's award of $12,757.12 in attorney's fees was
erroneous because the contract did not provide for such and the damage award exceeded
$10,000.
[Headnote 11]
It is settled that attorney's fees are not recoverable absent a statute, rule or contractual
provision to the contrary. Locken v. Locken, 98 Nev. 369, 650 P.2d 803 (1982); Von
Ehrensmann v. Lee, 98 Nev. 335, 647 P.2d 377 (1982). Nevada's statutory provision
regarding attorney's fees provides in pertinent part:
18.010 Award of attorney's fees.
1. The compensation of an attorney and counselor for his services is governed by
agreement, express of implied, which is not restrained by law.
2. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than
$10,000; or
(b) The counterclaimant as prevailing party when he has not recovered more than
$10,000; or
(c) The defendant as prevailing party when the plaintiff has not sought recovery in
excess $10,000.
The statute does not authorize an award of attorney's fees where the prevailing party has
recovered in excess of $10,000. Consequently, if respondents have a right to recover fees, the
right must be based on something other than this statute.
[Headnote 12]
The contract between the parties was drafted by appellants. It provided that if the Rowland
Corporation was required to retain counsel for the purpose of enforcing the agreement, the
Lepires agreed to pay attorney's fees. There was no reciprocal provision for the benefit of the
Lepires. Respondents, however, point to the testimony of Martin Rowland, wherein he states
that a provision for attorney's fees for the benefit of the Lepires was left out due to an
oversight. The trial court found in findings of fact Nos. 27 and 28: 27.
27. The contract contains a provision that the defendants would be entitled to
attorney's fees in the event it or they had to sue under it.
28. This same right and benefit is impliedly extended to the plaintiffs.
Respondents argue that the foregoing is a finding unsupported by the referenced evidence,
and that there was an implied agreement within the previously quoted portion of NRS 18.010
entitling them to attorney's fees.
Appellants respond that the testimony referred to is ambiguous, in that Martin Rowland
also testified that if the Lepires wanted a reciprocal provision for attorney's fees, they should
have insisted that one be incorporated into the contract. In addition, the lower court concluded
in conclusion of law No. 9: The plaintiffs are entitled to attorney's fees pursuant to the theory
of mutuality of remedy. We believe that the finding of fact implying a right to attorney's fees
stemmed from the trial court's conclusion that respondents were entitled to fees under the
theory of mutuality of remedy. There was no factual or legal support for the court's
determination. Moreover, there was no request that the contract be reformed to reflect the true
intention of the parties and the trial court failed to mention any right to reformation. We
conclude that the trial court erred in basing the fee award on an implied agreement.
The lower court also awarded attorney's fees as special damages resulting from the breach
of contract and the slander of title.
[Headnotes 13, 14]
Attorney's fees are not properly awarded as special damages for breach of contract. Von
Ehrensmann v. Lee, supra. Since we have held that the trial court's conclusion that appellants
committed slander of title is not substantiated by the evidence, the attorney's fees are not
properly awarded as special damages resulting from that cause of action. There being no basis
for the award of attorney's fees, the award is reversed.
5. The Alter Ego Doctrine.
Appellants' final contention is that the trial court erred in finding that sufficient evidence
existed to justify piercing the corporate veil. We agree.
[Headnote 15]
In order to apply the alter ego doctrine, the following requirements must be met: (1) the
corporation must be influenced and governed by the person asserted to be its alter ego; (2)
there must be such unity of interest and ownership that one is inseparable from the other;
and {3) the facts must be such that adherence to the fiction of a separate entity would,
under the circumstances, sanction a fraud or promote injustice.
one is inseparable from the other; and (3) the facts must be such that adherence to the fiction
of a separate entity would, under the circumstances, sanction a fraud or promote injustice.
Mosa v. Wilson-Bates Furniture Co., 94 Nev. 521, 583 P.2d 453 (1978); McCleary Cattle Co.
v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957). In North Arlington Med. v. Sanchez Constr., 86
Nev. 515, 522, 471 P.2d 240, 244 (1970), we stated:
Undercapitalization, where it is clearly shown, is an important factor in determining
whether the doctrine of alter ego should be applied. However, in the absence of fraud or
injustice to the aggrieved party, it is not an absolute ground for disregarding a corporate
entity. In any event, it is incumbent upon the one seeking to pierce the corporate veil, to
show by a preponderance of the evidence, that the financial setup of the corporation is
only a sham and caused an injustice.
[Headnote 16]
In the instant case, the record reveals that the Rowland Corporation was incorporated by
Martin Rowland in 1974. The directors at the time of incorporation were Martin Rowland,
Glen Rowland and Gerald Rowland. Martin Rowland acted as president, performing the
bookkeeping duties, and Glen Rowland acted as vice president, handling the construction.
Shares of stock were first issued in 1977: one share for $100 issued to Martin Rowland and
his wife; one share for $100 issued to Glen Rowland and his wife; one share for $100 issued
to Darlene Rowland (Martin's daughter); and one share for $100 issued to Gerald Rowland
(Martin's son) and his wife. Several months later, an additional five shares were issued to
Martin and his wife for $500 and two shares issued to Glen and his wife for $200. In addition
to this paid-in capital, Martin Rowland made an unsecured personal loan of $15,000 to the
corporation in 1977. The corporation had no other assets, and, as of the time of trial, had a
negative net worth. Although no formal directors or shareholders meetings were ever held,
Martin testified that in lieu thereof, he personally phoned the directors and shareholders
regarding corporate business. No dividends were paid to shareholders, nor did the officers or
directors receive salaries. The corporation did not have a minute book, nor is there evidence
that any minutes were kept. The corporation did obtain a general contractor's license and a
framing contractor's license, both in its name. It also obtained a surety bond in the amount of
$5,000. The corporation also obtained workmen's compensation insurance and transacted
business with the Employment Security Department. In addition, there was a corporate
checking account.
corporate checking account. Martin also testified that other directors and shareholders besides
Glen and he were involved in the corporation business. Martin and Glen did not, however,
confer with the other shareholders or directors when they entered into the Lepire contract, nor
when they filed the lien.
Although the evidence does show that the corporation was undercapitalized and that there
was little existence separate and apart from Martin and Glen Rowland, we conclude that the
evidence was insufficient to support a finding that appellants were the alter ego of the
Rowland Corporation. See North Arlington Med. v. Sanchez Constr., supra.
Appellants' remaining claims either lack merit or need not be addressed.
The trial court's judgment is affirmed with the exception of its findings of slander of title,
alter ego and its award of punitive damages and attorneys fees. We reverse the latter
determinations.
____________
99 Nev. 318, 318 (1983) Oesterle v. Cohen
DOUGLAS W. OESTERLE, Appellant, v. HORACE
COHEN and HARRIET COHEN, Respondents.
No. 13033
April 29, 1983 661 P.2d 1311
Appeal from amended decree; Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Action was brought in which plaintiffs sought declaration that they were owners of certain
property and that defendant had no interest in premises. Defendant filed counterclaim alleging
that he had a contractual right to purchase parcels. Cross motions for summary judgment were
filed. The district court granted summary judgment in favor of plaintiffs, and defendant
appealed. The Supreme Court held that genuine issues of fact were raised in action, thereby
precluding summary judgment, even though both parties sought summary judgment.
R. Paul Sorenson, Las Vegas; and Patrick R. Doyle, Las Vegas, for Appellant.
Deaner & Deaner, and Michael A. Davis, Las Vegas, for Respondents.
1. Judgment.
Where cross motions for summary judgment were brought on separate legal theories and where
separate sets of fact were relied on to support those theories, a trial court must
independently examine record to determine whether there are any material factual
questions requiring a trial.
to support those theories, a trial court must independently examine record to determine whether there are
any material factual questions requiring a trial.
2. Judgment.
In action in which plaintiff landowners sought declaration that they were owners of certain property
and that defendant landowner had no interest in premises and in which defendant alleged in counterclaim
that he had a contractual right to purchase parcels, genuine issues of fact remained, thereby precluding
summary judgment, even though both parties sought summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment quieting title to real property.
Respondents Horace and Harriet Cohen initiated an action in district court on April 30,
1979. The complaint sought an order declaring that the Cohens are the owners of certain
property in Clark County and that appellant Douglas Oesterle has no interest in the premises.
An answer and counterclaim were subsequently filed. Oesterle alleged that he had a
contractual right to purchase the parcels. The counterclaim requested that the district court
specifically enforce the alleged agreement.
The parties thereafter filed cross-motions for summary judgment. The Cohens contended,
inter alia, that Oesterle had abandoned the contract to purchase the real estate and that
Oesterle, therefore, forfeited all of his rights under the agreement. Oesterle principally alleged
that the contract created an equitable mortgage and that the Cohens should be required to
follow the statutory procedures governing foreclosure. The Cohens' motion was granted and
an order was subsequently issued in their favor quieting title to the premises. This appeal
followed.
It appears that the district court may have relied on City of Las Vegas v. Cragin Industries,
86 Nev. 933, 478 P.2d 585 (1970) in evaluating the propriety of granting summary judgment.
In Cragin we stated that where cross-motions for summary judgment have been filed, the trial
court may find that the litigants have conceded that there is no material question of fact.
Pursuant to Cragin, the district court, therefore, may have been justified in concluding that no
genuine issue of material fact existed.
[Headnotes 1, 2]
After the appeal in the present case was filed, however, we decided Cheqer, Inc. v. Painters &
Decorators, 98 Nev. 609, 655 P.2d 996 {19S2).
655 P.2d 996 (1982). We stated in Cheqer that Cragin was overly broad and that we did not
intend Cragin to establish the rule that the mere filing of cross-motions for summary
judgment automatically relieves the district court of its duty of deciding whether a genuine
issue of fact exists. Rather, we specifically held that where, as here, cross-motions for
summary judgment are brought on separate legal theories and where separate sets of facts are
relied on to support those theories, a trial court must independently examine the record to
determine whether there are any material factual questions requiring a trial. If such is the
case, summary judgment should be denied. A review of the record here reveals that genuine
issues of fact remain. Summary judgment was, therefore, inappropriate.
Accordingly, the summary judgment granted in favor of the Cohens is reversed, the final
decree quieting title in the Cohens is vacated, and the case is remanded for trial.
____________
99 Nev. 320, 320 (1983) State Gaming Control Bd. v. Breen
STATE GAMING CONTROL BOARD, Petitioner, v. PETER I. BREEN, DISTRICT
JUDGE, SECOND JUDICIAL DISTRICT COURT, Respondent.
No. 13609
April 29, 1983 661 P.2d 1309
The Gaming Control Board sought a writ of prohibition or, alternatively, a writ of
mandamus, barring the district court from proceeding in a case seeking judicial review of the
Board's determinations. The Supreme Court held that district court was without jurisdiction to
review the Board's determination that club management was justified in refusing to pay a
winning keno ticket.
Writ of Prohibition granted.
Brian McKay, Attorney General, and Claudia K. Cormier, Deputy Attorney General,
Carson City, for Petitioner.
William M. O'Mara, Reno, for Respondent.
1. Gaming.
Unequal right to review of Gaming Control Board decisions for patron and gaming establishments, in that
there may be judicial review of decision of board against licensee, but no review of decision in favor of
licensee, is justified by different property interests held by each. NRS 463.110, 463.310, 463.310,
subd. 1, 463.312, 463.315.
2. Gaming.
Patron whose claim against gaming establishment is founded upon nonpayment of gambling debt holds
no judicially cognizable property right which would justify judicial review of decision of Gaming Control
Board in favor of licensee in gambling dispute. NRS 463.110, 463.310, 463.310, subd. 1, 463.312,
463.315.
3. Gaming.
Licensee is permitted to seek judicial review of adverse decision of Gaming Control Board because
Board order to revoke, modify, or limit gaming license directly affects licensee's property right in retention
of its license to do business. NRS 463.310, 463.312.
4. Gaming.
Purpose behind procedures set up by Gaming Control Board to govern gambling disputes is to facilitate
the perpetuation of public confidence in the integrity of gaming industry, not to afford administrative
remedy where no legal remedy exists. NRS 463.0129.
5. Gaming.
District court was without jurisdiction to attempt to review Gaming Control Board's determination that
club management was justified in refusing to pay winning keno ticket. NRS 463.110, 463.310,
463.310, subd. 1, 463.312, 463.315.
OPINION
Per Curiam:
Petitioner seeks a writ of prohibition, or, alternatively, a writ of mandamus, barring the
respondent court from proceeding in the case of Yong Chun Kim v. Nevada Gaming Control
Board, Case No. 80-9046. For the reasons outlined hereafter, we grant the requested relief.
In January, 1980, Yon Chun Kim, the party beneficially interested in this proceeding,
presented a winning keno ticket for $37,800.00 to the Club Cal-Neva in Reno, Nevada, where
Kim was employed. Because a suspicion arose that Kim's ticket had been marked after the
winning numbers for the keno game had been called, the club management refused to honor
and pay the amount of the ticket.
Kim requested an investigation by the Nevada Gaming Control Board, petitioner herein.
The Board's investigative agents determined that the club management was justified in
refusing to pay.
Petitioner then held a hearing at Kim's request, after which the determinations and
decisions of the investigative officers were affirmed.
Kim thereafter filed an action in district court for review of petitioner's determinations.
The Board's motion to dismiss for failure to state a claim upon which relief could be granted
was denied.
denied. Petitioner thereafter filed a petition in this Court for a writ of prohibition to disallow
the district court to proceed further with this case. Because the district court's order was based
upon the erroneous conclusion that the court had jurisdiction to review the Board's decision,
we grant the writ.
Until now, this Court has specifically left open the issue of whether administrative
procedures regarding disputes between gaming patrons and state licensees are judicially
reviewable. Corbin v. O'Keefe, 87 Nev. 189, 190, 484 P.2d 565 (1971). Under the
circumstances of this case, we hold that they are not.
Under our statutes, a player/patron and a licensee/casino are provided unequal rights to
judicial review of a Gaming Control Board decision.
1

The Gaming Control Board, in fulfillment of its statutory duties to preserve public
confidence and trust in licensed gaming, NRS 463.0129, is empowered to investigate the
qualifications of applicants for gaming licenses and observe the conduct of licensees and
other persons involved in licensed gaming operations. The Board may deny applications, or
limit or revoke licenses, registrations or findings of suitability or approval. NRS 463.1405(1),
(2). The Board may also conduct investigations and hearings. NRS 463.110, 463.310(1). The
Board's power extends exclusively to state licensees and applicants for state licenses.
In December, 1972, the Board adopted G.C.B. Bulletin No. 7, which sets up a procedure
whereby gambling disputes between a patron and a licensee may be reviewed. Pursuant to
that bulletin, if a patron lodges a complaint with the Gaming Control Board, the Board first
conducts a preliminary investigation of the player's claim. Review of the investigative
officer's decision may be requested by either the claimant or the licensee. This may be either a
review of the file or through an informal hearing.
If, after a hearing, the Board decides against the licensee, it may order payment of the
player's claim. If the licensee refuses to pay, the Board may then file a complaint to initiate a
hearing before the Nevada Gaming Commission. NRS 463.310, 463.312. Judicial review of
the Commission's final decision or order is specifically allowed. NRS 463.315.
____________________

1
Both the State Gaming Control Board and the Nevada Gaming Commission are expressly and entirely
exempt from the provisions of the Nevada Administrative Procedures Act. See NRS 233B.039(1)(e). The
statutory scheme regarding gaming licensing and control is found in NRS ch. 463.
If the Board decides in favor of the licensee, no further review is provided in the bulletin
or the statute.
2

[Headnote 1]
The unequal right to review of Gaming Control Board decisions for patron and gaming
establishments, where a gambling debt is at issue, is justified because of the different property
interests held by each.
[Headnote 2]
A patron, whose claim against a gaming establishment is founded upon non-payment of a
gambling debt, holds no judicially cognizable property right. This Court has long held that
gambling debts are unenforceable in the courts of this state. Neither a patron nor a gaming
establishment may maintain a suit for the recovery of a gambling debt. Sea Air Support, Inc.
v. Herrmann, 96 Nev. 574, 613 P.2d 413 (1980); Corbin v. O'Keefe, supra; Weisbrod v.
Fremont Hotel, 74 Nev. 227, 326 P.2d 1104 (1971); West Indies v. First National Bank, 67
Nev. 13, 214 P.2d 144 (1950); Burke v. Buck, 31 Nev. 74, 99 P. 1078 (1909); Evans v. Cook,
11 Nev. 69 (1876); Scott v. Courtney, 7 Nev. 419 (1872).
[Headnote 3]
Neither a player nor a licensee can assert a property right founded upon an unpaid
gambling debt. With no claim other than a gambling debt, an aggrieved patron like Kim holds
no interest which an adverse Board decision can affect. A licensee, on the other hand, has a
property right in the retention of its license to do business. A Board order to revoke, modify,
or limit a gaming license directly affects this property right. Before that right can be deprived,
opportunity for notice and hearing must be afforded. NRS 463.310, 463.312.
That a patron may be incidentally benefitted by a licensee's compliance with a Board order
to pay a patron cannot be seen as recognition of a patron's property right in the debt. A Board
sanction against a licensee for non-payment is based on the licensee's failure to obey a Board
directive rather than on failure to pay a valid gambling debt. The Board has no power to order
a patron to pay a licensee's claim.
[Headnote 4]
The purpose behind the procedures set up by the Board is to facilitate the perpetuation of
public confidence in the integrity of the gaming industry.
____________________

2
We are not faced with a cause of action for cheating, as was the case in the federal court cases of Berman v.
Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963), and Zaika v. Del E. Webb Corp., 508 F.Supp. 1005 (D.C.
Nev. 1981). For that reason, we decline to address whether the holdings regarding judicial review in those cases
apply in the Nevada courts.
facilitate the perpetuation of public confidence in the integrity of the gaming industry. NRS
463.0129. It is not to afford an administrative remedy where no legal remedy exists. Because
a patron has no property or liberty interest which could be deprived him by abuse of Board
procedures, he can assert no basis for judicial review of those procedures.
[Headnote 5]
Here, the district court was without jurisdiction to attempt to review the Board's
determination on petitioner's complaint. For that reason, we hereby issue a peremptory writ of
prohibition. NRS 34.320.
____________
99 Nev. 324, 324 (1983) American Int'l Vacations v. MacBride
AMERICAN INTERNATIONAL VACATIONS, Appellant,
v. DONALD L. MacBRIDE, Respondent.
No. 13713
April 29, 1983 661 P.2d 1301
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Employer appealed from a judgment of the district court reversing a Department of
Administration appeals officer's decision that an injury was not compensable. The Supreme
Court held that: (1) incident in which salesman of vacation packages, while on job directing
tour and walking down stairs, turned and exerted strain on back in response to supervisor's
summons and felt pain and discomfort in lower back when knee gave way, was accident
within meaning of Nevada Industrial Insurance Act; (2) determination that there was
sufficient external force involved to meet requirement of statutory definition of injury
would not be disturbed; and (3) events in question happened traumatically, as required to
constitute injury under Act.
Affirmed.
Reid and Alverson and Claude E. Zobell, and Bryce Dixon, Las Vegas, for Appellant.
Marvin S. Gross, State Industrial Attorney, Las Vegas, for Respondent.
1. Statutes.
Reviewing court may undertake independent review of administrative construction of a statute.
2. Workers' Compensation.
Incident in which salesman of vacation packages, while on job directing tour and walking down stairs,
turned to respond to call of supervisor and felt pain and discomfort in lower back when right knee allegedly
gave way two or three inches, was accident within meaning of Nevada Industrial Insurance Act.
In order for incident to qualify as accident under Nevada Industrial Insurance Act, incident must have
been unexpected or unforeseen event happening suddenly and violently and producing at time objective
symptoms of injury. NRS 233B.140, subd. 5(d), 616.010 et seq., 616.020, 616.116.
Requirement of Nevada Industrial Insurance Act, for incident to qualify as accident, that incident
produce at the time, objective symptoms of injury does not require instantaneous manifestation of
symptoms but, rather, that symptoms manifest themselves within reasonable time. NRS 616.020.
Record evidenced that salesman, who turned and exerted twisting strain on his back in response to
supervisor's summons and felt pain and discomfort in lower back when knee gave way, was subjected to
sudden strain which proximately caused his injury and thus there was sufficient external force involved
to meet statutory requirement of then-existing definition of injury for purposes of Nevada Industrial
Insurance Act. NRS 616.110.
Where incident in which salesman turned and exerted twisting strain on his back in response to
supervisor's summons and felt pain and discomfort in lower back when knee gave way occurred suddenly
and violently within meaning of definitional sections of Nevada Industrial Insurance Act, events in
question happened traumatically, as required to constitute injury under Act, assuming that trauma
requirement could be equated with violence. NRS 616.110.
OPINION
Per Curiam:
Appellant, American International Vacations (American International), appeals from a
judgment of the district court reversing a Department of Administration Appeals Officer's
decision that an injury was not compensable. Because we agree respondent was involved in
an accident which resulted in a compensable injury within the statutory definition of those
terms, we affirm the decision of the district court.
Respondent Donald L. MacBride was employed by American International as a salesman
of vacation packages. While on the job directing a tour, MacBride had occasion to walk
down a flight of stairs. While so engaged, he heard a supervisor call him by name, and
turned to his left to respond.
call him by name, and turned to his left to respond. When he did so, MacBride's right knee
allegedly gave way two or three inches, causing a twisting motion and pain and discomfort
in his lower back. MacBride neither stumbled nor fell as a result of this incident, and
apparently continued his duties.
At approximately 4:00 a.m. the next morning, MacBride was admitted to a hospital
emergency room complaining of back pain. Surgery was subsequently performed, which
established that MacBride had suffered a rupture of an intervertebral disc. Physicians
indicated this back condition was causally related to the twisting incident at work.
MacBride filed a compensation claim under the Nevada Industrial Insurance Act (NIIA),
1
and a hearing officer found that he had sustained a compensable injury. American
International subsequently appealed to the Appeals Officer. The Appeals Officer held
MacBride's injury was not compensable, because circumstances surrounding the incident did
not meet the statutory definitions of an accident or injury set forth in the NIIA. MacBride
then filed a petition for judicial review; the district court ordered the Appeals Officer's
decision reversed on the grounds that MacBride had suffered a compensable injury as a
result of an accident. American International now appeals the decision of the district court.
[Headnotes 1, 2]
We initially note that a reviewing court may undertake independent review of the
administrative construction of a statute. See NRS 233B.140(5)(d); accord, Niekro v. Brick
Tavern, 238 N.W.2d 537, 539 (Mich. 1976); McKay Dee Hospital v. Industrial Commission,
598 P.2d 375, 376 (Utah 1979); Loggins v. Wetumka General Hospital, 587 P.2d 455, 457
(Okl. 1978). The Appeals Officer's decision was predicated on his construction of the
accident and injury definitions contained in the NIIA. The district court reviewed the statutes
and concluded that the Appeals Officer's construction was incorrect. We believe the district
court's construction of the statutes in question was correct.
[Headnote 3]
Under the NIIA, accident is defined as 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 616.020. Thus, in order for an incident to qualify as an
accident, three elements must be present: (1) an unexpected or unforeseen event; (2)
happening suddenly and violently; and {3) producing at the time objective symptoms of
injury.
____________________

1
The NIC is now known as the State Industrial Insurance System. See NRS 616.116 (effective July 1, 1982).
suddenly and violently; and (3) producing at the time objective symptoms of injury.
The district court correctly concluded that all three elements were present in the instant
case. American International maintains that the incident in which MacBride was involved did
not happen suddenly and violently, and did not produce at the time objective symptoms of
injury. Other jurisdictions, however, have construed similar statutory requirements that
compensable accidents occur violently as properly descriptive of any cause efficient in
producing a harmful result. See Raef v. Stock-Hartis, Inc., 416 S.W.2d 201, 205 (Mo. App.
1967). Cases involving construction of insurance policy provisions have reached a similar
result. See Hanna v. Rio Grande Nat. Life Ins. Co., 181 S.W.2d 908, 911 (Tex.App. 1944);
Jensma v. Sun Life Assur. Co., 64 F.2d 457, 459 (Ninth Cir. 1933).
[Headnote 4]
It also appears that the incident did produce at the time, objective symptoms of injury.
Although American International argues this requirement was not met because MacBride did
not seek medical attention until some time after the incident, we do not believe that the
statute requires the instantaneous manifestation of symptoms. It appears that the correct
interpretation of the statutory requirement is that the symptoms must manifest themselves
within a reasonable time. Accord, Central Surety & Insurance Corp. v. Industrial Comm'n 271
P. 617, 622 (Colo. 1928) (24-hour delay in appearance of hernia satisfies statutory
requirement of immediate appearance); Consolidated Vultee Aircraft Corporation v. Smith,
162 P.2d 425, 426 (Ariz. 1945) (two-day delay in appearance of hernia satisfies statutory
requirement of immediate appearance). See also Schoenrock v. School District of Nebraska
City, 139 N.W.2d 547, 551 (Neb. 1966) (symptoms appearing according to the natural
course in such matters without any independent intervening cause being shown met statutory
requirement of producing at the time).
Given the remedial nature of workmen's compensation statutes, and the expressed policy
favoring liberal construction of such statutes, we do not believe the district court erred in
determining that MacBride suffered an accident within the meaning of the NIIA. See
Spencer v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (1982); Industrial Commission v. Peck, 69
Nev. 1, 10-11, 239 P.2d 244 (1952); Industrial Commission v. Adair, 67 Nev. 259, 269, 217
P.2d 348 (1950); Costley v. Nevada Ind. Ins. Com., 53 Nev. 219, 225, 296 P. 1011 (1931);
Virden v. Smith, 46 Nev. 208, 211, 210 P. 129 (1922).
American International additionally challenges the district court's conclusion that the
incident in which MacBride was involved met the statutory requirements of an injury. At
the time of the incident in question, injury and personal injury were defined as a sudden
and tangible happening of a traumatic nature, producing an immediate or prompt result, and
resulting from external force. . . .
2
See 1981 Nev. Stat. 1196, thus, the statutory elements of
an injury were: (1) a sudden and tangible happening; (2) traumatic in nature; (3) producing
an immediate or prompt result; and (4) resulting from external force. American International
argues MacBride could not have suffered an injury, as there was no external force
involved and the event was not traumatic.
[Headnote 5]
In the instant case, the district court impliedly concluded that there was sufficient external
force involved to meet the statutory requirement. We will not disturb that determination on
appeal. We note that MacBride turned and exerted a twisting strain on his back in response to
a supervisor's summons, and felt pain and discomfort in his lower back when his knee gave
way. Other courts have held that a statutory requirement similar to that in the instant case is
satisfied by a sudden strain, originating outside the body in answer to the demands of the
job, which, when applied internally, proximately caused the bodily failure. See Boeing
Company v. Fine, 396 P.2d 145 (Wash. 1964) (overruled on other grounds in Longview Fibre
Co. v. Weimer, 628 P.2d 456 (Wash. 1981)). We believe that the record in the instant case
evidences that respondent was subjected to a sudden strain which proximately caused his
injury. Therefore, we will not disturb the district court's implied determination that an
external force produced the injury in question.
[Headnote 6]
American International's final argument, that the injury in question did not involve a
traumatic event, is also without merit. American International's argument is based on a
prior decision of this court, in which this court arguably equated the trauma requirement
with violence. See Smith v. Garside, 76 Nev. 377, 382, 355 P.2d 849 (1960). As previously
noted, however, the incident in which MacBride was involved occurred suddenly and
violently within the meaning of the definitional sections of the NIIA. Thus, to accept
American International's own linkage, the events in question happened "traumatically."
____________________

2
We note that this section has been amended to eliminate the requirement relating to external force. See
NRS 616.110.
International's own linkage, the events in question happened traumatically.
The district court correctly determined that MacBride was involved in an accident which
resulted in a compensable injury. Accordingly, we affirm the decision of the district court.
____________
99 Nev. 329, 329 (1983) Combustion Engineering, Inc. v. Peters
COMBUSTION ENGINEERING, INC., Appellant, v.
RICHARD J. PETERS, Respondent.
No. 13745
April 29, 1983 661 P.2d 1304
Appeal from judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Employee brought personal injury action against employer's contractor. The district court
denied defendant's motion for nonsuit at close of plaintiff's case and entered judgment on jury
verdict for plaintiff, and defendant appealed. The Supreme Court held that: (1) evidence
created factual issue as to whether defendant was under control of employer so as to be
immune from suit under the Nevada Industrial Insurance Act, and (2) trial court erred by
refusing to give instructions defendant offered regarding its theory of immunity.
Cromer, Barker, Michaelson, Gillock & Rawlings, Las Vegas, for Appellant.
Greenman, Goldberg & Raby, Las Vegas, for Respondent.
1. Trial.
In evaluating a motion to dismiss at close of plaintiff's case, plaintiff's evidence and all reasonable
inferences that can be drawn from it must be deemed admitted and the evidence must be interpreted in light
most favorable to plaintiff. NRCP 41(b).
In employee's personal injury action against employer's contractor, evidence created factual issue as to
whether contractor was under control of employer for employment purposes so as to be immune from suit
under the Nevada Industrial Insurance Act, precluding motion to dismiss at close of plaintiff's case. NRS
616.560; NRCP 41(b).
District court erred by refusing to give instructions offered by defendant regarding its theory of immunity
in personal injury case since the theory was supported by pleadings and evidence.
OPINION
Per Curiam:
On February 17, 1977, respondent was employed by Southern California Edison Company
(Edison) as a plant equipment operator at the Mojave Generating Station when he was injured
during the course of his employment. At that time, Combustion Engineering, Inc. (CEI) was
under contract with Edison to maintain and repair the coal slurry equipment at Mojave. On
the day of the accident, A CEI crew was assigned to perform repair work on a piece of
equipment. The CEI crew went to the job site and removed a section of floor grating in order
to perform the job. Thereafter, the crew members left the hole created by the removal of the
grating unattended while they took a lunch break. Meanwhile, as respondent was performing
equipment checks, he fell through the hole suffering injuries primarily to his arm.
As a result of the accident, respondent received benefits from the Nevada Industrial
Commission under Edison's policy and thereafter initiated suit against CEI, alleging that CEI
and its employees negligently removed a piece of floor grating without providing proper
barricades or warnings. At the close of plaintiff's case, CEI moved for nonsuit pursuant to
NRCP 41(b)
1
on the ground that CEI is immune from suit as a matter of law under the
Nevada Industrial Insurance Act (NIIA) because it is a coemployee of plaintiff. The motion
for nonsuit was denied by the district court. Thereafter, the jury returned a verdict against CEI
and this appeal followed.
Under the NIIA, an injured worker is allowed to sue the person responsible for his injury
so long as that person is not his employer or a person in the same employ. See NRS 616.560.
Appellant contends that, pursuant to the NIIA, the district court erred by failing to grant its
motion under NRCP 41(b) because Edison was the principal employer of both CEI and
respondent; thus, they were in the same employ. We disagree.
[Headnotes 1, 2]
In evaluating a motion to dismiss at the close of plaintiff's case, plaintiff's evidence and all
reasonable inferences that can be drawn from it must be deemed admitted and the
evidence must be interpreted in the light most favorable to plaintiff.
____________________

1
NRCP 41(b) provides in pertinent part:
For the failure of the plaintiff to comply with these rules or any order of court, a defendant may move
for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation
of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has failed to
prove a sufficient case for the court or jury.
be drawn from it must be deemed admitted and the evidence must be interpreted in the light
most favorable to plaintiff. Hernandez v. City of Reno, 97 Nev. 429, 634 P.2d 668 (1981);
Schwabacher & Co. v. Zobrist, 97 Nev. 97, 625 P.2d 82 (1981). Our review of the record, in
the light most favorable to plaintiff, reveals that the evidence presented created a factual issue
as to whether CEI was under the control of Edison for employment purposes. See Antonini v.
Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (1978). Therefore, we conclude that the district
court did not err by denying appellant's motion under NRCP 41(b).
[Headnote 3]
Appellant also contends that the district court erred by refusing to give 11 instructions it
offered regarding its theory of immunity. We agree. It is a well recognized rule that each party
to a lawsuit is entitled to have the jury instructed on all of his theories of the case that are
supported by the pleadings and the evidence. Rocky Mt. Produce v. Johnson, 78 Nev. 44, 52,
369 P.2d 198, 202 (1962). Accord American Cas. Co. v. Propane Sales & Serv., 89 Nev. 398,
513 P.2d 1226 (1973). By determining that the 11 instructions were inapplicable, the district
court concluded, as a matter of law, that CEI was not immune under the NIIA. As noted
above, however, a factual question existed which should have gone to the jury regarding the
existence of an employment relationship between CEI and Edison. Accordingly, the jury
should have been instructed on CEI's theory of the case since it was supported by the
pleadings and the evidence.
2

We have considered appellant's other assignment of error and conclude that it is without
merit.
Accordingly, we reverse and remand the case for a new trial.
____________________

2
We express no opinion as to whether all 11 instructions are correct in both form and substance. We merely
conclude that the district court erred by failing to instruct on appellant's theory of the case.
____________
99 Nev. 331, 331 (1983) Licata v. State
ROBERT A. LICATA, Appellant, v. THE STATE
No. 13884
April 29, 1983 661 P.2d 1306
Appeal from jury conviction of perjury. Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
The Supreme Court held that: (1) under statute, perjury charge may be sustained only
where false statement was made in judicial or other setting where an oath or affirmation is
legally required, and (2) defendant's voluntary statement taken in insurance company's
lawyer's office did not fall within purview of perjury statute.
Reversed.
Morgan D. Harris, Public Defender, and Thomas W. Rigsby, Deputy Public Defender,
Clark County for Appellant.
Tufteland and Douglas T. Ferraro, Jr., Deputy District Attorneys, Clark County, for
Respondent.
1. Perjury.
Under statute, perjury charge may be sustained only where false statement was made in judicial or other
setting where an oath or affirmation is legally required. NRS 199.120.
2. Perjury.
Defendant's voluntary statement taken in insurance company's lawyer's office did not fall within purview
of perjury statute, and therefore defendant could not properly have been found guilty of perjury for
swearing falsely in statement given to attorney representing insurance company against whom defendant
made claim for loss of personal property. NRS 199.120.
OPINION
Per Curiam:
Appellant was convicted of perjury for swearing falsely in a statement given to an attorney
representing the insurance company against whom appellant had made claim for loss of
personal property. Since the conviction was based upon a misapprehension of Nevada law we
must reverse.
In July, 1978, upon returning from a vacation in California, appellant discovered that his
home in Las Vegas had been burglarized. Shortly thereafter, appellant submitted an insurance
claim for the loss of his stolen possessions, which included a Sony television set and a
Betamax recorder which appellant indicated he had purchased from Desert T.V. and
Appliance. Appellant submitted receipts in support of his claim for theses items.
Upon investigation, the insurance claim's adjuster discovered that appellant's purchase
order with Desert T.V. for the television and recorder had later been cancelled. Appellant was
asked to give a sworn statement to the insurance company's attorney regarding these
claims.
asked to give a sworn statement to the insurance company's attorney regarding these claims.
Appellant's statement indicated that he had purchased the television and recorder at Desert
T.V. as reflected in the receipts. Appellant's claims were later rejected by the insurance
company on the basis of the false statement in the claims regarding the television and the
recorder.
Appellant was later charged with perjury, and with making a false insurance claim. At
trial, appellant testified that when he placed the insurance claim he had forgotten that he had
cancelled his order to Desert T.V. and actually bought the items from a private individual.
Several witnesses testified that they had seen the items in appellant's home prior to the
burglary.
Appellant was convicted by the jury of perjury, but acquitted of filing a false insurance
claim. Appellant's motion to set aside the verdict was denied and this appeal ensued.
[Headnotes 1, 2]
NRS 199.120, under which appellant was charged, reads, in pertinent part, as follows:
Every person having taken a lawful oath or made affirmation in a judicial proceeding or
in any other matter where, by law, an oath or affirmation is required and no other
penalty is prescribed, or who willfully and corruptly makes an unqualified statement of
that which he does not know to be true, or who swears or affirms willfully, corruptly
and falsely in a matter material to the issue or point in question, . . . is guilty of perjury.
. . .
We construe the language of the statute to mean that a perjury charge may be sustained
only where the false statement was made in a judicial or other setting where an oath or
affirmation is legally required. Appellant's voluntary statement taken in the insurance
company lawyer's office does not fall within the purview of the statute and thus, appellant
could not have been found guilty of perjury in this case.
That a declarant may be guilty of perjury only where the false statement was made under
an oath required by law has been recognized in many jurisdictions, either by statute or
through case law. See Ex parte Pack 1 P.2d 817 (Okl. Cr.App. 1931); State v. Ledford, 81
P.2d 830 (Wash. 1938); State v. Brady, 425 P.2d 155 (Utah 1967); State v. Devitt, 262
N.W.2d 73 (Wis. 1978); People v. Emmons, 162 N.W.2d 117 (Mich. App. 1968); State v.
Warren, 539 P.2d 184 (Ariz. App. 1975); People v. White, 265 P.2d 115 (Cal. App. 1954); In
re Parmes, 437 S.W.2d 532 (Tenn. App. 1968). Such is also the case under our statute.
Because our holding that appellant could not have been convicted of perjury under our
statute is dispositive of this appeal, we find it unnecessary to consider other issues raised by
the parties.
We accordingly reverse appellant's conviction.
____________
99 Nev. 334, 334 (1983) Personius v. District Court
WILLIAM LEIGH PERSONIUS, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Douglas, Dept. No. 1 and the
HONORABLE JUDGE HOWARD D. McKIBBEN, Respondent.
No. 14506
April 29, 1983 661 P.2d 1307
Petitioner sought writ of mandamus or, alternatively, writ of prohibition to order court to
hold hearing on his suitability for civil commitment in a drug or alcohol rehabilitation
program. The Supreme Court held that municipal court battery conviction was not precluded
from consideration in denying petitioner's eligibility for civil commitment on theory that a
finding of ineligibility based on the conviction would result in an enhanced sentence.
Petition denied.
John W. Aebi, Carson City, for Petitioner.
Brent T. Kolvet, District Attorney, and Michael P. Gibbons, Deputy District Attorney,
Douglas County, for Respondent.
Chemical Dependents.
Municipal court battery conviction was not precluded from being considered in denying petitioner
eligibility for civil commitment in a drug or alcohol rehabilitation program as an alternative to a jail term
on theory that a finding of ineligibility based on the conviction would result in an enhanced sentence. NRS
458.300-458.330.
OPINION
Per Curiam:
Petitioner seeks a writ of mandamus, or alternatively, a writ of prohibition, to order the
respondent court to hold a hearing on petitioner's suitability for civil commitment in a drug or
alcohol rehabilitation program.
alcohol rehabilitation program. For the reasons specified below, we deny the petition.
In August, 1982, petitioner pleaded guilty to conspiracy to possess stolen property and
conspiracy to possess a controlled substance, marijuana. At the time petitioner entered his
guilty pleas, he announced his intention to elect civil commitment to a treatment program for
alcoholics or drug addicts under Chapter 458, Nevada Revised Statutes.
At a hearing held by the district court in November, 1982, to determine petitioner's
eligibility to elect civil commitment, evidence was adduced that in December, 1978,
petitioner had pleaded nolo contendere in Reno Municipal Court to the crime of battery. A
document from the municipal court indicated that at the time petitioner entered his plea, he
was apprised of his constitutional rights and the charges against him. Petitioner nevertheless
argued that this prior battery conviction had been unconstitutionally obtained in that he was
not fully and fairly informed of his constitutional rights at the time the plea was entered.
Petitioner thus concluded that the municipal court conviction could not be considered in
determining petitioner's eligibility for civil commitment on the theory that a finding of
ineligibility based on the conviction would result in an enhanced sentence.
1
Rejecting
petitioner's argument, the district court found petitioner ineligible for civil commitment and
denied petitioner's motion. This petition followed.
We reject petitioner's premise that a jail term constitutes an enhanced penalty since it is
less palatable than civil commitment for drug addiction or alcoholism. The rehabilitation
program is simply an alternative to jail. While the treatment a prisoner receives in jail differs
from that which he would receive in a civil commitment program, his liberty is nonetheless
restricted in either environment. In neither case is the prisoner pardoned for his criminal
conduct, nor is his sentence enhanced or depreciated. We see no constitutional problem in
committing a criminal offender with a history of violent crime to jail while committing
another criminal offender who qualifies for civil commitment to a drug or alcohol
rehabilitation program, if the procedures outlined in NRS 458.300-458.330, are followed. See
Murphy v. State, 352 N.E.2d. 479 (Ind. 1976).
____________________

1
NRS 458.300, which sets forth guidelines for consideration of eligibility for civil commitment, provides, in
pertinent part, as follows:
Subject to the provisions of NRS 458.290 to 458.350, inclusive, an alcoholic or a drug addict who has
been convicted of a crime is eligible to elect treatment under the supervision of a state-approved alcohol
or drug treatment facility before he is sentenced unless . . . (4) the alcoholic or drug addict has a record of
one or more convictions of a crime of violence . . . .
Because a denial of eligibility for civil commitment based on a prior conviction of a crime
of violence is not tantamount to an enhanced penalty, a constitutional challenge to the prior
conviction is inappropriate at the time eligibility is under consideration. The district court's
refusal to countenance petitioner's challenge to his earlier criminal conviction was proper. We
therefore deny the petition.
____________
99 Nev. 336, 336 (1983) Sheriff v. Martin
SHERIFF OF WASHOE COUNTY, NEVADA, Appellant,
v. JESSE AVERY MARTIN, Respondent.
No. 14604
April 29, 1983 662 P.2d 634
Appeal from order granting pretrial writ of habeas corpus. Second Judicial District Court,
Washoe County; James J. Guinan, Judge.
County sheriff appealed from an order of the district court granting defendant's pretrial
writ of habeas corpus and dismissing the charges of two counts of card cheating and
conspiracy to commit card cheating. The Supreme Court, Mowbray, J., held that: (1) the
statutory definition of cheating was not unconstitutionally vague on its face or as applied to
defendant, and (2) the evidence adduced at defendant's preliminary hearing was sufficient on
the elements of conduct and intent to warrant binding him over for trial, and indicated that
defendant was or should have been on notice that his conduct was proscribed by statutes.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Washoe
Polaha & Conner, Reno, for Respondent.
Due process clause of Fourteenth Amendment prohibits states from holding an individual criminally
responsible for conduct which he could not reasonably understand to be proscribed; laws must give person
of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly, and must also provide explicit standards for those who apply the laws, to avoid arbitrary and
discriminatory enforcement. U.S.C.A.Const. Amend. 14.
Statute violates due process requirement of specificity if it either forbids or requires doing of any act in
terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application; test of granting sufficient warning as to proscribed
conduct will be met if there are well settled and ordinarily understood meanings for
the words employed when viewed in context of the entire statutory provision.
common intelligence must necessarily guess at its meaning and differ as to its application; test of granting
sufficient warning as to proscribed conduct will be met if there are well settled and ordinarily understood
meanings for the words employed when viewed in context of the entire statutory provision. U.S.C.A.Const.
Amend. 14.
If an enactment does not implicate constitutionally protected conduct, court may strike it down as vague
on its face only if it is impermissibly vague in all of its applications; challenger who has engaged in
conduct that is clearly proscribed cannot complain of vagueness of the law as applied to the conduct of
others. U.S.C.A.Const. Amend. 14.
Acts of Legislature are presumed to be constitutional, and party challenging an enactment bears burden of
making a clear showing of invalidity.
5. Statutes.
Where intent of Legislature is clear, it is duty of court to give effect to such intention and to construe
language of the statute to effectuate rather than nullify its manifest purpose.
6. False Pretenses.
Definition of cheating in statute which provides that cheat means to alter selection of criteria which
determine result of a game or amount of frequency of payment in a game was not unconstitutionally vague
on its face or as applied to defendant charged with card cheating and conspiracy to commit card cheating
since the phrase to alter the selection of criteria which determine outcome of the game bears easily
ascertainable meaning of proscribing alteration of the group of characteristics which identifies and defines
the game in question. NRS 199.480, 465.015, 465.083.
7. False Pretenses.
If a player or dealer deceitfully alters identifying characteristics or attributes a game with the intent to
deprive another of money or property by affecting the otherwise established probability of the game's
various outcomes, he or she is guilty of cheating within meaning of statutes which provide definition of
cheating and define offense of card cheating. NRS 465.015, 465.083.
8. Criminal Law.
Evidence adduced at defendant's preliminary hearing on charges of card cheating and conspiracy to
commit card cheating was sufficient on elements of conduct and intent to warrant binding defendant over
for trial, and indicated that defendant was or should have been on notice that his conduct was proscribed by
statute. NRS 465.015, 465.083.
OPINION
Respondent was arrested and charged with two counts each of card cheating in violation of
NRS 465.083 and conspiracy to commit card cheating in violation of NRS 199.480 and NRS
465.083. After being bound over to the district court for trial, respondent petitioned the
district court for a writ of habeas corpus.
respondent petitioned the district court for a writ of habeas corpus. Among other contentions,
he argued that the definition of cheating in NRS 465.015, on which the charges against him
rested, was unconstitutionally vague. The district court agreed, and dismissed the charges. We
hold that the statutory definition of cheating is not unconstitutionally vague, and therefore
reverse and remand for trial.
THE FACTS
The following facts were adduced at respondent Martin's preliminary hearing. On April 10,
1982, Martin was playing 21 at Boomtown, in Verdi, Nevada. He was seated to the left of a
known card crimper, Dennis Wayne Petersen. Card crimping is the act of deforming a card,
often by bending the corners, to make the point value of the card readable to the crimper from
the back as well as the face of the card.
Casino employees and Gaming Control Board agents placed the table under observation.
The deck in play was exchanged for a new deck, and the used deck was found to contain
many crimped cards. Peterson was observed crimping several cards in the new deck.
Martin consistently asked Peterson how he should play his cards. Before the deck was
changed, Petersen watched the deck closely as the cards were being dealt, frequently standing
up do do so. He was playing a single hand and betting $5-$10 per hand, while Martin was
betting about $100 per hand. Petersen also hit his hand in an unusual pattern. Immediately
after the deck was changed, Petersen ceased watching the deck and began to play two hands,
while Martin's bets dropped to about $25 per hand. After a period of ten to fifteen minutes,
during which Petersen was observed crimping cards in the new deck, Petersen went back to
playing a single hand, and Martin's bets went back up to about $100 per hand. A Gaming
Control agent also noted a correlation between Petersen's touching of a particular stack of
chips and Martin's taking a hit. A card expert employed by the casino testified that Martin's
and Petersen's behavior indicated that they were working together. Martin was ahead several
hundred dollars at the time he and Petersen were removed from the table and detained by
casino security personnel.
Martin and Petersen were arrested and charged with two counts each of card cheating in
violation of NRS 465.083 and conspiracy to commit card cheating in violation of NRS
199.480 and NRS 465.083 (one count for each deck of cards). Petersen jumped bail, and the
State proceeded against Martin alone. After his preliminary hearing Martin was bound over to
the district court for trial.
the district court for trial. Martin subsequently petitioned the district court for a writ of habeas
corpus, challenging the legality of his restraint on several grounds. After a hearing on the
petition, the district court entered an Order of Discharge under NRS 34.500(8), dismissing
the charges against Martin on the ground that the definition of cheating in NRS 465.015, on
which NRS 465.083 rests, is unconstitutionally vague. This appeal followed.
NRS 465.015 IS NOT UNCONSTITUTIONALLY VAGUE
NRS 465.083, as amended in 1981, provides that [i]t is unlawful for any person, whether
he is an owner or employee of or a player in an establishment, to cheat at any gambling
game. NRS 465.015, added in 1981, provides that [c]heat' means to alter the selection of
criteria which determine: (a) The result of a game; or (b) The amount or frequency of
payment in a game. The district court held that the phrase to alter the selection of criteria
made the penal statute unconstitutionally vague.
[Headnote 1]
It is well settled that the Due Process Clause of the Fourteenth Amendment prohibits the
states from holding an individual criminally responsible for conduct which he could not
reasonably understand to be proscribed. United States v. Harriss, 347 U.S. 612, 617-18
(1954). See Rose v. Locke, 423 U.S. 48, 49 (1975). Laws must give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly, and must also provide explicit standards for those who apply the laws, to avoid
arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, 455
U.S. 489, 498 (1982). See Smith v. Goguen, 415 U.S. 566, 572-74 (1974); Papachristou v.
City of Jacksonville, 405 U.S. 156, 162 (1972).
[Headnotes 2, 3]
A statute therefore violates the due process requirement of specificity if it either forbids
or requires the doing of any act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application. . . . State, Nev. Gaming
Comm'n v. Glusman, 98 Nev. 412, 651 P.2d 639, 644 (1982), quoting Connally v. General
Construction Co., 269 U.S. 385, 391 (1926). However, [t]he Constitution does not require
impossible standards of specificity in penal statutes. The test of granting sufficient warning as
to proscribed conduct will be met if there are well settled and ordinarily understood meanings
for the words employed when viewed in the context of the entire statutory provision."
in the context of the entire statutory provision. Woofter v. O'Donnell, 91 Nev. 756, 762, 542
P.2d 1396, 1400 (1975). See Wilmeth v. State, 96 Nev. 403, 405, 610 P.2d 735, 737 (1980).
As the High Court noted in Rose v. Locke, supra, the prohibition against excessive vagueness
does not invalidate every statute which a reviewing court believes could have been
drafted with greater precision.
Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what some statutes may
compel or forbid. . . . All the Due Process Clause requires is that the law give sufficient
warning that men may conduct themselves so as to avoid that which is forbidden.
Id at 49-50. Moreover, if an enactment does not implicate constitutionally protected conduct,
the court may strike it down as vague on its face only if it is impermissibly vague in all of its
applications. Hoffman Estates, 455 U.S. at 494-95; Glusman, 98 Nev. 412, 651 P.2d at 645.
A challenger who has engaged in conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others. 455 U.S. at 495. See United States v.
Harriss, 347 U.S. at 617-18. See also Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982).
[Headnotes 4, 5]
Acts of the Legislature are presumed to be constitutional, and the party challenging an
enactment bears the burden of making a clear showing of invalidity. Ottenheimer v. Real
Estate Division, 97 Nev. 314, 629 P.2d 1203 (1981); County of Clark v. City of Las Vegas,
97 Nev. 260, 628 P.2d 1120 (1981); Wilmeth v. State, supra. Where the intention of the
Legislature is clear, it is the duty of the court to give effect to such intention and to construe
the language of the statute to effectuate rather than nullify its manifest purpose. Woofter v.
O'Donnell, supra. See Cummings v. City of Las Vegas Mun. Corp., 88 Nev. 479, 499 P.2d
650 (1972).
[Headnote 6]
Applying these rules, we find that the definition of cheating in NRS 465.015 is not
unconstitutionally vague on its face or as applied to respondent. The Legislature sought by
this generic definition to prohibit all forms of cheating, and thus to avoid the many gaps and
loopholes left by the prior cheating statutes. See NRS 465.070-465.083 (1979). While we
have never before construed the phrase to alter the selection of criteria which determine [the
outcome of the game], the words bear an easily ascertainable meaning. Webster's Third New
International Dictionary {1976) defines "criterion" as either a characterizing mark or trait,
or a standard on which a decision or judgment may be based.
Dictionary (1976) defines criterion as either a characterizing mark or trait, or a standard on
which a decision or judgment may be based. The same dictionary defines selection as either
the act or process of selecting, or that which is selected (choice). In light of the statutory
purpose, we interpret the current cheating statutes to proscribe the alteration of the group of
characteristics which identify and define the game in question. The attributes of the
gameits established physical characteristics and basic rulesdetermine the probabilities of
the game's various possible outcomes. Changing those attributes to affect those probabilities
is a criminal act.
[Headnote 7]
In addition, the statutes and the legislative history do not suggest that the Legislature
intended to remove from the crime of cheating the requirement of fraudulent intent. See NRS
199.480(2)(d). We have consistently drawn parallels between cheating and fraudulent
conduct. See, e.g., Isbell v. State, 97 Nev. 222, 226, 626 P.2d 1274, 1276 (1981); Laney v.
State, 86 Nev. 173, 177, 466 P.2d 666, 669 (1970). See also Tax Comm'n v. Mackie, 75 Nev.
6, 11, 333 P.2d 985, 987 (1959)(dicta)(lack of evidence of respondents' knowledge of their
employees' operation of cheating games might well serve to protect respondents against any
criminal charge of cheating); Wallace v. Opinham, 165 P.2d 709, 710 (Cal.App. 1946). Cf.
Berman v. Riverside Casino Corp., 247 F.Supp. 243, 251 (D.Nev. 1964), aff'd, 354 F.2d 43
(9th Cir. 1965)(knowledge and control are minimum requirements for imposing civil or
criminal liability under statute prohibiting act of allowing operation of any cheating or
thieving game or device). Thus, if a player or dealer deceitfully alters the identifying
characteristics or attributes of a game with the intent to deprive another of money or property
by affecting the otherwise established probabilities of the game's various outcomes, he or she
is guilty of cheating within the meaning of NRS 465.015 and NRS 465.083.
[Headnote 8]
By crimping cards, respondent's alleged co-conspirator in effect made the cards readable
on both sides. While this did not alter the location of the cards in the deck, which was
established randomly by the dealer's shuffling, it did alter a crucial characteristic of the game.
The card crimper by his actions eliminated the element of chance as to himself and
respondent concerning the point value of the top cards in the deck at the time of deciding
whether or not to take a hit. The other players' knowledge of those cards was based solely on
their observation of the cards already played and the laws of probability. What a man does
not know and cannot find out is chance as to him, and is recognized as chance by the
law."
a man does not know and cannot find out is chance as to him, and is recognized as chance by
the law. Dillingham v. McLaughlin, 264 U.S. 370, 373 (1924). See State v. Koo, 647 P.2d
889, 892 (Okla.Crim.App.), cert. denied, 103 S.Ct. 447 (1982)(any result over which a party
does not have control can be considered to be chance).
By way of contrast, a card counterone who uses a point system to keep track of the cards
that have been playeddoes not alter any of the basic features of the game. He merely uses
his mental skills to take advantage of the same information that is available to all players.
The evidence adduced at Martin's preliminary hearing was sufficient on the elements of
conduct and intent to warrant binding him over for trial, and indicates that he was or should
have been on notice that his conduct was proscribed by NRS 465.083 and NRS 199.480. We
therefore reverse the order of the district court dismissing the charges against Martin, and
remand the matter to the district court for trial.
____________
99 Nev. 342, 342 (1983) State v. Connery
THE STATE OF NEVADA, Appellant, v. DANIEL
RAY CONNERY, Respondent.
No. 14280
April 29, 1983 661 P.2d 1298
Motion to dismiss appeal, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
State appealed from an order of the district court which dismissed an information charging
defendant with one count of robbery with use of a deadly weapon. Upon defendant's motion
to dismiss the appeal, the Supreme Court held that: (1) criminal rule of procedure governing
period of time during which a timely notice of appeal must be filed, which conflicted with a
preexisting procedural statute, superseded the statute and controlled; thus, State's notice of
appeal, which was filed within 30 days of entry of order dismissing information, was timely,
and (2) rule of appellate procedure governing required content of a notice of appeal in a
criminal case superseded an inconsistent statute.
Motion denied.
Brian McKay, Attorney General, Carson City; and Robert J. Miller, District Attorney,
Peter L. Flangas, Las Vegas, for Respondent.
1. Criminal Law.
Criminal rule of procedure governing period of time during which a timely notice of appeal must be filed,
which conflicted with a preexisting procedural statute, superseded the statute and controlled; thus, State's
notice of appeal, which was filed within 30 days of entry of order dismissing information, was timely.
NRAP 4(b); NRS 177.066.
2. Criminal Law.
In a criminal case a judgment or order is entered when it is both signed by judge and filed with the clerk.
NRAP 4(b).
3. Constitutional Law; Courts.
Judiciary has inherent power to govern its own procedures, and that power includes right to promulgate
rules of appellate procedure as provided by law; although such rules may not conflict with the State
Constitution or abridge, enlarge or modify any substantive right; authority of judiciary to promulgate
procedural rules is independent of legislative power, and may not be diminished or compromised by
legislature. NRS 2.120.
4. Courts.
Where rule of procedure is promulgated in conflict with a preexisting procedural statute, the rule
supersedes the statute and controls.
5. Courts.
A procedural rule may alter time during which an appeal may be taken and supersede a statute to the
contrary.
6. Criminal Law.
Rule of appellate procedure governing required content of a notice of appeal in a criminal case
superseded an inconsistent statute. NRAP 3(c); NRS 177.075, subd. 3.
OPINION
Per Curiam:
The state has appealed from an order of the district court dismissing an information
charging respondent with one count of robbery with use of a deadly weapon. Respondent has
moved to dismiss the appeal on several procedural grounds. We find respondent's contentions
to be without merit, and deny the motion to dismiss.
[Headnote 1]
Respondent first contends that the state's notice of appeal was not timely filed, and that
accordingly we lack jurisdiction to entertain the appeal. Morrell v. Edwards, 98 Nev. 91, 640
P.2d 1322 (1982); see also Hill v. Warden, 96 Nev. 38, 604 P.2d S07 {19S0).
807 (1980). The court below orally granted the motion to dismiss the information on June 14,
1982. The written order granting the motion was entered on July 16, 1982,
1
and the state
filed its notice of appeal on July 19, 1982.
Respondent's contention that the notice is untimely is based on NRS 177.066, which
requires that in all criminal cases other than those involving a death sentence, an appeal to
the supreme court from a judgment or order must be taken within 30 days after its rendition.
(Emphasis added.) Since rendition is the oral pronouncement of a judgment or order, see
Lind v. Raynor, 69 Nev. 164, 243 P.2d 783 (1952); see also Scherer v. State, 89 Nev. 372,
513 P.2d 1232 (1973), respondent contends that the state had to file its notice of appeal
within 30 days of the date the district court orally granted the motion to dismiss, and not
within 30 days of the date of entry of the written order, as provided by NRAP 4(b).
In this case, the state's notice was filed well within the 30-day period for a timely notice as
defined by NRAP 4(b), but beyond the 30-day period as defined by NRS 177.066.
Respondent notes that the rule and the statute are in conflict with respect to the time for the
timely filing of a notice of appeal, but argues that the statute should control over the rule
primarily because the oral pronouncement of judgment is a judicial act, and the entry of
judgment is merely a ministerial one, performed by the clerk.
[Headnote 2]
Initially, we note that in a criminal case a judgment or order is entered when it is both
signed by the judge and filed with the clerk. NRAP 4(b). Accordingly, entry is more than a
mere ministerial act by the clerk. This is not dispositive of the issue raised by respondent,
however, since the statute and the rule measure the time for filing of a notice of appeal from
the commission of two different judicial acts: rendition and entry of judgment. In many
criminal actions, as in the instant one, rendition of judgment or order may precede entry of
the written
____________________

1
There were actually two written orders entered granting the motion to dismiss. The first, entered June 21,
1982, was prepared by respondent as prevailing party, but never served on the office of the district attorney. The
second, entered July 16, 1982, the order appealed from, was prepared by the state and submitted to the court
because the state was under the impression, due to the failure of respondent to serve the first order, that no order
had been entered. Because of the substantial confusion created by the existence of two written orders granting
relief, created at least in part by respondent, we consider respondent's argument that the state has appealed from
a null order to be without merit. Sheriff v. Blasko, 98 Nev. 327, 647 P.2d 371 (1982); see Ross v. Giacomo,
97 Nev. 550, 635 P.2d 298 (1981).
judgment or order by several days. Consequently, if the time for filing a notice of appeal is to
be measured in accordance with the statute, many notices of appeal filed within the time
limits set forth by NRAP 4(b) will not be timely. Thus, we must determine whether the rule
or the statute is to control.
[Headnotes 3, 4]
The judiciary has the inherent power to govern its own procedures, and this power
includes the right to promulgate rules of appellate procedure as provided by law. NRS 2.120;
see Goldberg v. District Court, 93 Nev. 614, 572 P.2d 521 (1977). Although such rules may
not conflict with the state constitution or abridge, enlarge or modify any substantive right,
NRS 2.120, the authority of the judiciary to promulgate procedural rules is independent of
legislative power, and may not be diminished or compromised by the legislature. Goldberg v.
District Court, supra. We have held that the legislature may not enact a procedural statute that
conflicts with a pre-existing procedural rule, without violating the doctrine of separation of
powers, and that such a statute is of no effect. Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851
(1969). Furthermore, where, as here, a rule of procedure is promulgated in conflict with a
pre-existing procedural statute, the rule supersedes the statute and controls. See State v.
Griffith, 539 P.2d 604 (Idaho 1975); State v. Doe, 566 P.2d 117 (N.M. Ct.App. 1977). See
also Page v. Clark, 592 P.2d 792 (Colo. 1979).
2

[Headnote 5]
As a result, NRAP 4(b) may supersede NRS 177.066 and may govern the period of time
during which a timely notice of appeal must be filed, so long as the rule does not conflict with
the state constitution or alter a substantive right. Clearly, the rule does not conflict with the
constitution, and although the right to appeal is a substantive one, the manner in which an
appeal is taken is a matter of procedure. State v. Birmingham, 392 P.2d 775 (Ariz. 1964)
(opinion on reh'g); State v. Arnold, 183 P.2d 845 (N.M. 1947); State v. Doe, supra. A
procedural rule may alter the time during which an appeal may be taken and supersede a
statute to the contrary. State v. Arnold, supra.
____________________

2
Several earlier Nevada cases contain language to the effect that a rule of court may never conflict with a
statute. See Graff v. Shipman Bros., 67 Nev. 610, 222 P.2d 497 (1950); Roberts v. Roberts, 63 Nev. 459, 174
P.2d 611 (1946); American Sodium Co. v. Shelley, Et Al., 51 Nev. 26, 267 P. 497 (1928); Ex Rel. Williams v.
District Court, 48 Nev. 459, 233 P. 843 (1925); Twaddle v. Winters, 29 Nev. 88, 89 P.289 (1906); Haley v.
Eureka Co. Bank, 20 Nev. 410, 22 P. 1098 (1889). That language, in all of these cases, is dicta. In Lindauer, we
noted this with respect to the language in Twaddle and Haley. 85 Nev. at 436, 456 P.2d at 854-55.
Accordingly, we hold that NRAP 4(b) supersedes NRS 177.066 and that notices of appeal
in criminal cases are timely if filed in accordance with the provisions of the rule. We thus
conclude that the state's notice of appeal in this case, filed within 30 days of entry of the order
dismissing the information, was timely filed.
[Headnote 6]
Respondent also argues that the state's notice of appeal is fatally defective because if fails
to set forth all the information required by NRS 177.075(3). The state responds that its notice
is in compliance with NRAP 3(c), which requires less information that the statute.
3
While
expressing no opinion as to whether a notice of appeal that is defective in content may result
in a dismissal of the appeal, we are of the opinion that the foregoing discussion resolves the
conflict between NRS 177.075(3) and NRAP 3(c). We consequently hold that NRAP 3(c)
supersedes the statute and governs the required content of a notice of appeal in a criminal
case.
Respondent's contentions being without merit, the motion to dismiss the appeal is denied.
4

____________________

3
NRS 177.075(3) requires that a notice of appeal contain the title of the case; the name and address of the
appellant and his or her attorney; a general statement of the offense; a concise statement of the judgment or
order appealed from, including its date and any sentence imposed; the place of confinement if the defendant is
in custody, and a statement that the appellant appeals from the judgment or order. In contrast, NRAP 3(c)
provides only that a notice of appeal shall specify the party or parties taking the appeal, designate the judgment
or order appealed from, and name the court to which the appeal is taken. See NRAP, Appendix of Forms, Form
1 (sample notice of appeal).

4
Chief Justice Noel E. Manoukian and Justice John Mowbray voluntarily disqualified themselves from
consideration of this case.
____________
99 Nev. 346, 346 (1983) Andolino v. State of Nevada
SAM ANDOLINO and MARIE ANDOLINO, Appellants, v. THE STATE OF
NEVADA and NEVADA DEPARTMENT OF HIGHWAYS, Respondents.
No. 13932
April 29, 1983 662 P.2d 631
Appeal from order directing verdict in defendants' favor. Eighth Judicial District Court,
Clark County; Robert G. Legakes, Judge.
Injured motorists brought action for negligence in clearing freeway ramp of ice and snow.
freeway ramp of ice and snow. The district court entered summary judgment in favor of all
defendants, and motorists appealed. The Supreme Court, 97 Nev. 53, 624 P.2d 7 (1981),
affirmed in part, reversed in part, and remanded. On remand, the district court refused to take
judicial notice of holding on appeal and granted defendants' motion for directed verdict.
Motorists appealed. The Supreme Court held that: (1) decision on prior appeal, to effect that
defendants had duty to maintain highways and keep them reasonably safe for traveling public,
was law of the case, in that it went to essence of the case, and on remand mandated finding
that defendants had jurisdiction and control over area in question; (2) trial court erred in
failing to take judicial notice of law of the case as propounded in decision on prior appeal; (3)
trial court erred in refusing to allow motorists to reopen their case-in-chief to introduce
evidence of essential element of defendants' jurisdiction of responsibility for segment of
involved highway; and (4) error in directing verdict in favor of defendants was not harmless,
in view of trial court's finding that dismissal on alternative ground urged on appeal by
defendants, namely, failure of motorists to prove negligence, would be improper.
Nitz, Schofield & Walton, Las Vegas, for Appellants.
Brian McKay, Attorney General, Karen Heggie and Roger Comstock, Deputy Attorneys
General, Carson City, for Respondents.
Decision by the Supreme Court on prior appeal in negligence action against the State and others for
failure to clear freeway ramp of ice and snow, to effect that defendants had duty to maintain highways and
keep them reasonably safe for traveling public, was law of the case, in that it went to essence of case, and
on remand mandated finding that defendants had jurisdiction and control over area in question. NRS
408.020 et seq., 408.285, 481.027.
2. Evidence.
Law of the case, as found in reported court opinions, is necessarily included within ambit of judicial
notice. NRS 47.140, 47.150.
3. Appeal and error.
Trial court erred in failing to take judicial notice of law of the case as propounded in decision of the
Supreme Court on prior appeal in negligence action, particularly where counsel addressed the trial court
regarding reasoning and holding of the Supreme Court in prior appeal and copy of prior decision and order
were made part of trial record. NRS 47.140, 47.150.
4. Trial.
Generally, decision to reopen case for introduction of additional evidence is within sound discretion of
trial court.
5. Trial.
Leave to amend and reopen should be freely given in order that justice may be done.
6. Trial.
Where essential element of party's case can be easily and readily established by reopening case, refusal to
allow case to be reopened will most often constitute abuse of discretion.
7. Trial.
In negligence action against the State and others for failure to clear freeway ramp of ice and snow, trial
court's refusal to allow plaintiffs to reopen their case-in-chief to introduce evidence of essential element of
defendants' jurisdictional responsibility for segment of involved highway was error, particularly where trial
judge seemingly accepted proposition that plaintiffs had proved defendants' highway jurisdiction prior to
resting case and then suggested, after plaintiffs had rested, that necessary proof to that effect had not been
adduced. NRS 408.020 et seq., 408.285, 481.027.
Trial court's dismissal of negligence action upon failure to take judicial notice of law of the case was not
harmless, in view of trial court's finding that dismissal on alternative ground urged on appeal by
defendants, namely, failure of plaintiffs to prove negligence, would be improper; the Supreme Court would
not substitute its judgment for that of the trial court in that regard. NRS 47.140, 47.150.
OPINION
Per Curiam:
The facts giving rise to appellants' cause of action in this case have already been set forth
by this Court in Andolino v. State, 97 Nev. 53, 624 P.2d 7 (1981). In our decision in that
case, we held that respondents owed an affirmative duty to maintain the highways and keep
them reasonably safe for the traveling public.
1
Having determined that governmental
immunity did not apply to respondents and that summary judgment in their favor was
improper, we remanded the case to the district court for further proceedings.
____________________

1
It should be noted that NRS 481.027, which we cited as the basis for imposing a duty on the Department of
Highways to maintain the highways, relates to NRS 408.285, which, at the time this cause of action accrued,
read, in part: [t]he highways which are constructed, reconstructed, improved and maintained by the department
in accordance with the provisions of this chapter shall be state highways, and the department shall be charged
with the responsibility of such construction, reconstruction improvement and maintenance, . . . The quoted part
of the statute now reads: [t]he highways which are constructed, reconstructed, improved and maintained by the
department in accordance with the provisions of this chapter are state highways, and the department is
responsible for their construction, reconstruction, improvement and maintenance, . . . The department was
changed from the Department of Highways to the Department of Transportation in 1979. See 1979 Nev. Stats.
ch. 683, at 1762, 1763.
favor was improper, we remanded the case to the district court for further proceedings. We
specified that the question of respondents' negligence was a question of fact. Id. at 55.
After remand, the parties proceeded to trial. Plaintiffs' case consisted of testimony of both
plaintiffs, in which the facts of the snowstorm and the automobile collision were established.
2
During the course of the trial, the judge specifically stated that plaintiffs had proved
respondents obligation to clear the roadway in question.
After plaintiffs had rested, defendants moved, under NRCP 41(b), to dismiss the case on
the ground that plaintiffs had not proved that defendants had breached their duty of care to
plaintiffs. The motion was denied.
Plaintiffs then moved the court to reopen their case in chief in order to publish the
deposition of Neil Emigh, or alternatively, to allow Mr. Emigh to testify, as he was present
under a subpoena from the defense. The motion, which was made in order that Emigh's
testimony regarding respondents' duty of care be submitted, was a renewal of an earlier
motion to place Emigh's deposition in evidence. That motion had been withdrawn upon the
trial court's suggestion that the testimony would be better introduced as rebuttal evidence
after the defense had presented its case. While this second motion to admit Emigh's testimony
was pending, the trial judge suggested sua sponte that plaintiffs had not established that the
scene of the subject accident was under the jurisdiction of the Department of Highways.
Plaintiffs countered that any such deficiency could be remedied by the testimony of Mr.
Emigh.
Plaintiffs also directed the trial court's attention to this Court's holding in the prior appeal
and moved the court to take judicial notice of it. The motion was denied. Defendants
successfully moved for a directed verdict on the court's suggestion that it would entertain
such a motion. In the order directing the verdict for the defendants, the court specifically
determined:
[T]hat because the plaintiffs had failed to present any evidence to prove the defendants
had jurisdiction or control of the roadway on which the accident occurred, the
defendant was entitled, as a matter of law, to a directed verdict.
Appeal from that order was taken. We reverse.
____________________

2
Prior to trial, counsel stipulated to the extent of plaintiffs' injuries and the amount of resulting damages.
Thus, proof of these matters was not adduced.
LAW OF THE CASE
[Headnote 1]
The doctrine of law of the case has long been accepted in Nevada law. As early as 1895, in
Wright v. Carson Water Co., 22 Nev. 304, 39 P. 872, we said where an issue has once been
adjudicated by a first appeal, that adjudication is the law of that case in subsequent
proceedings. Regarding a determination made in an earlier appeal which this Court found
went to the essence of the case, this Court stated:
The decision is the law of the case, not only binding on the parties and their privies, but
on the court below and on this court itself. A ruling of an appellate court upon a point
distinctly made upon a previous appeal is, in all subsequent proceedings in the same
case upon substantially the same facts, a final adjudication, from the consequences of
which the court cannot depart.
Id. at 308. See also Crosman v. Southern Pacific Co., 44 Nev. 286, 194 P. 839 (1921); Bottini
v. Mongolo, 45 Nev. 252, 200 P. 451 (1921); Barrett v. Franke, 48 Nev. 175, 228 P. 306
(1924); State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944); LoBue v. State ex rel.
Department of Highways, 92 Nev. 529, 554 P.2d 258 (1976).
In the instant case, this Court's determination in the prior appeal that respondents had a
duty to maintain the highways of necessity mandated the finding that the respondents had
jurisdiction and control over the area in question. This determination goes to the essence of
the case in the court below. It is the law of the case which bound the trial court on remand.
The district court's failure to recognize and follow the law of the case was error.
JUDICIAL NOTICE
[Headnote 2]
The Nevada statutes regarding judicial notice do not specifically cover mandatory notice
of the law of the case. NRS 47.140 provides, in pertinent part:
Matters of Law. The laws subject to judicial notice are:
. . . .
2. The constitution of this state and Nevada Revised Statutes.
. . . .
7. The constitution, statutes or other written law of any other state or territory of the
United States, or of any foreign jurisdiction, as contained in a book or pamphlet
published by its authority or proved to be commonly recognized in its court.
foreign jurisdiction, as contained in a book or pamphlet published by its authority or proved
to be commonly recognized in its court.
This Court has stated that the laws of sister states, as reported in court opinions, are also
subjects for judicial notice. Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963); Choate
v. Ransom, 74 Nev. 100, 323 P.2d 700 (1978). Logically, the law of Nevada as found in
reported court opinions is similarly subject to judicial notice. The law of the case is
necessarily included within the ambit of this law.
[Headnote 3]
Under NRS 47.150, a court must mandatorily take judicial notice if requested to do so by
counsel and if provided the necessary information. In the instant case, these statutory
requirements were met. The record reflects that plaintiffs' counsel addressed the trial court
regarding the reasoning and the holding of this Court in the prior appeal, and a copy of this
Court's decision and order were made a part of the trial record.
Under ordinary circumstances, establishment of the law of the case either through proof or
through Judicial notice is unnecessary. Here, the district court's threshold error in failing to
recognize the law of the case could have been remedied by judicial notice of that law upon
counsel's request. Failure to do so compounded the error.
REOPENING THE PLAINTIFFS' CASE IN CHIEF
[Headnotes 4-6]
Generally, the decision to reopen a case for the introduction of additional evidence is
within the sound discretion of the trial court. Smith v. Smith, 511 P.2d 294 (Idaho 1973);
Foreman v. Myers, 444 P.2d 589 (N.M. 1968); Lewis v. Porter, 556 P.2d 496 (Utah 1976).
Leave to amend and reopen should be freely given in order that justice may be done. Caldwell
v. Tilford, 367 P.2d 239 (Ariz. 1962). Where an essential element of a party's case can be
easily and readily established by reopening the case, refusal to allow the case to be reopened
will most often constitute an abuse of discretion.
[Headnote 7]
Here, introduction of the evidence of the essential element of respondents' jurisdictional
responsibility for the segment of involved highway would have remedied the error made by
the court's failure to recognize the law of the case. It would also have helped rectify the
problem created by the trial judge in seeming to accept the proposition that plaintiffs had
proved defendants' highway jurisdiction prior to resting their case, and then suggesting,
after plaintiffs had rested, that necessary proof to that effect had not been adduced.
defendants' highway jurisdiction prior to resting their case, and then suggesting, after
plaintiffs had rested, that necessary proof to that effect had not been adduced. Under the
circumstances of this case, the district court's refusal to allow plaintiffs to reopen their case in
chief was error.
HARMLESS ERROR
[Headnote 8]
Respondents urge that even if the trial court was in error in directing a verdict in their
favor on the grounds stated, such error was harmless because the appellants failed to prove
negligence on the part of the respondents at trial. We disagree with respondents' contention.
Respondents urge on appeal the very contentions which were asserted unsuccessfully
below as part of their motion for dismissal. After hearing respondents' arguments, the district
court found that dismissal of the cause of action for failure to prove negligence would be
improper. This Court will not substitute its judgment for that of the district court in this
regard. See Blanchard v. Nevada State Welfare Dept., 91 Nev. 749, 542 P.2d 737 (1975);
Bangston v. Brown, 86 Nev. 653, 473 P.2d 829 (1970); Richfield Oil Corp. v. Harbor Ins.
Co., 85 Nev. 185, 452 P.2d 462 (1969).
Reversed and remanded for a new trial.
____________
99 Nev. 352, 352 (1983) Ressler v. Mahony
WILLIAM T. RESSLER, Appellant, v. KATHERINE MAHONY, Individually and as Legal
Guardian of JEAN MAHONY; JACK J. ROSS and FAY L. ROSS, Respondents.
No. 14389
April 29, 1983 661 P.2d 1294
Appeal from summary judgment; Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Kelly H. Swanson, Las Vegas, for Appellant.
Eugenia Ohrenschall, Las Vegas, for Respondents.
99 Nev. 352, 353 (1983) Ressler v. Mahony
OPINION
Per Curiam:
1

This is an appeal from a summary judgment in respondents' favor. Appellant, in his
opening brief, contends that the district court erred in granting summary judgment because
material issues of fact remained in dispute.
Respondents have filed an express confession of error. Cause appearing, and pursuant to
this express confession of error, we hereby reverse the summary judgment of the district court
and remand this matter for trial.
Mowbray, J., Zenoff, Sr. J., and Fondi, D.J., concur.
____________
99 Nev. 353, 353 (1983) Wickliffe v. Fletcher Jones of Las Vegas
ROSE E. WICKLIFFE, Appellant and Cross-Respondent, v. FLETCHER JONES OF LAS
VEGAS, INC., dba FLETCHER JONES CHEVROLET, Respondent and Cross-Appellant.
No. 13506
April 29, 1983 661 P.2d 1295
Appeal from judgment for appellant, and cross-appeal by respondent from order denying
motion to amend judgment and retax costs, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
After leased vehicle was brought into automobile dealership for routine servicing,
dealership retained vehicle to force lessee to close out lease on different leased automobile,
and lessee subsequently brought action for conversion. The district court awarded
compensatory damages to lessee, but refused to permit jury's consideration of punitive
damages, and both parties appealed. The Supreme Court held that: (1) as dealership retained
leased vehicle knowing that lessee was not in default on lease, and stated that its retention of
legal counsel allowed it, in effect, to engage in such oppressive conduct with impunity,
trial court erred in failing to instruct jury with respect to punitive damages, and {2) as
dealership's pretrial offer of judgment was defective, trial court properly refused to award
dealership costs and attorney fees.
____________________

1
Chief Justice Manoukian and Justices Springer, Steffen and Gunderson voluntarily disqualified themselves
from the decision in this appeal. Acting Chief Justice Mowbray designated Honorable David Zenoff, Senior
Justice, to participate in this appeal pursuant to Nev. Const., art. 6, 19(1)(c). The Governor assigned
Honorable Michael Fondi, District Judge, to participate in this appeal pursuant to Nev. Const., art. 6, 4.
it, in effect, to engage in such oppressive conduct with impunity, trial court erred in failing to
instruct jury with respect to punitive damages, and (2) as dealership's pretrial offer of
judgment was defective, trial court properly refused to award dealership costs and attorney
fees.
Affirmed in part, reversed and remanded for limited new trial on punitive damages.
Rickdall & Shulman, Las Vegas, for Appellant and Cross-Respondent.
Dickerson, Miles, Pico & Mitchell, and Eleissa C. Lavelle, Las Vegas, for Respondent and
Cross-Appellant.
1. Damages.
In action for breach of obligation not arising from contract, plaintiff may recover punitive damages in
addition to actual damages if defendant has been guilty of oppression or express or implied fraud or
malice; it is responsibility of trial court to determine whether, as a matter of law, plaintiff has offered
substantial evidence of malice in fact to support punitive damages instruction. NRS 42.010.
2. Bailment.
Where automobile dealership retained lessee's leased vehicle to force her to close out lease on
different leased automobile, notwithstanding that lessee was not in default on lease, and further informed
lessee that its retention of legal counsel allowed it, in effect, to engage in such cavalier and oppressive
conduct with impunity, trial court erred in failing to instruct jury with respect to punitive damages in
lessee's action for conversion of leased vehicle. NRS 42.010.
3. Costs.
Defendant's pretrial offer of judgment, which was left open for only nine days, rather than statutory
ten-day period within which other party was allowed to accept, was fatally defective, and thus, trial court
did not err in refusing to award costs and attorney fees to defendant after trial, notwithstanding that
defendant's offer of judgment was greater than amount actually recovered by plaintiff. NRCP 68.
OPINION
Per Curiam:
The instant appeal arises out of the conversion of an automobile. Appellant Rose E.
Wickliffe brought an action against respondent Fletcher Jones of Las Vegas, Inc., doing
business as Fletcher Jones Chevrolet (Fletcher Jones) for the tortious conversion of an
automobile. Although the jury awarded appellant compensatory damages, the trial court
precluded the jury from considering appellant's claim for punitive damages. In our view, this
was error. Accordingly, we remand the case to afford appellant an opportunity to present her
claim for punitive damages.
In September, 1978, appellant leased a new Mercedes Benz from respondent Fletcher
Jones. In turn, Fletcher Jones assigned this lease to Cen Val Leasing Corporation (Cen Val).
In October, 1978, appellant was telephoned by Buddy Petcock, an employee of Fletcher
Jones. Petcock told appellant that Fletcher Jones wanted her to bring in her second car, an
Oldsmobile, in order to have it appraised and sold. Appellant was leasing the Oldsmobile
from another dealer, and Cen Val was apparently concerned that appellant was leasing two
automobiles. Petcock informed appellant that, as a result, Fletcher Jones was having
difficulty obtaining their money from Cen Val.
The Mercedes lease agreement did not contain any term or provision requiring the
termination of appellant's lease on the second automobile. Appellant informed Petcock that
she would not close out the lease on the Oldsmobile because she wanted to retain the second
vehicle. With this exchange, the conversation ended. Petcock made no threat to cancel the
lease of the Mercedes, and there was no implication that Fletcher Jones might seek to recover
the vehicle if appellant did not terminate the second lease.
Shortly after her conversation with Petcock, appellant returned the Mercedes to Fletcher
Jones for routine servicing. When appellant returned for the car the following day, Petcock
informed her that Cen Val had put a hold on the car, and told appellant the car would not be
returned unless she agreed to close out the lease on the Oldsmobile. Appellant refused this
demand, and a heated exchange ensued between appellant and Petcock. Appellant's sister,
who witnessed the confrontation, testified that when appellant told Petcock the auto dealer
would hear from her lawyers, he told her, Fletcher Jones had lawyers on retainer for little
asshole cases like this. At this point, appellant left Fletcher Jones, and the dealer remained in
possession of the Mercedes.
It is undisputed that, at the time Petcock refused to return the Mercedes, appellant was not
in default on her lease. Further, Cen Val had apparently not placed a hold on the car.
1
Despite the fact Fletcher Jones was not entitled to possession of the vehicle, the dealer made
no attempt to contact appellant for ten days. At this point Fletcher Jones apparently realized it
might be in a precarious legal position, and Petcock telephoned appellant with suitably
obsequious apologies. Petcock told appellant she could come down and pick up her car, but
appellant refused on the grounds that she could not trust Fletcher Jones anymore and
could not do business with the dealer.
____________________

1
Cen Val was named in appellant's initial complaint. After discovery it became apparent that the leasing
company had not authorized or participated in the seizure of the Mercedes. Accordingly, appellant accepted Cen
Val's offer of judgment, and Cen Val is not a party to this appeal.
appellant she could come down and pick up her car, but appellant refused on the grounds that
she could not trust Fletcher Jones anymore and could not do business with the dealer. Some
time later Fletcher Jones apparently parked the Mercedes in front of appellant's home and
surreptitiously slipped the keys behind her screen front door. Appellant refused to use the car,
and some three months later it was finally removed.
Appellant subsequently brought an action against Fletcher Jones for conversion. At the
close of appellant's case-in-chief, appellant's claim for punitive damages was dismissed over
objection pursuant to a motion filed by Fletcher Jones. The district court concluded that there
was no genuine issue of material fact, even taking all the evidence in a light most favorable
to appellant on the issues of malice, fraud or oppression. Appellant was permitted, however,
to go forward with her underlying cause of action for conversion. At the end of trial, appellant
renewed her argument that she should be permitted to present her punitive damages claim to
the jury. The district court refused to instruct the jury on punitive damages, and a verdict was
subsequently entered in appellant's favor for compensatory damages alone.
[Headnote 1]
In refusing the requested jury instruction, the district court erred. This court has recognized
the right of a plaintiff to recover punitive damages in certain circumstances in order to punish
a defendant for his conduct. Allen v. Anderson, 93 Nev. 204, 207, 562 P.2d 487 (1977). In an
action for the breach of an obligation not arising from a contract, the plaintiff may recover
punitive damages in addition to actual damages if the defendant has been guilty of
oppression, fraud or malice, express or implied. See NRS 42.010. It is the responsibility of
the trial court to determine whether, as a matter of law, the plaintiff has offered substantial
evidence of malice in fact to support a punitive damages instruction. See Bader v. Cerri, 96
Nev. 352, 359, 609 P.2d 314 (1980); Village Development Co. v. Filice, 90 Nev. 305,
315-316, 526 P.2d 83 (1974).
[Headnote 2]
This court has previously upheld punitive damage instructions and awards arising out of
wrongful repossessions. See Nevada National Bank v. Huff, 94 Nev. 506, 582 P.2d 364
(1978); Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974); Nevada Credit
Rating Bur. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972). In the instant case, an analysis of
Fletcher Jones's conduct indicates there was sufficient evidence presented of oppression,
fraud or malice, expressed or implied to support a punitive damage instruction.
to support a punitive damage instruction. Fletcher Jones conceded that appellant was not in
default on her lease, and that Cen Val had not placed a hold on the vehicle. Nonetheless,
when circumstances placed the automobile under Fletcher Jones's control, it appears the
dealer attempted to force appellant to accede to its demands on pain of not regaining
possession of her car. When appellant objected to Fletcher Jones's actions and attempted to
assert her rights under the leasing contract, the record indicates she was informed by a
Fletcher Jones employee that the dealer's retention of legal counsel allowed it, in effect, to
engage in such cavalier and oppressive conduct with impunity. Finally, when Fletcher Jones
realized appellant would not bow to its demands, it may be inferred that the dealer attempted
to force appellant to take back the Mercedes by parking the car in front of her home and
surreptitiously returning the keys. This conduct could properly have been found to be
wrongful conduct [that] was willful, intentional, and done in reckless disregard of its
possible results. Caple v. Raynel Campers, Inc., 90 Nev. at 344.
As appellant's theory of the case was supported by the evidence, the district court erred in
failing to instruct the jury with respect to punitive damages. See American Cas. Co. v.
Propane Sales & Serv., 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); Rocky Mtn. Produce
v. Johnson, 78 Nev. 44, 52, 369 P.2d 198, 202 (1962). There remains, however, the question
of the appropriate remedy. Appellant, who won the case and was awarded compensatory
damages, asks that we affirm the judgment but remand the cause for the limited purpose of
allowing the jury to determine punitive damages. Of course, the jury has been discharged and
cannot perform this assignment. See Bader v. Cerri, 96 Nev. at 358. We see no reason,
however, why appellant should have to litigate for a second time issues relating to the
conversion and compensatory damages which are not challenged by Fletcher Jones.
Accordingly, this case is remanded for a limited new trial on the issue of punitive damages.
Cf. Finnell v. Bromberg, 79 Nev. 211, 381 P.2d 221 (1963).
[Headnote 3]
In addition to remanding the case for a limited new trial, we dismiss respondent Fletcher
Jones's cross-appeal. Before trial, Fletcher Jones made an offer of judgment in the amount of
$5,000 plus costs pursuant to NRCP 68.
2
Appellant obtained a judgment against Fletcher
Jones of $5,141.56, a sum which included prejudgment interest.
____________________

2
NRCP 68 provides in pertinent part:
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
judgment against Fletcher Jones of $5,141.56, a sum which included prejudgment interest. In
its cross-appeal, Fletcher Jones argues that the district court erred in failing to award costs
and attorney's fees to the dealer, as Fletcher Jones's offer of judgment ($5,000 plus $147.50 in
costs incurred to the time of trial) was greater than the $5,141.56 recovered by appellant.
Fletcher Jones's argument is without merit. We note that the offer of judgment is defective
on its face. The offer was made March 19, 1981, and states it would remain in effect until
March 27, 1981. Thus, the offer was open for a maximum of nine days. NRCP 68, however,
affords a party who is served with an offer of judgment ten days to accept. The offer of
judgment failed to comply with NRCP 68 in a material aspect, and therefore was defective.
Cf. Conolly v. S.S. Karina II, 302 F.Supp. 675 (E.D.N.Y. 1969) (offer of judgment fatally
defective where it gave less than notice required, omitted costs and was less than amount of
judgment including interest). Accordingly, the district court did not err in failing to award
costs and attorney's fees to Fletcher Jones.
The other issues raised by the parties have been considered and are without merit.
Accordingly, the case is remanded for a limited new trial on the issue of punitive damages.
____________________
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. If within 10 days after the service of the offer the adverse party serves written
notice that the offer is accepted, either party may then file the offer and notice of acceptance together
with proof of service thereof and thereupon the clerk shall enter judgment. . . . If the judgment finally
obtained by the offeree is not more favorable than the offer, the offeree shall not recover costs, nor
attorneys' fees, but shall pay the costs and attorneys' fees, if any be allowed, of the party making the offer
from the time of the offer. (Emphasis added.)
____________
99 Nev. 358, 358 (1983) State ex rel. Dep't Transp. v. Thompson
STATE OF NEVADA, on Relation of its Department of Transportation, Petitioner, v. THE
HONORABLE J. CHARLES THOMPSON, Judge of the Eighth
Judicial District Court of the State of Nevada, in and for the County of Clark, and
BARBARA J. HOOVER, Respondents.
No. 14462
May 10, 1983 662 P.2d 1338
State filed petition for writ of mandamus to compel district court to dismiss a personal
injury suit filed against it. The Supreme Court held that judicial economy and sound judicial
administration militate against the utilization of mandamus petitions to review orders
denying motions to dismiss and motions for summary judgment, and therefore, although
Supreme Court retains the power to entertain such petitions, in the exercise of its
discretion, it will no longer utilize that power.
administration militate against the utilization of mandamus petitions to review orders denying
motions to dismiss and motions for summary judgment, and therefore, although Supreme
Court retains the power to entertain such petitions, in the exercise of its discretion, it will no
longer utilize that power.
Petition denied.
Brian McKay, Attorney General, Roger D. Comstock, Deputy Attorney General, Carson
City, for Petitioner.
Bell, Leavitt & Green, and Mark Lerner, Las Vegas, for Respondents.
1. Mandamus.
A writ of mandamus may be issued by Supreme Court to compel the performance of an act which law
requires as a duty resulting from an office, trust or station; mandamus is an extraordinary remedy, and the
decision as to whether a petition will be entertained lies within the discretion of Supreme Court. NRS
34.160.
2. Mandamus.
A petitioner is never entitled to a writ of mandamus; even when mandamus is available as a remedy,
Supreme Court is not compelled to issue the writ because it is purely discretionary.
3. Mandamus.
Judicial economy and sound judicial administration militate against the utilization of mandamus petitions
to review orders denying motion to dismiss and motions for summary judgment, and therefore, although
Supreme Court retains the power to entertain such petitions, in the exercise of its discretion, it will no
longer utilize that power.
OPINION
Per Curiam:
Petitioner is the defendant in a personal injury lawsuit pending in the district court. Instead
of answering the complaint, petitioner filed a motion to dismiss the suit based on the statute
of limitations. See NRCP 12(b)(5). The district court denied the motion to dismiss, and
petitioner now seeks a writ of mandamus to compel the district court to dismiss the suit.
1
For
the reasons set forth below, we deny the petition for writ of mandamus.
[Headnote 1]
A writ of mandamus may be issued by this court to compel the performance of an act
which the law requires as a duty resulting from an office, trust or station.
____________________

1
The papers presented to the district court on the motion to dismiss included matters outside of the pleadings.
In such a case, the motion shall be treated as one for summary judgment. NRCP 12(b).
resulting from an office, trust or station. NRS 34.160. Mandamus is an extraordinary remedy,
and the decision as to whether a petition will be entertained lies within the discretion of this
court.
2
Poulos v. District Court, 98 Nev. 453, 652 P.2d 1177 (1982); Kussman v. District
Court, 96 Nev. 544, 612 P.2d 679 (1980).
In the case of Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), the majority opinion
held that mandamus would be available in certain cases to challenge orders denying motions
for summary judgment. The ruling in Dzack was premised on language in NRCP 56(e), which
states that when a motion for summary judgment is made and supported as provided in the
rule, the adverse party must set forth facts showing that there is a genuine issue for trial. The
majority opinion in Dzack ruled that when the adverse party has not shown a genuine issue
for trial, NRCP 56(e) makes it the duty of the district court to enter summary judgment. 80
Nev. at 349, 393 P.2d at 612.
The dissent in Dzack pointed out that mandamus is not available to control the exercise of
the district court's discretion. In the dissent's view, a district court's decision on a summary
judgment motion is discretionary, and mandamus would therefore be inappropriate.
In 1979, in another split decision, this court decided the case of State ex rel. Dep't Hwys.
v. District Court, 95 Nev. 715, 601 P.2d 710 (1979). A majority of the court in that case ruled
that the Dzack doctrine should be extended to allow review of district court orders denying
motions to dismiss. The dissent in Dep't Hwys. argued that neither prior case law nor court
rules justified the extension of mandamus to orders denying motions to dismiss.
[Headnote 2]
Although both Dzack and Dep't Hwys. discussed the question of whether mandamus was
available, neither of those cases discussed, to any significant extent, the question of whether
sound judicial administration justified this court's exercise of its discretion in favor of
entertaining mandamus in those contexts.3 Indeed, the majority opinion in Dzack spoke
in terms of the petitioner being "entitled" to mandamus.
____________________

2
Although the Nevada Constitution gives us the power to issue mandamus, the Constitution does not indicate
any type of case in which we are required to entertain a mandamus petition. Nev. Const. art. 6, 4. Furthermore,
NRS 34.160 states that the writ may be issued by this court. Such language is an express indication that
mandamus is a discretionary writ. Finally, we note that NRAP 3A(b)(5), which specifically deals with the use of
mandamus to review an order denying summary judgment, states that such an order may be reviewed in a
mandamus proceeding. The word may is permissive. NRAP 1(e)(8).
its discretion in favor of entertaining mandamus in those contexts.
3
Indeed, the majority
opinion in Dzack spoke in terms of the petitioner being entitled to mandamus. As
mentioned above, however, a petitioner is never entitled to a writ of mandamus. Even when
mandamus is available as a remedy, we are not compelled to issue the writ because it is
purely discretionary.
For example, in Kussman v. District Court, supra, the petitioner challenged an order
denying a pretrial writ of habeas corpus based on lack of probable cause. We expressly
recognized that we have the constitutional power to review such an order through a
mandamus proceeding. We also recognized, however, that we are not compelled to exercise
that power. 96 Nev. at 545-46, 612 P.2d at 680. We concluded in Kussman that judicial
economy and sound judicial administration generally will militate against the utilization of
mandamus to review pretrial probable cause determinations. 96 Nev. at 546, 612 P.2d at
680. Thus, we exercised our discretion against entertaining petitions for writs of mandamus in
that context.
[Headnote 3]
We recently noted in Poulos v. District Court, supra, that in the years since Dzack we have
received an increasing number of petitions arising out of the summary judgment context. In
Poulos we indicated that we have exercised our discretion sparingly and have limited the
scope of Dzack. Nevertheless, mandamus petitions have continued to inundate this court,
challenging denials of motions for summary judgment and motions to dismiss. We must now
decide whether it is in the best interest of this court, and of the Nevada judicial system as a
whole, for us to continue to entertain such petitions. We concluded that it is not.
We recognize that our issuance of a writ of mandamus might, in an individual case, have
desirable effects by saving some expenses for the litigants and by removing the case from the
district court's calendar. Nevertheless, very few meritorious petitions of this kind have been
filed in this court. In the last two years, for example, this court summarily denied nearly 80
percent of all petitions for extraordinary writs. Even in cases where we ordered the
respondents to file answers, see NRAP 21(b), the number of writs actually issued was
minimal. Thus, the vast majority of these petitions have not had the desirable effects
mentioned above.
____________________

3
Even in Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971), where the court expressly declined to
overrule Dzack, the court did not substantially consider the discretionary nature of mandamus.
effects mentioned above. Instead, such petitions have generally been quite disruptive to the
orderly processing of civil cases in the district courts, and have been a constant source of
unnecessary expense for litigants.
In addition, an enormous amount of time and effort has been expended by this court and its
staff in the processing of these petitions. In light of the ever-increasing caseload of this court,
the few petitions with arguable merit do not justify a continued use of our valuable resources
in processing mandamus petitions challenging orders denying motions to dismiss and motions
for summary judgment.
We conclude, as we did in Kussman, that judicial economy and sound judicial
administration militate against the utilization of mandamus petitions to review orders denying
motions to dismiss and motions for summary judgment. Therefore, although we reaffirm the
principle that we have the power to entertain such petitions under Dzack and Dep't Hwys., in
the exercise of our discretion we will no longer utilize that power.
The present petition challenges the district court's order denying a motion to dismiss. As
noted earlier, the motion should have been treated as a motion for summary judgment.
Regardless of our characterization of the district court's order, and for the reasons expressed
above, we decline to entertain the petition.
Petition denied.
____________
99 Nev. 362, 362 (1983) Wilson v. State
EDWARD THOMAS WILSON and JOHN STEVEN OLAUSEN, Appellants,
No. 12346
JOHN STEVEN OLAUSEN and EDWARD THOMAS WILSON, Appellants,
13267
May 10, 1983 664 P.2d 328
Appeal from judgment of conviction, following guilty pleas to murder, robbery with the
use of a deadly weapon and kidnapping with the use of a deadly weapon; imposition of the
death penalty by a three judge panel (No.12346); and denial of motions to withdraw guilty
pleas (No.13267). Second Judicial District Court, Washoe County; Peter I. Breen, Michael E.
Fondi and John F. Mendoza, Judges.
Defendants pled guilty to murder, robbery with use of deadly weapon, and kidnapping
with use of deadly weapon, and the district court sentenced defendants to death.
Subsequently, trial court denied defendants' motions to withdraw their guilty pleas, and
defendants appealed from denial of their motions, from judgment of conviction, and from
imposition of death penalty. The Supreme Court, Manoukian, C.J., held that: (1) neither
district attorney's statement that he was not seeking death penalty only to support integrity of
his office, his aggressive argument and presentation of aggravating circumstances, nor
inadvertent inclusion of defendant in notice of intent to seek death penalty breached
agreement not to seek death penalty; (2) trial court was not precluded from imposing death
penalty because defendant had pled guilty to first degree murder prior to district attorney's
notice to seek death penalty; (3) defendants were not rendered ineffective assistance of
counsel by tactical decision to plead guilty to keep from being exposed to jury; (4)
defendants' guilty pleas were freely and voluntarily given; and (5) trial court properly found
robbery, kidnapping, and murder for pecuniary gain as aggravating circumstances in
sentencing defendants.
Affirmed.
[Rehearing granted August 24, 1983, for a limited purpose.]
David G. Parraguirre, Acting Washoe County Public Defender, and N. Patrick Flanagan,
Special Deputy Public Defender, Reno, for Appellant Olausen.
Fred H. Atcheson, Reno, for Appellant Wilson.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward
B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where district attorney had informed defendant that he would not seek death penalty if defendant would
give whereabouts of murder victim, but victim was found before defendant could do so, district attorney's
statement that he would not seek death penalty for defendant only to support integrity of his office was not
breach of purported agreement, nor was prosecutor's aggressive argument and presentation of aggravating
circumstances in defendant's post-conviction sentencing hearing, or inadvertent inclusion of defendant's
name on Notice of Intent to Seek the Death Penalty, where district attorney specifically told sentencing
panel that he was not seeking death penalty against defendant. NRS 175.552.
2. Criminal Law.
Where defendant charged with first degree murder was informed numerous times that he could be
sentenced to death and was informed that district attorney would be seeking death penalty,
prosecutor was not precluded from seeking, nor trial court from imposing, death
penalty, merely because district attorney had not provided notice of intent to seek
death penalty prior to defendant's guilty plea.
that district attorney would be seeking death penalty, prosecutor was not precluded from seeking, nor trial
court from imposing, death penalty, merely because district attorney had not provided notice of intent to
seek death penalty prior to defendant's guilty plea. NRS 175.552.
3. Criminal Law.
Standard by which claim of ineffective assistance of counsel is to be tested is whether counsel's
performance was of such low caliber as to reduce proceedings to sham, farce, or pretense.
4. Criminal Law.
On convicted defendant's claim of ineffective assistance of counsel, strong presumption exists that duties
of trial counsel have been fully discharged, and such presumption can be overcome only by strong and
convincing proof to contrary.
5. Criminal Law.
Where record revealed that both trial counsel performed in competent manner and that their performance
did not reduce proceedings in first degree murder prosecution to sham, farce, or pretense, defendants were
not denied effective assistance of counsel simply because their attorneys encouraged them to plead guilty
so that they would be sentenced by three-judge panel rather than be exposed to jury.
6. Criminal Law.
District court's ruling on motion to set aside guilty plea is discretionary and will not be reversed absent
clear abuse of discretion.
7. Criminal Law.
Where trial court conducted extremely thorough canvass of both defendants to assure that defendants
knowingly waived their right to trial, voluntarily pled guilty, and fully understood consequences of their
pleas, defendants freely and voluntarily entered guilty pleas to murder, robbery with use of deadly weapon,
and kidnapping with use of deadly weapon.
8. Homicide.
Where defendant freely and voluntarily pled guilty to first degree murder upon theories of premeditation
and deliberation, as well as robbery and kidnapping, sentencing panel properly found robbery during which
murder occurred to be aggravating circumstance.
9. Homicide.
In prosecution for murder, robbery with use of deadly weapon, and kidnapping, evidence that stabbing of
victim did not immediately cause his death, and that he was still alive when transported to place where
body was subsequently hidden, was sufficient to sustain kidnapping conviction, and thus, kidnapping was
properly used as aggravating circumstance in sentencing defendants on guilty plea to first degree murder.
10. Homicide.
In sentencing defendants after their guilty pleas to first degree murder upon theories of premeditation and
deliberation, sentencing panel properly found robbery and kidnapping of which defendants had also been
convicted as two separate aggravating factors pursuant to statute providing that first degree murder was
aggravated when committed during course of certain enumerated felonies. NRS 200.033, subd. 4.
11. Homicide.
Where, pursuant to agreement, defendant gave accomplices $3,500 for stabbing victim during course of
robbery, killing was in nature of "hired gun" situation, and thus, panel sentencing
defendants after their guilty pleas to first degree murder properly found murder for
pecuniary gain as aggravating circumstance in addition to aggravating circumstance
of robbery.
nature of hired gun situation, and thus, panel sentencing defendants after their guilty pleas to first degree
murder properly found murder for pecuniary gain as aggravating circumstance in addition to aggravating
circumstance of robbery. NRS 200.033, 200.033, subd. 6.
OPINION
Appellants pleaded guilty to murder, robbery with the use of a deadly weapon, and
kidnapping with the use of a deadly weapon. A penalty hearing was held, after which a three
judge panel sentenced appellants to death.
1
Subsequently, appellants moved to withdraw
their guilty pleas. The lower court denied their motions and appellants appealed from the
denial of their motions, from the judgment of conviction and from the imposition of the death
penalty. Appellants proffer several grounds for reversal. For reasons hereinafter set forth,
however, we find no reversible error and affirm.
1. The Facts.
In the afternoon of June 24, 1979, Officer James Hoff of the Reno Police Department,
posing as a narcotics dealer, met with appellant Wilson to discuss a drug transaction in which
Wilson was to sell Hoff ten ounces of cocaine for $16,000. During the meeting, Wilson and
Hoff made arrangements for the sale to take place that night around midnight. Later in the
day, Wilson, along with appellant Olausen, approached David Lani and Fred Stites and told
them that they were making a drug deal and that they wanted to murder the dealer. Wilson
then asked Lani and Stites to assist in the murder. The four proceeded to discuss how and
where the killing could be done. Lani told the group that he knew a place by the Riverside
Convalescent Center where the killing could take place. They then devised a plan to kill Hoff
because they wanted to take the money and they did not want any witnesses.
All four purchased baking powder as a substitute for the cocaine. Later on in the evening
they placed the baking powder and three knives in a duffel bag and walked to the
Convalescent Center. Once there, they cut and gathered bushes under which to hide when
Wilson returned with Hoff.
____________________

1
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.
to hide when Wilson returned with Hoff. Wilson then left the area to contact Hoff.
Meanwhile, the other three remained at the Convalescent Center where they hid in the bushes,
each armed with a knife.
On June 25th, at 12:10 a.m., Hoff met Wilson at the El Tavern Motel in Reno. Before this
meeting, Hoff had obtained $16,000 in $100 bills which were photocopied and their serial
numbers recorded. Then Hoff and another officer installed a Kel listening device on Hoff's
vehicle. Finally, numerous surveillance teams were dispatched throughout the area to observe
the transaction. Unfortunately, shortly after Hoff met Wilson, the listening device
malfunctioned; therefore, both audio and visual contacts were lost on several occasions
throughout the night.
After the rendezvous, Hoff and Wilson drove around Reno until approximately 1:30 a.m.,
at which time Hoff parked the car in a wooded area near the Riverside Convalescent Center.
As Hoff and Wilson got out of the car, Lani jumped out of the bushes and stabbed Hoff in the
back. The others came out of their hiding places and together stabbed Hoff an additional eight
times. About fifteen minutes later, the vehicle left the wooded area at a high rate of speed
heading west toward Verdi, Nevada.
The vehicle was lost by the surveillance teams somewhere near Verdi and it was not
spotted again until approximately 3:15 a.m. At that time, backup units were called in to stop
the car. Nevertheless, the car was not found until much later. It was unoccupied and stained
with blood.
After discovery of the automobile, a search for Hoff and the suspects was initiated. In the
afternoon of June 25th, appellants were found sleeping in some bushes alongside a trailer
park. On the ground between appellants, officers found a vest containing $1,670. Fourteen of
the sixteen hundred dollar bills in the vest matched those photocopied by Hoff. Wilson and
Olausen were immediately placed under arrest. A few hours later, officers found the body of
James Hoff buried under a pile of rocks in a drainage ditch in Verdi, Nevada. Stites and Lani
were subsequently arrested in Oklahoma. They were returned to Nevada, after which all four
defendants pleaded guilty.
2

2. The Guilty Pleas.
In Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), we concluded that certain
minimum requirements must be met when a judge canvasses a defendant regarding the
voluntariness of a guilty plea. We held that the record must affirmatively show the
following: {1) the defendant knowingly waived his privilege against self-incrimination,
the right to trial by jury, and the right to confront his accusers; {2) the plea was
voluntary, was not coerced, and was not the result of a promise of leniency; {3) the
defendant understood the consequences of his plea and the range of punishments; and
{4) the defendant understood the nature of the charge, i.e., the elements of the crime. Id.
at 7S1, 476 P.2d at 963.
____________________

2
Lani and Stites were sentenced to life in prison without the possibility of parole for their involvement in the
killing of Hoff and are not involved in this appeal.
when a judge canvasses a defendant regarding the voluntariness of a guilty plea. We held that
the record must affirmatively show the following: (1) the defendant knowingly waived his
privilege against self-incrimination, the right to trial by jury, and the right to confront his
accusers; (2) the plea was voluntary, was not coerced, and was not the result of a promise of
leniency; (3) the defendant understood the consequences of his plea and the range of
punishments; and (4) the defendant understood the nature of the charge, i.e., the elements of
the crime. Id. at 781, 476 P.2d at 963. As to this last requirement, we subsequently held that
in order for the record to show an understanding of the nature of the charge it is necessary that
there be either a showing that the defendant himself understood the elements of the offense to
which the plea was entered or a showing that the defendant has made factual statements to the
court which constitute an admission to the pleaded to offense. Hanley v. State, 97 Nev. 130,
135, 624 P.2d 1387, 1390 (1981). In the instant case, the record demonstrates that the district
judge fully complied with the requirements of Higby and Hanley by conducting a thorough
canvass of Olausen and Wilson before accepting their pleas. Nevertheless, both appellants
contend that their pleas were not freely and voluntarily entered. We will discuss the claims of
each appellant separately below.
[Headnote 1]
Shortly after Olausen's arrest, the chief criminal deputy district attorney for Washoe
County informed Olausen that the District Attorney's Office would not seek the death penalty
if he told the authorities the whereabouts of James Hoff. Olausen accepted this bargain. As
Olausen directed the authorities toward Verdi, however, an announcement came over the
police radio that Hoff's body has been located. Although the District Attorney did not feel that
he was legally obligated to keep the promise of his deputy, he agreed that he would not
affirmatively seek the death penalty against Olausen in order to support the integrity of his
office. Olausen first contends that the District Attorney's demeaning treatment of his own
promise and his aggressive argument at the penalty hearing violated the implicit terms of the
plea agreement. We disagree.
Without citing any authority, appellant argues that the District Attorney breached the
agreement when he stated that he would not seek the death penalty but that he was only doing
so to support the integrity of his office. Because Olausen has cited no authority in support of
this contention, we need not consider it. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d
1025 {1979).
(1979). Nevertheless, due to the gravity of the offense and consequent penalty, we are
constrained to address the claim. A similar argument was made in Bergman v. Lefkowitz, 569
F.2d 705 (2d Cir. 1977). There, the appellant claimed that the prosecutor breached his
promise when he grudgingly made the sentence recommendation he had promised. In
holding that such an attitude did not violate the prosecutor's promise, the court in Bergman
stated:
We perceive no dispositive significance in this. In almost all cases where a prosecutor
agrees in a plea bargain to make a sentence recommendation, he is recommending not
what he wants but something less, which the agreement requires. This is the very
essence of the bargain and the sentencing judge is well aware of it.
Id. at 714. We find the reasoning in Bergman applicable to the instant case.
Olausen also contends that the prosecutor's aggressive argument and his presentation of
aggravating circumstances violated the implicit terms of the agreement; for support Olausen
relies primarily on the case of Commonwealth v. Alvarado, 276 A.2d 526 (Pa. 1971). In
Alvarado the prosecutor promised not to seek the death penalty if the accused pleaded guilty
to rape and murder. The accused claimed that the prosecutor breached the agreement when he
reviewed the aggravating circumstances and argued the viciousness of the crime and the
accused's lack of remorse. The Supreme Court of Pennsylvania agreed with the accused in
holding that the state had breached its promise by making damning statements at the time of
sentencing. Accordingly, the court vacated the sentence of death and sentenced Alvarado to
life in prison.
Alvarado, However, is readily distinguished from the instant case. In reaching its decision,
the Alvarado court reasoned:
To determine the content of the plea bargain we must consider what the defendant
might have reasonably interpreted it to be. (Citation omitted.) Here, Alvarado might
have reasonably believed that the prosecutor's promise not to seek the death penalty
included a commitment not to make any damning or even potentially damning
statements at the time of sentencing. As so interpreted, that promise was clearly
violated.
Id. at 529. In the case before us, Olausen could not have possibly interpreted the District
Attorney's promise not to affirmatively seek the death penalty as including a commitment not
to argue aggravating circumstances.
argue aggravating circumstances. Throughout the canvass, Olausen was repeatedly informed
that, even though the District Attorney was not affirmatively seeking the death penalty, he
was not precluded from presenting and arguing aggravating circumstances. Furthermore, the
lower court continually warned Olausen that, even though the death penalty was not being
sought, the three judge panel was not bound by any promises and it could impose the death
penalty in light of the aggravating circumstances that would be presented at the penalty
hearing. On numerous occasions, Olausen stated that he was fully aware of the extent of the
promise, that he understood the District Attorney would be able to present aggravating
circumstances and that a sentence of death was still a possibility.
During his closing remarks, the District Attorney specifically reminded the sentencing
panel of his promise by stating:
Now, I would like to turn just for a minute to Olausen with regard to the death penalty.
I have already discussed the fact that we did make a promise not to seek the death
penalty. I do not want anything that I say to be interpreted as seeking the death penalty.
I am not seeking the death penalty against Mr. Olausen.
The District Attorney then closed his argument by asking for death for the other three
defendants. At no time did he ask that the death penalty be imposed on Olausen. Under these
circumstances, we cannot say that the District Attorney breached his promise not to
affirmatively seek the death penalty even though he did argue aggravating circumstances, nor
can we say that Olausen's plea was not freely and voluntarily entered.
3

Finally, Olausen contends that the District Attorney violated the plea bargain by filing a
Notice of Intent to Seek the Death Penalty against all the defendants, including Olausen.
The notice also contained five aggravating circumstances which the District Attorney planned
to present during the penalty hearing. Although the Notice of Intent to Seek the Death Penalty
is not required by statute, the Washoe County District Attorney's Office routinely files such a
document in order to comply with the provisions of NRS 175.552.4 Olausen cites
Santobello v. New York, 404 U.S. 257 {1971), in support of his claim.
____________________

3
Indeed, we believe the District Attorney would have been remiss had he not presented aggravating
circumstances. In addition to the death sentence, there remained the potential sentences of life with the
possibility of parole and life without. If the District Attorney had not argued as aggressively as he did, the three
judge panel could have handed down a sentence of life with the possibility of parole for which parole eligibility
begins in ten years.
the provisions of NRS 175.552.
4
Olausen cites Santobello v. New York, 404 U.S. 257
(1971), in support of his claim.
The accused in Santobello entered into a plea bargain with the District Attorney whereby
he agreed to plead guilty to two counts on the District Attorneys's promise not to make a
recommendation as to sentence. During sentencing, however, another prosecutor replaced the
prosecutor who had negotiated the plea. The new prosecutor, unaware of the bargain,
recommended the maximum sentence. In vacating the judgment and remanding the case for
resentencing, the United States Supreme Court stated:
This phase of the process of criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to insure the defendant what
is reasonably due in the circumstances. Those circumstances will vary, but a constant
factor is that when a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.
Id. at 262.
The record before us leaves no doubt that the District Attorney did fulfill his promise not
to affirmatively seek the death penalty. During the canvassing of Olausen, which occurred
before the District Attorney filed the Notice of Intent, he made of record the full extent of the
plea negotiations with Olausen. As previously mentioned, the prosecution informed the court
that it was not seeking death. The prosecution stated it would argue and present aggravating
circumstances and that the court was free to impose whatever sentence it deemed appropriate.
Additionally, Olausen's attorney testified that he was not concerned when he received the
Notice of Intent nor did he believe it had any real significance because of the extensive
canvassing to which his client was subjected and because the District Attorney had already set
forth the negotiations on the record during the canvassing. In addition, the District Attorney
informed Olausen's attorney that his secretary had inadvertently included Olausen's name on
the notice. The District Attorney assured him that the notice did not involve Olausen and that
he was abiding by his promise not to seek the
____________________

4
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 death
penalty.defendant before the commencement of the penalty hearing.
death penalty. Finally, as already noted, during the penalty hearing the District Attorney
specifically informed the three judge panel that he was not seeking death for Olausen and at
no time during the penalty phase did he argue for it. In the context of this case, we find that
the District Attorney did not breach his promise and that Olausen freely and voluntarily
entered his guilty plea. Therefore, we conclude that Santobello is inapplicable.
[Headnote 2]
We now turn to Wilson's claim that his plea was not voluntarily entered because he did not
understand the consequences of his plea due to a secret plan between himself and his
attorney. The nature of this so-called secret plan is as follows: The four attorneys for the
various defendants often got together to discuss the case and strategy. Due to the
overwhelming evidence of guilt, the attorneys believed that it was in the best interests of their
clients to plead guilty. The attorneys believed that, if their clients pleaded guilty before the
District Attorney filed the Notice of Intent, they could argue that the prosecutor was
precluded from seeking the death penalty because he had not provided notice prior to the
guilty pleas. According to two of the attorneys, they did not really believe that the lack of
notice was a valid argument; however, they felt that it would at least create an appellate issue
should the proceedings be free of error. Appellant Wilson now seeks to use the precise issue
that the attorneys created to contend that he did not understand the consequences of his plea
because he believed that he could not be sentenced to death since he pleaded guilty prior to
the filing of the Notice of Intent. This contention is without factual support.
On numerous occasions, the lower court asked Wilson if he understood that he could be
sentenced to death. Each time Wilson responded that he understood that fact. Wilson was
informed that the District Attorney would be seeking the death penalty and that he would be
attempting to prove various aggravating circumstances so that the death sentence could be
imposed. On several occasions, Wilson stated that he understood that he could be sentenced
to death, but he still wanted to plead guilty. Finally, Wilson stated that he understood that if
the three judge panel did impose the death penalty there was no appeal by virtue of his guilty
plea. In light of the thorough canvassing of Wilson, there is no doubt that he understood that
he could be sentenced to death. Accordingly, we also find that Wilson's plea was freely and
voluntarily entered.
3. Ineffective Assistance of Counsel.
[Headnotes 3, 4]
Wilson and Olausen both contend that their pleas were not entered with the effective
assistance of counsel because their attorneys encouraged them to plead guilty so that they
would be sentenced by a three judge panel rather than be exposed to a jury. This advice and
recommendation complained of are largely tactical decisions. We have previously held that
we will not second guess such matters when they relate to trial strategy. Rodriguez v. State,
91 Nev. 782, 542 P.2d 1065 (1975); Watkins v. State, 93 Nev. 100, 560 P.2d 921 (1977).
This is so even if better tactics appear in retrospect to have been available. Id. at 102, 560
P.2d at 922, quoting United States v. Stern, 519 F.2d 521, 524 (9th Cir. 1975), cert. denied,
423 U.S. 1033 (1975). In addition, it is a well settled rule in this state that the standard by
which a claim of ineffective assistance of counsel is to be tested is whether counsel's
performance was of such a low caliber as to reduce the proceedings to a sham, farce or
pretense. Shuman v. State, 94 Nev. 265, 578 P.2d 1183 (1978); Sturrock v. State, 95 Nev.
938, 604 P.2d 341 (1979); Lenz v. State, 97 Nev. 65, 624 P.2d 15 (1981). Moreover, a strong
presumption exists that the duties of trial counsel have been fully discharged. That
presumption can only be overcome by strong and convincing proof to the contrary. Shuman v.
State, supra; Lenz v. State, supra; Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
[Headnote 5]
Although Wilson did express some dissatisfaction with his attorney, our review of the
record reveals that both counsel performed in a competent manner and their performance did
not reduce the proceedings to a sham, farce or pretense.
5
Therefore, we conclude that
appellants were not denied the effective assistance of counsel.
4. Denial of Motions to Withdraw Guilty Pleas.
After sentencing, both appellants moved to withdraw their guilty pleas on the ground that
they were not freely and voluntarily entered.
6
After conducting a lengthy evidentiary hearing,
the district court denied their motions.
____________________

5
Furthermore, we believe that the representation afforded both appellants satisfied the less stringent test
recognized by the Ninth Circuit Court of Appeals, i.e., whether counsel has rendered reasonably effective
assistance. See Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977, cert. denied, 440 U.S. 974 (1979).

6
Except as provided in NRS 176.225, a motion to withdraw a plea of guilty or of nolo contendere may
be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his plea.
the district court denied their motions. Appellants contend that the lower court erred in so
doing. We disagree.
[Headnotes 6, 7]
We have previously held that a plea of guilty is presumptively valid. Wynn v. State, 96
Nev. 673, 675, 615 P.2d 946, 947 (1980). In addition, a district court's ruling on a motion to
set aside a guilty plea is discretionary and will not be reversed unless there has been a clear
abuse of that discretion. Wynn v. State, supra; State v. District Court, 85 Nev. 381, 455 P.2d
923 (1969). In the case before us, the record is devoid of any evidence of an abuse by the
lower court. On the contrary, the district court, as previously discussed, conducted an
extremely thorough canvass of both appellants in compliance with the requirements of Higby
and Hanley. It is clear that Wilson and Olausen voluntarily pleaded guilty and at all times
understood the consequences of their pleas. Discerning no abuse of discretion on the part of
the district court, we affirm the denial of appellants' motions.
5. Robbery as an Aggravating Circumstance.
[Headnote 8]
The three judge panel found as an aggravating circumstance that the murder was
committed while defendants were engaged in the commission of a robbery with the use of
deadly weapons. Appellants contend that, since the state was proceeding on the theory of
felony-murder, it was error to include robbery as an aggravating circumstance. In support of
their position, appellants rely on State v. Cherry, 257 S.E.2d 551 (N.C. 1979), cert. denied,
446 U.S. 941 (1980). There, the accused was found guilty of felony-murder. During the
penalty phase, the trial court submitted the underlying felony, a robbery, to the jury as an
aggravating circumstance. The North Carolina Supreme Court reversed, holding that the
underlying felony should not be submitted to the jury as an aggravating circumstance when it
has been used to obtain a conviction of first degree murder.
The infirmity in appellants' argument and in their reliance on Cherry is that appellants
pleaded guilty to first degree murder upon the theories of premeditation and deliberation, as
well as robbery and kidnapping.
7
Under these circumstances, other courts, including the
court in Cherry, have held that it is permissible to use the felony as an aggravating
circumstance. See also State v. Goodman, 257 S.E.2d 569 (N.C. 1979); cf. State v. Pritchett,
621 S.W.2d 127 {Tenn.
____________________

7
Because we need not reach the issue of whether robbery may be employed as an aggravating circumstance
when the conviction of first degree murder was predicated on the felony-murder rule, we express no opinion
regarding that issue herein and decline to adopt the reasoning of the North Carolina Court in Cherry v. State, 257
S.E.2d 551 (N.C. 1979).
v. Pritchett, 621 S.W.2d 127 (Tenn. 1981) (underlying felony can be used as an aggravating
circumstance under any set of circumstances.) In Cherry, the court specifically noted that the
defendant was convicted under the felony-murder rule and the judge never mentioned
premeditation and deliberation. The court continued by stating:
Nothing we have said herein should be construed to foreclose consideration of the
aggravating circumstances . . . when a murder occurred during the commission of one
of the enumerated felonies but where the defendant was convicted of first degree
murder on the basis of his premeditation and deliberation. In such case, the jury should
properly consider the aggravating circumstances in determining sentence.
Cherry, 257 S.E.2d at 568. In Goodman, supra, the North Carolina Court once again
explained the limitation created in the Cherry decision. The court reiterated that under the
rule set forth in Cherry the underlying felony can be presented as an aggravating
circumstance only when the defendant is convicted of first degree murder upon the theory of
premeditation and deliberation. The Goodman court went on to hold that the defendant was
found guilty upon the theory of premeditation and deliberation as well as by virtue of the
felony-murder rule; therefore, the lower court did not err in submitting to the jury the
aggravating circumstances of burglary and robbery. Accordingly, we conclude that the three
judge panel properly found the robbery as an aggravating circumstance because appellants
were convicted of first degree murder based upon the theories of premeditation and
deliberation as well as the felony-murder rule.
6. Kidnapping as an Aggravating Circumstance.
[Headnote 9]
Appellants entered into plea negotiations whereby they agreed to plead guilty to first
degree kidnapping in return for the District Attorney's promise that the plea would not be
used as a judicial admission, but would be proven through independent evidence. Appellants
claim that the stabbing immediately caused Hoff's death and that, consequently, there was
insufficient evidence to establish the aggravating circumstance of kidnapping. We disagree.
The standard for determining the sufficiency of the evidence in a criminal case is set forth
in Jackson v. Virginia, 443 U.S.
307 (1979). In Jackson, the United States Supreme Court stated:
After Winship the critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction must be not simply to determine whether the jury was
properly instructed but to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a
court to ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt. (Citation omitted.) Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.
Id. at 318-319 (emphasis in original).
In the instant case, there was testimony by two different witnesses that appellants'
co-defendants had stated that Hoff was still moaning or groaning when he was placed in
the car and that he died in the car as they were being chased through town. There was also
testimony from several witnesses that Hoff's body was wrapped in a sheet before being placed
in the car. This sheet was still wrapped around the body when it was found buried in Verdi.
The sheet contained several knife slits suggesting that Hoff had been stabbed in the car while
he was still alive. Finally, the doctor who performed an autopsy on Hoff testified that Hoff
did not die instantly; he stated he could have lived as long as twenty minutes. Under these
circumstances, a reasonable trier of fact could have concluded beyond a reasonable doubt that
the movement and confinement of Hoff increased the risk of harm to Hoff. If Hoff had been
left at the location where he was stabbed, the surveillance teams in the area may have been
able to reach him in time to provide some form of assistance. See Langford v. State, 95 Nev.
631, 600 P.2d 231 (1979); Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Therefore, a
review of the record in the light most favorable to the prosecution indicates that a rational
factfinder could have found the appellants perpetrated a kidnapping with the use of deadly
weapons.
[Headnote 10]
Appellants also claim that the three judge panel erred by finding robbery and kidnapping
as two separate aggravating factors because only one aggravating circumstance can be found
for the felonies listed in NRS 200.033{4).S Without citing any relevant authority,
appellants contend that statutory construction mandates that only one aggravating
circumstance can be found under this section regardless of the number of felonies
actually committed.
found for the felonies listed in NRS 200.033(4).
8
Without citing any relevant authority,
appellants contend that statutory construction mandates that only one aggravating
circumstance can be found under this section regardless of the number of felonies actually
committed. We cannot agree.
A logical reading of the statute requires that each felony be used as an aggravating
circumstance. First degree murder is aggravated when it is committed during the course of
one of the enumerated felonies contained in NRS 200.033(4). Therefore, when the murder is
committed during the course of more than one of the felonies listed, the murder is more
aggravated and heinous than it would have been if only one of the felonies were present.
Moreover, other jurisdictions confronted with the issue have held that any of the enumerated
felonies that have been committed during a murder can properly be used as aggravating
circumstances even though they are found in the same subdivision of the statute. See, e.g.,
Washington v. State, 362 So.2d 658 (Fla. 1978), cert. denied, 441 U.S. 937 (1979) (robbery
and burglary found as separate aggravating circumstances); Legare v. State, 257 S.E.2d 247
(Ga. 1979), cert. denied, 444 U.S. 984 (1979) (armed robbery and burglary found as separate
aggravating circumstances); State v. Shaw, 255 S.E.2d 799 (S.C. 1979), cert. denied, 444
U.S. 957 (1979) (rape, kidnapping and armed robbery found as separate aggravating
circumstances).
7. Murder for Pecuniary Gain as an Aggravating Circumstance.
[Headnote 11]
The third and final aggravating circumstance found by the three judge panel was that the
appellants committed the murder for the purpose of receiving money. Appellants claim that
the panel erred by finding that robbery and murder for pecuniary gain are two separate
aggravating circumstances because murder for pecuniary gain as found in NRS 200.033(6) is
limited to the hired gun situation.
9
According to the testimony of Lani, appellants came
to the motel room he shared with Stites to discuss the killing of a drug dealer.
____________________

8
The murder was committed while the person was engaged, or was an accomplice, in the commission
of or an attempt to commit flight after committing or attempting to commit, any robbery, sexual assault,
arson in the first degree, burglary or kidnapping in the first degree.

9
The only circumstances by which murder of the first degree may be aggravated are:
. . .
6. The murder was committed by a person, for himself or another, for the purpose of receiving money
or any other thing of monetary value.
According to the testimony of Lani, appellants came to the motel room he shared with
Stites to discuss the killing of a drug dealer. Wilson told Lani and Stites that they needed
some help to kill Hoff and offered to pay them $3,500 for their participation. Pursuant to the
agreement, they were given $3,500 for stabbing Hoff. Under these circumstances, we find
that the killing of Hoff was in the nature of a hired gun situation; therefore, we decline to
consider the issue of whether the statute is limited solely to contract-type killings.
The other issues raised by appellants have been considered and we find them to be without
merit. Accordingly, we affirm the judgments of conviction, together with the sentences of
death.
Mowbray and Steffen, JJ., concur.
Gunderson, J., with whom Springer, J., agrees, concurring:
These appeals relate principally to determinations of a three-judge panel, which sentenced
appellants following the entry of guilty pleas. In this procedural context, it does not appear to
us that any of the rulings in question constituted prejudicial error.
____________
99 Nev. 377, 377 (1983) Sheriff v. Miley
SHERIFF, WASHOE COUNTY, NEVADA, Appellant,
v. JERRY MILEY, Respondent.
No. 14627
May 19, 1983 663 P.2d 343
Appeal from order granting pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; James H. Thompson, Judge.
State appealed from dismissal by the district court of charges of lewdness with child under
age of 14 and battery with intent to commit sexual assault. The Supreme Court, Steffen, J.,
held that there was probable cause to indict the defendant for the charged crimes.
Reversed.
Springer and Gunderson, JJ., dissented.
Mills B. Lane, District Attorney, Washoe County, for Appellant.
David G. Parraguirre, Acting Public Defender, Washoe County, for Respondent.
1. Indictment and Information.
In grand jury proceedings, state need only show that crime has been committed and that accused probably
committed it.
Finding of probable cause to support criminal charge may be based on slight, even marginal evidence
because it does not involve determination of guilt or innocence of accused.
3. Criminal Law.
To commit accused for trial, state is not required to negate all inferences which might explain his
conduct, but only to present enough evidence to support reasonable inference that accused committed
offense.
4. Habeas Corpus.
Grant of pretrial habeas petitions for lack of probable cause requires finding of substantial error.
In light of victim's testimony, there was sufficient probable cause, satisfying slight evidence standard,
to indict defendant for lewdness with child under age of 14 and battery with intent to commit sexual
assault. NRS 200.400, subd. 3, 201.230.
OPINION
On August 4, 1982, Jerry Miley was charged by indictment with: (1) attempted murder in
violation of NRS 200.010 and NRS 208.070; (2) child abuse causing substantial bodily and
mental harm in violation of NRS 200.508; (3) lewdness with a child under the age of fourteen
(14) in violation of NRS 201.230; and (4) battery with intent to commit sexual assault
causing substantial bodily harm in violation of NRS 200.400(3). Thereafter, Miley petitioned
the district court for a pretrial writ of habeas corpus contending that the evidence presented at
the grand jury proceeding was insufficient to establish probable cause for the above four
charges. After a hearing, the district court concluded that insufficient evidence was presented
to support the charges of lewdness with a child under the age of fourteen and battery with
intent to commit sexual assault. Accordingly, these charges were dismissed from the
indictment and Miley was held for trial only on charges of attempted murder and child abuse.
This appeal by the state followed. We reverse.
The evidence presented to the grand jury established that the victim, a 12-year-old female
child, was staying at a motel one evening with her mother, her one-year-old sister, and Jerry
Miley. The victim's mother had left the motel room, however, to go to work. The victim
testified that she was lying on the bed watching television.
watching television. She was wearing a nightgown and underpants. Miley lunged at her and
began choking her while pinning her legs to the bed. Additionally, she testified that Miley put
a pillow over her face so she could not breathe. She lost and regained consciousness
periodically during the attack. She awoke to find blood running from her nose, mouth and
throat. She was still wearing her nightgown; it was covered with blood. An ambulance was
called by a neighbor and the victim was taken to the hospital. The treating physician testified
to her numerous injuries including blood in the white areas of her eyes, bruised areas on her
face and abrasions on her neck. He noted that her injuries were consistent with strangulation.
He also discovered a clear fluid at the entrance of her vagina which was sent for a sperm
analysis.
1
He testified that the victim was not wearing underpants.
[Headnotes 1-3]
In grand jury proceedings, the state need only show that a crime has been committed and
that the accused probably committed it. 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). 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).
[Headnotes 4, 5]
Our dissenting brethren view the majority holding as an assault on the integrity of this
court's ruling in Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981). We do not so view it.
The vitality of Provenza remains, including the standard of substantial error which it
enjoins us to find as a predicate to overturning the granting of pretrial habeas petitions for a
lack of probable cause. We must, however, apply that standard in the context of the state's
burden to support a probable cause determination by evidence which is only slight or
marginal. Here, it is again noted that the record reflects the following salient testimony: (a)
at the time the victim was attacked, there were three persons present (the victim, her
one-year-old sister and Miley); (b) immediately prior to the attack, Miley was sitting at the
head of the bed in his shorts, and the victim was lying at the foot of the bed in her
underpants and nightgown watching television; {c) there had been no arguing between
Miley and the victim; {d) without apparent provocation, Miley attacked the victim and
commenced choking her and covering her face with a pillow; {e) the victim lost
consciousness periodically during the attack and awoke from her final such episode to the
screaming of her baby sister and the loud banging on the door by a neighbor; {f) the
victim was bleeding from her nose and mouth, her nightgown was full of blood, and when
the neighbor saw her he rushed to the phone; {g) the victim was taken to the hospital by
ambulance; {h) the victim said she "couldn't tell" whether her underpants were on at the
time she struggled from the bed to her neighbor at the door; {i) when the victim arrived at
the hospital she heard someone "mention something" about her underpants; and {j) she
had "no idea" where her underpants were finally discovered.
____________________

1
The results of this analysis were not introduced at the grand jury proceeding.
victim was lying at the foot of the bed in her underpants and nightgown watching television;
(c) there had been no arguing between Miley and the victim; (d) without apparent
provocation, Miley attacked the victim and commenced choking her and covering her face
with a pillow; (e) the victim lost consciousness periodically during the attack and awoke from
her final such episode to the screaming of her baby sister and the loud banging on the door by
a neighbor; (f) the victim was bleeding from her nose and mouth, her nightgown was full of
blood, and when the neighbor saw her he rushed to the phone; (g) the victim was taken to the
hospital by ambulance; (h) the victim said she couldn't tell whether her underpants were on
at the time she struggled from the bed to her neighbor at the door; (i) when the victim arrived
at the hospital she heard someone mention something about her underpants; and (j) she had
no idea where her underpants were finally discovered.
In light of the foregoing testimony, the slight evidence standard is clearly satisfied. It
hardly offends reason to infer from the foregoing circumstances that Miley was sexually
motivated to attack the child. She knew she was wearing her underpants prior to the assault,
and although in her traumatized state immediately after reviving from her last period of
unconsciousness she couldn't tell whether she was still wearing her underpants, it is most
likely or at least inferable that she would have known thereafter if someone had removed
them. At the time she was examined by the emergency room physician she was not wearing
underpants and she had no idea what had happened to them. It would appear that one would
have to strain to infer the likelihood of the removal of her underpants by ambulance personnel
while enroute to the hospital. It seems equally strained to assume that the child, who was
sufficiently alert to notice someone mentioning the subject of her underpants at the hospital,
was unaware of the removal of this garment by hospital personnel if indeed such had
occurred. The force of reason would thus seem to support the inference that the child's
underpants were removed by Miley during the unprovoked assault. The fact that all other
possible inferences are not eliminated by the testimony of record does not prevent a
determination of probable cause. Kinsey v. Sheriff, supra.
The slight evidence standard is a salutary one which facilitates the legitimate public
expectancy that persons charged with criminal conduct will be held to answer such charges
when evidence exists upon which it may be reasonably inferred that the person so charged
actually committed the offense. While considerations of judicial economy and fundamental
fairness are important, they must not outweigh the state's imperative to prosecute those
who are fairly within the probable cause category.
are important, they must not outweigh the state's imperative to prosecute those who are fairly
within the probable cause category. In the instant case, as in all others, the state will have to
prove Miley's guilt beyond a reasonable doubt. It should be allowed the opportunity to do so.
Based on the evidence presented to the grand jury, we believe there was probable cause to
indict Miley for lewdness with a child under the age of fourteen and battery with intent to
commit sexual assault. Furthermore, under the circumstances presented here, we conclude
that the district court committed substantial error in granting Miley's petition. See Sheriff v.
Provenza, supra. Accordingly, the order granting the pretrial writ of habeas corpus is
reversed. The charges of lewdness with a child under fourteen and battery with intent to
commit sexual assault are hereby reinstated.
2

Manoukian, C.J., and Mowbray, J., concur.
This is an appeal from an order granting a pretrial writ of habeas corpus. The order had the
effect of dismissing two counts of a four-count indictment. The majority opinion holds that
the district court committed substantial error. I disagree and therefore dissent.
Three witnesses testified at the grand jury hearing in this case. The first witness was a
doctor who examined and treated the victim in a hospital emergency room. The doctor found
bruises and abrasions on the victim's face and neck. The doctor did not perform a pelvic
examination, although there was a clear fluid at the entrance to the vagina which was sent
for a sperm analysis. Neither the doctor nor any other witness was asked about the results of
the sperm analysis, and there was no evidence as to the actual identity of the clear fluid.
Finally, the doctor answered in the affirmative when asked whether the victim's injuries were
consistent with strangulation. The doctor was not asked, however, whether anything in the
examination indicated a sexual assault.
The next witness was the victim, who testified that she and Miley were lying on a bed
watching television when he suddenly grabbed her by the throat and choked her. Miley then
partially covered the victim's face with a pillow, and the victim blacked out on and off. The
victim testified that every time she gained consciousness she was looking straight into Miley's
eyes and that he was choking her.
____________________

2
In light of this disposition, we need not address appellant's request for permission to file briefs or,
alternatively, to argue orally this appeal. NRS 34.380(5).
eyes and that he was choking her. Finally, the victim blacked out for quite a while, and she
woke to a banging on the door. At that time she was bleeding and injured, and she was till
wearing her nightgown. The victim was taken in an ambulance to the hospital. The following
testimony appears in the record with respect to the victim's underpants:
Q. Do you know whether or not you still had your underpants [when you woke up]?
A. I couldn't tell.
Q. Did you later find out something about your underpants?
A. Yeah. When I got to the hospital. I heard someone mention something about it.
Q. Where were your underpants finally discovered?
A. I have no idea.
Q. Okay. When you were laying on the bed watching television, you had them on, is
that correct?
A. Yeah.
Q. Prior to Jerry starting to choke you?
A. Yeah.
Q. At any time do you recall taking them off?
A. No.
The final witness was the victim's mother. She testified that when she went to work on the
night of the incident she left Miley in the motel room with the victim and her other
one-year-old daughter. The mother received a call at work about the incident, so she left work
and went to the motel. Detectives who were present at the motel room would not let her into
the room, so she went to the hospital. The mother's testimony concluded primarily with a
description of the victim's injuries.
Based on this grand jury transcript, the district court found that there was not sufficient
evidence to hold Miley for trial on the charge of lewdness with a child under the age of 14,
and on the charge of battery with intent to commit sexual assault. Accordingly, the district
court granted a writ of habeas corpus as to those two charges only. The district court did not
grant the writ as to the charges of attempted murder and child abuse causing substantial
bodily harm.
This court has occasionally expressed the standard of review which should be used by a
district court in its probable cause determinations, and I have no quarrel with the cases cited
by the majority on that point. We have also, however, clearly expressed the standard of
review which should be used by this court in its review of district court probable cause
determinations. In that context we have held as follows: Considerations of judicial efficiency
provide an independent basis in support of our reluctance to review probable cause
factual determinations in pretrial matters.
Considerations of judicial efficiency provide an independent basis in support of our
reluctance to review probable cause factual determinations in pretrial matters. [Citation
omitted] . . . [B]road review by this Court of factual issues related to probable cause
would in many instances be inconsistent with sound judicial administration.
The trial court is the most appropriate forum in which to determine factually whether
or not probable cause exists. [Citation omitted] Absent a showing of substantial error
on the part of the district court in reaching such determinations, this court will not
overturn the granting of pretrial habeas petitions for lack of probable cause.
Sheriff v. Provenza, 97 Nev. 346, 347, 630 P.2d 265 (1981).
In the present case the district court based its ruling on the unexplained absence of the
victim's underpants. The district court reasoned that if the victim had testified that she woke
up in a motel room without her underpants on, then evidence might have existed that Miley
removed the victim's underpants. Without this testimony, however, and in the absence of any
evidence in the record as to where the underpants were taken off, the record simply does not
support any inferences relating to the underpants. Consequently, contrary to the conclusion of
the majority, there was no evidence that Miley removed the victim's underpants.
Perhaps the most telling things about the weakness of the state's case on the sex charges
were the prosecutor's failure to ask witnesses the most basic and crucial questions concerning
the sexual aspect of the attack and the prosecutor's failure to introduce what would have been
very important evidence on the sex charges.
As noted earlier, the prosecution did not ask the doctor what the results of the sperm test
were, and no other witness was called to testify as to the results of the test. Furthermore, the
prosecutor did not ask the doctor if the examination revealed any indication of sexual attack.
I also note that the prosecutor did not ask the victim whether Miley ever touched, or even
attempted to touch, any portions of her body other than her throat and face.
Finally, the evidence was grossly inadequate with respect to the victim's underpants. The
prosecutor did not question the victim fully on that point. In fact, the only adverse inferences
from the colloquy between the prosecutor and the victim would arise from the prosecutor's
questions rather than the victim's answers. The prosecutor may have raised some speculation
by his question as to where the underpants were "finally discovered," but the prosecutor
never introduced evidence on the point.
his question as to where the underpants were finally discovered, but the prosecutor never
introduced evidence on the point. He did not ask the victim's mother where the underpants
were found, he did not call any of the detectives to testify whether the underpants were found
in the motel room, and he did not call the ambulance attendants to testify whether the victim
was wearing underpants when she was picked up at the motel.
In my opinion, the district court would have committed error if the district court had not
granted the writ on the two sex charges in this case. The district court was unable to find
even marginal evidence to support either sex charge. Count III charges that the defendant
removed the victim's undergarments for the purpose of sexual gratification (apparently while
she was unconscious). The girl had an external examination of the pelvic area at the hospital,
and at sometime during the course of the evening her underpants were removed by herself or
persons unknown. There is no evidence that the defendant did anything of a sexual nature,
including the charge contained in Count IV that he had the intent . . . to commit sexual
assault on the girl. There is no sex in this case except possibly that which can be conjured by
creative and overactive imaginations. In any event, surely the record is not so clear as to
support the majority's finding that the district court's error was so substantial that reversal is
warranted under Provenza.
I would affirm the ruling of the district court.
I most respectfully dissent.
In general, I concur in the views expressed by Justice Springer. I might deem it
unnecessary to say, as he asserts, that the district court would have committed error if the
district court had not granted the writ on the two sex charges in this case. However, as
Justice Springer contends, I am satisfied that, at least, the district court did not err in granting
the writ as to the two sex charges but holding respondent to trial on the others.
In addition, I feel constrained to tender some observations concerning how I believe
invading the legitimate domain of our trial court judgesas I view this court's decision in this
case to dowill necessarily detract from the orderly and economical administration of
justice. Justice Springer has pointed out our recent decision in Sheriff v. Provenza, 97 Nev.
346, 630 P.2d 265 (1981). In Provenza, we explicitly recognized that the trial court is the
most appropriate forum in which to determine factually whether or not probable cause
exists.
court is the most appropriate forum in which to determine factually whether or not probable
cause exists. In such cases, we stated, we will not interfere with a district court's necessarily
discretionary ruling [a]bsent a showing of substantial error. 97 Nev. at 347. Yet,
notwithstanding this declaration, the majority have today elected to overrule the district court
in the instant case.
I feel sure no one will seriously contend that the evidence in the record before us comes
anywhere close to a quantum sufficient to support a jury verdict on the two sex-related
charges, if and when this case is brought to trial. Indeed, the majority themselves have
acknowledged as much. Moreover, even some of the supposed evidence now in the record
may well prove to be inadmissible. For example, although our colleagues in the majority
mention a clear fluid on the victims's leg, the district judge probably perceived that to allow
reference to such fluid at trial would be error, if test results are unavailable through fault of
the State. See Crockett v. State, 95 Nev. 859, 603 P.2d 1078 (1979).
In pretrial habeas matters, the function of the district courts is to screen out cases in which
the proof is so tenuous as not to justify a trial. In some cases, such as the instant one, a district
judge's proper exercise of this function entails the exercise of considerable fortitude.
Furthermore, unless district judges continue to show such fortitude, our trial courts will
become clogged with accusations which, lacking evidentiary support, either cannot succeeded
at trial or else cannot be sustained on appeal. To the extent that this court induces district
judges to clog our court system in this fashion, scarce resources will be diverted from
processing other, more meritorious cases in an expeditious manner.
We therefore should not appear to fault or to exploit the district judge in this case, by
declaring his discretionary ruling incorrect. Our Provenza decision articulates not only valid
law but also sound policy. The surest way I can think of to discourage district judges from
screening out tenuous accusations, through habeas corpus proceedings, is to convey the
message that our court will be quick to locate error whenever a district court makes such a
judgment call against the prosecution in a case involving ugly facts. Here, the alleged actions
of the respondent tend to inflame persons of normal sensibilities. Still, while the record
contains much to show a brutal physical assault, there is a paucity of evidence to show that
the brutality was sexually related.
The district judge withstood the human temptation to cast himself as "hard on crime," and
held that this case should proceed only on those charges for which the prosecution had
tendered meaningful proof, unencumbered by charges for which there appears to be
dubious if any support.
himself as hard on crime, and held that this case should proceed only on those charges for
which the prosecution had tendered meaningful proof, unencumbered by charges for which
there appears to be dubious if any support. Measured by the substantial-error standard
articulated in Provenza, this was a judgment which I am unable to declare unjustified.
____________
99 Nev. 386, 386 (1983) Hood v. Kirby
T. K. HOOD, M.D., and COLLETT, HOOD, MOREN AND READ, LTD., a Professional
Corporation, Doing Business as ELKO CLINIC, Appellants, v. DOYAL KIRBY and
NANCY KIRBY, His Wife, Respondents.
No. 13509
May 19, 1983 663 P.2d 348
Appeal from order denying motion for change of venue, Second Judicial District Court,
Washoe County; William N. Forman, Judge.
The Supreme Court held that, in order for party to demand a change of venue as a matter
of right, it must make a timely demand.
Affirmed.
Wilson, Wilson and Barrows, Elko, for Appellants.
Bradley & Drendel, Ltd., Reno, for Respondents.
Venue.
In order for party to demand a change of venue as a matter of right, the demand must be timely filed.
NRS 13.050, subd. 1; NRCP 12(a).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying a motion for change of venue.
On February 18, 1981, respondents filed an amended complaint in the district court. The
summons and amended complaint were served on the appellants on February 26, 1981.
Appellants responded by serving, on March 12, 1981, a motion and demand for change of
venue. The motion and demand were not filed in the district court, however, until March 20,
19S1, which was two days after the time for answering had expired.1 See NRCP 12{a).
99 Nev. 386, 387 (1983) Hood v. Kirby
1981, which was two days after the time for answering had expired.
1
See NRCP 12(a).
Respondents opposed the motion on the ground that the demand was not timely filed. The
district court agreed with respondents and denied the motion.
Appellants contend that the district court erred in holding that the demand must be filed
before the time for answering expires.
In order to demand a change of venue as a matter of right, the demand must be timely
filed. See Ash Springs Dev. Corp. v. Crunk, 95 Nev. 73, 589 P.2d 1023 (1979); O'Banion v.
O'Banion, 87 Nev. 88, 482 P.2d 313 (1971); Nevada Transit Co. v. Harris Bros., 80 Nev. 465,
396 P.2d 133 (1964); NRS 13.050(1). In order for the demand to be timely filed, it must be
filed before the time for answering expires. See NRS 13.050(1). The lower court
consequently did not err in refusing to order venue changed. Accordingly, the decision of the
district court is affirmed.
2

____________________

1
On that same date the district court clerk entered a default against appellants, but the default was later set
aside upon the consent of the parties.

2
Justice John Mowbray voluntarily disqualified himself from the consideration of this case.
____________
99 Nev. 387, 387 (1983) Morse v. Morse
LOIS MORSE aka LOIS RASKI, Appellant, v.
DARRELL JAMES MORSE, Respondent.
No. 13640
May 19, 1983 663 P.2d 349
Appeal from order denying motion to set aside judgment, Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Individual executed and filed petition for adoption in district court in which she averred
that she and copetitioner had resided in state since 1978, but subsequently moved to set aside
adoption order, contending that order was void for lack of subject matter jurisdiction in that
copetitioner had not met statutory residency requirement. The district court denied motion on
ground that individual was barred from challenging its jurisdiction to entertain petition for
adoption, and she appealed. The Supreme Court held that, as petition signed by individual
contained facts necessary to at least ostensibly confer jurisdiction on district court, and there
was substantial evidence that she acted freely and with understanding in stipulating to such
facts, individual was estopped from subsequently challenging district court's jurisdiction
to entertain adoption petition.
99 Nev. 387, 388 (1983) Morse v. Morse
stipulating to such facts, individual was estopped from subsequently challenging district
court's jurisdiction to entertain adoption petition.
Affirmed.
Peter L. Flangas, Las Vegas, for Appellant.
Harold M. Hecht, Las Vegas, for Respondent.
Courts.
Where petition for adoption signed by individual contained facts necessary to at least ostensibly confer
jurisdiction on district court to entertain such petition, and there was substantial evidence that individual
acted freely and with understanding in stipulating to such facts, individual was estopped from subsequently
challenging district court's jurisdiction to entertain petition for adoption.
OPINION
Per Curiam:
1

This is an appeal from an order denying appellant's motion under NRCP 60(b) to set aside
a judgment. We affirm.
In early September, 1979, appellant and respondent executed and filed a Petition for
Adoption in Clark County District Court, in which both averred that they had resided in
Nevada since July, 1978. On September 28, 1979, the district court issued an order granting
the petition.
In July 1981, appellant moved to set aside the adoption order, contending that the order
was void for lack of subject matter jurisdiction, because respondent had not met the statutory
residency requirement for filing a petition for adoption. The district court denied the motion
on the ground that appellant was barred, or estopped, from challenging its jurisdiction to
entertain the petition for adoption. This appeal followed.
The petition for adoption signed by appellant contained the facts necessary to at least
ostensibly confer jurisdiction on the district court to entertain the petition for adoption.
Further, there was substantial evidence that she acted freely and with understanding in
stipulating to these facts. Therefore, the district court properly ruled that appellant was barred,
or estopped, from challenging its jurisdiction to entertain the petition for adoption. See Boisen
v. Boisen, 85 Nev. 122, 451 P.2d 363 (1969); Grant v. Grant, 38 Nev. 185, 147 P. 451
(1915).
Accordingly, the order of the district court is affirmed.
____________________

1
Chief Justice Noel E. Manoukian and Justice John C. Mowbray voluntarily disqualified themselves from the
decision of this case.
____________
99 Nev. 389, 389 (1983) Sheriff v. Payne
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
CHRISTOPHER HARDY PAYNE, Respondent.
No. 14185
May 19, 1983 663 P.2d 350
Appeal from order granting writ of habeas corpus, Eighth Judicial District Court, Clark
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Clark
Alan B. Andrews, Las Vegas, for Respondent.
OPINION
Per Curiam:
Having reviewed this matter, we have concluded that our recent holding in Sheriff v.
Berman, 99 Nev. 102, 659 P.2d 298 (1983), is dispositive. Accordingly, we reverse the
district court's granting the writ of habeas corpus and we remand the case for trial on the
merits.
____________
99 Nev. 389, 389 (1983) Sheriff v. Potter
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. RICHARD NEIL POTTER, Respondent.
No. 14568
May 19, 1983 663 P.2d 350
Appeal from order granting petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that evidence was sufficient to establish probable cause to charge
defendant with robbery of victim from whom co-defendant took money.
Bernstein & Piazza, Las Vegas, for Respondent.
1. Habeas Corpus.
Supreme Court's review of district court's grant of pretrial petition for writ of habeas corpus was
limited to whether the district court committed substantial error in determining that there was no probable
cause.
2. Criminal Law.
Probable cause to support an information may be based on slight, even marginal evidence.
3. Criminal Law.
When the evidence is in conflict at the preliminary hearing, it is the function of the magistrate to
determine the weight to be accorded to the testimony of the witnesses, and if an inference of criminal
agency can be drawn from the evidence it is proper for the magistrate to draw it.
4. Criminal Law.
Mere presence at the scene of a crime cannot subject an accused to criminal liability.
5. Criminal Law.
Evidence was sufficient to establish probable cause to charge defendant with robbery of victim from
whom co-defendant took money. NRS 195.020, 200.380.
OPINION
Per Curiam:
An information charged respondent Richard Potter (Potter) with two counts of robbery, a
felony (NRS 200.380). The district court granted a pretrial petition for writ of habeas corpus
on the ground that there was not sufficient evidence before the magistrate to establish
probable cause to believe that Potter had committed the offense charged in the second count.
Appellant Sheriff of Clark County has appealed from the order granting the petition. We
reverse.
[Headnote 1]
This court's review is limited to whether the district court committed substantial error in
determining that there was no probable cause. Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265
(1981).
The evidence before the magistrate consisted solely of preliminary hearing testimony from
Lora Estrada (Estrada), one of the two alleged victims. The substance of her testimony is as
follows. On September 3, 1982, shortly after ten o'clock at night, Estrada was hitchhiking
with Lois Toledo (Toledo) in Las Vegas. The two women were picked up by two men
identified at the hearing as Potter and his co-defendant Ricky Foote (Foote), who was driving.
The four agreed that Toledo would supply gas money and the men would drive both women
first to the Western Union office and then to the airport. After stopping at the Western
Union office so that Toledo could obtain money for a flight to California, the men stopped
at a park where they held a whispered conversation outside the car while the women
waited inside.
stopping at the Western Union office so that Toledo could obtain money for a flight to
California, the men stopped at a park where they held a whispered conversation outside the
car while the women waited inside. Upon leaving the park, the men did not proceed to the
airport, but instead drove onto a dirt road leading to a desert dump. Foote stopped the car and
Potter got out of the front passenger seat, opened the right rear door, and jumped into the
back seat on Estrada's lap. Potter then pushed Toledo into the front seat while Foote pulled
her by the hair. Estrada heard Foote yell to Potter to [c]heck all of the pockets. Estrada was
being held by Potter, but she nonetheless saw and heard Foote demand and receive money
from Toledo in the front seat. Potter obtained $400 from Estrada and Foote received $200
from Toledo. The women were removed from the car and the men drove away.
The district court granted the petition for writ of habeas corpus solely on the ground that
the evidence linking Potter to the commission of the offense charged in the second count of
the information (the robbery of Lois Toledo) would not support a finding of probable cause
that Potter had committed the robbery.
[Headnotes 2, 3]
Probable cause to support an information may be based on slight, even marginal
evidence. Sheriff v. Lyons, 96 Nev. 298, 607 P.2d 590 (1980); see Sheriff v. Miley, 99 Nev.
377, 663 P.2d 343 (1983). Potter argued in support of his petition that Estrada's testimony
was not fully consistent. However, [w]hen the evidence is in conflict at the preliminary
examination it is the function of the magistrate to determine the weight to be accorded to the
testimony of the witnesses, and if an inference of criminal agency can be drawn from the
evidence it is proper for the magistrate to draw it. . . . Wrenn v. Sheriff, 87 Nev. 85, 87, 482
P.2d 289, 290 (1971).
In this case, the testimony of an eyewitness (Estrada) was that Potter was with Foote from
the time the two women were picked up until after the robbery, that Potter secretively
conversed with Foote just before the robbery, that their attack on the victims was
contemporaneous and coordinated, and that Potter physically assisted Foote by pushing
Toledo into the front seat as Foote pulled her. The two escaped together with the money
obtained from both women. The magistrate properly drew an inference of criminal agency
from this testimony. Under NRS 195.020, [e]very person concerned in the commission of a
felony . . . whether he directly commits the act constituting the offense, or aids or abets in its
commission . . . is a principal, and shall be proceeded against . . . as such."
principal, and shall be proceeded against . . . as such. Further, [t]his court has held that
presence, companionship, and conduct before and after the offense are circumstances from
which a defendant's participation in the criminal intent may be inferred. Merryman v. State,
95 Nev. 648, 650, 601 P.2d 53 (1979). The district court therefore committed substantial
error in finding that the evidence connecting Potter to the robbery of Toledo was insufficient
to support a finding of probable cause.
[Headnote 4]
Potter argued that his mere presence at the scene of the robbery of Toledo could not
subject him to criminal liability. This proposition is correct, see Sheriff v. Fernandez, 97 Nev.
61, 624 P.2d 13 (1981), but irrelevant in light of Estrada's testimony. The other contentions
raised by Potter in his petition below were rejected by the district court as meritless and
deserve no further discussion here.
[Headnote 5]
Consequently, we find that the evidence before the magistrate established sufficient
probable cause to charge Richard Potter with the robbery of Lois Toledo. The district court's
order granting Potter's petition for a writ of habeas corpus constituted substantial error and is
reversed, the second count of the information is reinstated, and the case is remanded for trial.
____________
99 Nev. 392, 392 (1983) Casarotto v. Mortensen
ALBERT V. CASAROTTO and DOMINICK GULLO, Appel-
lants, v. CARL MORTENSEN, Respondent.
No. 13916
May 19, 1983 663 P.2d 352
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Robert G.
Legakes, Judge.
In a suit upon a note, summary judgment was granted to the noteholder by the district
court. On appeal by the obligor, the Supreme Court held that where purchase money note and
subsequently dated agreement when read together were not clear and unambiguous, and
where conflicting evidence regarding parties' intent upon entering into the agreements was
before lower court at hearing on motion for summary judgment, issues of fact precluded
summary judgment.
Wiener, Waldman & Gordon, and Bradley J. Richardson, Las Vegas, for Appellants.
L. Earl Hawley, and Robert J. Handfuss, Las Vegas, for Respondent.
Judgment.
Where purchase money note and subsequently dated agreement when read together were not clear and
unambiguous, and where conflicting evidence regarding parties' intent upon entering into the agreements
was before lower court at hearing on motion for summary judgment, issues of fact precluded summary
judgment. NRCP 56(c)
OPINION
Per Curiam:
This is an appeal from a grant of summary judgment. Because material issues of fact were
before the lower court, we reverse.
In June, 1980, Casgul of Nevada, Inc. (Casgul), a Nevada corporation of which appellants
are officers, purchased the Nashville Nevada Club from respondent. As part of this
transaction, appellants executed an unsecured promissory note to respondent for $150,000.00
at 17 percent interest on behalf of the corporation. Appellants also signed the note
individually as cosigners. By its terms, payment on the note was due September 14, 1980.
On September 9, 1980, another agreement was entered into under which [w]e, the
undersigned agreed to pay respondent $75,000.00 as partial payment of the $150,000.00
note due September 15, 1980. . . . A payment schedule was recited in order for the balance
($75,000.00) of this note to be paid in full. That agreement, which apparently was connected
to other arrangements between the parties, indicated that the rate of interest was to be
whatever rate Mr. Mortensen pays the bank. The agreement was signed by Casgul of
Nevada, Inc., Al Casarotto, President, Nick Gullo, Treasurer.
Respondent later sued appellants as individuals for $75,000.00 under the terms of the note
signed in June, 1980. Appellants asserted as an affirmative defense that the September, 1980
agreement replaced the June note, effecting an accord and satisfaction. Appellants also
asserted that their individual liability was extinguished under the new note. Prior to the
hearing on respondent's motion for summary judgment, the court received affidavits from
both sides which alternatively characterized the September agreement as an extension
agreement and a "new note."
and a new note. Nonetheless, the court granted summary judgment for respondent.
Under our rules, summary judgment is proper 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. NRCP 56(c). Where an issue of material fact exists, summary judgment
should not be granted. McPherron v. McAuliffe, 97 Nev. 78, 624 P.2d 21 (1981).
Here, the June, 1980 note and September, 1980 agreement, when read together, are not
clear and unambiguous. Conflicting evidence regarding the parties' intent upon entering into
the agreements was before the lower court at the hearing on respondent's motion for summary
judgment. Material issues of fact were presented to the court. In view of this, the grant of
summary judgment was improper.
Because of the existence of such issues of fact, we reverse the ruling of the lower court and
remand for a full trial on the merits.
____________
99 Nev. 394, 394 (1983) Deseret Federal Credit Union v. Pignolo
DESERET FEDERAL CREDIT UNION and CUMIS INSURANCE SOCIETY, INC.,
Appellants, v. GERALD PIGNOLO, Respondent.
No. 13710
May 19, 1983 663 P.2d 354
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action was brought to rescind promissory note payable to credit union and for return of
certificate of title to automobile put up as collateral for loan, on basis that credit union
manager had represented to borrower that third party, in which loan proceeds were invested,
would be responsible for repayment of loan to credit union. The district court granted
summary judgment for borrower. Credit union appealed. The Supreme Court held that
material fact issue existed as to whether credit union manager had apparent authority to
excuse any party from repaying loan to credit union, precluding summary judgment.
[Rehearing denied June 30, 1983] Edwards, Hunt, Pearson & Hale, Ltd., and W.
Edwards, Hunt, Pearson & Hale, Ltd., and W. Randolph Patton, Las Vegas, for Appellant
Cumis Insurance Society, Inc.
Earl and Earl, Las Vegas, for Appellant Deseret Federal Credit Union.
Freedman & Whelton, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is in appropriate where material questions of fact remain.
2. Judgment.
In action to rescind promissory note payable to credit union and for return of certificate of title to
automobile put up as collateral for loan, material fact issue existed as to whether credit union manager had
apparent authority to excuse any party from repaying loan to credit union, precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment. The motion for summary judgment and the
accompanying documentation show that in September of 1978, Donald Sorenson served as
manager of appellant Deseret Federal Credit Union and as an officer of an entity know as
Capital One of Nevada. Respondent Pignolo became interested in investing in Capital One.
As a result, Pignolo allegedly borrowed $10,000 from the Deseret Federal Credit Union,
using his Corvette automobile as collateral. Pignolo purchased a cashier's check for $10,000
payable to Capital One of Nevada with the funds that he had received from the credit union.
The check was deposited into Capital One's bank account.
The motion for summary judgment and the accompanying documentation further show
that Sorenson and a Ronald Campbell assured Pignolo that Capital One would make all
principal and interest payments on Pignolo's loan with the credit union. Capital One paid
nothing on behalf of respondent Pignolo. In October of 1979, the credit union demanded
payment.
Pignolo initiated an action in district court on December 6, 1979. It was alleged, in part,
that Donald Sorenson had implied authority to make the statements regarding repayment of
the loan; that the credit union, as Sorenson's principal, was bound by the representations; and
that Pignolo would not have taken the loan but for the fraudulent acts of Sorenson and
Campbell.
The complaint principally sought a judgment rescinding Pignolo's promissory note to the
credit union and directing the return of the certificate of title to the Corvette.
Pignolo subsequently moved for summary judgment. Pignolo argued that appellant credit
union had admitted in its answer that Sorenson served as its manager both when the loan was
obtained and when the statements to Pignolo regarding repayment were made; that Sorenson
was acting within the scope of his apparent authority as manager of the credit union in
making the representations concerning repayment; and that Deseret Federal Credit Union was
liable as a principal for Sorenson's promises and actions. Pignolo submitted an affidavit in
support of his motion. Appellants opposed the motion for summary judgment and filed the
affidavit of a former board member of the credit union stating, in part, that Sorenson had no
authority to excuse a party from repaying a loan to the credit union. The district court granted
Pignolo's motion and entered judgment. This appeal followed.
[Headnotes 1, 2]
Summary judgment is inappropriate where material questions of fact remain. See Allied
Fidelity Ins. Co. v. Pico, 99 Nev. 15, 656 P.2d 849 (1983). Applying Pico to the present case,
it appears that the district court erred in granting summary judgment. One of the principal
questions presented in the litigation below is whether Sorenson had apparent authority to
relieve Pignolo of his obligation to the credit union. It would appear at this juncture that the
alleged representation that Capital One would repay the credit union loan could be imputed to
no party other than Capital One. There is no indication of record that respondent was told by
Sorenson that Deseret Federal would look only to Capital One for payment. Indeed, the fact
that Deseret Federal took respondent's certificate of title to the Corvette would strongly
suggest to the contrary. In any event, the record reveals a plethora of material issues of fact
which must be resolved by a trial on the merits.
Reversed and remanded for trial.
____________
99 Nev. 397, 397 (1983) Titanium Metals Corp. v. Clark County
TITANIUM METALS CORPORATION OF AMERICA, Appellant, v. CLARK COUNTY
DISTRICT BOARD OF HEALTH AIR POLLUTION CONTROL HEARING BOARD,
Respondent.
No. 13889
May 23, 1983 663 P.2d 355
Appeal from an order affirming an administrative determination, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Company fined for excessive atmospheric emissions appealed from an order of the district
court affirming administrative determination that company was liable for emissions. The
Supreme Court held that where county district board of health made no finding that company
did not comply with guidelines in pollution control regulations either before or after failure of
transformer serving certain air pollution control equipment at company's plant caused
excessive atmospheric emissions, board's imposition of fines for the last two of three
incidents of excessive atmospheric emissions which occurred prior to replacement of
transformer while excusing first emission on basis of equipment malfunction constituted an
arbitrary application of regulations and was an abuse of board's discretion.
Reversed.
Jones, Jones, Bell, Close & Brown, and Bruce K. Collmar, Las Vegas, for Appellant.
Colucci, Minagil & Aurbach, Las Vegas, for Respondent.
On appeal of decision of an administrative agency, function of Supreme Court, identical to that of a
district court, is to review evidence presented to agency in order to determine whether agency acted
arbitrarily or capriciously, thus abusing its discretion.
2. Health and Environment.
Where county district board of health made no finding that company did not comply with guidelines in
pollution control regulations either before or after failure of transformer serving certain air pollution
control equipment at company's plant caused excessive atmospheric emissions, board's imposition of fines
for the last two of three incidents of excessive atmospheric emissions which occurred prior to replacement
of transformer while excusing first emission on basis of equipment malfunction constituted an arbitrary
application of regulations and was an abuse of board's discretion.
OPINION
Per Curiam:
In this appeal from a district court order, appellant Titanium Metals Corporation of
America (Timet) argues that the court erred by affirming an administrative determination that
Timet is liable for certain atmospheric emissions. We agree.
On May 28, 1981, the Air Pollution Control Division of the Clark County District Board
of Health (APCD) charged Timet with having violated section 26 of the Air Pollution Control
Regulations of the Clark County District Board of Health (the Regulations).
1
The charge
resulted from three observed atmospheric emissions that occurred May 13, 16, and 17, 1981.
The APCD Hearing Board (the Board) held a hearing on June 10, 1981. Timet stipulated
to the three emissions and their opacity, but sought to excuse the emissions under section 25
of the Regulations.
2
The Board issued a decision that excused the first emission on the
basis of an equipment malfunction, but fined Timet for the two subsequent emissions.
____________________

1
Section 26 of the Regulations provides in part:
26.1 A person shall not discharge into the atmosphere, from any single source whatsoever, except from
an incinerator, any air contaminants for a period or periods aggregating more than three (3) minutes
in any sixty (60) minute period, which is:
26.1.1 Of such opacity to a degree equal to 20 percent obscuration or greater.
. . . .

2
Section 25 of the Regulations provides that emissions in excess of the limits set out in the Regulations
constitute violations thereof unless:
. . . .
25.1.2 Such emissions resulted from a Malfunction. In determining whether or not a Malfunction has
occurred, the Control Officer or Hearing Board may utilize the following guidelines. The burden of
proof shall be upon the operator.
1) The air pollution control equipment, process equipment, or processes involved in the incident
were at all times maintained and operated in a manner reasonably consistent with good practice
for minimizing emissions;
2) Repairs were made in an expeditious fashion when the Operator knew or should have known
that applicable emission limitations were being exceeded. The Operator must have employed his
best efforts to use off-shift labor and overtime to insure that such repairs were made as
expeditiously as possible;
3) The amount and duration of the excess emissions were minimized in a manner reasonably
consistent with good practice during periods of such emissions;
4) The excess emissions were not part of a historical pattern indicative of inadequate design;
5) No additional course of action other than that actually taken could reasonably have been
implemented by the Operator.
The Board issued a decision that excused the first emission on the basis of an equipment
malfunction, but fined Timet for the two subsequent emissions. Timet filed a petition for
judicial review of the Board's decision. The district court affirmed the decision of the Board,
and this appeal followed.
The facts are undisputed and can be recited summarily. On May 13, 1981, a transformer
serving certain air pollution control equipment at the Timet plant failed suddenly and without
warning. Timet's personnel immediately began trying to repair or replace the transformer, and
a replacement was located, installed and in operation by May 20, 1981. In the time between
the transformer failure and the installation of the replacement, however, three emissions
occurred that were in excess of the standards set out in section 26 of the Regulations.
[Headnote 1]
On appeal of the decision of an administrative agency, the function of this court is
identical to that of the district court: to review the evidence presented to the agency in order
to determine whether the agency acted arbitrarily or capriciously, thus abusing its discretion.
Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 607 P.2d 581 (1980).
The testimony before the Board was offered by Timet's representatives. They indicated
that the failed transformer was a single large and expensive piece of equipment that had been
properly maintained and for which no back-up was normally required. The testimony also
revealed that Timet's operations were set up to be continuous and that the by-products of each
area of production were internally recycled, so that a shutdown of one area was impossible
without causing repercussions throughout the plant. The Board's conclusion was apparently
predicated on its acceptance of this testimony, since the first emission occurred about seven
hours after the transformer failed. The Board's conclusion that the emission on May 13, 1981,
was the result of a malfunction is apparently predicated on the acceptance of the Timet
testimony.
The only significant distinction between the May 13, 1981, emission and the two later
emissions was the passage of, respectively, three and four days. The Board concedes that
Timet acted as quickly as possible in replacing the transformer. This concession satisfies
the only remaining guideline for determining whether a malfunction has occurred, and
whether an otherwise violative emission is therefore excused. Regulation 25.1.2(2).
[Headnote 2]
The Board's conclusions and concessions indicate that Timet acted in full conformity with
the guidelines set out in section 25.1.2 of the Regulations, and the Board found that a
malfunction had occurred.
25.1.2 of the Regulations, and the Board found that a malfunction had occurred. Since the
Board made no finding that Timet did not comply with the guidelines either before or after
the transformer failure, we are forced to conclude that the Board's imposition of fines for the
May 16 and 17, 1981, emissions constituted an arbitrary application of its Regulations. This
was an abuse of discretion, and the Board's decision should therefore be reversed. See Turk v.
Nevada State Prison, 94 Nev. 101, 575 P.2d 599 (1978); Kochendorfer v. Board of Co.
Comm'rs, 93 Nev. 419, 566 P.2d 1131 (1977).
Accordingly, the district court order affirming the decision of the Board is reversed.
____________
99 Nev. 400, 400 (1983) Ball v. Warden
INCEL JAMES BALL, Jr., Appellant, v. WARDEN,
No. 14157
May 26, 1983 663 P.2d 698
Appeal from order denying a post-conviction petition for writ of habeas corpus, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant, who had been convicted of second degree kidnapping, petitioned for writ of
habeas corpus on ground that plea was not entered knowingly and voluntarily. The district
court denied the petition and defendant appealed. The Supreme Court held that trial court did
not violate statute requiring it to personally address defendant to determine if he understands
nature of charge where trial court, though it asked prosecutor to explain elements of offense,
thereafter asked defendant if he understood that prosecutor would have to prove elements of
offense beyond reasonable doubt.
Affirmed.
Brian D. McKay, Attorney General, and Dan R. Reaser, Deputy Attorney General, Carson
1. Criminal Law.
Statute requiring that court, before accepting guilty plea, address defendant personally to determine if
nature of charge is understood does not require that entire canvass of defendant be
conducted solely by trial court.
99 Nev. 400, 401 (1983) Ball v. Warden
does not require that entire canvass of defendant be conducted solely by trial court. NRS 174.035,
subd. 1.
2. Criminal Law.
Trial court did not violate statute requiring it to personally address defendant to determine if nature of
charge is understood where, though court asked prosecutor to explain elements of offense, court thereafter
asked defendant if he understood that prosecutor would have to prove elements of offense beyond
reasonable doubt. NRS 174.035, subd. 1.
OPINION
Per Curiam:
Appellant was convicted of one count of second degree kidnapping with the use of a
deadly weapon. He later sought a writ of habeas corpus in the district court, contending that
his plea was not entered knowingly and voluntarily. The district court denied relief, and this
appeal followed.
Appellant primarily contends that the trial court violated NRS 174.035(1)
1
and Hanley v.
State, 97 Nev. 130, 624 P.2d 1387 (1981), by requesting the prosecutor, at the time of entry of
the plea, to explain the elements of the offense to appellant. Appellant contends that it was
the responsibility of the trial court to explain the elements of the offense.
[Headnotes 1, 2]
We have never held that the entire canvass of a defendant must be conducted solely by the
trial court. In this regard, we note that the trial court immediately followed the prosecutor's
explanation of the elements of the offense by asking appellant if he understood that the
prosecutor would have to prove all elements of the offense beyond a reasonable doubt to the
jury, to which appellant replied in the affirmative. We conclude that this canvass was
sufficient to meet the requirement that a trial court must personally address a defendant to
determine if he understands the nature of the charge to which he is pleading. Neither Hanley
v. State, supra, nor NRS 174.035(1) was therefore violated.
We have reviewed appellant's remaining contentions and find them to be without merit.
Accordingly, we affirm the judgment of the district court.
____________________

1
NRS 174.035(1) states in part that:
The court may refuse to accept a plea of guilty, and shall not accept such plea . . . without first
addressing the defendant personally and determining that the plea is made voluntarily with understanding
of the nature of the charge and consequences of the plea.
____________
99 Nev. 402, 402 (1983) Carrell v. Justice's Court
JOHN RAY CARRELL, Appellant, v. JUSTICE'S COURT OF RENO TOWNSHIP, IN
AND FOR THE COUNTY OF WASHOE, THE HONORABLE RICHARD C. MINOR, a
Justice of the Peace of Reno Township, Respondents.
No. 13472
May 26, 1983 663 P.2d 697
Appeal from order denying mandamus, Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Defendant petitioned district court for writ of mandamus to compel justice's court to grant
him a jury trial. The district court denied the petition, and defendant appealed. The Supreme
Court held that statute which provides that, in a justice's court, a case shall be tried by a jury
only if defendant so demands in writing not less than five days prior to trial requires that the
demand be filed within five days of the initial trial date, not the date to which the trial is
continued, and therefore, trial court did not err in denying defendant's jury trial demand which
was filed after the initial trial date, but more than five days before the date to which the trial
was continued.
Affirmed.
David G. Parraguirre, Public Defender, and John C. Morrow, Deputy Public Defender,
Brian D. McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Mary
E. Boetsch and Michael L. Mahaffey, Deputy District Attorneys, Washoe County, for
Respondents.
1. Jury.
Statute which provides that, in a justice's court, a case shall be tried by a jury only if defendant so
demands in writing not less than five days prior to trial requires that the demand be filed within five days of
the initial trial date, not the date to which the trial is continued, and therefore, trial court did not err in
denying defendant's jury trial demand which was filed after the initial trial date, but more than five days
before the date to which the trial was continued. NRS 175.011, subd. 2.
2. Jury.
A statutory, nonconstitutional right to trial by jury is waived by the failure to make a timely demand as
required by a statute or rule. NRS 175.011, subd. 2.
OPINION
Per Curiam:
On February 24, 1981, appellant was arraigned in the Reno Township Justice's Court on a
criminal complaint charging him with four misdemeanor traffic offenses, including driving
while under the influence of alcohol. The court initially set a trial date of April 17, 1981. On
the day of trial appellant requested a continuance to allow his newly-obtained counsel
additional time to prepare for trial. The justice of the peace granted the continuance and reset
the trial for June 11, 1981.
On May 15, 1981, appellant filed a written demand for a jury trial, the first such demand
made in the proceedings. The justice of the peace denied the demand as untimely, based on
his interpretation of NRS 175.011(2), which provides that in a justice's court a case shall be
tried by jury only if the defendant so demands in writing not less than 5 days prior to trial.
(Emphasis added.) The justice of the peace interpreted the statute to require that the demand
be filed within five days of the initial trial date, not the date to which the trial was continued.
Appellant petitioned the district court for a writ of mandamus to compel the justice's court
to grant him a jury trial, contending that the justice of the peace misconstrued the statute, and
had a mandatory duty to provide him with a jury trial since his demand was filed more than
five days before the actual date of trial. The district court denied the petition, and this appeal
ensued. The district court stayed all justice's court proceedings pending the outcome of this
appeal.
[Headnote 1]
Appellant argues that the prior to trial language of NRS 175.011(2) refers to the actual
date of trial; respondent argues that it refers to the initial date trial is set. Neither party has
presented us with significantly persuasive authority. We are thus called upon to construe the
statute in the more reasonable manner, consistent with the intent of the legislature and in light
of public policy. We believe that the more reasonable interpretation of the statute is
respondent's, and that in light of the obvious public policy in favor of the orderly processing
of misdemeanor trials through justice's courts, the legislature intended that jury trials be
demanded at the earliest possible time under the language of the statute. Thus, we conclude
that NRS 175.011(2) requires that a demand for jury trial be filed not less than five days prior
to the date trial is initially set.
[Headnote 2]
Since appellant did not file a timely demand, the justice of the peace was justified in
denying him a jury trial. A statutory, non-constitutional right to a trial by jury is waived by
the failure to make a timely demand as required by a statute or rule. See State v. Nielsen, 260
N.W.2d 321 (Neb. 1977), overruled on other, unrelated grounds, State v. Gerber, 291
N.W.2d 403 (Neb. 1980).
The justice's court correctly construed the statute and the district court correctly denied the
petition. The order denying mandamus is affirmed.
1

____________________

1
We need not decide the procedural question of whether mandamus was an appropriate remedy in this case,
in light of the remedy at law of appeal to the district court from any judgment of conviction, because the petition
was without merit in any event.
____________
99 Nev. 404, 404 (1983) Nevada Ind. Broadcasting v. Allen
NEVADA INDEPENDENT BROADCASTING CORPORATION, a Corporation, and
WILLIAM H. HERNSTADT, Appellants, v. WILLIAM C. ALLEN, Respondent.
No. 13469
May 27, 1983 664 P.2d 337
Appeal from an order denying appellants' motions for a new trial, motion for a judgment
notwithstanding the verdict, and a motion to amend the judgment, following a jury verdict in
favor of respondent in a suit for slander; Eighth Judicial District Court, Clark County;
Appeal was taken from judgment of the district court entered on jury verdict awarding
$675,000 in general damages to gubernatorial candidate who brought defamation action
against television broadcasting company, and its majority shareholder, who was also
moderator on television program where defamation took place. The Supreme Court, Springer,
J., held that: (1) statements that could have injured gubernatorial's reputation as candidate for
public office were actionable as slander per se; (2) statement that one of candidate's checks
for political advertising was returned to station and wouldn't clear was statement of fact and
not merely nonactionable statement of opinion; (3) remark that implied that candidate did not
pay his political bills was actionable as factual statement; (4) whether statement which
implied that candidate was not honorable was question of fact or opinion was properly left
to determination of jury; {5) candidate sufficiently established falsity of remark; {6)
evidence supported jury's finding of actual malice; {7) candidate was entitled to award of
general damages; and {S) award of $675,000 was excessive.
determination of jury; (5) candidate sufficiently established falsity of remark; (6) evidence
supported jury's finding of actual malice; (7) candidate was entitled to award of general
damages; and (8) award of $675,000 was excessive.
Affirmed with remittitur.
Hilbrecht, Jones, Schreck & Bernhard and L.T. Jones, George A. Cromer, Las Vegas;
Henry Mark Holzer, Brooklyn, New York, for Appellants.
Galane & Jimmerson, Rickdall & Shulman, Las Vegas, for Respondent.
To constitute slander per se, alleged defamation must be oral and must fall into one of four categories:
that plaintiff committed crime; that plaintiff has contracted loathsome disease; that woman is unchaste; or,
allegation must be one which would tend to enter plaintiff in his or her trade, business, profession or office.
Where at time remarks were made plaintiff bringing defamation suit was political candidate, and
statements were such that they could have injured plaintiff's reputation as candidate for public office,
statements were actionable as slander per se.
Assuming that comments that gubernatorial candidate's check was no good, that because candidate did
not pay his debts it was questionable how candidate might handle state funds, and that candidate was not
honorable candidate were defamatory, taken as whole they clearly implied want of qualities expected of
political officer and supported case for slander per se.
Statements of opinion as opposed to statements of fact are not actionable.
Under First Amendment, there is no such thing as false idea, and societal value of robust debate militates
against restriction of expression of ideas and opinions. U.S.C.A.Const. Amend. 1.
Although ordinarily issue of whether statement is opinion or fact is question of law for court, where
statement is ambiguous, issue must be left to jury's determination.
Statement that one of your checks for political advertising for $697.00 was returned to, to this television
station, Refer to Maker' and we called the bank and we found that check wouldn't clear today was
statement of fact and not merely nonactionable opinion that check had bounced.
First clause of statement if the candidate doesn't pay his political bills, what is he going to do with State
money? implied that candidate did not pay his political bills, and therefore, regardless of whether second
clause was opinion or speculation, first clause was factual statement and actionable in defamation suit.
Although defamation defendant's remark referring to another political candidate as honorable might
reasonably be interpreted as statement of opinion, where statement followed defendant's comment that
candidate's representatives had requested apology, and immediately followed defendant's query that if
candidate cannot pay his bills how will he handle state funds, whether honorable candidate remark was
statement of fact or opinion was ambiguous and issue was properly left to determination of jury.
Defamation plaintiff bears burden of proof regarding falsity of statements.
Whether statement is false is generally question for jury.
Where gubernatorial candidate was not signatory to bounced check, jury could justifiably have found that
candidate was not responsible for bounced check, that candidate bounced no check, and that he was neither
dishonorable nor candidate who did not pay his bills; thus, gubernatorial candidate sufficiently established
falsity of remarks that he had bounced check, that he did not pay his bills and that he was in fact
dishonorable for having eschewed responsibility for bounced check.
Opinional remarks are now given First Amendment protection; therefore, fair comment doctrine,
which arose to protect statements of opinion of newsworthy material, is no longer necessary.
Constitutional protection for media defendant making statement about public figure provides at least
as much protection as common-law conditional privilege for statements made in public interest so long as
privilege is not abused; thus, there is no longer any need for common-law privilege in media
defendant/public figure context. U.S.C.A. Const. Amend 1.
Media defendant may not be held liable for damages in defamation action involving public official or
public figure plaintiffs unless actual malice is pleaded and proved.
Actual or constitutional malice is knowledge of falsity of statement or reckless disregard for truth.
In contrast to common-law malice, inquiry in actual malice focuses largely on defendant's belief
regarding truthfulness of published material rather than on defendant's attitude toward plaintiff.
Because constitutional guaranty is involved, trial court in libel action involving media defendant and
public official or public figure plaintiff must first determine whether there is sufficient evidence from which
one could conclude that statements were uttered with actual malice. U.S.C.A.Const. Amend. 1.
Jury's finding of actual malice in defamation action involving media defendant and public figure
must be based on clear and convincing evidence.
media defendant and public figure must be based on clear and convincing evidence.
Because constitutional right is implicated, jury's determination of actual malice in defamation action
involving media defendant and public figure is subject to close appellate scrutiny. U.S.C.A.Const. Amend.
1.
In defamation action involving media defendant and public figure, fundamental inquiry is Did the
defendant lie; test is subjective, with focus on what defendant believed and intended to convey, not what
reasonable person would have understood message to be.
Evidence of negligence, motive, and intent may be used, cumulatively, to establish necessary recklessness
to prove actual or constitutional malice in defamation action; however, in most instances one factor alone
will not establish actual malice by convincing clarity.
Evidence in defamation action brought by gubernatorial candidate against broadcasting corporation's
majority owner, who was also moderator of political candidate broadcast, including evidence that
moderator knew that bounced check was not gubernatorial candidate's own check, but his campaign
agency's and evidence that prior to broadcast, moderator made no demand of gubernatorial candidate for
payment to cover show, was sufficient to support jury finding of actual malice in moderator's comments
that candidate's check had bounced and implication that candidate did not pay his bills.
Sufficiency of correction and demand for retraction are questions of fact for jury in defamation action to
determine by preponderance of evidence.
In defamation action, general damages are those which are awarded for loss of reputation, shame,
mortification and hurt feelings. NRS 41.334.
Gubernatorial candidate defamed on live television broadcast by remark that he bounced check and the
implication that he did not pay his bills was entitled to compensation for his shame, humiliation and hurt
feelings.
Although gubernatorial candidate was not entitled to recover for loss of election, he was entitled to
recover in defamation action damages for injury to his political reputation which resulted from defamatory
statement that he bounced check and implication that he did not pay his bills.
In public figure slander case against media defendant, added scrutiny must be given to large
compensatory damage awards due to their impact on free speech. U.S.C.A.Const. Amend. 1.
Sum of $50,000 was maximum amount that could reasonably be awarded to gubernatorial candidate
defamed on live television broadcast by statement that he bounced check, and implication that he did not
pay his bills and was not honorable; thus, jury award of $675,000 was excessive, not
supported by evidence, must have been given under influence of passion or prejudice,
and constituted threats to exercise of free speech.
not pay his bills and was not honorable; thus, jury award of $675,000 was excessive, not supported by
evidence, must have been given under influence of passion or prejudice, and constituted threats to exercise
of free speech. NRCP 59(a)(6); U.S.C.A.Const. Amend. 1.
OPINION
This appeal arises out of a jury verdict and judgment of $675,000 in general damages
awarded to respondent Allen and against appellants (to be called Hernstadt) for defamation
of character.
Statement of the Facts
This slander suit arose out of a televised political question-answer program during the
1978 Nevada primary campaign. Allen was running against Robert List in the Republican
gubernatorial primary. Allen had contracted with Golden West Advertising Agency, a Las
Vegas firm, to handle his campaign. On September 11, 1978, the eve of the primary election,
Allen appeared on a program for candidates on the Las Vegas station KVVU-TV (Channel 5).
The station is owned by appellant Nevada Independent Broadcasting Corporation (NIBC).
Moderator for the candidate's program was appellant William Hernstadt, who held 94 percent
of the stock in NIBC.
During the afternoon prior to the television broadcast, Hernstadt discovered that a check
from Allen's advertising agency, Golden West, had been returned to the station because of
insufficient funds. The check, in the amount of $697.00, had been issued to pay for Allen's
political advertising. That evening, during a live broadcast, Hernstadt questioned Allen
concerning the check and made some additional remarks about the check. Hernstadt's
statements were as follows: He initially accused Allen of passing a check with insufficient
funds; then he mentioned Golden West, Allen's advertising agency. Later in the program
Hernstadt questioned what a political candidate who didn't pay his bills would do if allowed
to handle state funds. Finally, he referred to another candidate as honorable in a context
which would permit the implication that Allen was not honorable. These comments are set
out in full in the margin
1
: The court has viewed the video tape of the described episode.
During a commercial break, Allen's son, his campaign manager, demanded an apology.
Hernstadt acknowledged the demand to the television audience but did not then make an
apology.
____________________

1
See Appendix to Opinion of the Court.
demand to the television audience but did not then make an apology. Later Allen demanded
in writing that NIBC publish a correction. After the station and Allen were unable to agree on
an appropriate correction, the station issued its own version of a correction.
This suit followed. The case was tried to a jury which returned a verdict for Allen,
awarding general damages of $675,000 plus interest and costs. Appellants filed a motion for a
new trial, a motion for judgment notwithstanding the verdict, and a motion to amend the
judgment. Appellants appeal from denial of these motions.
Failure to Prove Slander Per Se
Hernstadt correctly argues that since there was no proof of special damages, Allen's case
must be slander per se or he has no case. We are of the opinion that Allen has made out a
case of slander per se.
[Headnote 1]
To constitute slander per se, the alleged defamation must be oral and must fall into one of
four categories: (1) that the plaintiff committed a crime; (2) that the plaintiff has contracted a
loathsome disease; (3) that a woman is unchaste; or, (4) the allegation must be one which
would tend to injure the plaintiff in his or her trade, business, profession or office. Branda v.
Sanford, 97 Nev. 643, 637 P.2d 1223 (1981).
Hernstadt urges that Allen had no basis for claiming slander per se on the basis of injury to
his professional reputation. Two reasons are stated for this claim. First, at the time of the
campaign, Allen's only occupation was that of owner of a mobile home park in Carson City;
therefore, since he was a non-incumbent, he had no political career which could have been
injured. Second, Hernstadt argues that the bounced check charge could not injure Allen's
reputation as a mobile home park owner.
[Headnote 2]
We disagree. At the time the remarks were made Allen was a candidate, and the statements
were such that they could have injured Allen's reputation as a candidate for public office.
They were thus actionable as slander per se. In the case of Devany v. Quill, 64 N.Y.S.2d 733
(N.Y.App.Div. 1946), it was held that defamatory words uttered against a non-incumbent
candidate constituted slander per se if the words would tend to cause persons not to vote for
the candidate. This rule has been followed in Restatement (Second) of Torts 573 comment
b (1977). Hernstadt cites no authority to the contrary.
Hernstadt urges that Allen could not make a case for slander per se unless Allen first
proved that the defamatory comments implied "an habitual course of similar conduct, or
the want of the qualities or skill that the public is reasonably entitled to expect. . . ."
per se unless Allen first proved that the defamatory comments implied an habitual course of
similar conduct, or the want of the qualities or skill that the public is reasonably entitled to
expect. . . . See Restatement (Second) Torts 573 comment d (1977). Hernstadt argues that
since he alleged only a single act of misconduct, namely, delivery of a bad check, the
defamation could not constitute slander per se.
[Headnote 3]
There were, of course, three remarksthat Allen's check was no good, that because Allen
did not pay his debts it was questionable how Allen might handle state funds, and that Allen
was not an honorable candidate. Assuming at this point that these comments were
defamatory, taken as a whole they clearly imply a want of qualities expected of a public
officer and support a case for slander per se.
Fact or Opinion
[Headnotes 4, 5]
We agree with appellants that statements of opinion as opposed to statements of fact are
not actionable. As stated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), under the
first amendment, there is no such thing as a false idea, and the societal value of robust debate
militates against a restriction of the expression of ideas and opinions.
[Headnote 6]
Separating factual statements from opinion is thus a critical issue in defamation cases. The
rule for making the determination is more easily stated than applied: whether a reasonable
person would be likely to understand the remark as an expression of the source's opinion or as
a statement of existing fact. See Masburn v. Collin, 355 So.2d 879, 885 (La. 1977). In cases
involving political comment, there is a strong inclination to determine the remarks to be
opinion rather than fact. R. Sack, Libel, Slander, and Related Problems 160 (1980). Although
ordinarily the fact/opinion issue is a question of law for the court, where the statement is
ambiguous, the issue must be left to the jury's determination. Good Gov't Group, Inc., v.
Hogard, 586 P.2d 572, 576 (Cal. 1978), cert. denied, 441 U.S. 961 (1979).
2
A major
difficulty in defamation cases arises when the comment is neither pure fact nor pure
opinion.
____________________

2
Appellants assert that New York Times Co. v. Sullivan, 376 U.S. 254 (1964) requires that plaintiff prove by
clear and convincing evidence that the remarks were factual and not opinion. New York Times does not stand
for that proposition; though the decision does require a higher standard of proof for actual malice and
colloquium, at least with respect to public officials.
A major difficulty in defamation cases arises when the comment is neither pure fact nor
pure opinion. A statement may be a mixed type, that is, an opinion which gives rise to the
inference that the source has based the opinion on underlying, undisclosed defamatory facts.
For example, it may be actionable to state an opinion that plaintiff is a thief, if the statement
is made in such a way as to imply the existence of information which would prove plaintiff to
be a thief. See Restatement (Second) of Torts 566 (1977).
In the immediate case, the trial court left the decision to the jury to determine whether any
of the three mentioned categories of remarks were opinion or fact. This was proper. We will
consider these categories in order:
The Bounced Check Remark.
[Headnote 7]
Hernstadt addressed the following remark to Allen: [O]ne of your checks for political
advertising for $697.00 was returned to, to this television station, Refer to Maker' and we
called the bank and we found that check wouldn't clear today.
It is contended that the bounced check statement was merely a statement of Hernstadt's
opinion that Allen had bounced a check. The argument is meritless; if such a contention were
accepted, any statement of fact could be considered simply the opinion of its maker.
The State Funds Remark.
[Headnote 8]
Hernstadt next argues that, as a matter of law, the following question could not be found to
be a statement of fact: [I]f the candidate doesn't pay his political bills, what is he going to do
with State money? It is conceded that defamation may occur in the form of a question, but
the remark is challenged on two other grounds. First, it is contended that it is at worst a
statement of opinion; second, it is argued that the remark cannot be defamatory because it is
speculative, dealing with future events rather than existing facts.
Using the analysis of the Restatement, which both parties adopt, the remark is susceptible
of being interpreted as a statement of defamatory fact. The first clause of the remark implies
that Allen did not pay his political bills. This is the meaning that Hernstadt concedes he
intended to convey. Regardless of whether the second clause is opinion or speculation, the
first clause is a factual statement and would be actionable under the Restatement.
The Honorable Candidate Remark.
[Headnote 9]
Following Hernstadt's comment that Allen's representatives had requested an apology, and
immediately following the State funds remark, Hernstadt stated, But getting back to an
honorable candidate, Senator Schofield. . . .
Hernstadt claims that the honorable candidate remark cannot be actionable. The primary
basis for this claim is that the remark was at most a statement of opinion.
3
The remark might
reasonably be interpreted as a statement of opinion; it appears to be the speaker's conclusion,
based on his allegation that Allen bounced a check. It cannot be said as a matter of law that
the statement cannot also be interpreted as factual. This remark seems to be precisely the kind
of ambiguous comment that should be left to the determination of the jury. See Good Gov't
Group, above; Gregory v. McDonnell Douglas Corp., 552 P.2d 425 (Cal. 1976).
Even if we were to assume that some of the foregoing remarks were not actionable, it
nonetheless is reasonable to consider all the comments in context. In any case, the most
damaging remarks were the two clearly factual statements.
4
Also, it may be concluded that
fact and opinion were inextricably intertwined and thus the comments were unprotected.
See Cianci v. New Times Publishing Co., 639 F.2d 54, 67 (2d Cir. 1980).
Falsity
Hernstadt charges that Allen did not sufficiently establish the falsity of Hernstadt's
remarks. He claims that Allen must prove falsity by convincing clarity, citing Garrison v.
Louisiana, 379 U.S. 64, 74 (1964).
[Headnote 10]
The Supreme Court said in Garrison that there can be no liability for defamation without
proof of falsity; the Supreme Court, however, has not fully developed the consequences of its
holding. It seems clear that the plaintiff must now bear the burden of proof regarding the
falsity of statements. See Restatement {Second) of Torts 613 {1977).
____________________

3
Hernstadt also claims that Allen failed to establish by clear and convincing evidence that each of the alleged
remarks was of and concerning Allen. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The context
of the remarks would lead one to conclude that all three comments were concerning Allen; secondly, Hernstadt
himself admitted that he was referring in each instance to Allen.

4
Indeed, the questioning of Allen's handling of State funds is really the defamatory sting: it arose from the
factual statement that Allen did not pay his bills.
Restatement (Second) of Torts 613 (1977). The degree of proof is yet unclear.
5

Hernstadt argues that the bounced check statement was true because Allen was
responsible for Golden West's check. He also asserts that the statement relating to a candidate
who does not pay his bills was similarly true since Allen was liable for his agent's bad
check. Finally, Hernstadt claims that Allen was in fact dishonorable for having eschewed
responsibility for Golden West's bounced check.
[Headnotes 11, 12]
Whether a statement is false is generally a question for the jury. Restatement (Second) of
Torts 617 (1977). The jury would certainly have been justified in finding that Allen, who
was not a signatory to the check, was not responsible for the bounced Golden West check.
Likewise, the jury could have found that Allen bounced no check, and that he was neither
dishonorable nor a candidate who did not pay his bills.
Privilege
[Headnotes 13, 14]
We decline to consider Hernstadt's argument concerning privilege since it appears that the
common law privileges have been subsumed in recent constitutional law developments.
6
New York Times Co. v.
____________________

5
Garrison does not discuss the standard of proof. The higher standard of convincing clarity ostensibly
applies only to the issues of colloquium (identification of the plaintiff) and actual malice. See generally,
Rebozo v. Washington Post Co., 637 F.2d 375 (5th Cir. 1981), cert. denied, 454 U.S. 964 (1981). Some courts,
however, have applied the convincing clarity standard to the issue of falsity. See, e.g., Whitmore v. Kansas City
Star Co., 499 S.W.2d 45 (Mo.App. 1973). Practically speaking, it may be impossible to apply a higher standard
to actual malice than to the issue of falsity.

6
The fair comment doctrine arose to protect statements of opinion on newsworthy material. Since Gertz now
gives first amendment protection to opinion remarks, the fair comment doctrine is no longer necessary. And with
respect to the conditional privilege protecting statements made in the public interest, a similar result obtains. The
conditional privilege protected statements made in the public interest so long as the privilege was not abused.
One method of abusing the privilege was the uttering of statements either with reckless disregard for their truth
or with knowledge of their falsity. See Wright v. Haas, 586 P.2d 1093 (Okla. 1978). The constitutional
protection, set forth in New York Times Co. v. Sullivan (discussed immediately below), gives at least as much
protection as the common law privilege. Thus, in the context of a media defendant and public figure, there is no
longer any need for the common law privilege. This view is taken in the Restatement (Second) of Torts 592A
(1977); see also New York Times, above, at 376 U.S. 292 n. 30; R. Sack, above, at 331-34.
New York Times Co. v. Sullivan
[Headnote 15]
Under the rule established in New York Times Co. v. Sullivan, above, a media defendant
may not be held liable for damages in a defamation action involving a public official plaintiff
unless actual malice is pleaded and proved. This rule was extended to public figure
plaintiffs (such as respondent Allen) in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
[Headnotes 16, 17]
Actual malice (or more appropriately, constitutional malice) is defined as knowledge of
the falsity of the statement or a reckless disregard for the truth. New York Times, above, at
280.
7
Reckless disregard for the truth was defined in Garrison v. Louisiana, above, a
criminal libel suit, as a high degree of awareness of [the] probable falsity [of the statement].
Id. at 74. In St. Amant v. Thompson, 390 U.S. 727 (1968), the stated test was whether there is
sufficient evidence to conclude that the defendant in fact entertained serious doubts as to the
truth of [the] publication. Id. at 731. (Emphasis supplied.) In contrast to common law
malice, the inquiry in actual malice focuses largely on the defendant's belief regarding
truthfulness of the published material rather than on the defendant's attitude toward the
plaintiff. See Greenblet Coop. Pub. Ass'n, Inc. v. Bresler, 398 U.S. 6, 10 (1970).
[Headnotes 18-20]
The standard for appellate review is comparable to the method applied in determining the
voluntariness of a confession in criminal law. Because a constitutional guaranty is involved,
the trial court must first determine whether there is sufficient evidence from which the jury
could conclude that the statements were uttered with actual malice. See Alioto v. Cowles
Communications, Inc., 623 F.2d 616 (9th Cir. 1980), cert. denied, 449 U.S. 1102 (1981). A
jury's finding of actual malice must be based on clear and convincing evidence. New York
Times, above.
8
Because a constitutional right is implicated, the jury determination is subject
to close appellate scrutiny.
____________________

7
Cf. NRS 41.332:
NRS 41.332 Actual malice defined. Actual malice is that state of mind arising from hatred or ill
will toward the plaintiff and does not include that state of mind occasioned by a good faith belief in the
truth of the publication or broadcast.

8
The parties disagree on whether the trial judge must first weigh all evidence (including witness credibility)
and conclude that actual malice
[Headnote 21]
The fundamental inquiry, as one court has stated it, is Did the defendant lie? See Pierce
v. Capital Cities Communications, Inc., 576 F.2d 495, 506 (3rd Cir. 1978), cert. denied, 439
U.S. 861 (1978). The test is subjective, with the focus on what the defendant believed and
intended to convey, not what a reasonable person would have understood the message to be.
R. Sack, above, at 212-13.
[Headnote 22]
Evidence of negligence, motive, and intent may be used, cumulatively, to establish the
necessary recklessness. Id. at 214. It is clear that in most instances one factor alone will not
establish actual malice by convincing clarity. Id. at 217.
Support for the jury's finding of actual malice can be supplied by the following evidence:
(1) Hernstadt's admittedly deliberate decision not to ask Allen about the check until Allen
was on live television, see Alioto, above, at 1371 (failure to pursue the most obvious source
for corroboration), Rebozo v. Washington Post Co., above, (reporter's decision to resolve
ambiguity in information against plaintiff although reporter had contacted witness who could
clarify ambiguity);
(2) Hernstadt knew that Allen had not drawn or passed the check in question;
(3) The commonplace word your, as in your check, need not be taken to mean your
campaign's [check], regardless of Hernstadt's testimony as to his meaning, and could well be
taken to mean Allen's own check;
(4) Hernstadt's attempt at correction could be taken as a republication since it insinuates
the following: (a) that Allen committed a wrongful act short of a felony; (b) that Allen had a
dishonorable motive as indicated by his failure to explain why the original agency check was
returned; and, (c) that payment after the fact of the broadcast was additional proof that
Allen was dishonorable; see Restatement (Second) of Torts 580A comment d (1977)
(republication by defendant after notification that plaintiff considers the statement to be false
and defamatory may be treated as evidence of reckless disregard);
(5) Several material contradictions exist with regard to Hernstadt's trial testimony and
his previous deposition testimony; these include his admissions at deposition that {a) he
told others of his intention to mention the check during the live broadcast and, {b) he
intended to convey to the audience that Allen was not honorable, see, e.g.,
____________________
has been established by clear and convincing evidence (see, e.g., Wasserman v. Time, Inc., 424 F.2d 920
(D.C.Cir. 1970), cert. denied, 398 U.S. 940 (1977)), or whether the judge must simply proceed as with any other
motion for summary judgment, drawing all inferences in favor of the nonmoving party (plaintiff); see, e.g.,
Alioto, above. Appellants concede that, as a practical matter, this dispute makes no difference.
Hernstadt's trial testimony and his previous deposition testimony; these include his
admissions at deposition that (a) he told others of his intention to mention the check during
the live broadcast and, (b) he intended to convey to the audience that Allen was not
honorable, see, e.g., Holter v. WLCY T.V., Inc., 366 So.2d 445, 453 (Fla.App. 1978); Davis
v. Schuchat, 510 F.2d 731, 736 (D.C.Cir. 1975) (jury may consider credibility of witnesses in
determining issue of actual malice).
Hernstadt's position on the issue of actual malice is essentially that he held a good faith
belief in the truth of his comments. Hernstadt testified that he believed the check in issue to
be Allen's because it was Allen's campaign check; he further testified that he believed FCC
regulations required advance payment for political advertising, and that Allen, therefore, was
legally and morally responsible for the bad check. Hernstadt claimed that he bore no ill will
toward Allen and that the actual substance of his remarks resulted because the bounced check
was hot news, which did not allow him time to investigate.
[Headnote 23]
Hernstadt knew the check was Golden West's; furthermore, he made no demand of Allen,
prior to the show, for payment to cover the check. In light of those facts, it seems
disingenuous for Hernstadt to claim that he believed Allen to be a dishonorable candidate
who did not pay his bills. There is enough in the record to support a jury finding of
constitutional malice.
Retraction
[Headnote 24]
The sufficiency of the correction and the demand for retraction are questions of fact for the
jury to determine by a preponderance of the evidence. Boswell v. Superior Court, 609 P.2d
577 (Ariz. 1980); See also Brogan v. Passaic Daily News, 123 A.2d 473 (N.J. 1956). At
common law, a retraction was required to be full and unequivocal to be legally sufficient.
Brogan, above, see also R. Sack, above, at 377. In the immediate case, the jury could
properly conclude that the correction was insufficient.
Instructions
We have carefully examined the instructions claimed by appellants to be erroneous and
find no prejudicial error.
Motion for a New Trial
We find no abuse of discretion in the court's denial of the motion for new trial.
Error in Award of Damages
Hernstadt raises several separate attacks on the award of damages. The jury awarded
$675,000 in general damages; it awarded no special or exemplary damages, though it was
instructed in all three areas. The first question raised is whether the award was improper
because Allen failed to prove actual damages.
[Headnote 25]
In defamation actions, general damages are those which are awarded for loss of
reputation, shame, mortification and hurt feelings. NRS 41.334.
The parties agree that Allen's testimony was competent to establish his shame,
mortification and hurt feelings. Allen testified that the broadcast in issue was one of the
most humiliating experiences of his life. He described his reaction during the questioning as
one of shock, stating that he was stunned, and in a chaotic state of mind. He felt that
people viewed him as an embezzler or a bad check artist.
A substantial amount of testimony was offered by Republican party leaders to establish
damage to Allen's reputation. Virtually everyone conceded that Allen had little hope of
winning the Republican gubernatorial nomination, but Allen had a growing and favorable
political reputation within the party. There was testimony that the public would not quickly
forget the bad publicity, that the story would likely resurface if Allen chose to run again for
office, and that Allen had been politically assassinated. It is fair to conclude that Allen's
reputation was damaged, and though Allen might previously have been in line for an
appointive office, his potential was greatly diminished by the incident.
9

There was testimony that approximately 7,800 households (with an average of 2.7
members per household) were tuned into the station for at least 5 minutes during the average
quarter-hour of reported time. One viewer who had watched the show testified that she did
not immediately recall whether the bounced check had been attributed to Allen's advertising
agency. She stated that she believed Hernstadt had handled the matter poorly, that Allen had
been presented poorly, and that as a result, she no longer considered Allen to be a viable
candidate.
A political consultant testified as an expert witness that in his opinion Allen's political
reputation had suffered as a result of the broadcast, and that Allen's chance for an appointive
office had been considerably lessened.
____________________

9
There was also some contrary testimony to the effect that the witnesses themselves did not personally think
less of Allen nor could they name anyone who did.
[Headnotes 26, 27]
Allen is entitled to recover general damages. He is entitled to compensation for his shame,
humiliation and hurt feelings. Also, although Allen is not entitled to recover for loss of the
election, we hold that he is entitled to recover damages for injury to his political reputation.
See Southwestern Publishing Co. v. Horsey, 230 F.2d 319 (9th Cir. 1956); Houston Printing
Co. v. Hunter, 105 S.W.2d 312 (Tex.Civ.App. 1937), aff'd, 106 S.W.2d 1043 (Tex. 1937);
Jenkins v. Taylor, 4 S.W.2d 656 (Tex.Civ.App. 1928). This view is consistent with the
Restatement comment which extends slander per se to cover candidates for political office.
Hernstadt claims that, assuming Allen did prove any general damages, the award of
$675,000 was excessive and unconstitutional. The award represents approximately 1/10 of
Hernstadt's net worth; this suggests that the jury intended to punish Hernstadt. He asks this
court to disallow or reduce the award because it appears to have been given under the
influence of passion or prejudice. NRCP 59(a)(6).
[Headnote 28]
Several courts have expressed concern that an award of substantial damages in cases of
this kind may impinge on first amendment rights if compensatory damages are employed as a
vehicle for punishing unpopular ideas. For that reason, a few jurisdictions have eliminated
punitive damages altogether in defamation actions; others have imposed a stricter scrutiny in
reviewing jury awards for actual damages. See Kidder v. Anderson, 345 So.2d 922 (La.App.
1977), rev'd, 354 So.2d 1306 (La. 1978), cert. denied, 439 U.S. 829 (1978); Stone v. Essex
County Newspapers, Inc., 330 N.E.2d 161 (Mass. 1975). The United States Supreme Court
has not yet held presumed damages or punitive damages unconstitutional so long as actual
malice is established and has in fact stated that an award need not be limited to
out-of-pocket damages. The award must be supported by competent evidence, though not
necessarily of the kind that assigns an actual dollar value to the injury. Gertz, above, at
349-50. Some courts apparently have read Gertz as authorization to apply a traditionally
deferential approach in reviewing defamation awards. See, R. Sack, above, at 356. We are of
the opinion that in a public figure slander case against media defendants added scrutiny must
be given to large compensatory damage awards because of their impact on free speech. As
stated in Gertz:
Juries [in defamation cases] may award substantial sums as compensation for
supposed damage to reputation without any proof that such harm actually occurred.
as compensation for supposed damage to reputation without any proof that such harm
actually occurred. The largely uncontrolled discretion of juries to award damages where
there is no loss unnecessarily compounds the potential of any system of liability for
defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.
418 U.S. 349.
We find the potential for inhibiting the vigorous exercise of First Amendment freedom in
this case because the damage award far exceeds any conceivable damage that might have
been done to Allen's political reputation or damages suffered as a result of an humiliation or
mental suffering brought about by the defamatory material presented in this case.
The parties cite a variety of cases on the issue of damages. Hernstadt relies primarily on
the Carol Burnett case (Burnett v. National Enquirer, 7 Media L. Rptr. 1331) and Joseph
Alioto case (Alioto v. Cowles Communications, Inc., above) to establish the excessiveness of
damages in the immediate case. A jury awarded Carol Burnett $300,000 in compensatory
damages, of which $299,750 were awarded for emotional distress. The trial judge reduced the
compensatory damages to $50,000, but also added $750,000 in punitive damages. Joseph
Alioto's suit was tried to the bench; he received general damages in the amount of $350,000.
(The amount of the award was not reviewed on appeal.) Hernstadt argues that Allen was
entitled, as a matter of law, to less than these plaintiffs received. We agree.
[Headnote 29]
Reduction of the Carol Burnett compensatory damages from $300,000 to $50,000 is very
much in line with the views of this court. It is simply beyond the range of reason to conclude
that Allen suffered $675,000 damage to his reputation and sensibilities. We conclude that the
award is not supported by the evidence and therefore must have been given under the
influence of passion or prejudice. We further conclude that an award of this kind and
magnitude may constitute a threat to the exercise of free speech. For these reasons we hold
that the sum of $50,000 is the maximum amount that could be reasonably awarded under
these circumstances. Because damages are excessive the judgment will be set aside and a new
trial will be ordered on the issue of damages, unless Allen files within fifteen days of the date
of filing of this opinion a remittitur damna in which all amounts over $50,000 are remitted. In
the event of such remission the judgment will be affirmed.
event of such remission the judgment will be affirmed. See Miller v. Schnitzer, 78 Nev. 301,
371 P.2d 824 (1962).
Manoukian, C.J., Mowbray and Gunderson, JJ., and Fondi, D.J.,
10
concur.
____________
Appendix to Opinion of the Court
The following partial transcript is taken from Plaintiff's Exhibit No. 3 included in the
record on appeal:
Announcer: Welcome to TV-5's Political Open House, whereby candidates for
various offices on tomorrow's Nevada primary election ballot speak out live.
. . . .
Now here's your host and moderator.
Hernstadt: Political Open House. . . . So as a public service, and this is our sixth
consecutive year, we are very pleased, as a Channel 5 presentation to bring this to you.
Allen: Disclosure of campaign contributions before the primary is the only way the
voters will know to whom their candidates are indebted. I have made my disclosure to
prove that I owe nothing to any special interest group, except you, the voters of Nevada.
The candidates who refuse to disclose their contributions are ignoring the voters' right
to know. Tomorrow, vote for Bill Allen for action, for Governor.
Hernstadt: Ah, Mr. Allen, did you have some difficulty in raising funds for your
campaign?
Allen: Ah . . . no difficulty, my campaign is mostly self-financed. Ah . . . I've had a
few small contributions from close friends. Ah . . . nothing over $200.00.
Hernstadt: The . . . reason I ask that question is that, ah, one of your checks for
political advertising for $697.00 was returned to, to this television station, Refer to
Maker and we called the bank and we found that check wouldn't clear today. Do you
have any explanation for that?
Allen: My check?
Hernstadt: Your check. Golden West Advertising Agency. (ALLEN ALSO: Golden
West).
____________________

10
The Governor designated the Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit
in the place of Justice Thomas L. Steffen, who voluntarily disqualified himself. Nev. Const., art. 6 4.
Allen: Well, that . . . that is not my check. That is an advertising agency, I have
nothing to do with that check.
Davis: We have a question here Mr. Allen. First, I'd like to ask you, number one: by
and large it would seem to me an office as important as Governor, generally the
participants in seeking that particular office have had some other political background.
Do you indeed have that?
. . . .
Hernstadt: Okay. Thank you very much Mr. Bill Allen who is running for Governor
of the State of Nevada as Republican.
. . . .
Hernstadt: Okay. Thank you very much Mort Block, candidate for Sheriff as a
Democrat. Our next candidate is Senator Jack Schofield.
. . . .
Davis: Thank you Senator Schofield. Jack Schofield running on the Democratic
ticket for Governor. We have several questions for you, Senator. . . .
. . . .
COMMERCIAL
Hernstadt: Hi, we're back with Candidate's Open House tonight. I'm Bill Hernstadt.
Judith Hernstadt: I'm Judith Hernstadt.
Hernstadt: And before we go on with questions for Senator Schofield, ah, I did get a
demand, from, from one of Mr. Allen's representatives that we apologize for
questioning him about the bounced check. I wish to point out that while it was an
agency check, from his agency . . . (garbled) . . . ah, giving an agency authority to act on
that candidate's behalf. Now if that agency, ah, fails to pay the candidate's bills then the
candidate is legally (and morally responsible) . . . (garbled) . . . but this is why it was
brought up. But I did want to tell you that they had made that request. And, ah, the
question of course, that obviously comes to mind that another viewer called in is, if the
candidate doesn't pay his political bills, what is he going to do with State money? But
getting back to an honorable candidate, Senator Schofield, ah, how do you feel ah, are
you for or against the right to work law?
____________
99 Nev. 422, 422 (1983) Dyer v. State
PETER LOUIS DYER aka PERCY LOUIS DYER, Appellant,
No. 13045
May 31, 1983 663 P.2d 699
Appeal from a judgment of conviction of murder in the first degree, robbery and burglary
after a jury trial; Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
The Supreme Court held that: (1) omission of cautionary instruction that jury must draw
no inference from defendant's not testifying had no substantial effect on jury's verdict and was
harmless; (2) trial court did not abuse its discretion in limiting further cross-examination of
coroner to five additional minutes after 45 minutes of cross-examination had passed; and (3)
where elderly victim had told various stories about her assault, on one occasion claiming it
was a white man and a black man, on another occasion that it was two black men, and on
another that it was a white man and his wife, trial court did not abuse its discretion in finding
all statements untrustworthy and excluding them.
Affirmed.
Cal J. Potter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In light of weight of prosecution's case, and considering inculpatory testimony of defendant's jail mate,
challenge to his credibility, defendant's presence at scene of crime, other corroboratory evidence and jury
instruction that by constitutional right no person could be compelled in a criminal action to be a witness
against himself, omitted cautionary instruction that jury must draw no inference from defendant's not
testifying had no substantial effect on jury's verdict, rendering error in its omission harmless.
2. Witnesses.
In prosecution for murder, robbery, and burglary, trial court did not abuse its discretion in limiting further
cross-examination of coroner to five additional minutes after 45 minutes of cross-examination had passed.
3. Criminal Law.
Where elderly victim had told various stories about her assault, on one occasion claiming it was a white
man and a black man, on another occasion that it was two black men, and on another that it was a white
man and his wife, trial court did not abuse its discretion in finding all statements untrustworthy and
excluding them from prosecution for murder, robbery, and burglary.
99 Nev. 422, 423 (1983) Dyer v. State
OPINION
Per Curiam:
Peter Louis Dyer stands convicted of murder in the first degree, robbery and burglary.
Dyer appeals, presenting multiple assignments of error. In this opinion we shall address the
three primary issues.
Privilege Against Self-Incrimination
Of most concern to the court is the trial court's refusal to give a cautionary instruction
regarding Dyer's decision not to testify on his own behalf at the trial.
We held in Franklin v. State, 98 Nev. 266, 646 P.2d 543 (1982) that, under the rule
announced in Carter v. Kentucky, 450 U.S. 288 (1981), it is constitutional error to refuse to
instruct the jury that it must draw no inference from the defendant's election not to testify.
In Franklin, above, we also rejected appellant's contention that Carter requires automatic
reversal for such error. Under Chapman v. California, 386 U.S. 18 (1967), we must reverse
the lower court for its refusal to follow the Carter rules unless we determine that the error
was harmless beyond a reasonable doubt. The Chapman court further held that all trial errors
which violate the Constitution do not call for automatic reversal. 386 U.S. at 23. Under the
strict Chapman test, the question thus becomes whether it can be found beyond a reasonable
doubt that the error did not contribute to the verdict.
Assessing the strength of the prosecutor's evidence is, of course, one step in applying a
harmless error standard. Holloway v. Arkansas, 435 U.S. 475, 488 (1978). The defendant
was placed at the scene of the crime by the undenied presence of his fingerprint on the outside
of the door to the trailer house where the crimes were committed. A neighbor of the victim
identified Dyer as being in the vicinity of the trailer house on the day the offense was
committed.
Dyer's former jail mate, Marvin Henderson, testified that Dyer admitted to him that he had
entered the trailer, took money from the victim's purse and then, having been discovered by
the victim, attempted to obtain more money by beating her, and, finally, that he left the scene
believing that the victim was dead.
No alibi or other evidence was offered to show that Dyer was not at the scene or that there
was some reasonable, innocent reason for his being there. Dyer did not testify.
Henderson's testimony is corroborated by the fingerprint, the neighbor's testimony and to
a limited degree by the existence of a scar on Dyer's body which corresponded to a jagged
edge on the door frame through which Dyer would have to have passed in exiting the
trailer.
99 Nev. 422, 424 (1983) Dyer v. State
the neighbor's testimony and to a limited degree by the existence of a scar on Dyer's body
which corresponded to a jagged edge on the door frame through which Dyer would have to
have passed in exiting the trailer.
Although Henderson was a convicted felon, his account of Dyer's admission appears to
stand up except for some minor discrepancies. Also, Henderson's testimony is not as crucial
to conviction as posed by Dyer. Circumstantial evidence places Dyer at the time and scene of
the crime. Without necessarily having to testify himself, Dyer still had the opportunity of
providing evidence of his presence elsewhere or of a reasonable, innocent explanation of his
presence at the crime scene. The jury had the opportunity to evaluate Henderson's testimony
and would certainly be justified in accepting Henderson's rendition of Dyer's admission to
having committed the offense.
Were we to find that the trial court's failure to instruct the jury that it must draw no
inference from Dyer's not testifying had a substantial effect on the weight given by the jury to
Henderson's statement, then it would be necessary for us to reverse. We do not find this to be
the case and therefore affirm on this issue.
The jury was instructed that by constitutional right no person can be compelled in a
criminal action to be a witness against himself. This is the general rule, and the jury must be
assumed to have known that Dyer did not have to take the witness stand. It is true that the
court should have gone on to tell the jury that no inference should be drawn from the exercise
of this constitutional privilege; still, we do not find ourselves impelled, in this case, to rule
that the failure to give the required specification of the general rule had a material and
substantial effect on the weight given by the jury to Henderson's testimony.
Had the jury not been instructed on Dyer's right not to be a witness, we might look at this
case in a different light; however, since the jury did know that Dyer was not required to
testify, it would not appear to us that failure to instruct on prohibited inferences had a
material or substantial effect on the jury's evaluation of Henderson's credibility or of the
evidence in this case as a whole.
[Headnote 1]
Taking into account the weight of the prosecution's case, considering Henderson's
testimony, the challenge to his credibility, Dyer's presence at the scene, the other
corroboratory evidence mentioned above and the giving of the mentioned fifth amendment
instruction, we find, beyond a reasonable doubt, that the omitted instruction had no
substantial effect on the jury's verdict and that the error therefore was harmless.
99 Nev. 422, 425 (1983) Dyer v. State
Limitation of Cross-Examination
After forty-five minutes of cross-examination of the State's expert, Giles Sheldon Green, a
pathologist and Clark County coroner, the trial judge on his own motion advised defense
counsel that he would allow only five additional minutes of defense cross-examination. At
the conclusion of the five-minute period offense counsel ended his cross-examination.
Defense counsel objected to the time limitation and announced to the court that he had further
questions which he wished to address to the witness. He did not advise the court as to the
nature of the questions which he intended to ask.
We are now told that defense counsel wished to question the coroner concerning the effect
of the victim's age on her susceptibility to injury and how a fall from a chair might have
affected the victim's injuries. We are further advised that defense counsel wished to elicit
testimony concerning the consequences of a time delay in medically examining the injuries.
Defense counsel did not apprise the court of his intention to pursue any of the foregoing
matters. He merely stated that he had additional questions and that he objected to the time
limitation.
[Headnote 2]
Appellant concedes that limitation of cross-examination rests within the sound discretion
of the court. See Lloyd v. State, 304 So.2d 232 (Ala. 1974); State v. Curtis, 529 P.2d 1249
(N.M. 1974). It may have been ill-advised to allow only five additional minutes of
questioning, but we cannot conclude that the defense was wholly deprived of the right to test
the coroner's credibility. If the trial court had been clearly advised of the nature of the
intended questioning, and if it appeared that such questioning was significant to the
defendant's case, we might take a different view. Where counsel fails to inform the court of
the necessity for additional time, we cannot say that the trial court abused its discretion in
limiting cross-examination.
Admissibility of Hearsay
Defense counsel offered into evidence a statement alleged to have been made by the victim
to her attending nurse while in the hospital.
1
Defense counsel suggested to the trial court a
number of possible theories of admissibility of these hearsay statements.
____________________

1
Victim: You can be nice and kind to people and they turn around and do terrible things to you.
Nurse: I asked her if she knew who had done this. I said Rose, do you know who did this to you?' and she
shook her head, Yes'.
I said, Well, you are certainly going to tell the police'.
And she shook her head, no'.
99 Nev. 422, 426 (1983) Dyer v. State
Defense counsel suggested to the trial court a number of possible theories of admissibility
of these hearsay statements. Among the theories offered were dying declaration, admission by
a party opponent and res gestae. Counsel apparently now considers that none of these
exceptions is applicable in this case.
The only conceivable theory of admissibility, one not urged by defense counsel at trial, is
under NRS 51.315(1).
2

[Headnote 3]
It appears in the record, uncontradicted, that the elderly victim had told various stories
about her assault, on one occasion claiming it was a white man and a black man, on another
occasion that it was two black men and on another that it was a white man and his wife. The
trial judge was not satisfied as to the trustworthiness of the statements and excluded them.
We find no abuse of discretion in this ruling.
3

All assignments of error have been examined. We find no reversible error and affirm the
conviction.
Manoukian, C.J., Springer, Mowbray, and Gunderson, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

2
NRS 51.315 in pertinent part provides:
51.315 Hearsay exceptions: Declarant unavailable.
1. A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of
accuracy; and
(b) The declarant is unavailable as a witness.
. . . .

3
In a supplemental brief appellant cites Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976). Johnstone
ruled that certain hearsay testimony was admissible under NRS 51.315 because the hearsay was important if not
essential since it lent credence to an otherwise doubtful story. This is not the case here, and the trial judge acted
well within the scope of judicial discretion in refusing to admit the statements in question.

4
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case. Nev. Const.,
art. 6 19; SCR 10.
____________
99 Nev. 427, 427 (1983) In the Matter of Seven Minors
IN THE MATTER OF SEVEN MINORS.
THOMAS R., A MINOR, Appellant, v. JUVENILE DIVISION, Eighth Judicial District
Court of the State of Nevada in and for the County of Clark, Respondent.
No. 12966
MICHAEL S., A MINOR, Appellant, v. THE
No. 13296
TERRY M., A MINOR, Appellant, v. THE
No. 13483
BRETT G., A MINOR, Appellant, v. THE
No. 13488
PARRIS W., A MINOR, Appellant, v. THE
No. 13494
SANDRA C., A MINOR, Appellant, v. THE
No. 13679
AMANDA C., A MINOR, Appellant, v. THE
No. 13819
June 9, 1983 664 P.2d 947
Consolidated appeals were taken from orders of the Eighth Judicial District Court, Clark
County, John F. Mendoza, J., certifying for adult criminal proceedings, juveniles chargeable
with felony offenses. The Supreme Court, Springer, J., held that: (1) dispositive question to
be addressed by court in transfer proceeding is whether public interest requires that youth be
placed within jurisdiction of adult criminal courts; (2) juvenile court should consider
decisional matrix composed of three categories in transfer matters; (3) juveniles should not be
transferred to adult court unless it is made to appear clear and convincingly that public safety
and welfare require transfer; and {4) juvenile court must make initial determination of
prosecutive merit before transfer.
and (4) juvenile court must make initial determination of prosecutive merit before transfer.
Case numbers 12966, 13483 and 13488 affirmed; case numbers 13296, 13494, 13679
and 13819 reversed.
Morgan D. Harris, Public Defender, Victor John Austin, Deputy Public Defender, Clark
County, for Appellants.
Tufteland, Deputy District Attorney, Clark County, for Respondents.
1. Infants.
Dispositive question to be addressed by court in deciding whether to certify for adult criminal
proceedings 16 and 17-year-old juveniles charged with felony offenses is whether public interest requires
that youth be placed within jurisdiction of adult criminal courts; accordingly, once transfer is justified on
basis of public interest and safety, there is no need to consider best interests of the child or the youth's
amenability to treatment in juvenile court system except insofar as such considerations bear on public
interest. NRS 62.080.
2. Infants.
Juvenile court, in determining whether to certify for adult criminal proceedings 16 and 17-year-old
juveniles chargeable with felony offenses, should consider decisional matrix composed of three categories:
first, nature and seriousness of charged offense or offenses; second, persistency and seriousness of past
adjudicated or admitted criminal offenses; and third, subjective factors, such as age, maturity, character,
personality and family relationships and controls; transfer decision may be based on either or both of first
two categories, but third category must be considered with greater caution and transfer should not be based
on that category alone. NRS 62.080.
3. Infants.
Persons under 18 years of age are presumed to come within jurisdiction of juvenile court; they should not
be transferred from juvenile court to adult court unless it is made to appear clearly and convincingly that
public safety and welfare require transfer. NRS 62.080.
4. Constitutional Law; Infants.
Prior to certification for adult criminal proceedings of 16 and 17-year-old juveniles chargeable with
felony offenses, a preliminary determination of prosecutive merit is to be made to assure that there is
probable cause to believe that subject youth committed offense or offenses charged; this may be done on
basis of legal admission or confessions or by voluntary waiver of probable cause, and when minor
challenges issues of prosecutive merit and probable cause, due process requires that hearing be held and
that judicial determination be made on basis of hearing. U.S.C.A.Const. Amends. 5, 14; NRS 62.080.
5. Infants.
Juvenile judge erred by considering past offenses which were neither admitted by juvenile nor
adjudicated as delinquencies in making decision to transfer juvenile for adult criminal
proceedings.
decision to transfer juvenile for adult criminal proceedings. NRS 62.080.
6. Infants.
Juvenile judge did not abuse his discretion in ordering transfer of 17-year-old juvenile for adult criminal
proceedings relative to charge of residential burglary, where minor had number of previous felony offenses,
including felony charges of burglary and arson and had spent time in restrictive environment of youth
camp, apparently to no avail. NRS 62.080.
7. Infants.
Interests of state and interests of child would be best served by juvenile's retention in juvenile court
relative to his participation in two residential burglaries which occurred on same day, where juvenile's past
record was that he had previously stolen a couple of bicycles, and there was evidence that his mother, a
policewoman, and his stepfather were supportive of him and that his problem seemed to turn around use of
marijuana and peer pressure. NRS 62.080.
8. Infants.
Clear and convincing evidence supported transfer of 17-year-old juvenile for adult criminal proceedings
relative to charge of residential burglary, where record showed that he was persistent offender, and had
previously been committed to youth training center following adjudication of delinquency on two counts of
burglary and one count of possession of controlled substance. NRS 62.080.
9. Infants.
Clear and convincing evidence, including proof that 17-year-old juvenile was adjudicated a delinquent
twice previously for burglary, had been institutionalized for juvenile offenses, and was a heavy drug user,
supported transfer of juvenile for adult criminal proceedings relative to two residential burglaries. NRS
62.080.
10. Infants.
Evidence was not clear and convincing so as to support transfer of 17-year-old juvenile for adult criminal
proceedings relative to residential burglary, even though on probation at time of alleged commission of
residential burglaries, where juvenile judge was apparently influenced by a number of previous arrests and
referrals as opposed to felony delinquency adjudications or admissions, where juvenile's probation officer
recommended against transfer, juvenile lived at home, had close family ties, was enrolled in high school
and near graduation at time charged offense was committed. NRS 62.080.
11. Infants.
There was very little in record to show that community safety and public interest could only be served by
subjecting 17-year-old juvenile to adult prosecution relative to charge of stealing $188 worth of clothing
from retail store, where she had never been institutionalized by juvenile authorities, her probation officer
advised judge that juvenile court could offer better rehabilitation program, and she was uneducated and
immature. NRS 62.080.
12. Infants.
Seventeen-year-old juvenile charged with felonious offense of taking property from person of another
under circumstances not amounting to robbery would not be transferred for adult criminal proceedings,
where, although accused of picking pockets of man with whom she was engaged in prostitution, she had no
juvenile record of any kind. NRS 62.080.
OPINION
The subject matter of these appeals is the practice of transferring certain serious juvenile
offenders out of the juvenile division for criminal prosecution in district court. NRS 62.080
1
authorizes the juvenile court to certify
2
for adult criminal proceedings 16 and 17 year old
juveniles chargeable with felony offenses. These appeals, presented by juveniles facing adult
criminal prosecutions, give us occasion to examine an important and critical aspect of
juvenile court law and to establish certain procedural and substantive standards for the
guidance of juvenile courts in dealing with these matters.
Transfer has played an important role in juvenile court jurisprudence since its earliest days
and has acted as a safety valve through which offenders who were within the statutory age of
juvenile court jurisdiction could in appropriate circumstances be held accountable for their
criminal acts by referral to the adult criminal justice system.
The transfer process is based upon the sound idea that there is no arbitrary age at which all
youths should be held fully responsible as adults for their criminal acts and that there should
be a transition period during which an offender may or may not be held criminally liable,
depending on the nature of the offender and the offense.
3
Other than the requirement of a
"full investigation" the statute places no limitations on the discretion of the juvenile
courts in such matters.
____________________

1
62.080 Procedure when person 16 years or older is charged with felony. If a child 16 years of age or
older is charged with an offense which would be a felony if committed by an adult, the juvenile division
of the district court, after full investigation, may in its discretion retain jurisdiction or certify the child for
proper criminal proceedings to any court which would have trial jurisdiction of such offense if committed
by an adult; but no child under 16 years of age may be so certified. After such a child has been certified
for proper criminal proceedings and his case has been transferred out of the juvenile division, original
jurisdiction of the person rests with the court to which the child has been certified and the child may
thereafter petition for transfer back to the juvenile division only upon a showing of exceptional
circumstances.

2
Transferring or certifying juveniles to the adult criminal system has been variously referred to as transfer,
certification, waiver and by other designations. We shall use the term transfer throughout this opinion.

3
The common law recognized a comparable transition period. A child between seven and fourteen was
presumed to be doli incapax, incapable of distinguishing between good and evil, and therefore not criminally
responsible. Although prima facie free from criminal liability, such a child could be proven to be doli capax,
capable of forming criminal intent, and convicted of a crime.
Other than the requirement of a full investigation the statute places no limitations on the
discretion of the juvenile courts in such matters. The latitude of this discretion has been
limited in some degree by our opinion in Lewis v. State, 86 Nev. 889, 478 P.2d 168 (1970),
wherein we adopted the so-called Kent
4
criteria to be followed by juvenile courts in transfer
matters.
Although the Kent criteria give some guidance to judges making transfer decisions, our
adoption of these criteria in Lewis still did not provide a definitive, substantive rule to be
applied in transfer proceedings.
5

It is the office of this opinion, building on the Juvenile Court Act and on Kent and Lewis,
to construct an understandable and usable transfer rule to be applied by juvenile court judges
in making transfer decisions. We start with the Juvenile Court Act.
The Juvenile Court Act requires that juvenile courts function in a manner which is
conducive to the child's welfare and to the best interests of the state. NRS 62.031(1).
Juvenile courts have traditionally been preoccupied with the interests of the child, and the
interests of the state, as such, did not become a declared, joint purpose of our Juvenile Court
Act until 1949.
The juvenile court from its inception in Illinois in 1899 until approximately the middle of
this century was a child-centered institution based on theories taken from the positive school
of criminology and especially on the deterministic principle that youthful law violators are
not morally or criminally responsible for their behavior but, rather, are victims of their
environmentan environment which can be ameliorated and modified much in the way that
a physician modifies the milieu intrieur of a sick patient.
Under such a doctrine the juvenile court tended to lose its identity as a court and became
more of a social clinic than a court of law. Lost to such an institution was the moralizing and
socializing influence associated with the operation of criminal courts; and, more importantly,
lost too were society's ageless responses to criminal behavior: punishment, deterrence,
retribution and segregation. So it was that juvenile courts in Nevada prior to 1949 were not
charged with administering the criminal law for the protection of society against juvenile
criminality but were required to treat the youthful law violator "not as a criminal, but as
misdirected, and misguided and needing aid, encouragement and assistance."
____________________

4
Kent v. United States, 383 U.S. 541 (1966).

5
The Kent case dealt only with procedural rights and was not a decision on the merits as to whether a transfer
should take place. The Kent criteria were offered somewhat gratuitously in the form of an appendix which set
forth the terms of a policy memorandum issued by a judge of the juvenile court of the District of Columbia.
These criteria are not consolidated into a substantive rule, but they do present useful material out of which a
substantive rule can be derived.
criminal law for the protection of society against juvenile criminality but were required to
treat the youthful law violator not as a criminal, but as misdirected, and misguided and
needing aid, encouragement and assistance. NCL 1032.
This kind of kindly, paternalistic approach was eventually seen as being ill-suited to the
task of dealing with juvenile crime. The legislative response to this realization was that
toward the middle of this century a number of state legislatures, including our own, made
changes in the purpose clause of juvenile court acts so that juvenile courts were required to
consider the public interest as well as the child's interest. This departure from traditional
juvenile justice philosophy is significant. We take it to indicate that the status of juvenile
courts as courts is to be recognized and that protection of the public against juvenile criminal
offenders may be effected by invocation of the means traditionally employed in the judicial
administration of the criminal law. Juvenile courts may under such legislative direction
properly consider the punitive, deterrent and other accepted adjuncts of the criminal law.
Although juvenile courts may have difficulty at times in balancing the interests of the child
and the public, there is no irreconcilable opposition between the two. By formally recognizing
the legitimacy of punitive and deterrent sanctions for criminal offenses juvenile courts will be
properly and somewhat belatedly expressing society's firm disapproval of juvenile crime and
will be clearly issuing a threat of punishment for criminal acts to the juvenile population.
Juvenile delinquents are brought before the court for committing crimes. They should be
made to recognize that they have done something wrong and be prepared to accept unpleasant
consequences together with the treatment and rehabilitation normally forthcoming in juvenile
court proceedings. The two are related, and punishment has in many cases a rehabilitative
effect on the child and consequently will serve the child's best interests as well as the state's.
Enforcing the state's interests in a manner designed to hold juveniles responsible for their
violations of the criminal laws need not by any means dilute the strength of educative and
rehabilitative measures properly taken by the juvenile courts in attempting to socialize and
civilize errant youth. Guidance, understanding and care still have the same place in juvenile
court proceedings. Even youths who commit more serious crimes can profit from a separation
from adult offenders and from the special treatment and special programs which are available
in juvenile courts; this does not mean that they should go unpunished.
[Headnote 1]
While juvenile courts must balance these sometimes conflicting interests, the court's duty
to the public is paramount. The primary purpose of juvenile court intervention in delinquency
cases is social control; and when one interest must predominate, it should be that of the
public.
Generally speaking, in the juvenile court's weighing of the treatment and rehabilitative
aspects of the juvenile process against the public protection aspects (accountability,
punishment, deterrence and the like), the less serious and repetitive the criminal acts and the
younger and more immature the child, the more can parens patriae be invoked for the care,
rehabilitation and advancement of the best interest of the child. By the same token, the older
and more mature the child and the more serious and repetitive the offenses, the more
emphasis must be placed on public protection. We reach the extreme of this spectrum when
we come to the matter of transfer. Here we have an all-or-none situation, one in which the
basic decisions is whether the public interest and safety will permit the youth before the court
to be treated as a child. The public interest and safety require that some youths be held
accountable as adults for their criminal misconduct and be subjected to controls, punishment,
deterrence and retribution found only in the adult criminal justice system. This is the reason
for transfer.
Once transfer is justified on the basis of public interest and safety, there is no need to
consider the best interests of the child or the youth's amenability to treatment in the juvenile
court system except insofar as such considerations bear on the public interest. Once in a given
case transfer is decided upon on this basis, the youth is no longer presumed to be a child in
the eyes of the law and no longer entitled to the grace provided by the Juvenile Court Act in
that particular case. Accordingly, the juvenile court need not consider the youth's best
interests (and comfort) as such; although, in weighing the public necessity for transfer, the
court may consider, for example, that the probability of a given youth's becoming a
productive and law abiding citizen is much greater under juvenile court cognizance and that
retention in the juvenile system may therefore be more in the long-term public interest than
would be transfer for adult prosecution. As mentioned below, such subjective factors may be
properly considered in determining which youth should not be transferred to adult court in
those cases where the public interest does not clearly demand transfer.
Adoption of a rule for transfer based primarily on public safety interests is not in harmony
with the rules commonly seen in operation throughout the juvenile justice system.
in operation throughout the juvenile justice system. As a general rule when substantive
standards for transfer have been articulated either legislatively or judicially, they have been
based on what was best for the child and on whether the youth subject to transfer proceedings
appeared to be unlikely to benefit from any disposition available to the juvenile court.
6
Under this view a youth who can establish a likelihood of benefit from juvenile court
handling is immunized from transfer no matter how serious the crime committed or how
extensive past criminal behavior has been. This is totally unacceptable.
With community protection as the guiding principle to be considered in transfer
proceedings, subjective evaluations and prognostications as to whether a given youth is or is
not likely to respond favorably to juvenile court treatment will no longer be the court's
primary focus in transfer proceedings; rather, the dispositive question to be addressed by the
court is whether the public interest requires that the youth be placed within the jurisdiction of
the adult criminal courts. The juvenile court must make a rational discrimination, based upon
the best interests of the state, between youths who should properly be kept in the juvenile
court system and youths who should be sent to adult court.
[Headnote 2]
With public protection established as the general controlling principle upon which the
transfer decision is to be based, we are able to formulate guidelines to be applied by the
transfer decision maker. The Kent memorandum mentions two specific factors which should
be taken into account, namely, whether the charged offense is of a heinous or aggravated
character and whether there has been a pattern of repeated past offenses. These two factors
together with a third, the personal qualities and background of the offender, are the factors
ordinarily considered by a sentencing judge in a criminal case; they are also the factors which
should be considered in determining whether or not the public interest requires that a
particular youth be transferred to adult court. In transfer matters, then, we hold that the
juvenile court should consider a decisional matrix comprised of the following three
categories: first, nature and seriousness of the charged offense or offenses; second,
persistency and seriousness of past adjudicated or admitted criminal offenses; and third,
what we will refer to as the subjective factors, namely, such personal factors as age,
maturity, character, personality and family relationships and controls.
____________________

6
ABA Institute of Judicial Administration, Juvenile Justice Standards, Standards Relating to Transfer
Between Courts, 2.2C, Commentary (1980). Hereinafter, referred to as ABA-IJA, Standards Relating to
Transfer Between Courts.
offenses; and third, what we will refer to as the subjective factors, namely, such personal
factors as age, maturity, character, personality and family relationships and controls.
As in the sentencing process, primary and most weighty consideration will be given to the
first two of these categories.
7
By focusing on the youth's criminal activity, past and present,
the court is in a better position to make objective judgments in differentiating between the
hardcore offender and the majority of 16 and 17 year old youths who do not, in the public
interest, necessarily have to suffer the consequences of adult prosecution. By stressing
objective records rather than subjective clinical factors, the court will be adopting much safer
and fairer criteria for transfer decisions.
It follows, then, that the transfer decision may be based on either or both of the first two
categories. For example, the nature and seriousness of the crime upon which the transfer
proceedings are based may be such that transfer should be based on this factor alone. Only the
most heinous and egregious offenses would fall into this category, however. Similarly, a
persistent record of past serious offenses may alone justify transfer even if the supporting,
present charge were of relatively less seriousness.
The third category, the subjective factors, must be considered with greater caution; and
transfer should not be based on this category alone. For example, a judge's conclusion that the
youth in court is relatively sophisticated, uncontrite or rebellious does not justify a decision to
transfer, absent a finding that one or both of the first two categories call for adult treatment.
This third category, involving subjective evaluation of the youth, will come into play
principally in close cases in which neither of the other two categories clearly impels transfer
to adult court. In such cases, even given fairly serious criminal activity, a decision not to
transfer may be properly and wisely made because such individual considerations as mental
attitude, maturity level, emotional stability, family support and positive psychological and
social evaluation require a finding that the public interest and safety are best served by
retaining the youth in the juvenile system.
____________________

7
A survey of some 207 juvenile court judges disclosed that the two factors which were weighed most heavily
in making the decision to transfer to adult court were the past delinquency record of the juvenile and the
seriousness of the charged offense. President's Commission on Law Enforcement and the Administration of
Justice, Task Force Report: Juvenile Delinquency and Youth Crime (Washington, D.C.: U.S. Government
Printing Office, 1967), Appendix B, Table 5, p. 78.
Once punishment and deterrence are accepted as standard fare on the juvenile court menu,
there should be a greater tendency to retain youths in the juvenile system rather than to send
them off to the dire consequences of the adult system. Juvenile courts should be able to
fashion reasonable punitive sanctions as part of dispositional programs in delinquency cases.
8
Such programs can provide acceptable levels of punishment and personal accountability for
the offender and provide protection to the community in such a manner that it will not be
necessary in most cases to consider having to resort to the adult criminal justice system. This
might very well not be the case if the juvenile court were restricted to non-punitive types of
rehabilitative and therapeutic measures alone. Premature transfer to adult court of young and
immature youths would frequently be contrary to the interests of society, as well as being
contrary to the interests of the youth. The harsher treatment and association with hardened
criminals may increase the incipient criminal tendencies of the youthful offender. Another
consideration militating against premature transfer is the nullification process whereby
transferred youths may avoid punishment altogether by reason of a sentencing judge's
understandable reluctance to commit a 16 or 17 year old to the miseries of an adult prison.
Procedural Considerations
To complete the elaboration of a community safety standard applicable in transfer
proceedings it is necessary to deal with two procedural considerations, namely, burden of
proof and prosecutive merit.
[Headnote 3]
The legislature has set the upper limit of original juvenile court jurisdiction at age 18.
Persons under 18 years of age are presumed to come within the jurisdiction of the juvenile
court; they should not be transferred from the juvenile court to adult court unless it is
made to appear clearly and convincingly that the public safety and welfare require
transfer.
____________________

8
This opinion is intended to have the effect of affording considerable added breadth to the juvenile
dispositional process. By expressly approving punishment and community protection as legitimate concerns of
the juvenile court process we allow for a whole spectrum of sanctions by which youthful offenders can be held
accountable for their criminal acts. These sanctions can include community service, deprivation of driving and
other privileges, house detention, restitution to victims in the form of actual indemnity and additional
compensation for intangible injuries suffered by crime victims, temporary detention in detention homes and
detention of 16 and 17 year olds for brief periods in jail facilities apart from adult inmates. Obviously,
punishment is not restricted to confinement and incarceration. Since the legislature has not set determinate
sentences in training centers for commission of criminal offenses by juveniles, we would not undertake to do so
judicially. We do not think it would be unreasonable, however, for juvenile judges to order periods of punitive
detention in juvenile detention facilities, not to exceed 60 days.
presumed to come within the jurisdiction of the juvenile court; they should not be transferred
from the juvenile court to adult court unless it is made to appear clearly and convincingly that
the public safety and welfare require transfer.
[Headnote 4]
Prosecutive merit is a term referring to the necessity for establishing the merit of the
prosecution's case as a condition for proceeding with the transfer process. According to the
Kent memorandum, prosecutive merit exists if there is evidence upon which a grand jury
would be expected to return an indictment. To say that there is prosecutive merit is to say that
there is probable cause to believe that the subject minor committed the charged crime.
Judicial economy requires that a preliminary determination be made as to the prosecutive
merit of the charge before going ahead with the transfer process. If there is no prima facie
case to support the charge, there is no point in the court's involving itself further in the
process. Thus, the only reasonable way to proceed is for the court to make an initial
determination of prosecutive merit. Unless probable cause is conceded by the minor, the court
should proceed to hear and determine this issue before proceeding further.
The Transfer Cases
A. Thomas R. (Case No. 12966.)
Thomas R. was 17 years old at the time of his certification hearing. He was charged with
residential burglary.
The minor has a number of previous felony offenses. In November, 1975 when he was
only ten years old, he was adjudicated a delinquent on felony charges of burglary and arson.
On February 2, 1977, he was adjudicated a delinquent on a burglary charge.
[Headnote 5]
The minor's record of past adjudicated offenses is of the kind that would support transfer;
however, we note that in making the decision to transfer Thomas the juvenile judge also
considered past offenses which were neither admitted by the juvenile nor adjudicated as
delinquencies.
9
This is error. See Marvin v. State, 95 Nev. 836, 603 P.2d 1056 (1979)
(requiring reliance upon accurate and reliable information.). To be considered by the court
past offenses should be either adjudicated or properly admitted by the youth.
____________________

9
[T]his youngster is charged with having committed a number of offenses in the past . . . which he has
denied and they have not been proven.
[Headnote 6]
The question, then, is whether, absent the improperly considered criminal offenses, there is
still support in the record for the transfer decision. When the seriousness of the present
offense, residential burglary, is viewed in conjunction with the previous felony delinquency
adjudications, a quantum of culpability is reached which precludes appellate interference in
the juvenile judge's decision.
We consider burglary to be a very serious crime. Intentional and trespassory invasion of
the home of another, especially in the nighttime, can arguably be considered as a form of
violence. It is an offense which conduces towards violence and may cause serious and
permanent psychological harm to the victim. It is the type of crime which may, when
considered with other factors, justify the imposition of the punitive and deterrent
consequences found only in the adult criminal justice system.
In examining the third category, the personal attributes of this youth, we find no cause to
question the trial judge's decision. Although he was only 16 years old at the time of the
charged burglary, the record shows that the minor has spent time in the restrictive
environment of the Spring Mountain Youth Camp, apparently to no avail. The record further
shows an admission by the youth that he discharged a firearm during the previous burglary.
There is nothing that we can find concerning the personal character and attributes of this
youth which would cast any doubt on the juvenile judge's decision to transfer. The juvenile
judge did not abuse his discretion in ordering the transfer, and his decision is, in our opinion,
supported by clear and convincing evidence. We affirm.
B. Michael S. (Case No. 13296.)
[Headnote 7]
Michael is charged with participating in two residential burglaries which occurred on the
same day. He was 17 years old at the time the charged offense was committed; he was 18 at
the time of his hearing. Michael's past record is that in June, 1979 he and a companion stole
two bicycles.
The primary factors discussed above, seriousness of the charged offense and past record,
are not of such weight in this instance as to require the invocation of the heavy sanctions
available in the adult criminal justice system. We have here a boy who had previously stolen
a couple of bicycles and who was involved with three other youths in the daytime burglary of
two homes.
Although burglary is a serious crime which can, when combined with other factors,
support a transfer decision, we do not think the charges in this case support a decision
which calls for adult prosecution and possible prison sentence.
think the charges in this case support a decision which calls for adult prosecution and possible
prison sentence. We most certainly are neither diminishing the seriousness of the charges nor
suggesting that this minor should not be punished for his criminality. We say only that this
case does not rise to the level or degree that calls for removal to the adult system. This 17
year old minor can be and should be punished, but this may be accomplished in the juvenile
court system.
There is evidence in the record that Michael's mother, a policewoman, and his stepfather
are supportive of him and that his problem seems to turn around the use of marijuana and
peer pressure. The subjective category appears to weigh in favor of Michael's retention in
juvenile court.
The interests of the state and the interests of the child will be best served by Michael's
retention in the juvenile court. A one-time bicycle thief charged with burglary need not be
sent off to the adult criminal justice system. The transfer order will be reversed.
C. Terry M. (Case No. 13483.)
[Headnote 8]
This 17 year old juvenile appeared on a petition for transfer on a charge of residential
burglary. He was found hiding in the burglarized victim's house, and there appears to be little
question concerning his complicity in the charged offense. Although we agree with appellant
that the mere filing of a juvenile petition by the district attorney would not by itself support a
challenged finding of prosecutive merit, there is in the present record sufficient unchallenged
evidence of the youth's complicity in the charged burglary to support the juvenile court
judge's finding of prosecutive merit, and we will not set it aside.
This youth's record shows that he is a persistent offender. In 1977 he was adjudicated to be
a delinquent child by reason of his having committed the offense of possession of stolen
property. In January, 1978, Terry was committed to the Nevada Youth Training Center
following adjudication of delinquency on two counts of burglary and one count of possession
of a controlled substance.
Concerning the personal attributes of the youth, it is interesting to note that the record
contains a qualified professional opinion of the Superintendent of the Nevada Youth Training
Center that this young man is immature and would benefit from further treatment as a
juvenile in juvenile court. As indicated above, we do not accept amenability to juvenile court
treatment as immunizing a youth from adult transfer, and we adopt a much more objective
standard which looks primarily to what the youth has done rather than to subjective
evaluation as to present character or future potential.
to what the youth has done rather than to subjective evaluation as to present character or
future potential.
There is clear and convincing evidence to support the transfer; we affirm.
D. Brett G. (Case No. 13488.)
[Headnote 9]
This case presents very little difficulty. Brett G., 17 years of age, is accused of two
residential burglaries. A finding of prosecutive merit will be upheld for the same reasons
stated in the case of Terry M. He was adjudicated a delinquent twice in 1977 for burglary. He
has been institutionalized for juvenile offenses. He is a heavy drug user, and little or no case
is made for his retention in juvenile court. The case is clear and convincing, the transfer is
affirmed.
E. Parris W. (Case No. 13494.)
[Headnote 10]
This case is similar to that of Michael S. Parris, a 17 year old, has a previous adjudicated
delinquency, possession of stolen property, and is presently charged with residential burglary.
The case of Parris differs from Michael in that Parris was on probation at the time of the
alleged commission of the residential burglaries. This certainly is indicative of incorrigibility
and persistency on the minor's part and favors the transfer decision; however, the previous
charge of possession of stolen property does not seem to be of great consequence, and it does
not appear clear and convincing to us that the combination of this and the present charge rise
to the degree of culpability which would require adult treatment in order to afford proper
protection to the community.
There are a number of other considerations in this case. It is obvious from the record that
the juvenile judge was strongly and improperly influenced by a number of previous arrests
and referrals as opposed to felony delinquency adjudications or admissions.
Concerning personal attributes of the youth, we note that the juvenile's probation officer
recommended against transfer, stating that the youth has had very little services through the
Probation Department, and had been on probation only approximately 100 days. The minor
lived at home and had close family ties. He was enrolled in high school and near graduation
at the time the charged offense was committed. He has received tentative acceptance by the
University of Nevada-Las Vegas.
The mentioned matrix of past offenses, present charges and personal attributes fails to
being this case to a level which would clearly and convincingly justify transfer.
would clearly and convincingly justify transfer. We reverse the transfer order.
F. Sandra C. (No. 13679.)
[Headnote 11]
Sandra, age 17, is accused of stealing $118 worth of clothing from J.C. Penney's. The
record shows two petty larceny adjudications prior to the present grand larceny charge as well
as an adjudication of attempted larceny from the person.
There is very little in this record to show that community safety and the public interest can
be served only by subjecting this juvenile to adult prosecution. The child has never been
institutionalized by juvenile authorities. The girl's probation officer advised the judge that the
juvenile court could offer a better rehabilitation program for Sandra; this could include
juvenile institutionalization, an approach not yet tried with her.
The report to the court by the juvenile probation department indicates that the juvenile's
degree of maturity is questionable and that she functioned extremely well under an alternate
living situation and intensive supervision in the past. It is true that she has had three
adjudications relating to theft during the three years preceding the transfer hearing, but this
does not mean that community safety and the best interests of the state require that she be
removed from juvenile court and face adult imprisonment. Sandra is uneducated and
immature. She has never been placed in a juvenile institution such as the Girl's Training
Center in Caliente. There is every reason to believe that the optimal treatment of this girl
from the standpoint of the community and the child is the imposition of some punitive
sanction and continued training and rehabilitation in the juvenile court system. For these
reasons the transfer order is reversed and the matter remanded to the juvenile division,
wherein the minor will be treated in accordance with the Juvenile Court Act.
G. Amanda C. (No. 13819.)
[Headnote 12]
Amanda C., age 17, is charged with the felonious offense of taking property from the
person of another under circumstances not amounting to robbery. She is accused of picking
the pockets of a man with whom she was engaged in prostitution. The commission of this
isolated, essentially non-violent crime, if proven, would not by itself, absent any established
record of prior criminal activity, support in a clear and convincing fashion the necessity, in
the public interest, to transfer this young lady to the adult system.
Amanda has no juvenile record of any kind. The certification report indicates that Amanda
had been engaged in prostitution, but there is no evidence in the record of any adjudications,
convictions or admissions of any previous offenses. As a consequence, if Amanda is to be
transferred, it must be on the basis of the charged offense.
Certainly there are criminal offenses which are so heinous and so outrageous that standing
alone they would require transfer even absent a record of prior criminal activity. This is not
such an offense. The order of transfer will be reversed in this case.
Summary
By way of emphasis, we deem it advisable to summarize by enumeration the indicated
procedures in transfer matters. We do so, thus:
1. Transfer proceedings are to be initiated by written motion or petition which states
explicitly the charged felony offense or offenses upon which the requested transfer is based
and which further states the past record of criminal conduct. The motion or petition may also
include material relating to the personal background and attributes of the subject youth which
are considered material to the court's decision.
2. A transfer investigation is to be ordered and a report completed and filed. The
investigative report is to be served on the subject minor and his parents or guardians and
should state the details of the offense or offenses charged, the specific nature of previous
adjudicated or admitted criminal offenses, and elements relating to personal attributes of the
youth.
3. A preliminary determination of prosecutive merit is to be made to assure that there is
probable cause to believe that the subject youth committed the offense or offenses charged.
This may be done on the basis of legal admissions or confessions or by voluntary waiver of
probable cause. When the minor challenges the issue of prosecutive merit and probable cause,
due process requires that a hearing be held and that a judicial determination be made on the
basis of the hearing.
4. The hearing judge should decide for or against transfer on the basis of the mentioned
matrix of categories: nature and seriousness of the charged offense or offenses, persistency
and seriousness of adjudicated or voluntarily admitted past criminal offenses and the personal
attributes of the offender. Either seriousness of the charged offense or past record, or a
combination of the two categories, may support a decision to transfer. Transfer may not be
based solely on subjective evaluation of the youth, on character, attitude or other personal
attributes alone; however, such matters may be considered in conjunction with the other
factors in deciding whether transfer of the youth before the court is clearly and
convincingly necessary for public protection.
with the other factors in deciding whether transfer of the youth before the court is clearly and
convincingly necessary for public protection. Transfer cannot be avoided merely by a
showing of amenability to treatment in juvenile court.
5. Specific written findings which support the decisions to transfer are to be made in each
case as part of the formal order of transfer.
Manoukian, C.J., Mowbray, Steffen, and Gunderson, JJ., concur.
____________
99 Nev. 443, 443 (1983) Robert E. v. Justice Court
ROBERT E., A MINOR, Petitioner, v. JUSTICE COURT OF RENO TOWNSHIP, County of
Washoe, State of Nevada, Respondent.
No. 14324
June 9, 1983 664 P.2d 957
Juvenile arraigned as an adult on second of two burglaries, the first of which he was
certified to stand trial as an adult petitioned for writ of prohibition. The Supreme Court,
Manoukian, C.J., held that statute allowing juvenile to be certified for adult criminal
proceedings requires recertification of a juvenile for each and every independent offense.
Writ granted.
David Parraguirre, Public Defender, and Scott Jordan, Deputy Public Defender, Washoe
County, for Petitioner.
Mills Lane, District Attorney, and Edward Dannan, Assistant District Attorney, Washoe
1. Statutes.
When presented with questions of statutory interpretation, intent of legislature is controlling factor and, if
statute under consideration is clear on its face, court cannot go beyond statute in determining legislative
intent; if, however, statute is ambiguous it can be construed in line with what reason and public policy
would indicate legislature intended.
2. Infants.
Statute allowing juvenile to be certified for adult criminal proceedings requires recertification of a
juvenile for each and every independent offense. NRS 62.080.
OPINION
This petition requires us to determine the legislative intent regarding the 1977
amendment of NRS 62.0S0.
regarding the 1977 amendment of NRS 62.080. Determining that NRS 62.080, as amended, is
ambiguous, we hold that consistent with reason and public policy the legislature intended that
certification under NRS 62.080 terminates juvenile court jurisdiction only as to the specific
offense alleged and considered by the court at the certification hearing. Consequently, absent
a clear expression by the legislature to the contrary, NRS 62.080 requires recertification of a
juvenile for each and every independent offense. Accordingly, the writ of prohibition shall
issue.
On February 19, 1982, the petitioner was certified, pursuant to NRS 62.080, by the
juvenile division of a district court (juvenile division) to face adult criminal proceedings on
charges of burglary, grand larceny and possession of stolen property. At that time, petitioner
was sixteen years old. Petitioner pleaded guilty on March 10, 1982, to one count of burglary
and was released from custody on his own recognizance pending sentencing. On May 13,
1982, petitioner was sentenced to three years in the Nevada State Prison.
Several hours after petitioner's release on March 10, 1982, a residence in Lemmon Valley
was burglarized. On March 11, 1982, petitioner confessed to the Lemmon Valley burglary
and was arrested and charged, by way of criminal complaint, with burglary and possession of
stolen property. Although petitioner was still sixteen years old, he was not certified, pursuant
to NRS 62.080, by the juvenile division to face adult criminal proceedings on the second
burglary. Instead, he was booked at Washoe County Jail and arraigned as an adult. There is
no contention that the two burglaries are, in any manner, part of the same criminal
transaction.
Following the lower court's denial of his petition for writ of habeas corpus, petitioner
requested this court, on September 23, 1982, to issue a writ of mandamus or prohibition.
Respondent was ordered to answer after our determination that petitioner had set forth
arguable issues and that he may have no plain, speedy and adequate remedy in the ordinary
course of the law.
Acting as juvenile courts, the district courts of this state have exclusive, original
jurisdiction in proceedings over any juvenile living or found within the county who is
neglected, in need of supervision or has committed a delinquent act. NRS 62.040. A child
sixteen years of age or older may not be tried as an adult in a criminal proceeding in the
district court unless, after a full investigation, the juvenile division in the exercise of its sound
discretion determines that the juvenile should be certified for proper criminal proceedings to
the court which would have trial jurisdiction of such offense if committed by an adult.
trial jurisdiction of such offense if committed by an adult. NRS 62.080. In 1977, the
legislature amended NRS 62.080 by adding the following provision:
After such a child has been certified for proper criminal proceedings and his case has
been transferred out of the juvenile division, original jurisdiction of the person rests
with the court to which the child has been certified and the child may thereafter petition
for transfer back to the juvenile division only upon a showing of exceptional
circumstances.
1977 Nev. Stats. ch. 531 6.
The respondent contends that the legislative history of this amendment and the language of
the statute itself plainly indicate that, once a juvenile is certified as amenable to criminal
proceedings in district court, the juvenile does not need to be recertified to be tried as an adult
on any subsequent independent criminal charges. Petitioner argues that denial of
recertification hearings on subsequent criminal charges would violate due process of law
under Kent v. United States, 383 U.S. 541 (1966) and urges this court to adopt the general
rule and interpret NRS 62.080 as requiring recertification hearings.
1

[Headnote 1]
When presented with a question of statutory interpretation, the intent of the legislature is
the controlling factor and, if the statute under consideration is clear on its face, a court can not
go beyond the statute in determining legislative intent. White v. Warden, 96 Nev. 634, 636,
614 P.2d 536, 537 (1980). If, however, the statute is ambiguous it can be construed in line
with what reason and public policy would indicate the legislature intended. Cannon v.
Taylor, 87 Nev. 285, 288, 486 P.2d 493, 495 (1971), adhered to, withdrawn in part, 88 Nev.
89, 493 P.2d 1313 (1972). See generally White, supra. A statute or portion thereof is
ambiguous when it is capable of being understood by reasonably well-informed persons in
either of two or more senses. Madison Met. Sewer Dist. v. Dep't of Nat. Res., 216 N.W.2d
533, 535 (Wis. 1974). Because NRS 62.080 refers to transfer of the juvenile's case out of the
juvenile division, the statute can be reasonably interpreted as permitting relinquishment of the
juvenile division's jurisdiction over the child for the sole purpose of dealing with the specific
alleged violation pending in court. Cf. Martin v. State, 94 Nev. 687, 585
____________________

1
This court upheld, in Lewis v. State, 86 Nev. 889, 478 P.2d 168 (1970), the constitutionality of NRS 62.080
against charges that the statute constituted an unlawful delegation of legislative power by applying P.the
standards enunciated in Kent.
P.2d 1346 (1978) (district court has jurisdiction to rule on juvenile's petition for transfer back
to the juvenile division of the charges which resulted in certification). On the other hand,
respondent's interpretation that, once certified, jurisdiction over the juvenile remains with the
district court for all future crimes, absent exceptional circumstances, is reasonably supported
by language in NRS 62.080 which states that after certification original jurisdiction of the
person rests with the court to which the child has been certified. . . . Thus, NRS 62.080 is
ambiguous respecting retention of jurisdiction by the district court over a previously certified
juvenile.
[Headnote 2]
The legislative history with which respondent buttresses its argument consists of several
statements made by Mr. Carmen, the Director of Clark County Juvenile Court Services,
during Assembly and Senate Judiciary Committee hearings on A.B. 476 (1977 Nev. Stats. ch.
531). Mr. Carmen testified that once a juvenile had been certified up as an adult, they [sic]
would remain certified for all subsequent actions unless a showing of exceptional
circumstances was made. Although respondent claims that this legislative history is entitled
to substantial weight and deference by this court, the authorities state that testimony before
a committee is of little value in ascertaining legislative intent, at least where the committee
fails to prepare and distribute a report incorporating the substance of the testimony. Seward
Marine Services, Inc. v. Anderson, 643 P.2d 493, 497 n. 8 (Alaska 1982). Accord Thompson
v. IDS Life Insurance Co., 549 P.2d 510 (Or. 1976); 2A Sands, Sutherland on Statutory
Construction 48.10 (3d ed. 1974). In the present case, the respondent has made no showing
that Mr. Carmen's testimony was endorsed or relied on by the committees. Although Mr.
Carmen's study of A.B. 476 was attached to the Assembly Judiciary Committee's minutes as
an exhibit, it would be extremely speculative to impute Mr. Carmen's beliefs and opinions to
the legislature as a whole.
2
Thus, we are left with reason and public policy to aid in
interpreting NRS 62.080.
3
This court has recently emphasized the legitimacy of public
safety issues in certification proceedings under NRS 62.0S0.
____________________

2
Incidentally, Mr. Carmen's proposed language for the amendment of NRS 62.080 was rejected. Mr. Carmen
suggested that NRS 62.080 be amended to read: In matters of criminal justification, once so certified, original
jurisdiction of that person will rest with the adult court and then [sic] may petition the court to be processed as a
juvenile.

3
The cases relied on by petitioner do not establish a general rule favoring recertification for each new
criminal act by a juvenile. All of those decisions were resolved by statutory interpretation. The authorities cited,
however, do allow recertification in the face of statutes which seem
This court has recently emphasized the legitimacy of public safety issues in certification
proceedings under NRS 62.080. In the Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947
(1983). Nevertheless, the certification analysis set forth in Seven Minors need not by any
means dilute the strength of educative and rehabilitative measures properly taken by the
juvenile courts in attempting to socialize and civilize errant youth. Guidance, understanding
and care still have the same place in juvenile court proceedings. In the Matter of Seven
Minors, supra.
Permanent certification of a juvenile to the adult court system under NRS 62.080 would
subvert the carefully formulated decisional matrix in In the Matter of Seven Minors. Of the
three considerations enumerated therein only the persistency and seriousness of past
adjudicated or admitted criminal offenses remains static. Respondent's interpretation of NRS
62.080 would preclude the juvenile offender from establishing that the subsequent charges
before the court were not of a serious nature or that some of the subjective factors such as
age, maturity, character and family relationships and control had improved since the last
certification decision. Although Seven Minors limits the weight to be given subjective factors
in a transfer decision, the opinion clearly states that personal considerations may support a
decision not to transfer in close cases in which neither the seriousness of the alleged offense
nor the juvenile's criminal history impels transfer to adult court. Additionally, Seven Minors
suggests that each transfer decision must be based solely upon the nature of the alleged
charges presently before the juvenile court. We have stated that [o]nce in a given case
transfer is decided upon [the public interest] basis, the youth is no longer presumed to be a
child in the eyes of the law and no longer entitled to the grace provided by the Juvenile Court
Act, in that particular case. In the Matter of Seven Minors, supra.
____________________
to permanently return a juvenile to the jurisdiction of adult courts following the initial certification. In E.H.N. v.
Willis, 350 So.2d 829 (Fla.Dist.Ct.App. 1977), a Florida state statute which provided that, after entry of an order
waiving juvenile court jurisdiction, thereafter the child shall be subject to the jurisdiction of the appropriate
court as if the child were an adult, was interpreted to require recertification of the juvenile on every new
criminal charge. The Florida court stated that the juvenile court's waiver of jurisdiction was for the sole purpose
of dealing with the specific alleged violation pending in the court. Id. at 831. In State v. Dinkins, 627 P.2d 523
(Utah 1981), a Utah statute which provided that following certification the jurisdiction of the juvenile court is
terminated as to the child or person concerned, was interpreted to waive the juvenile court's jurisdiction only
to the specific offense alleged and considered by the court at the waiver hearing. Id at 524-525. See generally
Benge v. Commonwealth, 346 S.W.2d 311 (Ky. 1961).
The legislature has directed that the Juvenile Court Act shall be liberally construed to the
end that each child coming within the jurisdiction of the court shall receive such care,
guidance and control . . . as will be conducive to the child's welfare and the best interests of
the state. . . . NRS 62.031. This statement coupled with the importance in the transfer
decision of the nature of the alleged offense and the possibility of subjective factors weighing
against a transfer decision suggest that a juvenile charged with a crime subsequent to and
independent of the initial certification proceeding should have an opportunity to establish
changed circumstances in any of the categories enumerated in In the Matter of Seven Minors.
Therefore, reason and public policy dictate that certification to an adult court under NRS
62.080 affects only the specific offenses alleged and considered by the juvenile division at the
transfer proceeding. Thus, a juvenile must be recertified by the juvenile division under NRS
62.080 on each and every subsequent and independent criminal charge.
4

Accordingly, we hereby order that petitioner's writ of prohibition be granted, and suspend
all criminal proceedings in the respondent court brought against petitioner by way of the
criminal complaint filed on March 11, 1982, without prejudice as to the Washoe County
District Attorney's commencement of a certification hearing in the juvenile division as
provided herein to determine the petitioner's amenability to criminal proceedings in district
court on the charges brought against him subsequent to his certification hearing on February
19, 1982.
____________________

4
The Utah Supreme Court ruled on an identical issue in State v. Dinkins, 627 P.2d 523 (Utah 1981). There,
the court noted that: [r]ecertification hearings could take into account the record of prior proceedings. The
court need not hear the same evidence elicited before, but could consider whether new circumstances persuade
the court that the juvenile may at that time benefit from treatment in the juvenile system without jeopardizing the
safety of the public. Dinkins, 627 P.2d at 524. We approve of the Utah Supreme Court's statement concerning
recertification hearings. Such a procedure would minimize the burden on juvenile courts and would insure that
each alleged juvenile offender is afforded an opportunity to litigate any relevant changed circumstances.
____________
99 Nev. 449, 449 (1983) Kaplan v. State
MOREY KAPLAN, Also Known as HAROLD HARTZ, Jr.,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 13068
June 9, 1983 663 P.2d 1190
Appeal from conviction of first-degree murder, sentence of life imprisonment without the
possibility of parole, Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
The Supreme Court held that: (1) the district court erred in admitting, over objection, prior
inconsistent statements of witness who did not testify at trial and was not available for
cross-examination, and (2) admission of hearsay statements prejudiced defendant's substantial
rights.
Reversed with instructions.
McDonald & Kafchinski, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney; Edward B.
Horn and Michael L. Mahaffey, Deputy District Attorneys, Washoe County, for Respondent.
1. Criminal Law.
Prior testimony is not inadmissible under hearsay rule if hearsay declarant is unavailable as witness and
party against whom former testimony is offered was party or is in privity with one of former parties and
issues are substantially the same. NRS 51.325.
2. Criminal Law.
Hearsay declarant is unavailable as witness if he is persistent in refusing to testify despite order of judge
to do so. NRS 51.055, subd. 1(b).
3. Criminal Law.
Testimony given in defendant's first trial, in which issues were substantially the same as those in second
trial, by witness who was, through refusal to testify, unavailable at second trial, was not subject to
exclusion on hearsay grounds. NRS 51.055, subd. 1(b), 51.325.
4. Criminal Law.
Prior statements inconsistent with testimony given at first trial by witness unavailable for testimony and
cross-examination at later trial were inadmissible as hearsay at later trial. NRS 51.035.
5. Criminal Law.
Where district court judge and jury felt case against defendant was very close, Supreme Court could not
conclude that evidence of defendant's guilt was so overwhelming that district court's error in admitting
hearsay evidence did not prejudice defendant's substantial rights.
OPINION
Per Curiam:
Appellant Morey Kaplan was convicted after a jury trial of first-degree murder and
sentenced to life imprisonment without the possibility of parole.
the possibility of parole. It appears, however, that the district court erred in admitting, over
objection, prior inconsistent statements of a witness who did not testify at trial and was not
available for cross-examination. Accordingly, as the admission of these hearsay statements
prejudiced appellant's substantial rights, we reverse.
In February, 1976, Marjorie Carter and Raye Wood beat the victim, Peggy Davis, to death
with a hammer in her Reno apartment. Carter subsequently pleaded guilty to second-degree
murder pursuant to a plea bargain. Under the terms of this plea bargain, Carter testified before
a grand jury and at trial that appellant had employed Carter and Wood to commit a contract
killing of the victim in order to obtain the proceeds of the victim's life insurance policy,
which named appellant as beneficiary. In contrast, appellant maintained that Carter had killed
the victim as a result of racial animosity, and argued that Carter had invented the contract
killing story implicating him in retaliation for appellant having fired Carter from a lucrative
position as a bar manager.
Appellant was convicted of first-degree murder in 1979 after a jury trial. However,
because of certain prejudicial statements made by the special prosecutor concerning
appellant's prior criminal record which were published by the media, appellant was granted a
new trial.
1
At appellant's second trial, conflicting evidence was presented to the jury, and it
is uncontroverted that Carter, the only witness who directly linked appellant with the alleged
contract to kill the victim, had changed her story in material respect several times. The jury
indicated it had a very difficult time reaching a decision, and the trial court also characterized
the case as involving very close evidence. Nonetheless, appellant was convicted of
first-degree murder a second time, and sentenced to life imprisonment without the possibility
of parole.
Although appellant raises numerous issues, we need discuss only one to dispose of this
appeal. The issue in question arises out of the following factual setting. At trial, the
prosecution attempted to establish that appellant had been involved in a prior bad act, a 1974
plot to kill his wife to gain the proceeds of her insurance policy.
2
As its initial witness the
prosecution called Robert Maginnis, who allegedly had been involved in the
____________________

1
After a new trial was granted, appellant unsuccessfully appealed from a district court order denying a
motion for a change of venue. See Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980).

2
This evidence was apparently offered under the motive, opportunity, intent exception of NRS 48.045(2).
1974 plot. Maginnis refused to testify, and was adjudged in contempt of court.
3

Maginnis had testified, however, at appellant's first trial. At the prosecution's request this
earlier testimony was read to the jury. This prior testimony did little to incriminate appellant;
Maginnis testified that he had never met appellant and knew nothing about any contract to
kill appellant's wife. After this prior testimony was read to the jury, the prosecution called
several police officers to testify as to prior inconsistent statements allegedly made by
Maginnis at the time of the 1974 incident. The officers admitted they had made no records
concerning prior statements by Maginnis. However, they claimed that they had advised
Maginnis of an anonymous tip concerning a plot by appellant to kill his wife, and that
Maginnis had stated the tip was basically true.
[Headnotes 1-3]
The issue presented on appeal is whether, under this state's Evidence Code, a witness who
does not testify at trial may be impeached with extrajudicial prior inconsistent statements.
Before turning to this issue, we note that the testimony given by Maginnis in appellant's first
trial was not subject to exclusion on hearsay grounds at appellant's second trial. Prior
testimony is not inadmissible under the hearsay rule if the hearsay declarant is unavailable as
a witness and the party against whom the former testimony is offered was a party or is in
privity with one of the former parties and the issues are substantially the same. See NRS
51.325; see also LaPena v. State, 96 Nev. 43, 47, 604 P.2d 811 (1980). In turn, a hearsay
declarant is unavailable as a witness if he is persistent in refusing to testify despite an order of
a judge to do so. See NRS 51.055(1)(b); see also Sparkman v. State, 95 Nev. 76, 79-81, 590
P.2d 151 (1979). As appellant was a party to the earlier trial, in which the issues were
obviously substantially the same, and as Maginnis was, through a refusal to testify,
unavailable, the introduction of the prior testimony did not violate the rule against hearsay.
4

It is the admission of Maginnis's prior inconsistent statements, as related by the officers,
which poses the difficulty in the instant case. Such prior inconsistent statements are normally
admissible for purposes of impeachment over hearsay objection where the declarant
testifies and is available for cross-examination.
____________________

3
At the time of appellant's trial, Maginnis had been convicted of first-degree murder after an unrelated
homicide which occurred in December, 1974. See Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977).

4
This is not to suggest, however, that Maginnis's prior testimony had sufficient relevance to justify its
re-admission in the second trial.
objection where the declarant testifies and is available for cross-examination. Indeed, in a
technical sense, such statements are not hearsay; NRS 51.035 provides in pertinent part:
Hearsay means a statement offered in evidence to prove the truth of the matter
asserted unless:
. . . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is:
(a) Inconsistent with his testimony;
. . . .
(Emphasis added.) Thus, under NRS 51.035, a statement which would otherwise be subject to
exclusion on hearsay grounds is nonetheless admissible if two requirements are met: (1) the
proffered statement is inconsistent with the declarant's testimony; and (2) the declarant
testifies at the trial or hearing and is subject to cross-examination concerning the statement.
[Headnote 4]
In the instant case, Maginnis's prior statements to the officers were inconsistent with his
testimony at appellant's first trial. Thus, one of the requirements of the prior inconsistent
statement exception set forth in NRS 51.035 was met. However, the second requirement, that
the declarant testifies at the trial or hearing and is subject to cross-examination, is clearly not
met. As previously discussed, Maginnis refused to testify at the second trial, and thus was
unavailable within the meaning of the Evidence Code. See NRS 51.055(1)(b). In fact, the
admission of Maginnis's testimony from appellant's first trial was based on this
unavailability. Further, although Maginnis testified and was available for
cross-examination during appellant's first trial, NRS 51.035 clearly requires that the hearsay
declarant be available for cross-examination at the trial or hearing in which the prior
inconsistent statement is offered. In the instant case, the prior inconsistent statements were
offered during appellant's second trial. Thus, Maginnis would have had to testify at this
second trial and be subject to cross-examination if his prior inconsistent statements were to be
admitted into evidence.
[Headnote 5]
Given that Maginnis, the hearsay declarant, did not testify and was thus not available for
cross-examination at trial, the district court erred in admitting over hearsay objection
Maginnis's prior inconsistent statements. There remains the question of whether the district
court's error fatally infected appellant's trial. In Passarelli v. State, 93 Nev. 292, 564 P.2d 60S
{1977), this court was presented with the very issue now raised by appellant, but found
that the jury's verdict was supported by other overwhelming evidence of guilt and
declined to reverse.
608 (1977), this court was presented with the very issue now raised by appellant, but found
that the jury's verdict was supported by other overwhelming evidence of guilt and declined to
reverse. In contrast, here the evidence of appellant's guilt cannot be characterized as
overwhelming. The prosecution's case was based in large part on the testimony of Carter, an
obvious psychopath and an admitted perjurer. There was no direct physical evidence which
connected appellant with the crime, and the record indicates that the other principals in the
killing operated at the direction of Carter, not appellant. It is apparent that Carter was
prepared to tell any story the police would accept, in order to escape punishment for the
killing she had perpetrated. When her early stories of Kaplan's presence at the murder were
proved false, Carter substituted a scenario that cast Kaplan as having hired her to perform the
killing in his absence. Further, the prosecution appears to have placed great weight on the
extrajudicial statements of Maginnis, another murderer of dubious credibility. The first six
witnesses called by the prosecution, and a total of nine of the forty-one witnesses called in the
case-in-chief, were called to substantiate the 1974 prior bad act. If the statements required to
substantiate the prior bad act are stricken as hearsay, it follows that a significant portion of
the prosecution's case is eliminated. In light of the fact that both the district court judge and
the jury felt the case against appellant was very close, we cannot say the evidence of
appellant's guilt was so overwhelming that the district court's error did not prejudice
appellant's substantial rights. See NRS 177.255.
Accordingly, we order the judgment reversed. We will not decide, at this juncture, whether
other evidence against appellant would be sufficient to sustain a conviction. However, in the
event the prosecution elects to seek a re-trial, the district court is directed to allow appellant
to renew motions for change of venue and for bail.
____________
99 Nev. 453, 453 (1983) Schreiber v. Schreiber
CLYDE W. SCHREIBER, Appellant, v. BETTY
LOU SCHREIBER, Respondent.
No. 13474
June 9, 1983 663 P.2d 1189
Appeal from decree of divorce, Eighth Judicial District Court, Clark County; Addeliar D.
Guy, Judge.
The district court entered decree of divorce with independent division of community
property, ruling that parties' property settlement agreement was null and void for failure to be
in writing, and husband appealed. The Supreme Court held that trial court erred in holding
oral property settlement agreement null and void where husband had contended that it had
been fully performed by parties.
Foley & Foley, Las Vegas, for Appellant.
Lea & Beecroft, Las Vegas, for Respondent.
Husband and Wife.
Notwithstanding statutory requirement that property settlement agreement be in writing, trial court erred,
in divorce action, in ruling that oral property settlement agreement was null and void and had no effect
upon division of community property, where husband contended that oral agreement had been fully
performed by parties and that wife should thus be estopped from contesting it. NRS 123.220.
OPINION
Per Curiam:
This is an appeal from a decree of divorce. In the decree the district court ordered
appellant to convey to respondent portions of the community property held by him. Appellant
contends this order was error. He contends that the parties to this appeal had previously
entered into an oral property settlement agreement binding upon the parties under the
doctrines of part performance or estoppel. We reverse.
The parties to this appeal were married in 1955. They moved to Clark County, Nevada, in
1960 and have resided there ever since. In 1977, the parties' marriage became strained and
they separated. The parties orally agreed to divide the community property and to go their
own ways. Pursuant to this agreement, the family residence was sold and the proceeds
divided equally. Respondent received most of the family assets, while appellant received the
assets of a masonry contracting business owned and operated by the community. In 1980,
respondent filed for divorce and sought a division of the community property. The district
court found that the parties had entered into an oral agreement to divide their community
assets. Because the agreement was not in writing, however, the district court found that the
agreement was null and void and had no effect upon the division of community property.
Appellant acknowledges that a property settlement agreement is required to be in writing.
1
He contends, however, that the agreement is nevertheless enforceable because it was fully
performed by the parties. Alternatively, he contends that allowing respondent to assert the
writing requirement will unjustly enrich her and therefore she should be estopped to assert the
requirement.
In Evans v. Lee, 12 Nev. 393 (1877) this court stated:
The statute of frauds is intended for the protection of the respective parties to a parol
agreement. Whenever one party, confiding in the integrity and good faith of another,
proceeds so far in the execution of a parol contract that he can have no adequate remedy
unless the whole contract is specifically enforced, then equity requires such relief to be
granted; because, if the rules were otherwise the statute, which is designed to prevent
fraud, would itself become an instrument of fraud. . . .
Id., at 398. This rule has been applied in a number of subsequent cases not involving property
settlement agreements. See, e.g., Alpark Distributing, Inc. v. Poole, 95 Nev. 605, 600 P.2d
229 (1979); cf. Jones v. Barnhart, 89 Nev. 74, 506 P.2d 430 (1973) (district court erred in
dismissing a complaint which sought specific performance of land sales contract on grounds
that action was barred by statute of frauds; complainant might establish part performance or
basis for an estoppel). Courts in other jurisdictions have applied the above rule to oral
property settlement agreements. See Brown v. Brown, 343 A.2d 59 (D.C. 1975); Waters v.
Stevens, 176 P.2d 808 (Okla. 1947). We perceive no basis for distinguishing oral property
settlement agreements from other types of oral agreements normally required to be in writing,
but which may nevertheless be enforced if the party seeking enforcement establishes part
performance of the contract or a basis for applying the doctrine of estoppel.
We therefore reverse the order of the district court and remand this case to the district
court to determine if the oral agreement of the parties is enforceable under the views set forth
in this opinion.
____________________

1
NRS 123.220 requires that there be an agreement in writing between the spouses in order to transmute
community property into separate property.
____________
99 Nev. 456, 456 (1983) Westside Chtr. Serv. v. Gray Line Tours
WESTSIDE CHARTER SERVICE, INC., a Nevada Corporation, and PUBLIC SERVICE
COMMISSION OF NEVADA, Appellants, v. GRAY LINE TOURS OF SOUTHERN
NEVADA, a Nevada Corporation, Respondent.
No. 13722
June 9, 1983 664 P.2d 351
Appeals from order denying relief from judgment and from order enforcing judgment.
First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Tour company filed suit challenging the Public Service Commission's decision to grant
authority to a charter service to provide on-call transportation of passenger and sight-seeing
services. The district court vacated a portion of the charter service's tariff and limited the
charter service's authority. Charter service moved for relief from judgment. After that motion
was denied, appeal was taken. The Supreme Court held that, once the action had been filed by
the tour service challenging the Public Service Commission's decision, the Public Service
Commission was without jurisdiction to act on a second tariff application by the charter
service.
Affirmed.
Darrell Lincoln Clark, Las Vegas, for Appellant Westside Charter Service.
Zev Kaplan, Legal Counsel, Carson City, for Appellant Public Service Commission of
Nevada.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas; Crowell, Crowell & Crowell, Carson
1. Carriers.
District court properly denied motion for relief from judgment in suit by tour company challenging Public
Service Commission's decision to grant authority to charter service to provide on-call transportation of
passengers and sight-seeing services where charter service's counsel admitted that trial statements had been
received 17 days before trial date, providing charter service sufficient notice of trial. NRCP 60(b).
Where order of administrative agency is appealed to a court, that agency may not act further on that
matter until all questions raised by appeal are finally resolved.
3. Carriers.
Where denial of motion for relief from judgment in suit by tour company challenging Public Service
Commission's decision to grant authority to charter service to provide on-call transportation
of passengers and sight-seeing services was properly on appeal and decision by
Supreme Court favoring charter service could have changed character of original
judgment, Commission's actions and entertaining and granting tariffs before final
decision on appeal were improper, conflicting with jurisdiction of district court.
authority to charter service to provide on-call transportation of passengers and sight-seeing services was
properly on appeal and decision by Supreme Court favoring charter service could have changed character
of original judgment, Commission's actions and entertaining and granting tariffs before final decision on
appeal were improper, conflicting with jurisdiction of district court. NRCP 60(b).
4. Carriers.
District court's stay of its judgment in suit by tour company challenging Public Service Commission's
decision to grant authority to charter service to provide on-call transportation of passengers and
sight-seeing services effectively prevented any further administrative proceedings and, therefore,
Commission was without jurisdiction to act on charter service's second application. NRCP 60(b).
5. Automobiles.
Where Public Service Commission clearly acted without jurisdiction in granting additional tariff to
charter company, tour company's motion for enforcement of district court's judgment limiting charter
service's authority was appropriate and no further action on tour company's part to challenge Commission's
actions was required. NRS 706.706; NRCP 60(b).
OPINION
Per Curiam:
Appellants Westside Charter Service, Inc. (Woodside), a corporate motor carrier, and
Public Service Commission of Nevada (PSC) seek relief on appeal from adverse judgments
entered in favor of the respondent Gray Line Tours of Southern Nevada (Gray Line). We find
no basis for disagreement with the district court and accordingly affirm its rulings.
In April, 1979, Westside applied to PSC for a certificate of public convenience and
necessity for on-call transportation of passengers and sight-seeing services in Clark County.
Gray Line was permitted to intervene in Westside's application. After a hearing, PSC agreed
to issue the certificate to Westside.
Thereafter, Gray Line filed a complaint in district court, requesting that the PSC grant of
authority be vacated. At the district court trial on the matter, only counsel for Gray Line and
PSC appeared. Counsel for PSC and Gray Line then entered into a stipulation which formed
the basis for the district court's judgment. In its findings of fact and conclusions of law
accompanying judgment, the court concluded that the evidence introduced before the PSC did
not support the broad grant of authority to Westside. The district court therefore vacated that
portion of the Westside tariff permitting the transfer of passengers and their baggage between
McCarran Airport and the hotels and motels in Las Vegas. The court then delimited
Westside's authority to the providing of nightclub tours of the northwest and westside of
Las Vegas and tours of Mount Charleston, which could only be conducted from midnight
until 2:00 a.m.
the northwest and westside of Las Vegas and tours of Mount Charleston, which could only be
conducted from midnight until 2:00 a.m.
Westside ultimately moved for relief from judgment under NRCP 60(b) on the basis of
surprise. Westside supported its motion by the contention that it had been in the process of
changing counsel immediately prior to trial, and neither it nor its counsel had notice of the
trial until the day it was held. In denying Westside's motion, the district court found that
because the record contained a Notice to Set for Trial, with a properly executed certificate of
mailing and an affidavit of Westside's counsel which admitted that trial statements from the
other parties had been received 17 days before the trial date, Westside had sufficient notice of
the trial. Judgment was stayed pending appeal. Since Westside's appeal was timely only as to
the dismissal of its motion for relief from judgment, and not the underlying judgment itself,
we consider only the propriety of the denial of the motion. Smilanich v. Bonanza Air Lines,
72 Nev. 10, 291 P.2d 1053 (1956); Smilanich v. Bonanza Air Lines, 72 Nev. 212, 298 P.2d
819 (1956).
Some time after the district court's order denying 60(b) relief had been entered, Westside
again submitted a tariff application to PSC. PSC issued an order granting certain tariffs,
including authority to operate downtown city tours, modified city tours, main nightclub tours,
late nightclub tours, Hoover Dam-Lake Mead tours, and to transport passengers and baggage
to and from McCarran International Airport and Union Pacific Stations. Gray Line thereafter
filed a motion to enforce the earlier judgment, and to obtain sanctions. Gray Line asserted that
PSC lacked jurisdiction to issue any further order concerning the case once it had filed its
action in district court regarding the initial PSC grant to Westside.
In its order granting Gray Line's motion, the district court held, in part, that Gray Line's
original challenge to the PSC action stayed further action by PSC until the matter had finally
been resolved on appeal. The court then vacated the tariffs, stating that PSC's actions in
granting the tariffs contravened the earlier district court judgment. Both Westside and PSC
have appealed from this order. We consider these appeals together with Westside's earlier
appeal from the district court's denial of the NRCP 60(b) motion.
[Headnote 1]
Westside's appeal from the denial of its motion for relief from judgment pursuant to NRCP
60(b) is without merit. From the findings filed by the court and our review of the record on
appeal, it is apparent that the court had before it sufficient evidence to find that Westside was
on notice of the upcoming trial.
upcoming trial. Under these circumstances, we affirm the trial court's judgment. Jacobson v.
Best Brands, Inc., 97 Nev. 390, 632 P.2d 1150 (1981); Clark Co. Sports v. City of Las Vegas,
96 Nev. 167, 606 P.2d 171 (1980); Blanchard v. Nevada State Welfare Dep't, 91 Nev. 749,
542 P.2d 737 (1975).
We further sustain the trial court's decision granting Gray Line's motion to enforce the
May 22, 1981 judgment. Because PSC was without jurisdiction to exercise any authority in
regard to the matters decided upon in the district court's May 22, 1981 judgment, its grants of
the special tariffs to Westside, entered after judgment, were void.
[Headnote 2]
It is generally accepted that where an order of an administrative agency is appealed to a
court, that agency may not act further on that matter until all questions raised by the appeal
are finally resolved. As was stated by the Alaska Supreme Court in Fischback & Moore of
Alaska, Inc. v. Lynn, 407 P.2d 174 (Alaska 1965):
It is the general rule that when an order of an administrative agency is appealed to a
court, the agency's power and authority in relation to the matter is suspended as to
questions raised by the appeal. (Footnote omitted.) The rule is based on common sense.
If a court has appellate jurisdiction over a decision of an administrative body, it would
not be consistent with the full exercise of that jurisdiction to permit the administrative
body also to exercise jurisdiction which would conflict with that exercised by the court.
The court's jurisdiction over the subject matter of an appeal must be complete and not
subject to being interfered with or frustrated by concurrent action by the administrative
body.
Operation of the rule is limited to situations where the exercise of administrative
jurisdiction would conflict with the proper exercise of the court's jurisdiction. If there
would be no conflict, then there would be no obstacle to the administrative agency
exercising a continuing jurisdiction that may be conferred upon it by law.
Id. at 176. Accord Colorado Anti-Discrimination Commission v. Continental Air Lines, 355
P.2d 83 (Colo. 1960); Martin v. Dayton School District No. 2, 536 P.2d 169 (Wash.App.
1975).
[Headnote 3]
In the instant case, the initial judgment of the district court was not seasonably appealed at
the time PSC granted the subsequent tariffs to Westside. Nonetheless, the denial of
Westside's NRCP 60(b) motion for relief from judgment was properly on appeal.
properly on appeal. Because a decision by this Court favoring Westside ultimately could have
changed the character of the original judgment, PSC's actions in entertaining and granting the
tariffs before a final decision on that appeal were improper, conflicting with the jurisdiction
of the district court. Although PSC may have been correct in assessing the merits of
Westside's appeal, it was nonetheless without power to deal with the subject matter of the
underlying judgment before that appeal was decided.
[Headnote 4]
It is also clear that the district court's stay of judgment while the case was under appeal did
not allow PSC to deal with the subject matter of the judgment until a final decision had been
rendered. The purpose of a stay is to preserve the status quo ante. It does not allow further
modifications on the subject matter of the judgment. East Standard Mining Co. v. Devine, 59
Nev. 134, 81 P.2d 1068 (1938). In this case, the stay of judgment pending appeal effectively
prevented any further administrative proceedings on the subject matter of the appeal while the
order denying the NRCP 60(b) motion was on appeal. Thus, PSC was without jurisdiction to
act when it did in regard to Westside's second application.
[Headnote 5]
Appellants' contention that Gray Line was required to comply with the requirements of
NRS 706.706 in order to challenge the PSC's grant of additional tariffs to Westside is also
groundless. Under the circumstances of this case, where the PSC clearly acted without
jurisdiction, Gray Line's motion for enforcement of the May 22, 1981 judgment was
appropriate. No further action on Gray Line's part to challenge the PSC's actions was
required.
We have examined appellant's other contentions and find them to be without merit. We
therefore affirm the decisions of the district court in their entirety.
____________
99 Nev. 460, 460 (1983) State Dep't Mtr. Veh. v. Jenkins
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant,
v. VALERIE JENKINS, Respondent.
No. 13747
June 9, 1983 663 P.2d 1186
Appeal from order reversing administrative ruling, First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
The State appealed from decision of the district court which set aside suspension of
driver's license by a hearing officer of the Department of Motor Vehicles. The Supreme Court
held that substantial evidence supported hearing officer's decision that driver failed to submit
to a chemical test within meaning of implied consent law.
Reversed.
Brian McKay, Attorney General; Larry B. Bernard and Steven F. Stucker, Deputy
Attorneys General, Carson City, for Appellant.
Kenneth J. Jordan, Carson City, for Respondent.
Neither Supreme Court nor district court may substitute its judgment for that of an administrative agency
as to weight of evidence on questions of fact; review is limited to determination that the agency's decision
is based on substantial evidence. NRS 233B.140, subd. 5.
2. Automobiles.
There was substantial evidence to support decision of hearing officer that driver, who attempted but
failed to provide urine sample after several attempts, who refused to submit to blood chemical test on
religious grounds, and who did not allege or establish a valid reason for not completing a breath test,
refused to submit to a chemical test within meaning of implied consent law. NRS 484.383.
OPINION
Per Curiam:
A hearing officer of the Department of Motor Vehicles determined that respondent Valerie
Jenkins failed to comply with Nevada's implied consent law, NRS 484.383. Consequently,
her driver's license was suspended. Respondent then sought judicial review of the
Department's decision. The district court reviewed the administrative proceedings, and set
aside the suspension. For the reasons hereinafter set forth, we reverse the district court's
decision.
The hearing officer found that respondent was arrested for driving under the influence, and
that she was advised as to the implied consent law but refused to submit to a chemical test as
required under NRS 484.383.
1
Upon her arrest, respondent was told by a police officer that
she would have to submit to a blood test.
____________________

1
1. Except as provided in subsections 4 and 5, any person who drives a vehicle upon a highway in this
state shall be deemed to have given his consent to a chemical test of his blood, urine, breath or other
bodily substance for the purpose of determining the alcoholic content of his blood or the presence of a
controlled substance when
told by a police officer that she would have to submit to a blood test. When respondent
refused, on religious grounds, to submit to a blood test, the arresting officer contacted the
district attorney's office. The officer was eventually advised to give respondent the option of
submitting to a breath or urine test in lieu of a blood test.
Shortly before the officer received instructions from the district attorney's office, however,
respondent requested and received permission to relieve herself. When the officer
subsequently informed respondent she had the option of submitting to a blood or urine test,
respondent chose the urine test. Having just urinated, respondent was unable to give a urine
sample. She failed to give a urine sample over the next four to five hours, although she made
several attempts. The officer finally again gave respondent the option of taking a breath test;
when she again refused, the officer noted that respondent had failed to comply with the
chemical test requirements of the implied consent law.
[Headnote 1]
The hearing officer found that respondent had refused to submit to a chemical test as
required by the implied consent law. The district court reversed the decision of the hearing
officer, finding the decision was not supported by substantial evidence on the record. We
disagree. Initially, we note that neither this court nor the district court may substitute its
judgment for that of the administrative agency as to the weight of the evidence on questions
of fact. Garvin v. State, Dep't of Mtr. Vehicles, 96 Nev. 827, 829, 619 P.2d 534 (1980); Nev.
St. Bd., Dental Exam'rs v. Toogood, 97 Nev. 255, 628 P.2d 301 (1981). Review is limited to
the determination that the administrative agency's decision is based on substantial evidence.
See NRS 233B.140(5); D & C Builders v. Cullinane, 98 Nev. 67, 639 P.2d 544 (1982).
[Headnote 2]
In the instant case, there is substantial evidence to support the decision of the hearing
officer.
____________________
such a test is administered at the direction of a police officer having reasonable grounds to believe that
the person to be tested was driving a vehicle while under the influence of intoxicating liquor or a
controlled substance and:
(a) After he was arrested for any offense allegedly committed while he was driving a vehicle under the
influence of intoxicating liquor or a controlled substance; or
(b) He is dead, unconscious or otherwise in a condition rendering him incapable of being arrested.
2. The person arrested must be informed that his failure to submit to such a test will result in the
suspension of his privilege to drive a vehicle for a period of 6 months.
the decision of the hearing officer. From the record presented, it is clear that respondent was
cognizant of her responsibilities under the implied consent law. The arresting officer testified
that he read the implied consent law to respondent from a card prepared for that purpose by
the sheriff's office. Further, at the administrative hearing respondent made no claim that she
was in any way confused or unaware of her responsibilities under the statute. Cf. Garvin v.
State, Dep't of Mtr. Vehicles, 96 Nev. at 830 (driver claiming confusion as to responsibilities
under implied consent law testified at hearing but failed to mention alleged confusion;
officers testified that at time of arrest driver stated he understood implied consent law; license
suspension upheld). Thus, the hearing officer's finding that respondent was aware of her
responsibilities under the implied consent law is supported by substantial evidence.
The hearing officer's finding that respondent failed to submit to a chemical test is also
supported by substantial evidence. Although respondent apparently made several attempts to
provide a urine sample over a four to five hour period, she ultimately failed to provide the
necessary sample. The hearing officer's finding of a failure to submit to a chemical test thus is
implicitly based on the proposition that the failure to complete a chemical test amounts to a
refusal to submit to a chemical test. In contrast, the district court's reversal of the hearing
officer's decision appears to be implicitly based on the proposition that a driver's good faith
attempt to complete a chemical test is sufficient to meet the driver's responsibilities under the
implied consent law even if that attempt is unsuccessful.
This court has previously stated, however, that [a] mere attempt to urinate, without
success, is not a submission to a chemical test within the meaning of the implied consent
law. Garvin v. State, Dep't of Mtr. Vehicles, 96 Nev. at 829, n. 2. Further, courts of our
sister state of California have consistently held that where a driver chooses to submit to a
urine test but is unable to complete the test due to an inability to pass urine, the driver will be
found to have refused to submit to a chemical test unless he submits to and completes a
different test. See McConville v. Alexis, 159 Cal.Rptr. 49 (Cal.App. 1975); Skinner v. Sillas,
130 Cal.Rptr. 91 (Cal.App. 1976); Smith v. Cozens, 101 Cal. Rptr. 787 (Cal.App. 1972);
Cahall v. Department of Motor Vehicles, Div. of Driv. Lic., 94 Cal.Rptr. 182 (Cal.App.
1971); Quesada v. Orr, 92 Cal.Rptr. 640 (Cal.App. 1971). Other jurisdictions have reached a
similar result. See State, Department of Highways v. Lauseng, 183 N.W.2d 926 (Minn. 1971);
Mackey v. Director of Dept. of Motor Vehicles, 235 N.W.2d 394 (Neb. 1975).
In the instant case, respondent was unable to complete the urine test, and thus did not
submit to that chemical test within the meaning of the implied consent law. When it became
apparent that she would be unable to complete the urine test, it was respondent's
responsibility to submit to and complete a different test. Assuming, arguendo, that respondent
could legitimately refuse to submit to a blood test on religious grounds, she nonetheless did
not allege or establish a valid reason for not completing a breath test. See 3 Erwin, Defense of
Drunk Driving Cases 33.06 (3rd ed., 1982); see also Commonwealth of Pa., Dept. of
Transp. v. Medalis, 354 A.2d 43 (Pa.Cmwlth. 1976); Commonwealth Dept. of Trans. Bur. of
Tr. Safe. v. Kelly, 335 A.2d 882 (Pa.Cmwlth. 1975) (mere allegation by driver that he was
unable to complete breath test insufficient, standing alone, to establish inability to complete
test as required).
The hearing officer's determination that respondent refused to submit to a chemical test is
supported by substantial evidence on the record presented, and the district court erred in
reversing the administrative ruling suspending respondent's driver's license. Accordingly, we
order the district court's decision reversed.
____________
99 Nev. 464, 464 (1983) Burroughs Corp. v. Century Steel
BURROUGHS CORPORATION, Appellant, v. CENTURY
STEEL, INC., Respondent.
No. 14151
June 9, 1983 664 P.2d 354
Appeal from judgment in a contract action. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
User of computer brought third-party action for breach of contract against seller of
computer. The district court entered judgment for user, and seller appealed. The Supreme
Court held that: (1) agreement between leasing company and user of computer which
purported to be lease, was properly characterized as purchase-money mortgage financing
arrangement; (2) financing agreement between user and leasing company did not indicate that
equipment sales contracts between user and seller had been abandoned or rescinded, and thus
privity of contract existed between seller and user; (3) evidence supported findings that seller
failed to timely deliver and install "workable" computer software system for user; and {4)
evidence did not support award of damages to user for storage fees were amount of such
fees was not in evidence.
that seller failed to timely deliver and install workable computer software system for user;
and (4) evidence did not support award of damages to user for storage fees were amount of
such fees was not in evidence.
[Rehearing denied October 20, 1983]
Weiner, Waldman & Gordon, Ltd., Las Vegas, for Appellant.
George D. Frame, Las Vegas, for Respondent.
Supreme Court can affirm lower court's ruling on different grounds than those of lower court.
2. Sales.
Transaction between leasing company and seller of computers was not a sale of equipment sales contracts
where, although agreement between leasing company, which bought computer from seller, and user of such
computer purported to be lease, it was apparent that parties simply intended leasing company to provide
financing for user's acquisition of computer from seller.
Lease between user of computer and leasing company was properly characterized as purchase-money
mortgage financing arrangement, where lease agreement required user of computer, as lessee, to pay
taxes, maintenance, insurance and other costs relating to computer and to agree to indemnify lessor and
hold lessor harmless from any claims arising from use of computer, and to give lessee benefit of
manufacturer's or supplier's warranties, and under which lease, buyer of computer, as lessor, made no
representations or warranties with respect to computer, was not liable to lessee for any damage or liability
caused by computer and did not assume liability for any loss or damage due to delays in delivery or
installation of computer, did not select or inspect computer, and was not manufacturer or dealer is such
equipment.
4. Sales.
Where financing agreement between user of computer as lessee and owner of computer as lessor did not
indicate that equipment sales contracts between user of computer as buyer and seller of computer had been
abandoned or rescinded by mutual agreement, privity of contract existed between seller and user.
In face of conflicting evidence, trial court's factual determinations will not be disturbed on appeal if they
are supported by substantial evidence.
6. Sales.
Substantial evidence supported findings that seller of computer failed to timely deliver and install
workable computer software system, in light of testimony that all programs were not installed by date
called for in contract, program would not balance user's books, and most programs functioned very badly,
and expert testified that problems with computer system were programing errors.
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given opportunity
of trial court to judge credibility of witnesses.
8. Sales.
Trial court's finding in judgment regarding storage fees incurred by user of computer was clearly
erroneous in that amount of such fees incurred was determined by reference to proposed exhibit not
admitted into evidence.
OPINION
Per Curiam:
This is an appeal from a judgment in favor of Century Steel, Inc. (Century Steel) on a
breach of contract action which it brought against Burroughs Corporation (Burroughs).
Although Burroughs argues that no privity of contract existed between it and Century Steel
we hold that the parties were bound by their Equipment Sales Agreements. Additionally, we
find that substantial support exists in the record for the lower court's ruling that Burroughs
breached those agreements by its failure to deliver and install a workable computer
software system. Nevertheless, the lower court's ruling regarding certain storage fees is
clearly erroneous. Accordingly, we reverse the lower court's judgment as to the award of
storage fees but affirm it in all other respects.
Century Steel manufactures and sells steel bars. On December 26, 1975, Century Steel
agreed to purchase from Burroughs a mini computer and accompanying program software.
On appeal the parties agree that the written, signed contract was subject to an oral condition
precedent that Century Steel obtain financing for the acquisition of the computer and
software.
The first leasing company contacted, National Equipment Rental, Ltd., denied Century
Steel's request for financing on February 26, 1976. Eventually, Nevada National Leasing Co.,
Inc. (Nevada National) agreed to purchase the mini computer and software from Burroughs
and lease the equipment to Century Steel for sixty (60) months. Lynn Leany, President of
Century Steel, authorized the lease on April 8, 1976. Nevada National assigned the lease to
Equilease Corporation (Equilease) on August 13, 1976.
Leany testified that although Burroughs had promised that the computer and software
would be delivered in February, 1976, the equipment was not installed until April, 1976. By
December of 1976, however, Century Steel was totally dissatisfied with the computer and
software. At some point after December, 1976, Century Steel moved the Burroughs computer
out of its office to a mini warehouse in Henderson and had a Wang Computer installed.
out of its office to a mini warehouse in Henderson and had a Wang Computer installed.
On December 27, 1977, Equilease filed a complaint against Century Steel which alleged
nonpayment of rent for 1977. Equilease prayed that the entire amount of rent be adjudged due
and payable and that it be allowed to repossess the equipment and sell it pursuant to the
security interest created by its predecessor, Nevada National. On January 19, 1977, Century
Steel filed a third party complaint against Burroughs which alleged a breach of the December
26, 1975, contract between Century Steel and Burroughs. On May 8, 1979, the lower court
granted Equilease's motion for summary judgment for acceleration of the total amount of rent
due, costs of attorneys' fees and pre and post judgment interest. Century Steel's third party
complaint, however, continued to trial. On April 9, 1982, the lower court entered its judgment
in favor of Century Steel. The trial judge held that Century Steel was entitled to recover from
Burroughs all rental payments Century Steel had made to Nevada National and its assigns, the
amount of the May 8th summary judgment paid to Equilease, maintenance costs and storage
costs. Burroughs timely appealed this judgment.
On appeal, Burroughs' primary contention is that, for several reasons, it was not in privity
of contract with Century Steel. Essentially, Burroughs claimed that it sold the computer
equipment to Nevada National which, in turn, leased the equipment to Century Steel. The
court below found that Burroughs and Century Steel executed two equipment sale contracts
on December 26, 1975, for the purchase of a mini computer and software and that Burroughs
subsequently sold those contracts to Nevada National.
[Headnotes 1, 2]
The trial court erred in characterizing the transaction between Nevada National and
Burroughs as a sale of equipment sales contracts.
1
Although the agreement between Nevada
National and Century Steel purports to be a lease, it is apparent that the parties simply
intended Nevada National to provide financing for Century Steel's acquisition of a computer
from Burroughs.
In Atlas Industries, Inc. v. National Cash Register Co., 531 P.2d 41 (Kan. 1975), the
Kansas Supreme Court found the following factors helpful in determining the true nature of
a remarkably similar leasing arrangement: {a) The equipment ordered was shipped and
installed by NCR: U.S. Leasing did not select or inspect the equipment; . . . {c) U.S. Leasing
was not a manufacturer or dealer in like equipment; {d) the monthly payments under the
lease were calculated to return to U.S. Leasing the purchase price, sales tax, and interest;
{e) it was not contemplated that the equipment would be returned to U.S. Leasing; and {f)
the renewal rental was for a nominal amount and extended to a period beyond the usable
life of the equipment.
____________________

1
This error, however, does not affect the result reached by the trial court. It is established that this court can
affirm a lower court's ruling on different grounds. Hotel Riviera v. Torres, 97 Nev. 399, 632 P.2d 1155 (1981).
(a) The equipment ordered was shipped and installed by NCR: U.S. Leasing did not
select or inspect the equipment; . . . (c) U.S. Leasing was not a manufacturer or dealer
in like equipment; (d) the monthly payments under the lease were calculated to return to
U.S. Leasing the purchase price, sales tax, and interest; (e) it was not contemplated that
the equipment would be returned to U.S. Leasing; and (f) the renewal rental was for a
nominal amount and extended to a period beyond the usable life of the equipment.
Id at 43. See also Citicorp Leasing, Inc. v. Allied Institutional, 454 F.Supp. 511 (W.D.Okla.
1977); CIT Financial Services, Inc. v. Gott, 615 P.2d 774 (Kan.App. 1980). In U.C. Leasing,
Inc. v. Laughlin, 96 Nev. 157, 606 P.2d 167 (1980), this court, in determining that Article 9
of the U.C.C. was applicable, listed the following factors as indicative of the parties' true
intentions regarding an alleged lease agreement: (a) that the lessee bears the entire risk of
loss, theft, damage or destruction and no such loss relieves the lessee of his obligation to pay
rent; (b) that the lessee must provide insurance against loss, theft or damage of the leased
equipment; (c) that the lessee is required to indemnify the lessor against and hold him
harmless from all claims and liabilities arising in connection with the equipment; (d) that the
lessee must pay all charges, taxes and fees imposed on the leased equipment; and (e) that the
lessor disclaimed all warranties, expressed or implied. Id. at 161, 606 P.2d at 170. See also
Las Vegas Auto Leasing, Inc. v. Davis, 98 Nev. 169, 643 P.2d 1217 (1982).
[Headnotes 3, 4]
In the present case, the lease agreement between Nevada National and Century Steel
required the latter, as lessee, to: (1) pay all personal property taxes, maintenance, insurance
and other costs and expenses and obligations of every kind and nature relating to the
equipment; and (2) agree to indemnify and hold the lessor harmless from any claims, actions
or liability arising from the use, operation, maintenance or condition of the equipment. The
lessee received the benefit of any manufacturer's or supplier's warranties and no defect or
unfitness of the equipment or failure to perform by the supplier relieved the lessee of its
obligation of payment.
According to the lease, Nevada National, as Lessor: (1) did not make any representations
or warranties with respect to the condition, quality, fitness or merchantability of the
equipment; (2) was not liable to lessee for any damage or liability caused by the equipment;
and (3) did not assume any liability for any loss or damage due to delays in delivery or
supplier's failure to properly install or assemble the equipment.
or damage due to delays in delivery or supplier's failure to properly install or assemble the
equipment. Additionally, Nevada National did not select or inspect the equipment. Nevada
National is not a manufacturer or dealer in like equipment. The equipment ordered by
Century Steel was shipped and installed by Burroughs. Under the criteria set out by Atlas and
Laughlin, the lease between Century Steel and Nevada National is properly characterized as
a purchase-money mortgage financing arrangement. The financing agreement between
Century Steel and Nevada National did not indicate that the Equipment Sales Contracts of
December 26, 1975, had been abandoned or rescinded by mutual agreement.
2
Thus, privity
of contract existed between Burroughs and Century Steel.
Burroughs next contends that the lower court's finding that Burroughs breached the
Equipment Sales Contracts by its failure to deliver and install workable software systems is
clearly erroneous. At trial, the parties presented sharply conflicting evidence regarding the
installation and operation of the software programs. Burroughs put on evidence that although
they promised delivery of the computer hardware in February 1976, it was not delivered until
the financing arrangements were completed by Century Steel in April of that year.
Additionally, one of Burroughs' former employees testified that it could take six months to
one year to install all the programs Century Steel had ordered. The installation period would
have to be expanded if, as did at least three of the Century Steel programs, any of the
programs had to be customized to fit the customer's needs. Finally, the Burroughs'
employee who handled the Century Steel account testified that all programs ordered by
contract were installed by August and that, besides some minor "fine tuning," most of the
problems with the system were input errors.
____________________

2
Burroughs relies on a gratuitous comment regarding a factually similar case made by the Arizona Court of
Appeals in Kalil Bottling Co. v. Burroughs Corp., 619 P.2d 1055 (Ariz.Ct.App. 1980). There, the court ridiculed
the parties' presumption that a contract existed between Burroughs and the ultimate user of the computer, Kalil
Bottling. The facts indicated to the court that the parties' conduct constituted a mutual recission of the contract
when the computer and software was [sic] purchased by [the leasing company] and leased to Kalil. Id. at 1057.
This statement, however, is obiter dictum. The Arizona court continued that because the general rule prohibits an
appellate court from raising, sua sponte, an issue not litigated below, the case would be decided on the theory
upon which both parties proceeded below, [i.e., breach of contract between Burroughs and Kalil].
Understandably, we do not find Kalil to be persuasive authority. If the Arizona court had the benefit of full
briefing on the issue, we believe the more reasoned position would have emerged. That position is that the true
nature and character of a document is not determined by the name attached thereto but by the intent of the parties
as reflected by the terms or contents thereof. Atlas Industries, 531 P.2d at 47.
some minor fine tuning, most of the problems with the system were input errors.
[Headnotes 5, 6]
The trial court, however, believed the statements of the president and controller of Century
Steel that all of the programs were not installed by August 4th; that Century Steel was totally
dissatisfied with the computer by December 1976, in that, the program would not balance the
books; and that most of the programs functioned very badly. Additionally, the controller who
had previous computing experience with two former employers testified that problems with
the computer system were programming errors. In the face of conflicting evidence, the trial
court's factual determinations will not be disturbed on appeal if they are supported by
substantial evidence. Sierra Creek Ranch v. J.I. Case, 97 Nev. 457, 634 P.2d 458 (1981). The
record on appeal contains substantial evidence in support of the lower court's findings that
Burroughs failed to timely deliver and install a workable computer software system.
Finally, Burroughs argues that the lower court's findings regarding certain storage fees are
without substantial support in the record. The lower court found that Century Steel had, in
fact, placed the computer in storage on February 1, 1977; that Century Steel had incurred the
sum of $2,970.00 for storage through April 30, 1982; and that Century Steel would continue
to incur damages of $46.00 each month for storage fees until Burroughs accepted the
computer. Century Steel obtained judgment on the above-mentioned sums.
[Headnotes 7, 8]
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses. Kenney v.
Greer, 99 Nev. 40, 656 P.2d 857 (1983); NRCP 52(a). There is no testimony in the record
which evidenced the amount of money expended by Century Steel for storage fees. Century
Steel's president simply testified that storage fees had been incurred by his company.
Nevertheless, the Record on Appeal does include Plaintiff's Proposed Exhibit No. 8. The
proposed exhibit is a summary of the costs resulting from the defects in the computer. The
summary indicates that Century Steel was charged $46.00 per month for storage fees and that
Century Steel spent a total of $2,786.00 for storage from February 1, 1977, to December 31,
1981. The proposed exhibit, however, was not admitted into evidence. Thus, the lower court's
finding and judgment regarding the storage fees is clearly erroneous. See Kenney, supra.
All other issues raised by Burroughs have been considered and are without merit.
Therefore, we reverse that part of the lower court's judgment which awards Century Steel
$2,970.00 for storage fees and $46.00 per month until Burroughs accepts the computer and
software but affirm the judgment in all other respects.
____________
99 Nev. 471, 471 (1983) McCracken v. Cory
LARRY O. McCRACKEN, Executive Director, STATE OF NEVADA EMPLOYMENT
SECURITY DEPARTMENT, BOARD OF REVIEW OF STATE OF NEVADA
EMPLOYMENT SECURITY DEPARTMENT, Appellants, v. WAYNE D. CORY,
Respondent.
No. 13795
June 9, 1983 664 P.2d 349
Appeal from order awarding attorney's fees, Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Appeal was taken from order of the district court awarding attorney fees to the attorney for
a claimant for unemployment benefits whose petition for judicial review of a decision
denying him benefits was successful. The Supreme Court held that district court exceeded
scope of its review of agency determination of fees by considering matters pertaining to time
spent by attorney in preparing case which was not presented to agency.
Reversed.
John A. Flangas, Reno, for Appellants.
Marilyn V. Romanelli, Las Vegas for Respondent.
1. Social Security and Public Welfare.
Where money damages were not requested in proceeding for judicial review of decision of Employment
Security Department denying unemployment benefits, district court had no authority to award attorney fees
under statute allowing attorney fee awards in action for money damages. NRS 18.010, 18.010, subd.
2(a).
When decision of administrative body is challenged, function of district court is to review evidence
presented to administrative body and ascertain whether that body acted arbitrarily or capriciously, thus
abusing its discretion.
District court's review of decision of administrative body is limited to record before agency.
District court exceeded scope of its review of decision of Employment Security Department awarding
attorney fees to attorney for claimant who was successful on petition for judicial review of decision
denying him unemployment benefits by considering matters pertaining to time spent by attorney in
preparing case which were not presented to the agency.
Award of $123 attorney fee to attorney for claimant for unemployment benefits whose petition for
judicial review of decision denying him benefits was successful was not arbitrary or capricious in light of
summary request for fees presented by attorney and in light of claimant's recovery of $1,230 in benefits.
OPINION
Per Curiam:
Respondent Wayne Cory successfully petitioned the district court for judicial review of a
decision of the Nevada Employment Security Department (NESD) denying him
unemployment benefits. The district court reversed the NESD's decision and remanded Cory's
case to the NESD Board of Review (the Board) for a full hearing. On remand, Cory was
awarded $1,230 in benefits. Cory's counsel subsequently filed an Application for Fee with
the Board, requesting approval of an attorney's fee pursuant to NRS 612.705(2).
1
The Board
approved a fee of $123, an amount representing ten percent of the benefits received by Cory.
Thereafter Cory's counsel filed a motion for attorney's fees in district court, thereby
challenging the agency's award of the $123 fee. After conducting a hearing, the district court
concluded that the Board's award of the $123 fee with no consideration being given to the
amount of work expended was arbitrary as a matter of law. The court also found that under
NRS 18.010 attorney's fees should be awarded to respondent's counsel as a prevailing party,
and that a reasonable attorney's fee for the legal work performed was $600. The district court
then ordered that counsel's fee be increased to $600. This appeal followed. For the reasons set
forth below, we reverse.
____________________

1
Any individual claiming benefits in any proceeding before the executive director or the board of
review, or his or its representatives, or a court, may be represented by counsel or other duly authorized
agent, but no such counsel or agents shall either charge or receive for such services more than an amount
approved by the board of review.
[Headnote 1]
We have repeatedly held that attorney's fees may not be awarded in the absence of a
statute, rule or contract allowing them. Nevada Bd. Osteopathic Med. v. Graham, 98 Nev.
174, 643 P.2d 1222 (1982); State ex rel. List v. Courtesy Motors, 95 Nev. 103, 590 P.2d 163
(1979). We have also held that NRS 18.010 applies only to actions for money damages.
2
International Indus. v. United Mtg. Co., 96 Nev. 150, 606 P.2d 163 (1980). Since money
damages were not requested in the judicial review proceedings below, the district court had
no authority to award attorney's fees under NRS 18.010. See Nevada Bd. Osteopathic Med. v.
Graham, supra.
[Headnotes 2-4]
Furthermore, when a decision of an administrative body is challenged, the function of the
district court is to review the evidence presented to the administrative body and ascertain
whether that body acted arbitrarily or capriciously, thus abusing its discretion. Gandy v.
State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980) (footnote
omitted). The district court's review is limited to the record before the agency. Nevada
Industrial Comm'n v. Horn, 98 Nev. 469, 653 P.2d 155 (1982). In the present case, counsel's
Application for Fee filed with the Board stated, in its entirety:
PLEASE TAKE NOTICE that the undersigned requests that a fee be awarded to her
for her successful representation of [employee Wayne Cory] at the administrative level.
Please note that in setting the fee, this case had first to be processed in the Courts for
remand.
In response to this request, the Board awarded the $123 fee. When counsel challenged this
award in district court, however, counsel stated for the first time that she had expended eight
hours in preparing her client's case and that $75 per hour was reasonable. The district court
increased the award of fees to $600 in reliance on these allegations. In doing so, the district
court considered matters nor presented to the Board.
3
Consequently, the district court
exceeded the scope of its review. See Nevada Industrial Comm'n v. Horn, supra.
____________________

2
NRS 18.010(2)(a) authorizes the district court to award attorney's fees to a plaintiff as prevailing party
when the plaintiff has not recovered more than $10,000.

3
There is no indication in the record before us that Cory's counsel requested leave to present this additional
information pursuant to NRS 233B.140(3). Nor did Cory's counsel offer any reasons for failing to present this
information to the Board in her application for fees. See Nevada Industrial Comm'n v. Horn, supra.
[Headnote 5]
We conclude that the Board's award of a $123 fee in this case was neither arbitrary nor
capricious. In light of the summary request for fees presented to the Board by Cory's counsel,
the award representing ten percent of the claimant's benefits was reasonable. Accordingly, the
order of the district court is reversed, and the award of $123 is reinstated.
____________
99 Nev. 474, 474 (1983) Schier v. Hertz Corp.
TOBY SCHIER, Appellant, v. THE HERTZ
CORPORATION, Respondent.
No. 13958
June 9, 1983 663 P.2d 1185
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Plaintiff alleged that vehicle lessor breached lease agreement by failing to provide
uninsured motorist coverage. Summary judgment was granted to the lessor by district court.
On appeal by the plaintiff, the Supreme Court held that complaint allegations that vehicle
lessor breached lease agreement by failing to provide uninsured motorist coverage stated
claim against lessor despite lessor's irrelevant contention that lessor was not an insurer.
Greenman, Goldberg & Raby, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, and Jack C. Cherry, Las Vegas, for Respondent.
Insurance.
Complaint allegations that vehicle lessor breached lease agreement by failing to provide uninsured
motorist coverage stated claim against lessor despite lessor's irrelevant contention that lessor was not an
insurer. NRS 690B.020.
OPINION
Per Curiam:
This is an appeal from a summary judgment in respondent's favor.
On August 17, 1979, appellant Schier's husband leased an automobile from respondent
Hertz Corporation (Hertz). Three days later, while operating the leased vehicle, Schier and
her husband were involved in an automobile accident with an uninsured vehicle driven by
Hazel Jones and owned by Arthur Sharpe. Schier was a passenger in the leased vehicle and
was injured. She subsequently sued Jones and Sharpe in district court seeking recovery for
her injuries and received a default judgment against them for $33,100.
On October 22, 1981, Schier filed a complaint against Hertz in district court. She alleged,
in effect, that Hertz was obligated under the lease agreement to provide uninsured vehicle
coverage and that Hertz was therefore indebted to her in the amount of $33,100. Thereafter,
both Schier and Hertz moved for summary judgment. The district court granted Hertz's
motion. Schier's appeal followed. We reverse.
In her motion for summary judgment Schier argued that Hertz was obligated to provide
uninsured motorist coverage under the following provision of the lease agreement:
9. LIABILITY COVERAGE. Lessor provides liability coverage for Customer and
any operator authorized by Lessor in accordance with the standard provisions of a
Basic Automobile Liability Insurance Policy as required in the jurisdiction in which the
vehicle is operated (excluding optional coverages) against liability for bodily injury,
including death (limits $100,000 each person, $300,000 each accident) and property
damage (limit $25,000) arising from use of Vehicle as permitted by this Agreement.
Coverages hereunder shall automatically conform to the requirements of any
No-Fault Law which may be applicable. In the event that coverage is imposed, by
operation of law, to the benefit of any person other than the Customer . . . then the
limits of such coverage shall be the minimum requirements of the Financial
Responsibility Law or other applicable statute of the state or other jurisdiction in
which the accident occurred. . . . (Emphasis added.)
Further, Schier contended that NRS 690B.020 requires automobile liability insurance policies
to include uninsured motorist coverage.
1
Since Hertz agreed to provide insurance coverage
in conformance with Nevada law, Schier contended that Hertz thereby agreed to provide
uninsured motorist coverage.
____________________

1
NRS 690B.020 provides in pertinent part:
1. No policy insuring against liability arising out of the ownership, maintenance or use of any motor
vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered
or principally garaged in this state unless coverage is provided therein or supplemental thereto for the
protection of persons
coverage in conformance with Nevada law, Schier contended that Hertz thereby agreed to
provide uninsured motorist coverage. Schier requested a judgment against Hertz in the
amount of $15,000.
Hertz failed to address the above contentions in opposing Schier's motion. Instead, Hertz
argued in its motion for summary judgment that it was not an insurer within the meaning of
NRS 690B.020, and that only insurance companies issuing motor vehicle liability policies in
Nevada must offer uninsured motorist coverage. Hertz concluded that since it was not an
insurance company, Nevada law did not require it to provide uninsured motorist coverage
and, therefore, it was not liable to Schier.
Schier's complaint, however, was based on a breach of contract theory. Schier contended
that Hertz had breached the lease agreement by failing to provide uninsured motorist
coverage. Under the lease agreement, Hertz promised to provide liability insurance. Thus, the
question before the district court was whether Hertz was also obligated under this agreement
to provide uninsured motorist protection. Whether Hertz was an insurer is irrelevant. The
district court agreed with Hertz's contentions and, in doing so, granted summary judgment on
an irrelevant and incorrect ground.
Therefore, we reverse the summary judgment and remand for trial.
____________________
insured thereunder who are legally entitled to recover damages, from owners or operators of uninsured
or hit-and-run motor vehicles, for bodily injury, sickness or disease, including death, resulting from the
ownership, maintenance or use of the uninsured or hit-and-run motor vehicle. . . . The coverage required
in this section may be referred to as uninsured vehicle coverage.
2. The amount of coverage to be provided must be not less than the minimum limits for bodily injury
liability insurance provided for under the Motor Vehicle Safety Responsibility Act (chapter 485 of NRS),
but may be in an amount not to exceed the bodily injury coverage purchased by the policyholder.
(Emphasis added.)
____________
99 Nev. 476, 476 (1983) Rosser v. Housewright
EDWARD ROSSER, Appellant, v. VERNON G. HOUSEWRIGHT,
Director of the Nevada Department of Prisons, Respondent.
No. 14358
June 9, 1983 664 P.2d 961
Appeal from order dismissing petition for writ of habeas corpus, First Judicial District
The Supreme Court held that revocation of parole for violation of special condition that
parolee refrain from drinking did not constitute cruel and unusual punishment or
imprisonment for status as alcoholic where, even if parolee was utterly incapable of
abstention, imprisonment was based on original conviction for crime committed while
intoxicated and not on his status as alcoholic.
Affirmed.
Thomas E. Perkins, State Public Defender, and Norman Y. Herring, Special Deputy State
Public Defender, Carson City, for Appellant.
Brian McKay, Attorney General, and Ernest E. Adler, Deputy Attorney General, Carson
1. Criminal Law.
Imprisonment of alcoholic not because of his or her status but because of criminal offense committed
while under the influence of alcohol does not constitute cruel and unusual punishment; by the same token,
imprisonment for original offense following revocation of parole or probation based on violation of
condition of abstention is not punishment for status. U.S.C.A.Const. Amend. 8.
2. Pardon and Parole.
Condition requiring alcoholic to totally abstain from alcohol while on parole is not per se unreasonable;
revocation for violation of such condition is permissible, as for any other failure to conform to conditions
of parole release.
3. Criminal Law.
Revocation of parole for violation of special condition that parolee refrain from drinking did not
constitute cruel and unusual punishment or imprisonment for status as alcoholic where, even if parolee was
utterly incapable of abstention, imprisonment was based on original conviction for crime committed while
intoxicated and not on his status as alcoholic. U.S.C.A.Const. Amend. 8.
OPINION
Per Curiam:
Appellant was convicted in 1976 of two counts of unauthorized signing of a credit card
sales slip, a felony. Appellant, who had a serious alcohol problem, was intoxicated when he
committed the offenses. Because of his drinking problem the district court suspended
appellant's prison sentence and placed him on probation, with the special conditions that he
totally abstain from the use of alcohol and participate in an alcohol treatment program.
Appellant was unable to refrain from drinking and his probation was revoked for violation of
the abstention condition.
Appellant was three times paroled from the Nevada State Prison, each time under a special
condition of parole that he refrain from drinking. Each release on parole led to a revocation
for violation of the abstention condition. Following the third revocation appellant filed the
instant petition for writ of habeas corpus in the district court, challenging his incarceration as
cruel and unusual punishment in violation of the Eighth Amendment. Appellant argued that
he had been imprisoned solely because of his status as an alcoholic, since his parole was
revoked solely for his allegedly uncontrollable use of alcohol. The district court found the
petition to be without merit and ordered it dismissed. Appellant contends this was error. We
disagree.
In support of his argument that his imprisonment for violation of the abstention condition
amounts to imprisonment for alcoholic status or for a medical condition, appellant relies
primarily on Sweeney v. United States, 353 F.2d 10 (7th Cir. 1965); and State v. Oyler, 436
P.2d 709 (Idaho 1968). Both the Sweeney and Oyler courts held it unreasonable, and
implicitly in violation of the Eighth Amendment, to impose a probation condition of total
abstention upon an alcoholic who is incapable of refraining from drinking.
1
The record
before us does not conclusively establish that appellant is the type of alcoholic whose volition
is destroyed and who cannot abstain from drinking, as opposed to the type who can abstain
but is unable to stop drinking once he voluntarily takes the first drink. See Powell v. Texas,
392 U.S. 514, 522-26 (1968) (reviewing medical literature). Even if appellant is incapable of
abstention, the imposition of the parole condition is not unreasonable, and his current
incarceration does not constitute cruel and unusual punishment.
Several jurisdictions have considered the issue now before us and have declined to follow
Oyler and Sweeney, holding that abstention conditions of probation are valid as reasonably
related to the goal of rehabilitation of the alcoholic offender without the ultimate sanction of
imprisonment. See Upchurch v. State, 184 N.W.2d 607 (Minn. 1971); State v. Sullivan, 642
P.2d 1008 (Mont. 1982); Sobota v. Williard, 427 P.2d 758 (Or. 1967). The abstention
condition is a necessary incentive to rehabilitation.
____________________

1
The decisional law involving total abstention as a condition of probation applies with equal facility to
abstention as a condition of parole, because probation and parole are almost functionally identical types of
conditional release. Cf. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation procedures required by
due process extended to parole revocation proceedings).
rehabilitation. Upchurch v. State, supra. Even the alcoholic probationer who demonstrates
that he or she is powerless to abstain from drinking may be imprisoned, because the
uncontrollable drinking coupled with the possibility of additional criminal conduct poses a
threat to the interests of society. State v. Sullivan, supra; Sobota v. Williard, supra. Even
Oyler indicated that an alcoholic offender who could not abstain could legitimately be
imprisoned as the only alternative to a conditional liberty that might endanger society. See
436 P.2d at 713.
[Headnote 1]
Furthermore, imprisonment of an alcoholic not because of his or her status, but because of
a criminal offense committed while under the influence of alcohol, does not constitute cruel
and unusual punishment. Powell v. Texas, supra; see Robinson v. California, 370 U.S. 660
(1962). By the same token, imprisonment for the original offense following revocation of
parole or probation based on violation of a condition of abstention is not a punishment for
status. See Jennings v. State, 89 Nev. 297, 511 P.2d 1048 (1973) (narcotic addiction); see
also State v. Sullivan, supra.
[Headnotes 2, 3]
We are persuaded that the decisions cited above which reject Sweeney and Oyler reflect
the better view, and we hold that a condition requiring total abstention from alcohol while on
parole is not per se unreasonable. Revocation for a violation of such a condition is
permissible, as for any other failure to conform to the conditions of parole release. Even if
appellant is utterly incapable of abstention, a fact by no means established by this record, his
current imprisonment is based on his original conviction, not his status as an alcoholic. The
imprisonment is necessitated by the interests of society, and is not unconstitutional.
2

The order dismissing the petition for writ of habeas corpus is affirmed.
____________________

2
Petitioner has misplaced his reliance on the Nevada Legislature's declaration that alcoholism should be
treated as a health problem by the criminal justice system. Although the legislature has provided that certain
alcoholics convicted of crimes traceable to their condition may have their sentencing deferred pending treatment,
it has also provided that should treatment fail the alcoholic may be sentenced as would any other convicted
offender. See NRS 458.250, 458.260, 458.310, 458.320, 458.330.
____________
99 Nev. 480, 480 (1983) Washoe Co. Sheriff v. Zimmerman
WASHOE COUNTY SHERIFF, Appellant, v. PAUL
WALTER ZIMMERMAN, Respondent.
No. 14203
June 10, 1983 663 P.2d 1194
Appeal from order granting writ of habeas corpus. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Defendant, charged with battery upon officer, sought pretrial writ of habeas corpus. The
district court granted the writ, and the sheriff appealed. The Supreme Court held that off-duty
city police officer, who was attempting to break up fight between patrons of pizza parlor, was
performing his duty within meaning of statute providing for enhanced penalty for battery
upon an officer, and thus defendant was subject to enhanced penalty.
Reversed.
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, Edward B.
Horn, Deputy District Attorney, Washoe County, for Appellant.
David Parraguirre, Public Defender, John C. Morrow, Deputy Public Defender, Washoe
1. Assault and Battery.
Regular full-time city policeman was officer within provisions of statute providing for enhanced
penalty for committing battery upon an officer. NRS 169.125, subd. 7, 200.481, 200.481, subds. 1(c)(1),
2(c).
Statute providing enhanced penalty for committing battery upon an officer is obviously meant for
protection of police officers, and this objective justifies interpreting performance of his duty provision in
statute broadly. NRS 200.481, 200.481, subd. 1(c)(1).
Off-duty city police officer, who was attempting to break up fight between patrons of pizza parlor, was
performing his duty within meaning of statute providing for enhanced penalty for battery upon an officer,
even though officer was outside his city of jurisdiction, and defendant who struck and injured officer was
subject to such enhanced penalty. NRS 200.481, subd. 2(c), (c)(1).
OPINION
Per Curiam:
Officer Charles Saulnier, a Reno police officer, went with his fiancee to a Sparks pizza
parlor to watch a sporting event on television.
television. There he met members of his family and a fellow officer, Marvin Barnes. During
the course of the game, an altercation broke out among other patrons at the pizza parlor.
Saulnier and Barnes reacted initially by displaying badges and identifying themselves as
police officers. Once so identified, the officers were urged by other patrons to break up the
fight. They did this, and managed to move the disputing parties outside. Fights again broke
out once the parties moved outside. Barnes and Saulnier again identified themselves as police
officers and moved to break up these fights. In the course of doing so, Saulnier was struck
and injured by respondent Zimmerman. Zimmerman was immediately arrested and
subsequently charged with battery upon an officer causing substantial bodily harm, a
violation of NRS 200.481(2)(c). Zimmerman sought a pretrial writ of habeas corpus on the
ground that there was an insufficient showing of probable cause at the preliminary hearing to
believe Zimmerman committed the crime charged. The basis of this contention was that
Saulnier was outside the city of his jurisdiction and was therefore not acting pursuant to his
authority as an officer when he was struck by Zimmerman. The lower court agreed, and
released the respondent. The Washoe County Sheriff has appealed. We reverse.
NRS 200.481 provides in part:
200.481 Battery: Definition; penalties.
1. As used in this section:
(a) Battery means any willful and unlawful use of force or violence upon the
person of another.
. . . .
(c) Officer means:
(1) A peace officer as defined in NRS 169.125;
. . . .
2. Any person convicted of a battery . . . shall be punished:
. . . .
(c) If the battery is committed upon an officer and:
(1) The officer was performing his duty;
(2) The officer suffers substantial bodily harm; and
(3) The person charged knew or should have known that the victim was an
officer, 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 $15,000, or by both fine and imprisonment.
(Emphasis added.)
NRS 169.125(7) defines peace officers as [m]arshals and policemen of cities and towns.
[Headnote 1]
Saulnier was apparently a regular full-time Reno policeman and was thus an "officer"
within the provisions of NRS 169.125{7) and NRS 200.4S1{1){c){1).
and was thus an officer within the provisions of NRS 169.125(7) and NRS
200.481(1)(c)(1). It is undisputed that Saulnier suffered substantial bodily injury and that
Zimmerman knew or should have known that Saulnier was an officer. The sole issue
presented is whether Saulnier was performing his duty, within the meaning of NRS
200.481(2)(c)(1), at the time he was struck by Zimmerman.
[Headnotes 2, 3]
The statute providing an enhanced penalty for committing a battery upon an officer is
obviously meant for the protection of peace officers. Cf. United States v. Feola, 420 U.S. 671
(1975) (18 U.S.C. 111, making it an offense to assault a federal officer engaged in the
performance of his official duties, was similarly meant to protect federal officers). This
objective justifies interpreting the performance of his duty provision broadly. Statutes in
other jurisdictions with the same objective have been similarly interpreted. See United States
v. Velarde, 528 F.2d 387 (9th Cir. 1975); United States v. Reid, 517 F.2d 953 (2d Cr. 1975);
State v. Cook, 440 A.2d 137 (R.I. 1982). This interpretation is particularly appropriate with
regard to policemen charged with preventing crime and apprehending violators. These
officers routinely encounter potentially violent situations and are specially trained to deal with
them. The public can reasonably expect that a trained law enforcement officer will act to
prevent a breach of the public peace more so than an ordinary passerby or citizen. This
expectation is specifically evidenced in this case by the fact that other patrons urged the
officers to break up the fight. We therefore hold that Officer Saulnier, who in fact responded
to a breach of the public peace, was entitled to the protection afforded by the statute.
1
Consequently, respondent Zimmerman is subject to the enhanced penalty of NRS
200.481(2)(c) for injuring Officer Saulnier. Accordingly, the order of the district court is
reversed and the court is directed to reinstate the information.
____________________

1
We express no opinion whether the statute is similarly applicable to other peace officers in NRS 169.125.
We also express no opinion as to the scope of an officer's powers to search or arrest outside of his jurisdiction.
____________
99 Nev. 483, 483 (1983) State Mtge. Co. v. Rieken Dev.
STATE MORTGAGE COMPANY, a Corporation, Appellant and Cross-Respondent, v.
RIEKEN DEVELOPMENT, INC., a Corporation, Respondent and Cross-Appellant.
No. 13703
June 10, 1983 664 P.2d 358
Appeal and cross-appeal from judgment, Second Judicial District Court, Washoe County;
Appeal and cross-appeal were taken from a judgment of the district court awarding
damages for anticipatory repudiation of a contract and limiting the amount of prejudgment
interest. The Supreme Court, held that: (1) substantial evidence sustained district court's
factual determination that mortgage company had anticipatorily repudiated its contract with
development company, and (2) district court erred in failing to award prejudgment interest
from date of repudiation of contract and instead awarding it only from date of judgment.
Sala, McAuliffe, White & Long, Reno, for Appellant and Cross-Respondent.
Edmund S. Barnett, Incline Village, for Respondent and Cross-Appellant.
1. Contracts.
Substantial evidence sustained district court's factual determination that mortgage company had
anticipatorily repudiated its contract with development company.
2. Interest.
District court erred in failing to award prejudgment interest from date of repudiation of contract and
instead awarding interest only from date judgment was entered. NRS 99.040, 99.040, subd. 1.
OPINION
Per Curiam:
Appellant State Mortgage Company (State) appeals from a judgment of the district court
awarding respondent Rieken Development, Inc. (Rieken) $21,100 in damages as
compensation for State's anticipatory repudiation of its contract with Rieken. Rieken appeals
from that portion of the judgment limiting the amount of interest awarded to Rieken.
99 Nev. 483, 484 (1983) State Mtge. Co. v. Rieken Dev.
[Headnote 1]
State contends that the district court erred in determining that State had anticipatorily
repudiated its contract with Rieken. State believes that it was Rieken that anticipatorily
repudiated the parties' contract. In finding an anticipatory repudiation on State's part,
however, the district court chose to believe Rieken's version of the facts. Such a finding was
within the court's discretion. Substantial evidence exists in the record to sustain the district
court's factual determination. We will, therefore, not disturb that determination on appeal.
Jacobson v. Best Brands, Inc., 97 Nev. 390, 632 P.2d 1150 (1981); Covington Bros. v. Valley
Plastering, Inc., 93 Nev. 355, 360, 566 P.2d 814, 817 (1977). Accordingly, this portion of the
district court's judgment is affirmed.
[Headnote 2]
Rieken, on cross-appeal, contends that the district court erred in not awarding prejudgment
interest pursuant to NRS 99.040,
1
at the rate of 8 percent per annum from the date State
repudiated its agreement. We agree. In the present case, the district court's judgment specified
that interest on the $21,100 damage award would commence running from the date the
judgment was entered. NRS 99.040(1) applies to all contracts and requires that interest be
paid on all sums from the time they become due. Checker, Inc. v. Zeman, 86 Nev. 216, 467
P.2d 100 (1970). Thus, the district court should have awarded Rieken prejudgment interest
from January 16, 1980, the date State repudiated the contract. Accordingly, this portion of the
judgment is reversed and remanded. The district court is instructed to modify its judgment to
allow prejudgment interest to Rieken at the rate of 8 percent per annum commencing January
16, 1980.
____________________

1
NRS 99.040, at the time Rieken's cause of action arose, provided in pertinent part that:
When there is no express contract in writing fixing a different rate of interest, interest shall be allowed
at the rate of 8 percent per annum upon all money from the time it becomes due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
. . . .
In 1981, NRS 99.040 was amended to allow 12 percent interest. Rieken has not argued that this amendment
applies.
____________
99 Nev. 485, 485 (1983) Allen v. State
JAMES ALLEN, Jr., Appellant, v. THE STATE
No. 13707
June 14, 1983 665 P.2d 238
Appeal from a jury conviction of first degree murder and imposition of the death penalty.
Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
Defendant was convicted of first degree murder and burglary in the district court and he
appealed. The Supreme Court held that: (1) conflicting expert testimony was properly
admitted; (2) defendant's Fifth Amendment right not to be twice placed in jeopardy for the
same offense was not violated by conviction for both burglary and murder; and (3) where
death sentence was pronounced at penalty hearing by the convicting jury which had heard
inadvertent testimony of witness linking defendant to other unrelated criminal activity,
possibility that jury, at the time of penalty hearing, might have been prejudicially influenced
by witness' testimony required new penalty hearing before a newly impaneled jury.
Affirmed in part; reversed in part and remanded.
James N. Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Any trial aid, including expert testimony, which assists a jury in ascertaining relevant truths should be
admissible; however, the assistance of expert testimony should be in an area foreign to the jury's
knowledge.
2. Criminal Law.
Unless admission of expert testimony in the lower court was a clear abuse of trial judge's discretion,
appellant court will not disturb the lower court's determination.
3. Criminal Law.
Whatever conflicting testimony is presented, it is for the jury to determine what weight and credibility to
give that testimony.
4. Criminal Law.
Expert testimony is not binding on the trier of fact; jurors can either accept or reject the testimony as they
see fit.
5. Criminal Law.
Testimony of second expert witness that piece of flesh found at crime scene was similar to wound on
defendant's arm was not inadmissible because another expert had testified that he was unable, due to scar
tissue, to determine if the two were similar, despite objection that the second expert's testimony was
speculative and contradictory; the jury was free to believe whichever witness it found most credible.
99 Nev. 485, 486 (1983) Allen v. State
6. Criminal Law.
Statute providing that evidence may be presented at a penalty hearing concerning aggravating and
mitigating circumstances and on any other matter which court deems relevant to sentence, whether or not
evidence is ordinarily admissible, is not limited to nine statutory aggravating circumstances. NRS
175.552, 200.033.
7. Criminal Law.
District court did not err in admitting evidence of defendant's character in penalty hearing following
conviction for murder, even though such evidence did not consist of aggravating circumstances. NRS
175.552, 200.033.
8. Criminal Law.
Evidence, presented in penalty hearing, that when defendant was on probation for another offense, he had
moved his residence without permission and had failed to hold a job, and testimony of a jail employee who
had no personal knowledge of any specific infraction that defendant had presented disciplinary problems
while awaiting trial was of questionable value in establishing an appropriate penalty; district court should
be most cautious about admitting such character evidence.
9. Criminal Law.
Defendant's Fifth Amendment right not to be twice placed in jeopardy for the same offense was not
violated where defendant was convicted of burglary and murder, in view of statute which permits multiple
punishment whenever a person in the commission of a burglary commits another crime. NRS 205.070.
10. Criminal Law.
Where defendant in murder and burglary prosecution contended that inadvertent statement by witness
linking defendant to other unrelated criminal activity was so prejudicial as to require a mistrial, the
applicable standard of review, in respect of the guilt phase of defendant's trial, required defendant to prove
that inadvertent statement was so prejudicial as to be unsusceptible to neutralizing by an admonition to
jury.
11. Criminal Law.
Where witness in murder and burglary prosecution made only one unsolicited remark concerning
unrelated criminal activity by defendant, and trial court immediately admonished jury to disregard
inference of any additional criminal activity on part of defendant, and evidence of defendant's guilt was
convincing, admonition to the jury defused prejudicial effect of the error as to the guilt phase of trial.
12. Criminal Law.
Where a death sentence was pronounced in prosecution for murder and burglary by the convicting jury
who heard inadvertent testimony linking defendant to unrelated criminal activity, standard of review
required defendant to demonstrate only the possibility that sentence was influenced by such testimony not
withstanding court's admonition to jury to disregard inference of any additional criminal activity; since
there was possibility that jury, at time of penalty hearing, may have been prejudicially influenced by
inadvertent testimony and may have been under false impression that defendant had killed another
individual, new penalty hearing before new jury was required. NRS 177.055.
99 Nev. 485, 487 (1983) Allen v. State
OPINION
Per Curiam:
A jury convicted appellant of first degree murder for the shooting of Tony Lynn Sylvester
during the course of a burglary at the Sylvester home. The same jury also sentenced appellant
to death. For reasons hereinafter set forth, we affirm conviction, but reverse the sentence and
remand the case for resentencing.
Appellant first contends that his trial was seriously infected with error by the admission of
expert medical testimony. During appellant's trial, Richard Renner, the senior criminalist for
the Las Vegas Metropolitan Police Department, testified that he had made a comparison of a
piece of flesh found at the crime scene with a wound on appellant's arm. Renner concluded
that he was unable to determine if the two were similar because there was too much scar
tissue formed on appellant's wound. Thereafter, Dr. James Clarke, a pathology specialist, also
made a comparison and he concluded that the piece of skin was very similar to the wound.
Appellant insists that the district court erred by allowing the latter testimony in to evidence on
the grounds that it was speculative and contradictory. We disagree.
[Headnotes 1-5]
Any trial aid, including expert testimony, which assists a jury in ascertaining relevant
truths should be admissible. Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728 (1965). The
assistance of expert testimony, however, should be in an area foreign to the jury's knowledge.
Dawson v. State, 84 Nev. 260, 439 P.2d 472 (1968). Unless the admission of expert
testimony in the lower court was a clear abuse of the trial judge's discretion, this Court will
not disturb the lower court's determinations. Stickelman v. Moroni, 97 Nev. 405, 632 P.2d
1159 (1981); Provence v. Cunningham, 95 Nev. 4, 588 P.2d 1020 (1979). Here, Dr. Clarke's
testimony was properly admitted because it dealt with an area outside the jury's knowledge
and conduced toward aiding the jury in reaching its verdict. The fact that there was
conflicting testimony between Dr. Clarke and Richard Renner does not render the former's
opinion inadmissible. It is a well settled rule in this state that whenever conflicting testimony
is presented, it is for the jury to determine what weight and credibility to give to that
testimony. Henderson v. State, 95 Nev. 324, 594 P.2d 712 (1979); Stewart v. State, 94 Nev.
378, 580 P.2d 473 (1978). Here, the jury heard the testimony of both Renner and Clarke and
was free to believe whichever witness it found most credible.
99 Nev. 485, 488 (1983) Allen v. State
believe whichever witness it found most credible. See Dearman v. State, 93 Nev. 364, 566
P.2d 407 (1977). Expert testimony is not binding on the trier of fact; jurors can either accept
or reject the testimony as they see fit. Clark v. State, 95 Nev. 24, 588 P.2d 1027 (1979). There
was no abuse of discretion by the trial judge in admitting the expert testimony.
[Headnotes 6, 7]
At the penalty hearing, the state introduced several items pertaining to appellant's character
in support of the death penalty. Appellant contends that the district court erred by allowing
these items to be introduced at the penalty hearing because they did not fit within any class of
aggravating circumstances as outlined in NRS 200.033. While is it true that the items
objected to by appellant are not aggravating circumstances, appellant fails to recognize the
import of NRS 175.552 which provides that during a penalty 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. (Emphasis supplied.) This statute
clearly indicates and we so hold that NRS 175.552 is not limited to those nine aggravating
circumstances outlined in NRS 200.033. Furthermore, the United States Supreme Court in
Woodson v. North Carolina, 428 U.S. 280 (1976), ruled that the relevant factors to be
considered by a jury in imposing a penalty for a capital crime are the character and record of
the individual offender and the circumstances of the particular offense. Therefore we
conclude that the district court did not err in admitting evidence of the appellant's character
even though such evidence did not consist of aggravating circumstances.
Notwithstanding our conclusion that the district court may appropriately consider character
evidence outside the nine areas of aggravating circumstances, we feel constrained to provide
cautionary direction and admonition concerning the subject of such evidence in future penalty
phase dispositions.
[Headnote 8]
In the instant case, the jurors were informed, inter alia, that, at a time when appellant was
on probation for another offense, he had moved his residence without permission and had
failed to hold a job. Additionally, a jail employee who had no personal knowledge of any
specific infraction, testified from jail records that appellant had presented disciplinary
problems while awaiting trial. In our view, a decision to execute a human being should not be
influenced by such dubious, tenuous evidence.
99 Nev. 485, 489 (1983) Allen v. State
Arguably, the character evidence admitted in this case should have been excluded as a
matter of law because its probative value is clearly outweighed by the danger of unfair
prejudice, of confusion of the issues or of misleading the jury. NRS 48.035(1). Similarly, as
a matter of law, such evidence arguably should have been excluded because its probative
value is clearly outweighed by undue delay [and] waste of time. NRS 48.035(2). In any
event, it is apparent that the trial court had, and still has, discretion to exclude such evidence.
NRS 48.035.
In our view, therefore, since a new penalty hearing will be required as specified hereafter,
the district court should be most cautious about admitting such character evidence.
Character evidence of this kind would be inadmissible to establish guilt, see NRS 48.045, and
as stated above, it is of questionable value in establishing an appropriate penalty.
[Headnote 9]
Appellant next contends that his Fifth Amendment right not to be twice placed in jeopardy
for the same offense was violated. Appellant cites Whalen v. United States, 445 U.S. 684
(1980), in support of his position. We conclude that Whalen is not applicable to the instant
case.
Whalen involved the interpretation of federal law and is very limited in scope. There, the
defendant was convicted of raping and killing the victim in the perpetration of the rape. The
defendant claimed that his Fifth Amendment right had been violated since he had been
convicted of both the rape and the murder. The high court agreed; however, the court
specifically noted that its opinion was limited to the statutory interpretation of the laws of the
District of Columbia which are enacted by Congress. The court then found that the laws of
the District of Columbia provide that, in cases such as this, the rape merges into the murder
and the defendant can only be convicted of the latter crime.
In the instant case, appellant was convicted of burglary and murder. In Nevada our statutes
allow multiple punishment whenever a person in the commission of a burglary commits
another crime.
1
Since our statutory scheme is different from that of the District of Columbia,
Whalen does not apply. See Kirkland v. State, 95 Nev. 83, 590 P.2d 156 (1979). Therefore,
we conclude appellant's contention is without merit.
Finally, during appellant's trial, Adrian LeFear was called as a witness by the state.
____________________

1
Every person who, in the commission of a burglary, shall commit any other crime, shall be punished
therefor as well as for the burglary, and may be prosecuted for each crime separately.
99 Nev. 485, 490 (1983) Allen v. State
a witness by the state. LeFear was an acquaintance of the appellant and according to LeFear,
appellant had admitted to killing a white man during the course of a burglary. During the
direct examination of LeFear, he testified as follows:
Q. Now, at this time did James Allen, Jr., say anything about having been involved
in the commission of a crime?
A. Yes. He said he hadhe came over in the morning and said he had killed this
peckerwood.
2

. . .
Q. What was said that time at the 7-Eleven Store about this killing?
A. He said about the same thing, you know, he had killed this peckerwood, you
know, and he was saying that he had
Q. Could you repeat that last part?
A. He said he had killed a nigger the same way he did him.
At this point in LeFear's testimony, defense counsel immediately objected and asked for a
hearing outside the presence of the jury. At the hearing, counsel asked for a mistrial on the
ground that this testimony consisted of prejudicial evidence of another crime and, therefore,
was inadmissible. The district court denied appellant's motion for a mistrial, but strongly
admonished the jury to disregard the testimony. Appellant contends that the admonition to the
jury is not a sufficient remedy and that the district court erred by refusing to grant a mistrial.
Appellant's contention poses a dichotomous issue requiring resolution through application of
a dual standard of review.
[Headnotes 10, 11]
In respect of the guilt phase of appellant's trial, the applicable standard of review requires
appellant to prove that the inadvertent statement was so prejudicial as to be unsusceptible to
neutralizing by an admonition to the jury. Here, appellant concedes that there was only one
unsolicited remark made by LeFear which took both the prosecution and defense by surprise.
Furthermore, the trial court immediately admonished the jury to disregard the inference of
any additional criminal activity on the part of appellant. Under circumstances such as these,
we have held that the trial court is justified in denying a motion for a mistrial when a witness
inadvertently makes reference to other unrelated criminal activity as long as the testimony is
not clearly and enduringly prejudicial and has not been solicited by the prosecution.
____________________

2
The word peckerwood is a term used by certain elements in the area to refer to a white man.
99 Nev. 485, 491 (1983) Allen v. State
clearly and enduringly prejudicial and has not been solicited by the prosecution. Where, as
here, evidence of guilt in convincing, an admonition to the jury defuses the error. Stickney v.
State, 93 Nev. 285, 564 P.2d 604 (1977); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975);
Ennis v. State, 91 Nev. 530, 539 P.2d 114 (1975). Therefore, we conclude that there was no
prejudicial error in the guilt phase of appellant's trial.
[Headnote 12]
After the penalty phase of the trial, the same jury that convicted appellant sentenced him to
death. Where a death sentence is pronounced by the convicting jury who heard the
inadvertent testimony, our standard of review requires appellant only to demonstrate the
possibility that the sentence was influenced by such testimony notwithstanding the court's
admonition to the jury. We are perceptually unable to avoid the possibility that the jury, at the
time of the penalty hearing, may have been prejudicially influenced by LeFear's testimony and
under the false impression that appellant had in fact killed another individual.
3
Accordingly,
we affirm appellant's conviction, but we reverse and remand for a new penalty hearing before
a newly empaneled jury. See NRS 177.055.
____________________

3
In the stricken testimony of LeFear, he originally stated that appellant had killed a nigger the same way he
killed the victim in the instant case. However, during a hearing outside the presence of the jury, LeFear recanted
his story that the appellant had killed another and stated that the appellant had told him he would kill another if
he had to.
____________
99 Nev. 491, 491 (1983) York v. York
BILLY DEAN YORK, Appellant, v. JEANNE
DARLENE YORK, Respondent.
No. 14459
June 15, 1983 664 P.2d 967
Appeal from judgment awarding respondent $15,000 in a divorce action. Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
In a divorce action, the district court awarded former wife $15,000, and former husband
appealed. The Supreme Court held that since former wife could have litigated, in parties' first
divorce action, any claim to the $15,000 which she received upon sale of her house during
parties' first marriage and which she contributed to parties' joint account, she was precluded
from raising the issue in a subsequent divorce action between the same parties.
99 Nev. 491, 492 (1983) York v. York
from raising the issue in a subsequent divorce action between the same parties.
Petty and Petty, Reno, for Appellant.
Werner H. Tobeler, Reno, for Respondent.
1. Divorce.
Since former wife could have litigated, in parties' first divorce action, any claim to the $15,000 which she
received upon sale of her house during parties' first marriage and which she contributed to parties' joint
account, she was precluded from raising the issue in a subsequent divorce action between the same parties.
2. Judgment.
A judgment is conclusive not only only on the questions actually contested and determined but on all
matters which might have been litigated and decided in the suit.
OPINION
Per Curiam:
This appeal results from a judgment awarding $15,000 to respondent in a divorce action.
We reverse.
[Headnote 1]
Appellant and respondent have been married twice with the first marriage occurring on
May 8, 1976. At the time of this marriage, respondent decided to move into appellant's home
even though she had a home of her own which she had received in a prior divorce proceeding.
Sometime during her first marriage to appellant, respondent sold the house and received
$15,000. This money was put into a joint account and was used to pay bills, buy clothes,
finance family trips and to make improvements to appellant's separate property. By the time
respondent was granted her first divorce from appellant on November 15, 1979, the proceeds
from the sale of her house had been completely dissipated. In the first divorce action,
respondent did not make any claim to the $15,000.
Approximately two weeks after their divorce, appellant and respondent began living
together again. Then, on December 8, 1979, less than a month after their divorce, appellant
and respondent remarried. On October 15, 1982, respondent was granted her second divorce
from appellant. In the divorce decree and judgment, the district court ordered appellant to pay
respondent the sum of $15,000 for the money which she had contributed to the community
during the couple's marriage.
99 Nev. 491, 493 (1983) York v. York
had contributed to the community during the couple's marriage. Appellant contends that the
district court erred by awarding respondent $15,000 because any claim to those funds is
barred by the doctrine of res judicata. We agree with appellant and, therefore, we reverse and
remand.
[Headnote 2]
In Bennett v. Fidelity & Deposit Co., 98 Nev. 449, 452, 652 P.2d 1178, 1180 (1982),
quoting with approval, Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 122 P.2d 892
(Cal. 1942), we recently held:
In determining the validity of a plea of res judicata three questions are pertinent: Was
the issue decided in the prior adjudication identical with the one presented in the action
in question? Was there a final judgment on the merits? Was the party against whom the
plea is asserted a party or in privity with a party to the prior adjudication?
In the instant case, the three prongs of the Bernhard test have been satisfied. The issue
decided in the first divorce is identical with the one presented here, i.e., the division and
settlement of the couple's property. The fact that Mrs. York did not make a claim to the
$15,000 at the time of the first divorce is of no consequence because a judgment is
conclusive not only on the questions actually contested and determined, but on all matters
which might have been litigated and decided in the suit. 50 C.J.S. Judgments 716 (1947).
See also Compton v. Compton, 612 P.2d 1175 (Idaho 1980); Kernan v. Kernan, 78 Nev. 93,
369 P.2d 451 (1962). Therefore, since any claim to the $15,000 could have been litigated and
decided in the first divorce action, respondent is precluded from raising the issue in the
second action. Furthermore, the first divorce decree was a final judgment on the merits and
the parties were identical. Accordingly, we find that respondent's claim to the $15,000 is
barred by the doctrine of res judicata.
In view of our holding, it is unnecessary to consider the other issues raised by the parties.
Accordingly, we reverse and remand. On remand, the district court should determine whether
it is necessary to redistribute the community assets in light of our determination that
respondent is not entitled to the $15,000 which she was awarded.
____________
99 Nev. 494, 494 (1983) Leslie v. J.A. Tiberti Constr.
ROBERT LESLIE, JUDITH LESLIE Individually and as GUARDIAN AD LITEM for
LARRY LESLIE, TIMMY LESLIE and JILL LESLIE, Appellants, v. J. A. TIBERTI
CONSTRUCTION COMPANY and JAMES DIXON dba FRAMING ASSOCIATES,
Respondents.
No. 13558
June 15, 1983 664 P.2d 963
Appeal from summary judgment in favor of respondent J. A. Tiberti Construction
Company and respondent James Dixon, individually and doing business as Framing
Associates, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Plaintiff appealed from a summary judgment granted by the district court in favor of
general contractor and framing subcontractor in plaintiff's negligence and products liability
action arising from a construction accident while plaintiff was employed by the air
conditioning contractor who was hired by owner. The Supreme Court held that a material
issue of fact existed as to whether general contractor and framing subcontractor were
statutory co-employees of plaintiff, precluding summary judgment as to plaintiff's claim and
as to the derivative loss-of-consortium claim of plaintiff's wife and children.
Galatz, Earl & Biggar, and Martha A. Karp, Las Vegas, Good & Novack, Pasadena,
California, for Appellants.
Edwards, Hunt, Pearson & Hale, Las Vegas, for Tiberti; Vargas & Bartlett and Thomas F.
Kummer, Las Vegas, for Dixon.
Employee who suffers an injury otherwise compensable under the Nevada Industrial Insurance Act under
circumstances creating legal liability in some person other than employer or a person in the same employ
may proceed against such third party in tort. NRS 616.560.
Owner of property who functions as his own principal employer by contracting out elements of a
construction project will be deemed an employer under the Nevada Industrial Insurance Act. NRS
616.010 et seq.
3. Judgment.
In negligence and products liability action brought by employee of air conditioning contractor hired by
owner against general contractor and framing subcontractor arising from construction accident, material
issue of fact existed as to whether general contractor and framing subcontractor
were statutory co-employees of plaintiff, precluding summary judgment as to
plaintiff's claim and as to the derivative loss-of-consortium claim of plaintiff's wife
and children.
material issue of fact existed as to whether general contractor and framing subcontractor were statutory
co-employees of plaintiff, precluding summary judgment as to plaintiff's claim and as to the derivative
loss-of-consortium claim of plaintiff's wife and children. NRS 616.085, 616.270, 616.560.
OPINION
Per Curiam:
The instant appeal arises out of a negligence and products liability action. In May, 1975,
Albertson's, Inc. (Albertson's) initiated planning and construction of a new Albertson's
supermarket in Las Vegas, Nevada. Albertson's sought bids from various contractors and
eventually awarded the contract for the new store to respondent J.A. Tiberti Construction
Company (Tiberti), a contractor operating out of Las Vegas. Under its contract with
Albertson's, Tiberti became both the general contractor and the general superintendent of
construction.
The contract between Albertson's and Tiberti provided that any air conditioning work
required on the new store was outside the scope of the responsibilities of the general
contractor. This exclusion was due to the fact that Albertson's had a special business
relationship with Nelson Air Conditioning Company (Nelson Air). Under this special
relationship, Nelson Air would perform any air conditioning work required in the new store
by contracting directly with Albertson's.
Tiberti was to construct the new market pursuant to plans prepared by the architectural
firm of Maxwell Starkman and Associates. As general contractor, Tiberti hired respondent
James Dixon, doing business as Framing Associates (Framing Associates) as the framing
subcontractor.
In October, 1975, appellant Robert Leslie, Nelson Air's foreman at the Albertson's job site,
was working in the ceiling area of the partially completed store. Appellant stepped on a
framing joist located about ten feet above the floor. This joist unexpectedly gave way,
allegedly due to faulty construction, and appellant fell to the floor. Appellant struck his head
in the fall, sustaining severe injuries resulting in paraplegia. Post-accident investigation
revealed that Framing Associates had apparently deviated from the plans and specifications
prepared by the architect, and it was later alleged the accident would not have occurred had
Framing Associates installed the joist according to the architect's plans and specifications.
Appellant brought a negligence and products liability action against respondents to
recover compensation for his injuries.1 Appellant's wife and children sought recovery on
the same grounds for loss of consortium.
against respondents to recover compensation for his injuries.
1
Appellant's wife and children
sought recovery on the same grounds for loss of consortium. Tiberti and Framing Associates
eventually moved for summary judgment on the ground that as a matter of law they were
statutory co-employees of appellant and thus immunized from common law liability by the
provisions of the Nevada Industrial Insurance Act, NRS Chapter 616. Summary judgment
was granted in favor of respondents.
[Headnote 1]
Appellant maintains summary judgment in the instant case was inappropriate, as
respondents failed to establish his claim was precluded as a matter of law. An examination of
the NIIA and applicable case law convinces us appellant's position has merit. The Nevada
Industrial Insurance Act (NIIA) provides that when an employee is injured on the job as a
result of the negligence of a fellow employee, his remedy is compensation under the NIIA.
See NRS 616.270. In most circumstances compensation under the NIIA is the employee's sole
remedy. There are exceptions to the exclusivity of this remedy, however. One of these
exceptions is that which involves third-party tortfeasors. An employee who suffers an injury
otherwise compensable under the NIIA under circumstances creating a legal liability in some
person other than the employer or a person in the same employ may proceed against such
third party in tort. See NRS 616.560; Antonini v. Hanna Industries, 94 Nev. 12, 14, fn. 2, 573
P.2d 1184 (1978).
The essence of appellant's claim was that Framing Associates and Framing Associates'
employer, Tiberti, were third-party tortfeasors subject to liability under the third-party
tortfeasor exception. Framing Associates and Tiberti argued, and the trial court concluded
when it granted summary judgment on the issue, that Tiberti, Framing Associates and
appellant were all statutory co-employees of Albertson's such that the exclusivity of remedy
under the NIIA barred appellant's cause of action. See NRS 616.270, 616.560. The instant
appeal may thus be reduced to a single issue: whether Albertson's is the statutory employer of
Tiberti, Framing Associates and appellant.
In analyzing this issue, there appears to be no real question that Albertson's was the
employer of Nelson Air, and through Nelson Air the employer of appellant.
____________________

1
Appellant also brought suit against Maxwell Starkman and Associates, the architect, and against Albertson's.
Starkman moved for and was granted summary judgment, and appellant does not challenge that judgment.
Albertson's apparently settled with appellant and was dismissed by stipulation.
Nelson Air the employer of appellant. Subcontractors and their employees are deemed to be
the employees of the principal contractor. NRS 616.085. Under the same rationale, there also
appears to be no real question that Tiberti was the employer of Framing Associates. See id.
It is the status of the third potential employer-employee relationship, that between
Albertson's and Tiberti, which is critical to the disposition of this appeal. If Albertson's was
the statutory employer of Tiberti, then Framing Associates and Tiberti were co-employees of
appellant and his cause of action is barred under the NIIA. See NRS 616.085, 616.270,
616.560. If Tiberti is not an employee of Albertson's, then appellant and Tiberti, Framing
Associates and appellant are not co-employees and appellant should be able to bring his
action under the third-party tortfeasor exception.
[Headnote 2]
It is well established that the owner of property who functions as his own principal
employer by contracting out elements of a construction project will be deemed an employer
under the NIIA. See Hosvepian v. Hilton Hotels Corp., 94 Nev. 768, 770, 587 P.2d 1313
(1978); Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960); Simon Service
v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957). In determining whether such a putative
employer is acting as an employer within the meaning of the NIIA, this court has placed
primary emphasis on the amount of control exercised by the putative employer over the
worker. See Antonini v. Hanna Industries, 94 Nev. at 15; McDowell Constr. Supply v.
Williams, 90 Nev. 75, 77, 518 P.2d 604 (1974); Titanium Metals v. District Court, 76 Nev. at
13-15. Under the broad term control, five factors have been accorded substantially equal
weight in analyzing whether an employer-employee relationship exists in a particular case.
These factors are: (1) the degree of supervision exercised by the putative employer over the
details of the work; (2) the source of the worker's wages; (3) the existence of a right on the
part of the putative employer to hire and fire the worker; (4) the extent to which the worker's
activities further the general business concerns of the putative employer; and (5) the
putative employer's right to control the hours and location of employment. See Whitley v.
Jake's Crane & Rigging, Inc., 95 Nev. 819, 821, 603 P.2d 689 (1979); Antonini v. Hanna
Industries, 94 Nev. at 15.
This court has frequently noted that great care should be exercised in granting summary
judgment. See Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979 (1963); McColl v.
Scherer, 73 Nev. 226, 231-232, 315 P.2d 807 (1957). Summary judgment is appropriate
only where the pleadings and papers on file show that there is no genuine issue of fact,
and that the moving party is entitled to judgment as a matter of law.
judgment is appropriate only where the pleadings and papers on file show that there is no
genuine issue of fact, and that the moving party is entitled to judgment as a matter of law.
Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258 (1981); NRCP 56. Further, in the absence
of a clearly established NIIA defense, summary judgment must be denied. Weaver v. Shell
Oil Co., 91 Nev. 324, 328, 535 P.2d 787 (1975).
[Headnote 3]
Respondents urge that summary judgment was appropriate in the instant case as they
clearly set forth an NIIA defense by establishing they were statutory co-employees of
appellant. Respondents in effect argue there is no question that Albertson's was the employer
of Tiberti, as the record reveals the five factors used to determine whether a putative
employer exercised the requisite control over an employee demonstrate Albertson's did
exercise the necessary control over Tiberti. We have reviewed the record, however, and
conclude that it does not support respondents' position.
We acknowledge that there are some indications that Albertson's exercised a degree of
control over Tiberti. An examination of the construction contract executed between
Albertson's and Tiberti indicates Albertson's exercised a degree of control over the details of
construction. This is relevant as to the first factor, the degree of supervision exercised by the
putative employer over the details of the work. Further, although Albertson's is a grocery
retailer, the record indicates that it operates a design and construction division. It would
appear that the operation of such a design or construction division is evidence that store or
plant construction is part of the general business concerns of the putative employer. See 1C
Larsen, Workmen's Compensation Law, 49.12 (1980); see also Slocum v. Lamartiniere,
369 So.2d 201 (La.App. 1979); Walker v. United States Gypsum Company, 270 F.2d 857
(4th Cir. 1959).
Assuming for the purposes of argument that these two factors must be weighted in favor of
Albertson's in determining whether Albertson's controlled Tiberti, the three remaining factors
utilized in weighing the putative employer's control cannot be evaluated as the record now
stands. Thus, the limited record presented on appeal precludes a determination that, as a
matter of law, Albertson's was Tiberti's employer.
An additional matter warrants further discussion. The district court also granted summary
judgment in favor of respondents on the cause of action for loss of consortium brought by
appellant's wife and children. The district court articulated no basis for this action.
articulated no basis for this action. However, it appears the court was proceeding on the
assumption that although loss of consortium is a cause of action personal to the non-injured
spouse, such a cause of action is precluded by the broad, inclusive language of Nevada's
workmen's compensation statutes. Cf. Casaccia v. Green Valley Disposal Co., Inc., 133 Cal.
Rptr. 295 (Cal.App. 1976); Williams v. Schwartz, 131 Cal.Rptr. 200 (Cal.App. 1976); Wright
v. Action Vending Company, Inc., 544 P.2d 82 (Alaska 1975) (loss of consortium claims
precluded by workmen's compensation statutes similar to NRS 616.370, Nevada's exclusivity
of remedy provision).
If Albertson's was the employer of Tiberti, and if appellant is unable to pursue his cause of
action under the third-party tortfeasor exception, the ruling of the district court granting
summary judgment on the loss of consortium cause of action may well have been correct. As
previously discussed, however, from the present state of the record we are unable to
determine whether as a matter of law Albertson's was Tiberti's employer. As we are thus
unable to determine whether appellant is restricted to his remedies under the NIIA, we are
unable to determine if the derivative loss-of-consortium claim of appellant's wife and children
is barred. It therefore appears that appellant's wife and children should be allowed to present
this cause of action at trial.
As the preceding discussion demonstrates, the summary judgments against appellant
Robert Leslie and against his wife and children were inappropriate. Accordingly, the
summary judgments against appellants are reversed, and this case remanded.
Manoukian, C.J., Springer, Steffen and Gunderson, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
Honorable John Mowbray, Justice, who was disqualified. Nev. Const., art. 6, 19; SCR 10.
____________
BOBBY DEAN STANFILL, Appellant, v. THE
No. 12806
June 24, 1983 665 P.2d 1146
Appeal from judgment of conviction for possession of stolen credit card, First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted before the district court of possession of a stolen credit card, and
he appealed. The Supreme Court, 99 Nev. 247, 660 P.2d 1003 (1983), affirmed in part and
remanded for a new sentence. On petition for rehearing, the Supreme Court held that: (1)
where contention that appeal from conviction of possession of a stolen credit card was
controlled by a United States Supreme Court case not cited in brief or at oral argument was
not properly made in first instance, Supreme Court would not consider it on rehearing, and
(2) where defendant's counsel did not even attempt to argue that alleged mistake of fact in
prior opinion was material, petition for rehearing would be denied.
Rehearing denied.
Thomas E. Perkins, Public Defender, and Robert A. Bork, Deputy Public Defender, Carson
City, for Appellant.
Brian McKay, Attorney General; William A. Maddox, District Attorney, Carson City, for
Respondent.
1. Criminal Law.
A party may not raise a new point for the first time on rehearing. NRAP 40(c)(1).
2. Criminal Law.
Where contention that appeal from conviction of possession of a stolen credit card was controlled by a
United States Supreme Court case not cited in brief or at oral argument was not properly made in first
instance, Supreme Court would not consider it on rehearing. NRAP 40(c)(1).
3. Criminal Law.
Where defendant's counsel did not even attempt to argue that alleged mistake of fact in prior opinion was
material, petition for rehearing would be denied. NRAP 40(c)(2)(i).
OPINION ON REHEARING
Per Curiam:
Appellant was convicted of possession of a stolen credit card, a felony under NRS
205.690(2). We affirmed in part, and remanded for a new sentence, in Stanfill v. State, 99
Nev. 247, 660 P.2d 1003 (1983). Respondent has now petitioned for rehearing, contending
among other things, that our opinion was incorrect in its analysis of the Equal Protection
issue. For the reasons stated below, we deny the petition for rehearing.
This court decided the appeal based upon the authorities cited to us by the parties and
other authorities which we discovered through independent research.
cited to us by the parties and other authorities which we discovered through independent
research. Respondent now contends that this appeal is controlled by the case of United States
v. Batchelder, 442 U.S. 114 (1979), and that the Batchelder case renders our opinion
incorrect. Respondent did not cite Batchelder in its brief for at oral argument.
[Headnotes 1, 2]
The purpose of briefing and oral argument is to inform this court of all authorities relevant
to the issues raised in the appeal. On the other hand, the primary purpose of a petition for
rehearing is to inform this court that we have overlooked an important argument or fact, or
that we have misread or misunderstood a statute, case or fact in the record. A party may not
raise a new point for the first time on rehearing. NRAP 40(c)(1); see McGill v. Lewis, 61
Nev. 40, 118 P.2d 702 (1941). As the contention that this appeal is controlled by Batchelder
was not properly made in the first instance, we will not consider it now on rehearing.
1

[Headnote 3]
Further comment on the petition for rehearing is warranted. First, the petition points to a
mistake of fact which we are alleged to have made in the opinion. It is argued that our
opinion incorrectly states that appellant was indicted, when in fact the charges were filed by
way of an information. Respondent's counsel has not even attempted to argue that the alleged
mistake of fact was material. See NRAP 40(c)(2)(i). Therefore, on this point also, the petition
lacks merit.
Second, the petition argues that the words possession and use are not synonymous
nor are they essentially the same. Respondent's counsel apparently has misread our opinion.
Although we stated that use of a credit card implies possession of the card, we did not
equate those two terms.
Rehearing is denied.
____________________

1
There are apparent differences in the legal issues present in Batchelder and the instant case. We therefore
express no opinion as to whether Batchelder applies to the substantive issue in this case. If we are confronted
with this issue in the future, in a properly briefed case, a reconsideration of the issue may be appropriate.
____________
99 Nev. 502, 502 (1983) Croft v. State
PAUL STEVEN CROFT, Appellant, v. THE STATE
No. 12935
June 22, 1983 665 P.2d 248
Appeal from judgment of conviction upon plea of guilty, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of grand larceny, and he appealed. The
Supreme Court held that record preceding acceptance of guilty plea failed to adequately show
that plea was knowingly and voluntarily entered, in absence of indications that defendant
himself, and not just his attorney, understood elements of offense of grand larceny to which
plea was entered or questioning of defendant in manner sufficiently precise to render
defendant's subsequent affirmative response in adoption of the facts stated by the court as
true.
Powell and Ray, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; William A. Maddox, District Attorney, and
Robert B. Walker, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Constitutional requirement that guilty plea be knowing and voluntary includes specific requirement that
accused understand nature of offense to which plea is entered. U.S.C.A.Const. Amends. 5, 14.
2. Criminal Law.
Specific requirement that accused understand nature of offense to which guilty plea is entered demands
that record affirmatively show either that defendant himself, and not just his attorney, understood elements
of offense to which plea was entered, or that defendant himself made factual statements to the court which
constituted admission to offense pled to; thus, requisite affirmative showing may be made by one of two
alternative means, one involving elements and the other the facts of the offense. U.S.C.A.Const. Amends.
5, 6, 14.
3. Criminal Law.
Record preceding entry of guilty plea, reflecting only that defendant's attorney explained elements of
charged offense to defendant, that offense was described by the district court only as a theft, involving
personal property and defined in certain statute, and indication by defendant that he understood charge, was
insufficient to establish that plea was knowingly and voluntarily entered to charge of grand larceny, given
that, since statement of elements of offense was incomplete, defendant's understanding thereof could not be
inferred. U.S.C.A.Const. Amends. 5, 6, 14.
4. Criminal Law.
If the court accepting defendant's guilty plea makes factual statements concerning offense, by way of
summary, that are sufficient to constitute admission to offense had they been made
personally by accused, then accused may affirmatively adopt the court's factual
statement as true, and thereby admit offense by adoption; personal recitation of facts
by accused is preferable but not necessary, provided that the court states the facts at
the hearing at which guilty plea is taken and questions accused concerning factual
statements in way that makes accused clearly aware that by adopting the court's
factual statements he or she is admitting the offense.
99 Nev. 502, 503 (1983) Croft v. State
constitute admission to offense had they been made personally by accused, then accused may affirmatively
adopt the court's factual statement as true, and thereby admit offense by adoption; personal recitation of
facts by accused is preferable but not necessary, provided that the court states the facts at the hearing at
which guilty plea is taken and questions accused concerning factual statements in way that makes accused
clearly aware that by adopting the court's factual statements he or she is admitting the offense.
U.S.C.A.Const. Amends. 5, 6, 14.
5. Criminal Law.
Although statement by the court which accepted guilty plea of facts of offense would have been
admission had it been uttered by defendant, question asked of defendant as to whether he understood the
charge was not sufficiently precise to render defendant's subsequent affirmative response an adoption of the
facts as true, and no inference could be made that defendant admitted facts as stated by the court by
adoption. U.S.C.A.Const. Amends. 5, 6, 14.
OPINION
Per Curiam:
Appellant was charged with one count of grand larceny and entered a plea of guilty. He
now contends that his plea is constitutionally infirm and must be set aside, because the record
does not adequately show the plea was knowingly and voluntarily entered. Specifically,
appellant argues that the record does not affirmatively show he entered his plea with an
understanding of the nature of the offense charged. We agree.
[Headnotes 1, 2]
The constitutional requirement that a guilty plea be knowing and voluntary, see Boykin v.
Alabama, 395 U.S. 238 (1969), includes a specific requirement that the accused understand
the nature of the offense to which the plea is entered. Standen v. State, 99 Nev. 76, 657 P.2d
1159 (1983); Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); see also NRS 174.035(1)
(prohibiting a trial court from accepting a guilty plea until the court has canvassed the
accused and determined that he or she understands the nature of the offense). As we held in
Hanley, this specific requirement demands that the record affirmatively show either . . . that
the defendant himself (not just his attorney) understood the elements of the offense to which
the plea was entered or . . . that the defendant, himself, has made factual statements to the
court which constitute an admission to the offense pled to. 97 Nev. at 135, 624 P.2d at 1390
(emphasis in original, footnote omitted). Thus, the requisite affirmative showing may be
made by one of two alternative means, one involving the elements and the other the facts of
the offense.
99 Nev. 502, 504 (1983) Croft v. State
[Headnote 3]
The record in this matter
1
does not adequately show that appellant personally understood
the elements of grand larceny. The record reflects only that the appellant's attorney explained
the elements of the offense to him. This is insufficient. Hanley v. State, 97 Nev. at 134-35,
624 P.2d at 1389-91; see also Henderson v. Morgan, 426 U.S. 637, 650-51 (1976)
(concurring opinion of White, Stewart, Blackmun, and Powell, JJ.). Furthermore, the offense
was described by the district court only as a theft, involving personal property and defined
in NRS 205.220. This incomplete statement of the elements of the offense does not satisfy
Hanley. Although appellant indicated he understood the charge, the elements of the charged
offense were never set forth in the record. We are unable to infer his understanding of
elements never explicitly delineated. See Standen v. State, supra.
[Headnote 4]
However, the record below may affirmatively show that appellant understood the nature of
the offense by revealing that appellant made factual statements to the court constituting an
admission to the charged offense. The language of Hanley, see 97 Nev. at 134-35, 624 P.2d at
1390-91, implies that the accused must utter the factual statements from his or her own
mouth.
____________________

1
The relevant portions of the voir dire are as follows:
THE COURT: Mr. Croft, the Amended Information charges you only with Grand Larceny, a felony,
which is defined in NRS 205.220. This is alleged to have been committed on or about June 15th, 1980, in
Carson City. It involves the theft of certain personal property from the Carson Building Supply, which is
alleged to be about $3,816 in checks; and that this took place at that particular business location, which is
5049 Highway 50 East in Carson City.
Do you understand those charges against you?
THE DEFENDANT: Yes, sir.
THE COURT: Then, aside from these negotiations has anyone made any promises to you regarding
this case to induce you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Mr. Damm [defense attorney] has advised you of the elements of the crime with which
you are charged and it is the burden of the prosecution to prove your guilt beyond a reasonable doubt.
THE DEFENDANT: Yes.
THE COURT: All right. Knowing those rights are available to you do you still ask this Court to
accept your plea of guilty today?
THE DEFENDANT: Yes, sir.
THE COURT: Are you pleading guilty because in truth and fact you are guilty and for no other
reason?
THE DEFENDANT: I feel that I am guilty of some criminal offense.
THE COURT: That's acceptable. Thank you. I'll accept your plea. You may be seated.
99 Nev. 502, 505 (1983) Croft v. State
However, we are of the view that if the court makes factual statements concerning the
offense, e.g., as here, by way of summary, that are sufficient to constitute an admission to the
offense had they been made personally by the accused, then the accused may affirmatively
adopt the court's factual statements as true, and thereby admit the offense by adoption.
Personal recitation of facts by the accused is preferable but not necessary, provided the court
states the facts at the hearing at which the guilty plea is taken, see Standen v. State, supra,
and questions the accused concerning the factual statements in a way that makes the accused
clearly aware that by adopting the court's factual statements he or she is admitting the offense.
[Headnote 5]
The record before us does not show that appellant personally made factual statement to the
court sufficient to constitute an admission to the charged grand larceny. Unless the record
reveals that appellant affirmatively adopted a statement of facts by the court which would
have constituted an admission if made by appellant personally, the guilty plea must be set
aside.
The district court made a brief factual summary of the offense and then asked appellant
whether he understood the charge against him. See note 1, supra. Although the court's
statement of the facts of the offense would have been an admission had it been uttered by
appellant, we do not consider the question: Do you understand the charge? sufficiently
precise to render appellant's subsequent affirmative response an adoption of the facts as true.
Appellant's response merely indicated that he understood the facts recited by the court; the
response did not indicate that those facts were true. Had the court asked appellant if the facts
described the offense that he committed, or of which he was in fact guilty, we would no doubt
have reached the opposite conclusion. On the state of this record, however, we cannot infer
that appellant made an admission by adoption of the facts as stated by the court.
As a result, we conclude that the record does not affirmatively show that appellant either
entered his plea with an understanding of the elements of the offense, or made or adopted
factual statements sufficient to constitute an admission of guilt. Thus, we must conclude that
the record fails to show appellant entered his plea with an understanding of the nature of the
offense.
2

The judgment of conviction is reversed. The plea of guilty is set aside, and the matter is
____________________

2
Indeed, during voir dire appellant indicated he was pleading guilty because he was guilty of some criminal
offense.
____________
99 Nev. 506, 506 (1983) Metropolitan Water v. State, Dep't Tax.
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Appellant, v.
STATE OF NEVADA, THE NEVADA DEPARTMENT OF TAXATION, NEVADA TAX
COMMISSION and CLARK COUNTY, NEVADA, Respondents.
No. 13063
June 22, 1983 665 P.2d 262
Appeal from an order granting respondents' motion to dismiss; First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Taxpayer appealed from order of the district court granting State's motion to dismiss on
grounds that taxpayer brought action to recover taxes paid under discriminatory method of
assessment without having first exhausted administrative remedies. The Supreme Court, held
that: (1) the action was not premature as there was no administrative remedies available to
taxpayer; (2) taxpayer, which had absolutely no reason to suspect that it was being singled out
for discriminatory tax assessment, was under no duty to investigate methods used to
determine its tax evaluation; and (3) the action was not barred under applicable statute of
limitations, which was tolled until taxpayer knew, or had reason to know, that its rights had
been violated.
Reversed.
Guild, Hagen & Clark, Reno, for Appellants.
Brian McKay, Attorney General, David M. Norris, Deputy Attorney General, Carson City;
Robert J. Miller, District Attorney, Stanley W. Parry, Deputy District Attorney, Clark County,
for Respondents.
1. Taxation.
Taxpayer which alleged discriminatory method of assessment for years 1941-1979 had no administrative
remedies available to it in light of statutory indications that legislature did not intend that State Board of
Equalization concern itself with property assessments other than for particular revenue year in which it is
convened. NRS 361.320, 361.380, 361.380, subd. 1, 361.395.
Taxpayer, which had absolutely no reason to suspect that it was being singled out for discriminatory tax
assessment, was under no duty to investigate methods used to determine its tax valuation.
Three-month statutory period of limitations applicable to actions to recover taxes paid would not be
applied to deprive taxpayer of fundamental constitutional right of equal protection under the law. NRS
361.420, subd. 3.
4. Taxation.
Statute of limitations dealing with actions for recovery based on fraud or mistake was applicable to
taxpayer's action alleging discriminatory taxation based on mistake. NRS 11.190, sub. 3(d).
Statute of limitations applicable to action alleging discriminatory taxation based on mistake was tolled
until taxpayer knew, or had reason to know, that its rights had been violated and, thus, the action was
commenced within statutory period. NRS 11.190, subd. 3(d).
OPINION
Per Curiam:
This is an appeal from an order granting respondents' motion to dismiss on grounds that
appellant brought an action to recover taxes paid under a discriminatory method of
assessment without having first exhausted administrative remedies.
Appellant, Metropolitan Water District of Southern California, owns electric transmission
lines located in Clark County. The Water District's complaint alleged that from May 29, 1941
to fiscal year 1978-79 it had been assessed for ad valorem property tax purposes by
respondents Nevada Department of Taxation and Nevada Tax Commission, and taxed upon
this assessment by respondent Clark County. In August, 1979 the Water District learned for
the first time that while the assessment of the Water District's transmission lines was based on
historical cost without deduction for depreciation, other similar entities owning electric
transmission lines in Nevada had their property assessed on an historical cost less
depreciation basis.
After learning of the discriminatory tax assessment, the Water District paid its property
taxes under protest and brought suit seeking recovery for taxes improperly paid during fiscal
years 1941-1979.
In granting respondent's motion to dismiss the complaint the district court ruled that the
action was brought prematurely as administrative remedies were not exhausted prior to
seeking judicial relief. The court based its decision on First Am. Title Co. v. State, 91 Nev.
804, 543 P.2d 1344 (1975), wherein this court held that a taxpayer, after paying property
taxes under protest, could not bring an action challenging its property tax assessment under
NRS 361.420
1
without first appearing before the state and county boards of equalization
as required by NRS 361.410{1).2
____________________

1
361.420 Protest payment of taxes; action for recovery of taxes; limitation.
the state and county boards of equalization as required by NRS 361.410(1).
2

[Headnote 1]
The Water District contends that its action for recovery was not premature as there were
no administrative remedies available to it. An examination of the relevant statutes indicates
that the legislature did not intend that the State Board of Equalization (Board) concern itself
with property assessments other than for the particular revenue year in which it is convened.
3
Thus, the Water District correctly contends that it could not have sought the desired relief
before the Board in 1980 for the 1941-1979 assessments.
Respondents contend, however, that the Water District failed to exhaust its administrative
remedies by failing to protest its property valuations before the Board for each of the years in
question. Under respondent's theory the Water District failed to exhaust its administrative
remedies for fiscal year 1941-42 when it failed to protest its valuation in 1942, and thereafter
through each succeeding year.
[Headnote 2]
The facts alleged in the Water District's complaint, however, do not support the conclusion
that it was derelict in failing to investigate the method used to determine its tax valuation.
The Water District had absolutely no reason to suspect that it was being singled out for
the discriminatory tax assessment.
____________________
1. Any property owner whose taxes are in excess of the amount which the owner claims justly to be
due may pay each installment of taxes as it becomes due under protest in writing.
. . . .
2. The property owner, having protested the payment of taxes as provided in subsection 1 and having
been denied relief by the state board of equalization, may commence a suit in any court of competent
jurisdiction in the State of Nevada against the state and county in which the taxes were paid. . . .

2
361.410 Taxpayer not deprived of remedy or redress.
1. No taxpayer shall be deprived of any remedy or redress in a court of law relating to the payment of
taxes, but all such actions shall be for redress from the findings of the state board of equalization, and no
action shall be instituted upon the act of a county assessor or of a county board of equalization or the
Nevada tax commission until the state board of equalization has denied complainant relief.

3
NRS 361.380(1) requires that the Board shall act on all cases by October 1, and on those cases which may
have a substantial effect on tax revenues, equalization must be concluded by April 10. Clearly, these rules
requiring that the Board meet certain deadlines, designed to allow the state to achieve some degree of certainty
regarding the amount of its tax revenue, would serve no purpose if the actions of the Board of Equalization
could apply to previous years. See also NRS 361.320, 361.380, and 361.395, which contain annual deadlines.
Water District had absolutely no reason to suspect that it was being singled out for the
discriminatory tax assessment. To put the burden of investigation upon the Water District as
respondents suggest would require the Water District to make gratuitous inquiries as to the
methods used to assess not only itself but other similar entities. It would be unfair to impose
such a duty upon a taxed entity, and we hold that no such duty exists.
Respondents also argue that even if the Water District did not fail to exhaust its
administrative remedies, it is barred from instituting an action for the recovery of the
discriminatory tax by NRS 361.420(3),
4
the statute of limitations dealing with suits for
recovery of taxes brought under NRS Chapter 361.
Respondents misconstrue the basis of the Water District's complaint. The Water District
did not claim that there was any error in the valuation of the property, but, rather, that the
method of valuation applied denied the Water District a deduction for depreciation which was
given to other similar entities.
The Water District maintains that this discriminatory method of assessment was improper
and unlawful by reason of article 10, 1 of the Nevada Constitution which requires that there
be uniform and equal rates of assessment and taxation. Goldfield Consolidated Mines Co. v.
State, 35 Nev. 178, 186 (1912), citing City of Virginia v. Cholar-Potosi Mining Co., 2 Nev.
92 (1866). The discriminatory method of assessment is also claimed to deprive the Water
District of equal protection of the law.
[Headnote 3]
We have previously held that a county's claims statutes should not apply where to do so
would deny property owners due process rights. See Alper v. Clark County, 93 Nev. 569, 571
P.2d 810 (1977), cert. denied, 436 U.S. 905 (1978). Similar reasoning requires that the three
month statutory period of limitations specified in NRS 361.420(3) should not be held to apply
where to do so would deprive the Water District of a fundamental constitutional right, that of
equal protection under the law.
If the Water District had brought its suit under NRS 361.420 after first paying the
contested taxes under protest, then it might be barred from seeking redress for the
discriminatory tax. However, the Water District did not commence its suit under Chapter 361
but instead sought recovery on the basis of respondents' claimed mistaken and
unconstitutional discriminatory method of assessment.
____________________

4
NRS 361.420(3) requires that an action brought under the provisions of Chapter 361 for the recovery of
property taxes be commenced within three months after the payment of the last installment of taxes or within
three months after payment in full. An action which is not commenced within this period is forever barred.
respondents' claimed mistaken and unconstitutional discriminatory method of assessment.
Where a claim is based upon fraud or mistake, a three year statute of limitations applies as set
forth in NRS 11.190(3)(d).
5

[Headnote 4]
Although NRS 11.190(3)(d) deals with actions for recovery based on fraud or mistake and
does not specifically concern actions for the recovery of taxes, we have previously held that
the three year limitation specified in section 3 of NRS 11.190 applies to tax liabilities. See
State Tax Comm'n of Utah v. Cord, 81 Nev. 403, 404 P.2d 422 (1965). Respondents
conceded during oral argument that NRS 11.190(3)(d) would apply if the allegedly
discriminatory method of assessment was the result of fraud. We see no reason why this
statute would not also apply to discriminatory taxation based on mistake.
[Headnote 5]
Under NRS 11.190(3)(d) the statute of limitations would be tolled until the Water District
knew, or had reason to know, that its rights had been violated. Shupe v. Ham, 98 Nev. 61,
639 P.2d 540 (1982). Under the facts set forth in the complaint the Water District's cause of
action did not accrue until it learned that it was subject to discriminatory taxation.
6
Thus,
under the facts alleged in is complaint, the Water District commenced its action within the
statutory period and should therefore be allowed to commence its action in district court. The
order of the district court granting respondent's motion to dismiss is reversed.
____________________

5
NRS 11.190(3)(d) provides:
11.190 Periods of limitations. Actions other than those for the recovery of real property, unless
further limited by NRS 11.205, by NRS 11.207, or by or pursuant to the Uniform Commercial Code, can
only be commenced as follows:
. . . .
3. Within 3 years:
. . . .
(d) An action for relief on the ground of fraud or mistake; but the cause of action in such a case shall
not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the
fraud or mistake.

6
Of course, when the Water District actually learned of the discriminatory assessment and whether there was
in fact an extension of the statute of limitations is an evidentiary matter to be determined at trial. Golden Nugget,
Inc. v. Ham, 95 Nev. 45, 589 P.2d 173 (1977).
____________
99 Nev. 511, 511 (1983) Citicorp Services v. Lee
CITICORP SERVICES, INC., Appellant, v.
ROBERT M. LEE, Respondent.
No. 13257
June 22, 1983 665 P.2d 265
Appeal from money judgment for respondent, First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Traveler's check purchaser brought action against seller seeking judgment in amount equal
to unrefunded traveler's checks. The district court entered judgment for plaintiff, and
defendant appealed. The Supreme Court held that district court abused its discretion in
relieving plaintiff of his obligation under stipulation to make available a certain witness for
deposition on basis of affidavit which merely stated that the witness refused and failed to
cooperate.
Lionel Sawyer & Collins, and F. Harvey Whittemore and M. Kristina Pickering, Reno, for
Appellant.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, and Mike Pavlakis,
Carson City, for Respondent.
1. Stipulations.
A stipulation may be set aside upon a showing that it was entered into through mistake, fraud, collusion,
accident or some ground of like nature.
2. Stipulations.
District court abused its discretion in relieving plaintiff of his obligation under stipulation to make
available a certain witness for deposition on basis of affidavit which merely stated that the witness refused
and failed to cooperate.
OPINION
Per Curiam:
This is an appeal from a money judgment for respondent Lee. Appellant Citicorp contends
that the district court erred by relieving Lee of his obligation under a stipulation relating to
discovery. We agree and therefore reverse.
In May of 1976, Lee purchased $10,000 worth of traveler's checks from Citicorp. Lee
subsequently claimed that most of the checks had been lost or stolen. He applied to Citicorp
for a refund, and Citicorp gave Lee a partial refund in the amount of $500. Citicorp later
refused to grant a further refund on the ground that Lee conspired with others to defraud
Citicorp of its money.
of its money. Lee then filed suit in the district court, seeking a judgment in an amount equal
to the unrefunded traveler's checks.
On September 10, 1978, the parties entered into a stipulation which, among other things,
provided as follows:
That, without need of Motion, Demand, or Court order, Robert M. Lee will make
available in Reno, Nevada, the person of Diane Sumner for deposition by the defendant.
. . . .
It was further agreed that the trial on Lee's complaint would be continued to a date not less
than two months after completion of the deposition.
In January of 1980, Lee notified Citicorp that a trial setting would be requested. The trial
was subsequently set for August 11, 1980. Thereafter, on three separate occasions, Citicorp
requested that Lee perform his obligation to make Sumner available for a deposition. On July
11, 1980, Lee's counsel sent a letter to Citicorp's counsel stating:
As to the availability of Diane Sumner for a deposition without motion, demand, or
court order, my client, Mr. Lee, informs me that Miss Sumner is willing to give a
written statement that she was not with Mr. Lee during the two weeks preceding or after
the loss of the subject traveler's checks, however, she is reluctant to go through with
the hassle of deposition. (Quotations in original.)
Citicorp's counsel replied that a written statement was not acceptable in lieu of a deposition.
Thereafter, on the date set for trial, Citicorp moved to vacate the trial date on the ground
that Lee had not complied with the stipulation. The trial was continued until October of 1980.
Shortly before the October trial date, Lee moved to be relieved of his obligation under the
stipulation, and he accompanied the motion with his affidavit. The affidavit stated that Lee
had entered into the stipulation at a time when he believed Sumner would cooperate in the
discovery proceedings, but that Sumner refuses and fails to cooperate.
At the hearing on the motion, Lee's counsel argued that Sumner was in Florida, and that
the unfairness . . . is the fact of the distance of taking that deposition. Counsel also argued
that it is prohibitive for [Lee] to have to pay counsel's way to Florida to take [Sumner's]
deposition. The district court found a mistake of fact and therefore granted Lee's motion to
be relieved of his obligation to produce Sumner. The court granted Citicorp's request for a
continuance of the trial until December of 1980. By that date, however, Citicorp had been
unable to locate Sumner, and Citicorp moved for another continuance.
unable to locate Sumner, and Citicorp moved for another continuance. The district court
denied the motion, held a trial, and awarded judgment for Lee in the amount of $9,400 plus
costs and attorney fees of $2,500. This appeal followed.
[Headnote 1]
A stipulation may be set aside upon a showing that it was entered into through mistake,
fraud, collusion, accident or some ground of like nature. See Gottwals v. Rencher, 60 Nev.
47, 98 P.2d 481 (1940). Whether a stipulation should be set aside on such grounds is
generally left to the discretion of the trial court. Los Angeles City Sch. Dist. v. Lanier
Management Co., 2 Cal.Rptr. 662 (Ct.App. 1960); Singleton v. Pichon, 635 P.2d 254 (Idaho
1981); McFarling v. Demco, Inc., 546 P.2d 625 (Okla. 1976).
In the present case, Lee's affidavit in support of his motion merely stated that Sumner
refuses and fails to cooperate. The affidavit did not state what efforts were taken to secure
Sumner's cooperation, or whether any efforts were made to compel her attendance for a
deposition. The affidavit did not contain any reasons whatsoever for Lee's two-year delay in
seeking relief from the stipulation, and nothing in the affidavit indicated that Sumner was
uncooperative during the entire two-year period of time after Lee entered into the stipulation.
1
We also note, as mentioned earlier, that the argument of Lee's counsel was directed toward
the subsequent difficulty and expense in producing Sumner. The district court specifically
recognized, however, that a change in circumstances which occurs after an obligation is
entered into will generally not relieve a party of his obligation.
In this case the evidence which might have been obtained from Sumner was potentially
critical to Citicorp's defense. This conclusion was specifically recognized in the stipulation,
which provided that because of the importance of this discovery the trial on Lee's complaint
should be continued until after completion of the deposition.
[Headnote 2]
By relieving Lee of his obligation under the stipulation, and by thereafter forcing Citicorp
to defend its case at trial without Sumner having been deposed, the district court effectively
imposed on Citicorp the harm resulting from Lee's derelictions. We hold that the district court
abused its discretion by doing so. Accordingly, we reverse the judgment of the district court,
and we remand with instructions to reinstate the stipulation.
____________________

1
Lee's subsequent testimony at trial indicated that he had been living with Sumner before the stipulation was
entered into, and that he and Sumner lived together off and on until July, 1980.
court, and we remand with instructions to reinstate the stipulation.
____________
99 Nev. 514, 514 (1983) Knox v. Dick
LEWIS KNOX, Appellant, v. JUDY DICK and
ROSA DOBSZEWICZ, Respondents.
No. 13411
June 22, 1983 665 P.2d 267
Appeal from partial dismissal of complaint, Eighth Judicial District Court, Clark County;
James A. Brennan, Judge.
Plaintiff brought action alleging defamation and intentional infliction of mental distress
against three defendants. The district court granted motions to dismiss the complaint as it
related to two defendants and plaintiff appealed. The Supreme Court held that: (1) when trial
court had not been divested of its jurisdiction due to purported appeal from nonappealable
order, and when it entered order which corrected defect in appealability, notice of appeal from
first order would be regarded as directed to subsequently entered final judgment vesting
jurisdiction over appeal in Supreme Court; (2) statements made in course of quasi-judicial
proceedings are absolutely privileged; and (3) where county personnel grievance board
conducted hearings in a manner consistent with quasi-judicial administrative proceedings,
defendants had benefit of absolute privilege.
Affirmed.
Jerry Collier Lane, Las Vegas, for Appellant.
Colucci, Minagil & Aurbach, Las Vegas, for Respondents.
Judgment which dismissed action against two of three defendants and which did not express required
determination that there was no just reason for delay nor expressly direct entry of judgment was not final or
appealable, and thus Supreme Court did not obtain jurisdiction of appeal from such order of dismissal.
NRCP 54(b); NRAP 3A(b).
Where final judgment has not been entered as to all parties, determination that there is no just reason for
delay and that judgment should be entered so as to cure defect in appealability should be considered
carefully, should not be entered into routinely or as accommodation to counsel, and should only be made
after notice and opportunity to be heard. NRCP 54(b).
99 Nev. 514, 515 (1983) Knox v. Dick
Appeal from nonappealable order does not divest trial court of jurisdiction.
When trial court has not been divested of its jurisdiction due to purported appeal from nonappealable
order, and when it enters order which corrects defect in appealability, notice of appeal from first order will
be regarded as directed to subsequently entered final judgment, vesting jurisdiction over appeal in Supreme
Court.
Witness who testifies in regular course of judicial proceedings is not liable for answers made to questions
put to him by court or counsel; all answers by witness which are relevant to subject of court's inquiry are
covered by privilege.
Absolute privilege is applicable not only to judicial but also to quasi-judicial proceedings and defamatory
statements made in course of such proceedings are privileged.
Statements made in course of quasi-judicial proceedings are absolutely privileged.
Where county personnel grievance board conducted hearings pursuant to guidelines which included
taking evidence only upon oath or affirmation, calling and examining witnesses on any relevant matter,
impeachment of any witness, and the opportunity to rebut evidence presented, hearings were conducted in a
manner consistent with quasi-judicial administrative proceedings; thus, defendants had benefit of absolute
privilege when they appeared before such board.
OPINION
Per Curiam:
Appellant Knox commenced this action against respondents Dick and Dobszewicz, and a
third defendant Lyn Newman who is not a party to this appeal, alleging defamation and
intentional infliction of mental distress. Respondents Dick and Dobszewicz moved to dismiss
the complaint as it related to them, asserting that the alleged defamatory statements were
privileged and that the statute of limitations barred recovery as to certain of the statements.
The motion to dismiss was granted and the causes of action against respondents herein were
dismissed with prejudice. Knox appealed.
[Headnote 1]
The first issue which must be addressed is whether the order at issue is final and
appealable. NRAP 3A(b). The record does not reflect an adjudication of the claims asserted
against defendant Lyn Newman. When an action involves multiple parties, final judgment
may not be entered as to fewer than all of the parties unless the court expressly determines
that there is no just reason for delay and expressly directs the entry of judgment.
99 Nev. 514, 516 (1983) Knox v. Dick
no just reason for delay and expressly directs the entry of judgment. NRCP 54(b). The
judgment which is the subject of this appeal does not contain the express determination
required by the rule and thus is not final or appealable. First Western Savings and Loan Ass'n
v. Steinberg, 89 Nev. 582, 517 P.2d 793 (1973); Donoghue v. Rosepiler, 83 Nev. 251, 427
P.2d 956 (1967).
[Headnote 2]
This court issued an order to show cause why the appeal should not be dismissed due to
the jurisdictional defect. In response, the district court entered an adjudication containing the
certification required by NRCP 54(b).
1
The determination was apparently made ex parte.
2
No notice of appeal was filed subsequent to the new order.
[Headnote 3]
It is clear that this court did not obtain jurisdiction of the appeal from the original order of
dismissal. Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068 (1979). An appeal
from a non-appealable order does not divest the trial court of jurisdiction. Wilmurth v.
District Court, 80 Nev. 337, 393 P.2d 302 (1964); Resnik v. La Paz Guest Ranch, 289 F.2d
814 (9th Cir. 1961). Therefore, although the trial court had jurisdiction to enter the order
creating the final judgment, we must now determine whether the notice of appeal may operate
prospectively so as to effect an appeal from the subsequently-filed order. The notice of
appeal, under previous case authority, may have been deemed to be premature and
ineffective. Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 229 P. 387 (1924);
Elko-Tuscarora Co. v. Wines, 24 Nev. 305, 53 P. 177 (1898). The court in Johns-Manville
and Elko-Tuscarora was not presented with the procedural context which exists in this
appeal, and we have determined that in this context the prematurity of the notice of appeal
should be treated as a technical defect not affecting substantial rights.
____________________

1
The new adjudication was entered by the district court nunc pro tunc. Because of our analysis of the
appealability issues, infra, we need not decide whether the new judgment was properly designated nunc pro
tunc. See State ex rel. Welfare Div. v. Vine, 99 Nev. 278, 662 P.2d 295 (1983).

2
In order to decide this recurring problem of appellate practice, and because respondents have not raised the
issue, we have elected to ignore the procedure employed in the trial court to procure the new orders. Our
opinion, however, should not be considered as an approval of such ex parte orders. The determinations made
pursuant to NRCP 54(b) are matters to be considered carefully and should not be entered routinely or as an
accommodation to counsel. See Panichella v. Pennsylvania Railroad Company, 252 F.2d 452 (3d Cir. 1958).
Such orders should only result after notice and an opportunity to be heard.
99 Nev. 514, 517 (1983) Knox v. Dick
prematurity of the notice of appeal should be treated as a technical defect not affecting
substantial rights. See Firchau v. Diamond National Corporation, 345 F.2d 269 (9th Cir.
1965).
[Headnote 4]
Thus, when the trial court has not been divested of its jurisdiction due to a purported
appeal from a non-appealable order, and when it enters an order which corrects the defect in
appealability, a notice of appeal from the first order will be regarded as directed to the
subsequently-entered final judgment. See Ruby v. Secretary of United States Navy, 365 F.2d
385 (9th Cir. 1966). Accordingly, jurisdiction over this appeal has vested in this court and we
may address the merits.
Knox's complaint alleged that between September 1, 1978, and December 31, 1978, each
respondent made defamatory statements concerning appellant. These statements were made to
appellant's superiors (who were also respondents' superiors), members of the police
department, and members of the Clark County Personnel Grievance Board.
Respondents filed a motion to dismiss the complaint, which was treated as a motion for
summary judgment. See NRCP 12(b)(5). The grounds for respondents' motion were: (1) all of
respondents' statements were absolutely privileged and therefore the complaint failed to state
a cause of action upon which relief could be granted; and (2) any claim based upon the
statements was barred by the 2-year statute of limitations pursuant to NRS 11.190(4)(c) and
therefore the complaint, filed October 20, 1980, failed to state a cause of action.
The court's order does not specify the ground upon which summary judgment was granted.
A review of the court minutes, however, reveals that the court found that the grievance board
was quasi-judicial in nature.
Thus, the issue presented is whether the privilege granted to a witness in the regular course
of legal proceedings extends to a witness testifying before the Clark County Personnel
Grievance Board.
[Headnote 5]
It is clear that a witness who testified in the regular course of judicial proceedings is not
liable for the answers he makes to questions put to him by the court or counsel. All answers
by the witness which are relevant to the subject of the court's inquiry are covered by this
privilege. Nickovich v. Mollart, Et Al., 51 Nev. 306, 274 P. 809 (1929).
[Headnote 6]
The respondents submit that the privilege also extends to statements made in the course of
quasi-judicial proceedings. It is now well established that the absolute privilege is
applicable not only to judicial but also to quasi-judicial proceedings, and that defamatory
statements made in the course of those proceedings are privileged.
99 Nev. 514, 518 (1983) Knox v. Dick
is now well established that the absolute privilege is applicable not only to judicial but also to
quasi-judicial proceedings, and that defamatory statements made in the course of those
proceedings are privileged. Rainier's Dairies v. Raritan Valley Farms, 117 A.2d 889 (N.J.
1955); Restatement (Second) of Torts 588 (1977); 45 A.L.R.2d 1298 (1956).
[Headnote 7]
By granting an absolute privilege to statements made before a quasi-judicial body, the
right of individuals to express their views freely upon the subject under consideration is
protected. We therefore conclude that statements made in the course of quasi-judicial
proceedings are absolutely privileged. See Jenson v. Olson, 141 N.W.2d 488 (Minn. 1966).
The appellant contends that even if the privilege does extend to quasi-judicial bodies, the
administrative board in the present case did not perform a quasi-judicial function. We
disagree.
[Headnote 8]
The guidelines for the Clark County Personnel Grievance Board are set forth in Clark
County Code 2.40.100 and 2.40.120. Those guidelines include the taking of evidence only
upon oath or affirmation, the calling and examining of witnesses on any relevant matter,
impeachment of any witness, and the opportunity to rebut evidence presented against the
employee.
These guidelines indicate that the Grievance Board hearings are conducted in a manner
consistent with quasi-judicial administrative proceedings. See Engelmohr v. Bache, 401 P.2d
346 (Wash. 1965). We therefore hold that the respondents did have the benefit of absolute
privilege when they appeared before the Grievance Board.
3

Affirmed.
4

____________________

3
We note that the complaint alleges that certain statements were made by the respondents prior to the
hearing. Appellant makes no argument that these statements, which related to respondents' contemplated
grievance, were not also cloaked with the privilege. See Ascherman v. Natanson, 100 Cal.Rptr. 656 (Ct.App.
1972).

4
In light of our holding, it is unnecessary to decide whether the complaint was barred by the statute of
limitations.
____________
99 Nev. 519, 519 (1983) Hicks v. BHY Trucking
JOSEPH HICKS, dba HICKS ENGINEERING CO., Appellant, v. BHY TRUCKING, INC.,
PEARSON TRUCKING AND RIGGING, INC., Respondents.
No. 14353
June 22, 1983 665 P.2d 253
Appeal from grant of summary judgment and denial of a motion for reconsideration,
Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Shipper brought breach of contract action against carriers. The district court granted
carriers' motion for summary judgment, and shipper appealed. The Supreme Court held that:
(1) genuine issues of fact existed as to whether carriers had waived provision in bill of lading
requiring shipper to submit written claim for damaged goods within nine months of delivery
precluding summary judgment, and (2) a carrier can be estopped from asserting such time
limitation provisions contained in bills of lading.
Durney, Guinan & Brennan, Reno, for Appellant.
Pinkerton & Leeder; Cromer, Barker, Michaelson, Gillock & Rawlings; and Ken Bick,
Reno, for Respondents.
1. Judgment.
Summary judgment is appropriate only where pleadings and papers on file show there is no genuine issue
of fact, and that moving party is entitled to judgment as matter of law. NRCP 56.
In deciding propriety of summary judgment, all evidence favorable to party against whom such judgment
was rendered will be accepted as true. NRCP 56.
3. Judgment.
In absence of clearly established defense, summary judgment must be denied. NRCP 56.
4. Judgment.
In shipper's action for breach of contract against carriers, genuine issues of fact existed as to whether
carriers had in fact waived requirement in bill of lading that shipper must submit written claim for damaged
goods within nine months of delivery and whether carriers had frustrated shipper's efforts to file timely
claim, precluding summary judgment.
5. Carriers.
Carrier can be estopped from asserting provision contained in bill of lading limiting time within which
shipper must submit written claim for damaged goods.
OPINION
Per Curiam:
The instant appeal concerns a shipping contract allegedly breached through damage of the
goods in transit. Respondent carriers moved for summary judgment on the ground that
appellant shipper had failed to comply with a contractual requirement contained in the bill of
lading, which required the shipper to submit a written claim within nine months of delivery.
Although the district court granted summary judgment, we have determined that questions of
fact exist in regard to respondents' defense. Accordingly, we reverse.
For purposes of review, all evidence in appellant's favor will be accepted as true. Bowyer
v. Davidson, 94 Nev. 718, 720, 584 P.2d 686 (1978); Potter v. Mutual Benefit Life Ins. Co.,
93 Nev. 90, 92, 560 P.2d 914 (1977).
Appellant shipper Joseph Hicks, doing business as Hicks Engineering Company,
contracted with respondent carrier Pearson Trucking and Rigging, Inc. (Pearson) to have
heavy machinery transported from Southern California to Reno, Nevada. After issuing a bill
of lading to appellant, Pearson contracted with respondent carrier BHY Trucking, Inc. (BHY)
to have machinery in question transported to Reno. The machinery was loaded onto two BHY
trucks, and appellant was informed that the load would be delivered to Reno by the following
day. The trucks, however, did not arrive as expected, and, when the shipment finally did
arrive, the machinery had been damaged by exposure to the elements.
Appellant informed both Pearson and BHY by telephone of the damage and indicated that
he expected to be compensated. An agent of BHY informed appellant that BHY would send
an adjuster to assist appellant in assessing damages and filling out a claim form, and advised
appellant to wait until the adjuster arrived before making a formal claim. Subsequently, on
six different occasions over an eight-month period appellant contacted BHY and informed the
carrier that the adjuster had failed to arrive. On each occasion, BHY reassured appellant that
the adjuster would arrive shortly and that appellant's claim would receive appropriate
attention. Appellant finally lost faith in BHY's promises, and mailed BHY a formal claim
letter some nine months and five days after the claim arose.
Respondents refused to honor appellant's claim, and appellant filed suit. After discovery,
and some two months before trial, respondents filed joint motions for summary judgment. In
these motions, respondents contended that appellant was precluded as a matter of law from
the relief sought on the ground that he had failed to submit a timely written claim for
damages in compliance with the provisions of the bill of lading and the provisions of the
Carmack Amendment to the Interstate Commerce Act, then 49 U.S.C. 20{11).1
Appellant adduced evidence of the facts set forth above, contending inter alia that a
waiver had occurred, and that respondents should be estopped from relying on any time
limitation provision because they had frustrated appellant's efforts to submit a timely
claim.
ground that he had failed to submit a timely written claim for damages in compliance with the
provisions of the bill of lading and the provisions of the Carmack Amendment to the
Interstate Commerce Act, then 49 U.S.C. 20(11).
1
Appellant adduced evidence of the facts
set forth above, contending inter alia that a waiver had occurred, and that respondents should
be estopped from relying on any time limitation provision because they had frustrated
appellant's efforts to submit a timely claim. Despite appellant's argument and evidence, the
district court granted respondents' motion for summary judgment.
[Headnotes 1-3]
We believe the district court erred. Summary judgment is appropriate only where the
pleadings and papers on file show there is no genuine issue of fact, and that the moving party
is entitled to judgment as a matter of law. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258
(1981); NRCP 56. In deciding the propriety of a summary judgment, all evidence favorable to
the party against whom such judgment was rendered will be accepted as true. Short v. Hotel
Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979 (1963). Further, in the absence of a clearly
established defense, summary judgment must be denied. Cf. Weaver v. Shell Oil Co., 91 Nev.
324, 328, 535 P.2d 787 (1975) (in absence of clearly established workmen's compensation
defense, summary judgment must be denied).
[Headnote 4]
In the instant case, the pleadings and papers on file at the time the motions for summary
judgment were submitted indicated appellant had relied on respondents' representations that
they would send an adjuster to assist with the filing of his claims. The record further indicates
appellant omitted to file a timely claim as a result of these representations. In opposition to
the motions for summary judgment, appellant argued that respondents had waived any time
limitation provision in the bill of lading. On this record, we believe genuine issues of fact
exist as to whether respondents had in fact waived the time limitation provision or frustrated
appellant's efforts to file a timely claim. Given the existence of such questions of fact,
summary judgment would ordinarily be inappropriate.
____________________

1
During the pendency of this litigation 49 U.S.C. 20(11) was repealed. The section, however, was
re-enacted as 49 U.S.C. 11707. This section delineates the liability of the initial and delivering carriers for loss
and provides for the notice and filing of claims against carriers. The statute provides in pertinent part:
A carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a
claim against it. . . .
There remains the issue, however, of whether respondents' actions could, as a matter of
law, estop or otherwise bar them from asserting a time limitation provision contained in a bill
of lading. Although the district court apparently accepted respondents' argument that the
carrier could not be estopped from asserting such a provision, we do not believe applicable
case law dictates such a conclusion.
The bill of lading in the instant case reflects the nine-month minimum claim filing period
imposed by the Carmack Amendment and provides, in pertinent part:
As a condition precedent to recovery, claims must be filed in writing with the . . .
carrier . . . within nine months after delivery of the property. . . . Where claims are not
filed or suits are not instituted thereon in accordance with the foregoing provisions, no
carrier hereunder shall be liable, and such claims will not be paid.
The question of whether a carrier may be estopped from asserting the terms of a bill of lading
has not been clearly resolved by the United States Supreme Court. In Georgia, Fla. & Ala. Ry.
v. Blish Co., 241 U.S. 190, 36 S.Ct. 541 (1916), the court indicated that the parties could not
waive the terms of the contract under which the shipment was made pursuant to the
[Interstate Commerce Act]; nor could the carrier by its conduct give the shipper the right to
ignore these terms which were applicable to that conduct and hold the carrier to a different
responsibility from that fixed by the agreement made under the published tariffs and
regulations. 241 U.S. at 197. However, in the subsequent case of Chesapeake & Ohio Ry. v.
Martin, 283 U.S. 209, 51 S.Ct. 453 (1931), the court indicated that although a shipper may
not invoke the doctrine of estoppel against the carrier's right to collect the legal shipping rate,
[w]hether under any circumstances the shipper may rely upon that doctrine in avoidance of
the time limitation clause of the bill of lading, we need not now determine. 283 U.S. at 222.
Thus, the Martin case indicates that, despite the court's use of restrictive language in Blish
Co., a carrier might be estopped from raising as a defense a time limitation clause in the bill
of lading.
The lower federal courts have taken their lead from the Martin decision, and have applied
estoppel in situations in which the application of that doctrine enhances the statutory purposes
of the Carmack Amendment. See Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2nd Cir.
1980); Wisconsin Packing Co. v. Indiana Refrigerator Lines, 618 F.2d 441 (7th cir.
1980), cert den., 449 U.S. 837, 101 S.Ct. 112 (1980); Perini-North River Associates v.
Chesapeake & O. Ry. Co., 562 F.2d 269 (3rd Cir. 1977). Significantly, at least one federal
district court of our own Ninth Circuit has concurred. See Consolidated Freight., etc. v.
Theodor Mfg. Corp., 516 F.Supp. 9, 11 (C.D.Cal. 1981).
[Headnote 5]
Given the weight of this authority, we believe that a carrier can be estopped from asserting
a time limitation provision contained in a bill of lading. Because a bona fide question existed
as to such a factual issue in this case, summary judgment was inappropriate. Accordingly, we
order the summary judgment reversed and the cause is remanded for further proceedings.
____________
99 Nev. 523, 523 (1983) Piedmont Equip. Co. v. Eberhard Mfg.
PIEDMONT EQUIPMENT COMPANY, INC., and LUMBERMAN'S MUTUAL
CASUALTY COMPANY, Appellants, v. EBERHARD MANUFACTURING COMPANY,
Respondent.
No. 14132
June 22, 1983 665 P.2d 256
Appeal from order granting summary judgment for manufacturer in cross-claim by
distributor to recover litigation expenses in products liability action. Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
In products liability action, after distributor was exonerated of liability, distributor sought
to recover indemnification from manufacturer for litigation expenses incurred in defending
products liability action. The district court granted summary judgment for manufacturer.
Distributor appealed. The Supreme Court, Mowbray, J., held that where distributor was in
privity with manufacturer and tendered its defense at start of products liability litigation, and,
although plaintiff's complaint alleged that each of several defendants, including distributor,
was liable, distributor was, in fact, exonerated of liability at trial, distributor was entitled to
indemnity from manufacturer for attorney fees and costs incurred in defending primary
action, insofar as such expenses related to preparation and presentation of evidence and
argument that were not primarily directed toward rebutting charges of active negligence.
Paul C. Parraguirre, Chtd., and Lorin D. Parraguirre, Las Vegas, for Appellants.
David Goldwater, Ltd., and Gary E. Schnitzer, Las Vegas, for Respondent.
1. Indemnity.
Indemnitee is not held harmless pursuant to express or implied indemnity agreement if it must incur
costs and attorney fees to vindicate its rights.
2. Indemnity.
Right to indemnification for litigation expenses should not depend on pleading choices of a third
party, who through an excess of caution or optimism may allege far more than he can prove at trial.
3. Indemnity.
Where indemnitee would be entitled to recover from indemnitor the amount of judgment paid to
plaintiff, as determined by facts as found by trier of fact, indemnitee is entitled to recover in indemnity at
least some of the attorney fees and court costs incurred in defending primary action.
4. Indemnity.
Manufacturer has no duty to defend distributor or retailer charged with negligence, breach of
warranty, or strict liability, where latter parties are attempting to prove that they were not actively
negligent; therefore, indemnitee's right to attorney fees and costs depends on evidence presented as well
as facts found at trial, and indemnitee may recover only those fees and expenses attributable to making of
defenses which are not primarily directed toward rebutting charges of active negligence.
5. Indemnity.
Where distributor was in privity with manufacturer and tendered its defense of product liability claim
at start of litigation, and distributor was subsequently exonerated of liability at trial, distributor may be
entitled to indemnity from manufacturer for attorney fees and costs incurred in defending primary action,
insofar as such expenses related to preparation and presentation of evidence and arguments that were not
primarily directed toward rebutting charges of active negligence.
OPINION
Appellants Piedmont Equipment Company (Piedmont) and Lumberman's Mutual Casualty
Company (Lumberman's) seek indemnification from respondent Eberhard Manufacturing
Company (Eberhard) for litigation expenses incurred in defending a products liability action.
At the jury trial on the products liability claims Eberhard was held liable to the plaintiff, but
Piedmont was exonerated of liability.
Piedmont had, in the principal suit, cross-claimed against Eberhard seeking
indemnification. The court below denied Piedmont's indemnification claim. We reverse the
judgment of the district court, and remand for an apportionment of the litigation expenses
consistent with the views expressed in this opinion.
THE FACTS
The facts in this matter are undisputed. Appellant Piedmont and respondent Eberhard were
defendants in a major products liability action brought in 1973 by the parents of Daniel Craig
Baldwin, a minor. Daniel had been injured in 1972 when he came into contact with an open
high voltage electrical fuse box owned by Nevada Power Company. Eberhard had designed
and manufactured a locking mechanism for the fuse box door. Piedmont was the distributor
who had supplied the Eberhard locking mechanism to the manufacturer of the fuse box. The
Baldwins sued on grounds of negligence, strict liability, and breach of warranty against all
defendants.
Soon after the Baldwins added Piedmont and Eberhard to their complaint as defendants,
Piedmont cross-claimed against Eberhard for indemnification of any recovery the Baldwins
might obtain, plus costs and attorney's fees. Piedmont alleged that it was entitled to be
defended by Eberhard, and also requested by letter that Eberhard assume its defense.
Eberhard denied that Piedmont was entitled to indemnification, and did not accept Piedmont's
tender of its defense.
On August 4, 1977, the jury rendered a verdict of more than $800,000 in the plaintiffs'
favor against all defendants except Piedmont, which received a favorable verdict. The case
had been submitted to the jury against Nevada Power Company on a negligence theory and
against all other defendants on a theory of strict liability.
The district court denied the Baldwins' motion for judgment notwithstanding the verdict as
against Piedmont, and also denied Eberhard's motion for a new trial. Eberhard appealed to
this Court on the ground that the jury verdicts were inconsistent. We held that Eberhard had
waived the issue because it had not objected at the time the verdicts were returned; we
therefore did not reach the question of whether the verdicts were inconsistent. See Eberhard
Mfg. Co. v. Baldwin, 97 Nev. 271, 628 P.2d 681 (1981).
On January 14, 1982, after the above affirmance, Piedmont amended its cross-claim
against Eberhard to include Lumberman's as a cross-claimant. Lumberman's was Piedmont's
liability insurance carrier. It had paid for Piedmont's costs and attorney's fees in the
products liability action.
attorney's fees in the products liability action. They together moved for summary judgment
against Eberhard, seeking indemnification of these litigation expenses. Eberhard then
cross-moved for summary judgment, asserting as a matter of law that Piedmont was not
entitled to recover its litigation expenses because it had been defending for its own benefit
rather than for the benefit of another. After a hearing the district court granted Eberhard's
cross-motion for summary judgment. This appeal followed.
ATTORNEY'S FEES AVAILABLE IN INDEMNITY
There is a split of authority regarding whether a party otherwise entitled to indemnity for
the primary plaintiff's recovery may recover from the indemnitor the reasonable attorney's
fees and costs incurred in defending the primary tort action. One line of authority reasons
from basic implied indemnity principles to include attorney's fees and costs in the recovery to
which the indemnitee is entitled from the indemnitor. The other line of authority is more
restrictive; it creates only a minor exception to the general rule that each party to a lawsuit is
responsible for his or her own litigation expenses.
The more restrictive jurisdictions follow the rule of Westfield v. Mayo, 122 Mass. 100, 23
Am.Rep. 292 (1877). The court in Westfield held that, where an indemnitee tenders his
defense to an indemnitor at the start of litigation and the tender is refused, and the indemnitee
then defends solely and exclusively the acts of the indemnitor rather than any misfeasance of
his own, the indemnitor becomes liable not only for the damages paid by the indemnitee to
the plaintiff, but also for all reasonable and necessary litigation expenses incurred by the
indemnitee. 122 Mass. at 105.
Most of the jurisdictions following Westfield have refused to compel manufacturers to pay
attorney's fees to otherwise indemnified suppliers and distributors who have defended against
allegations that they were independently liable for negligence or breach of warranty. The
courts reason that where the plaintiff alleges that each defendant member of the distribution
chain is independently liable, each such defendant is defending for its own benefit rather than
for the benefit of the indemnitor. The courts have held that under such circumstances the
indemnitor is under no duty to defend the indemnitee, and the general rule precluding an
award of attorney's fees absent a statute or contract applies. See e.g., Weston v. Globe Slicing
Machine Co., 621 F.2d 344 (9th Cir. 1980) (interpreting Idaho law); David v. Air Tech.
Industries, Inc., 582 P.2d 1010 (Cal. 1978); Farr v. Armstrong Rubber Co., 179 N.W.2d 64
(Minn.
1970); Krug v. Sterling Drug, Inc., 416 S.W.2d 143 (Mo. 1967); Conrad v. Suhr, 274 N.W.2d
571 (N.D. 1979); Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976).
Several jurisdictions have departed from the Westfield rule, instead relying on basic
indemnity principles to allow an indemnitee to recover attorney's fees and court costs from
the indemnitor under certain circumstances. These courts reason that there is no distinction
between indemnity actions arising out of contract provisions and those that are implied in
law, holding that in either case reasonable attorney's fees and costs incurred in resisting the
claim indemnified against may be recovered as part of the indemnitee's damages, so long as
the indemnitee is free from active wrongdoing regarding the injury to the plaintiff and has
tendered the defense to the indemnitor at the start of the litigation. See, e.g., Heritage v.
Pioneer Brokerage & Sales, Inc., 604 P.2d 1059 (Alaska 1979); Sendroff v. Food Mart of
Connecticut, Inc., 381 A.2d 565 (Conn.Super. 1977); Pender v. Skillcraft Industries, Inc., 358
So.2d 45 (Fla.App. 1978); St. Paul Fire & Marine Ins. Co. v. Crosetti Bros., Inc., 475 P.2d 69
(Or. 1970). See also Litton Systems, Inc. v. Shaw's Sales & Service, Ltd., 579 P.2d 48, 50-52
(Ariz.App. 1978); Boudreau v. General Elec. Co., 625 P.2d 384, 390 (Hawaii App. 1981);
Massingale v. Northwest Cortez, Inc., 620 P.2d 1009, 1012 (Wash.App. 1980).
In Pender v. Skillcraft Industries, supra, the defendant retail seller of a defective clamp-on
light, which had contributed to the electrocution of the plaintiff's son, sought indemnification
from the defendant manufacturer of the light for attorney's fees and the costs of defending
itself in the primary action. The factfinder found the manufacturer liable, but exonerated the
retailer of liability. There was no evidence that the retailer knew or should have know of the
latent defect in the light. On appeal, the court held that if a retailer, who is not an active
wrongdoer according to the evidence at trial, would have been entitled to indemnity from a
manufacturer for a judgment against the retailer resulting from the latter's sale of a defective
product, the retailer is entitled to be indemnified for the costs and fees incurred in defending
itself in the primary action. 358 So.2d at 46-47. See Insurance Co. of North America v. King,
340 So.2d 1175, 1176 (Fla.App. 1976). Evidence supporting only passive negligence, breach
of implied warranty, or strict liability is insufficient to establish active wrongdoing. See 358
So.2d at 46. Said the court,
[o]ur holding should not be construed to open a floodgate for cross-claims seeking
indemnification when there is no connection between the cross-claimant and the party
from whom indemnification is sought.
whom indemnification is sought. Some nexus is required to support an implied contract
theory of indemnification. In the present case there was clearly privity of contract
between the manufacturer and the retailer of the defective clamp-on light.
Id. at 47.
[Headnote 1]
We are inclined to follow the reasoning in Pender. As the Comment to Section 886B of
the Restatement (Second) of Torts notes, the basis for indemnity is restitution; one person is
unjustly enriched when another discharges liability that it should be his responsibility to pay.
The premise is that indemnity should be granted in any situation where, as between the
parties themselves, it is just and fair that the indemnitor should bear the entire loss, rather
than leaving it on the indemnitee or dividing it proportionately between the parties by
contribution. An indemnitee is not held harmless pursuant to an express or implied
indemnity agreement if it must incur costs and attorney's fees to vindicate its rights. Heritage
v. Pioneer Brokerage & Sales, Inc., 604 P.2d at 1066-67. Furthermore, the more restrictive
Westfield rule provides absolutely no protection to retailers and distributors, who may be
compelled to expend large sums to defend a products liability action merely because a
defective product, the defect of which may be attributable solely to the manufacturer's
conduct, passed through their hands.
[Headnote 2]
Moreover, the jurisdictions which follow the Westfield rule rely on the allegations in the
plaintiff's complaint to determine whether the indemnitee is entitled to costs and attorney's
fees from the indemnitor; only if the indemnitee is defending solely and exclusively against
allegations of the indemnitor's wrongful conduct may he recover such expenses. Such a
restriction may prove very damaging to retailers and distributors. It does not require any legal
ingenuity to draft a complaint charging someone with negligence, and no evidence is needed
to support such an allegation. See Conrad v. Suhr, 274 N.W.2d 571, 580 (N.D. 1979) (Sand,
J., specially concurring). The right to indemnification for litigation expenses should not
depend on the pleading choices of a third party, who through an excess of caution or
optimism may allege far more than he can prove at trial. Peters v. Lyons, 168 N.W.2d 759,
770 (Iowa 1969).
[Headnote 3]
We agree with the viewpoints expressed in Pender, Peters, and Heritage v. Pioneer
Brokerage & Sales. We therefore hold that where an indemnitee would be entitled to recover
from an indemnitor the amount of a judgment paid to the plaintiff, as determined by the facts
as found by the trier of fact, the indemnitee is entitled to recover in indemnity at least some of
the attorney's fees and court costs incurred in defending the primary action.
[Headnote 4]
However, the right to fees and costs remains limited. The manufacturer has no duty to
defend a distributor or retailer charged with negligence, breach of warranty, or strict liability
where the latter party is attempting to prove that it was not actively negligent. See Koch v.
City of Seattle, 513 P.2d 573, 576-77 (Wash.App. 1973). Cf. Restatement (Second) of
Judgments 57(2) & (3) (1982)(conflict of interest preventing indemnitor from properly
assuming defense of indemnitee exists when injured person's claim against indemnitee is such
that it could be sustained on different grounds, one of which is within scope of indemnitor's
obligation to indemnify and another of which is not). Therefore, the indemnitee's right to
attorney's fees and costs depends on the evidence presented as well as the facts found at trial;
the indemnitee may recover only those fees and expenses attributable to the making of
defenses which are not primarily directed toward rebutting charges of active negligence.
1

[Headnote 5]
In the instant case, Piedmont was in privity with Eberhard, and tendered its defense at the
start of the litigation. Although the plaintiff's complaint alleged that each of the several
defendants, including Piedmont, was liable for conduct involving negligence, strict liability,
and breach of warranty, Piedmont was exonerated of liability at trial. On these facts,
Piedmont may be entitled to indemnity from Eberhard for attorney's fees and costs incurred in
defending the primary action, insofar as such expenses related to the preparation and
presentation of evidence and arguments that were not primarily directed toward
rebutting charges of active negligence.
____________________

1
To avoid problems of post-trial apportionment, the manufacturer may arrange with the party seeking
indemnification to take over only a part of the defense, e.g., to defend only until it reasonably appeared that the
indemnitee was actively negligent. Alternatively, the manufacturer could arrange to pay an equitable portion of
the litigation expenses rather than assume any part of the defense. Koch v. City of Seattle, supra. See Hales v.
Monroe, 544 F.2d 331 (8th Cir. 1976).
expenses related to the preparation and presentation of evidence and arguments that were not
primarily directed toward rebutting charges of active negligence. We therefore reverse the
judgment of the district court and remand the matter to the district court for an appropriate
apportionment of litigation expenses.
Manoukian, C.J., Springer, Steffen, and Gunderson, JJ., concur.
____________
99 Nev. 530, 530 (1983) Williams v. State
ROBERT Z. WILLIAMS, Appellant, v. THE STATE
No. 13911
June 22, 1983 665 P.2d 260
Appeal from judgment of conviction of second degree murder, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of second degree murder, and he appealed.
The Supreme Court held that in view of evidence, though admitted in form of defendant's
testimony alone, that victim may have provoked attack by picking defendant up and throwing
him to the floor, trial court erred in failing to instruct jury on voluntary manslaughter, which
failure totally removed theory of defense case from jury's consideration.
Colucci, Minagil & Aurbach, Las Vegas, for Appellant.
1. Criminal Law.
Defendant in criminal case is entitled, upon request, to jury instruction on his or her theory of the case, so
long as there is some evidence, no matter how weak or incredible, to support it, including defense theory
that defendant is guilty of lesser-included offense.
2. Criminal Law.
With respect to defendant's entitlement, upon request, to jury instruction on his or her own theory of the
case, so long as there is some evidence to support it, evidence from defendant alone need not be supported
by other independent evidence.
3. Criminal Law.
If defense theory of the case is supported by some evidence which, if believed, would support
corresponding jury verdict, failure to instruct on that theory totally removes it from jury's consideration and
constitutes reversible error.
4. Homicide.
In view of evidence, though admitted in form of defendant's testimony alone, that victim may have
provoked attack by picking defendant up and throwing him to the floor, trial court erred in failing to give
requested instruction on lesser-included offense of voluntary manslaughter, which failure totally removed
theory of the defense case from jury's consideration.
OPINION
Per Curiam:
Appellant was convicted of second degree murder for the death of Glenn Sult. The sole
issue on appeal is whether the district court erred by refusing to give a requested instruction
on voluntary manslaughter, on the ground that no evidence had been presented which, if
believed by the jury, would support a manslaughter verdict. We conclude that there was
evidence of voluntary manslaughter, that it was error to refuse the instruction, and that the
error requires reversal of the judgment.
[Headnotes 1-3]
A defendant in a criminal case is entitled, upon request to a jury instruction on his or her
theory of the case, so long as there is some evidence, no matter how weak or incredible, to
support it. Riddle v. State, 96 Nev. 589, 613 P.2d 1031 (1980); Barger v. State, 81 Nev. 548,
407 P.2d 584 (1965). This includes a defense theory that the defendant is guilty of a
lesser-included offense, such as manslaughter in the instant case. See Lisby v. State, 82 Nev.
183, 414 P.2d 592 (1966). Evidence from the defendant alone need not be supported by other
independent evidence. See Barger v. State, supra; see also People v. Gajda, 232 N.E.2d 49,
52-3 (Ill.App.Ct. 1967). If a defense theory of the case is supported by some evidence which,
if believed, would support a corresponding jury verdict, failure to instruct on that theory
totally removes it from the jury's consideration and constitutes reversible error. Allen v. State,
98 Nev. 354, 647 P.2d 389 (1982); Barger v. State, supra; see State v. Smart, 328 S.W.2d
569 (Mo. 1959).
[Headnote 4]
In this case, the prosecution admitted appellant's voluntary post-arrest statement as part of
its case in chief. That statement contains appellant's version of the altercation that led to
the death of the victim.
contains appellant's version of the altercation that led to the death of the victim. Appellant
claimed that Sult was an uninvited guest at his home and refused to leave, and that when
appellant took Sult's arm and guided him toward the door Sult swung at appellant and a
fistfight ensued. Appellant stated that during the fight Sult picked him up and threw him to
the floor, immediately after which appellant grabbed a platform shoe from the floor and
struck Sult in the back of the head, inflicting the fatal wounds. Although other evidence
introduced by the prosecution is consistent with the state's theory of murder, appellant's
statement, if believed by the jury, would support a verdict of voluntary manslaughter. Sult's
alleged act of picking appellant up and throwing him bodily to the floor would constitute an
attempt to commit a serious personal injury, which is sufficient provocation for
heat-of-passion voluntary manslaughter within the meaning of NRS 200.050. See Jackson v.
State, 84 Nev. 203, 438 P.2d 795 (1968) (being knocked to ground considered sufficient
provocation; murder verdict upheld because appellant had exhibited acts of deliberation
between provocation and homicide, a factor wholly absent from this case). See also State v.
Smart, supra. Compare State v. Fisko, 58 Nev. 65, 70 P.2d 1113 (1937), overruled on other
grounds, Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957) (physical assault minor and of
fleeting duration, amounting to little more than slight battery).
The district court's failure to instruct the jury on voluntary manslaughter totally removed
that theory of the defense case from its consideration. As such, the error requires reversal of
the judgment. See Allen v. State, supra.
The judgment is reversed and the case is remanded for a new trial.
____________
99 Nev. 532, 532 (1983) Daly v. Morse
JUANITA DALY, Appellant, v. WILLIAM R. MORSE, Guardian of the Person of
MARCUS DALY LAMB, a Minor Child; TIMOTHY MORSE and SHERRY MORSE,
Custodians of the Person of MARCUS DALY LAMB, a Minor Child, Respondents.
No. 14439
June 22, 1983 665 P.2d 797
Appeal from an order denying petition for visitation rights. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
99 Nev. 532, 533 (1983) Daly v. Morse
Appeal was taken from order of the district court, denying petition for child visitation
rights. The Supreme Court held that right of surviving wife to visitation rights with deceased
husband's grandchild following death of husband's daughter and son-in-law was not to be
determined under statute authorizing district court to grant right to visit minor child of
deceased or divorced parent to certain relatives of that parent where a guardian had been
appointed for the child.
Dickerson, Miles, Pico & Mitchell, Las Vegas, for Appellant.
Wiener, Waldman & Gordon, Las Vegas, for Respondents.
Guardian and Ward; Parent and Child.
Stepgrandmother had right to petition for visitation rights with stepgrandchild, for whom guardian was
appointed following death of the child's parents, and was entitled to hearing and the court was to consider
the petition under its guardianship powers, i.e., the parens patriae standard of best interests of the child,
rather than under statute limiting visitation rights with minor children of deceased or divorced parent to
certain relatives of that parent. NRS 123.010 et seq., 123.123, 159.1905.
OPINION
Per Curiam:
This is an appeal from an order denying appellant's petition for visitation rights. Because
appellant had a right to petition for visitation rights and was entitled to a hearing on that
petition, we reverse and remand this case to the district court.
In December, 1958, appellant married Marcus Daly III. Prior to this marriage, Daly had
been married to Kathryn Little Daly. While married to Kathryn Little Daly, Marcus Daly III
fathered a child out of wedlock, Candace Marie, whom he and Kathryn Little Daly later
adopted. When Marcus and Kathryn Daly divorced, Candace was left in Kathryn's custody.
Marcus Daly III died in 1970.
Candace married Earl Lamb, and they had a son, Marcus Daly Lamb, in 1978. Earl Lamb
died in 1979, and Candace died in 1981. Candace's will nominated William Morse as Marcus
Lamb's guardian, and he was later appointed as such by court order. William Morse arranged
for the placement of Marcus Lamb with Morse's son and daughter-in-law, Timothy and
Sherry Morse, as compensated foster parents.
In February, 1982, appellant initiated a series of six or seven visits with Marcus Lamb.
99 Nev. 532, 534 (1983) Daly v. Morse
visits with Marcus Lamb. In June, 1982, appellant was told by Sherry Morse that the visits
were to stop until appellant's intentions regarding Marcus Lamb were made clear to William
Morse. Since that time, appellant has not been permitted to visit Marcus Lamb.
Appellant filed a petition for right of visitation. After a hearing on the matter, the district
court denied appellant's petition on the grounds that petitioner was not eligible under NRS
123.123 to seek court-ordered visitation. The court also stated that appellant had not shown a
basis for claiming in loco parentis status. This appeal followed.
Our review of the facts in this case and the applicable law convinces us that the district
court erred in restricting its consideration of appellant's eligibility to petition for visitation
rights to the criteria stated above. The trial court based its decision regarding appellant's right
to petition for visitation upon NRS 123.123.
1
This statute, which is contained in Chapter 123
of Nevada Revised Statutes dealing with the rights of husbands and wives, need not have
been referred to by the lower court. Here, the court was dealing with a guardianship, a
situation completely different from that anticipated in the above-referenced statute. Our
statutes and cases expressly provide that third persons such as appellant may petition the
district court for termination or modification of a guardianship and that the court, of which
the guardian is but an administrative arm, may consider such petitions in light of its duty to
promote the best interests of the child.
____________________

1
123.123 District court may grant right to visit minor child of deceased or divorced parent to certain
relatives of that parent.
1. If a parent of an unmarried minor child is deceased or divorced from the parent who has custody of
the child, the district court in the county in which the child resides may grant to the grandparents, parents
and other children of the parent who is deceased or divorced from the parent who has custody of the child
a reasonable right to visit the child during his minority, if the court finds that the visits would be in the
best interests of the child. In determining whether to grant this right to a petitioner who is not one of the
parents of the person who is deceased or does not have custody of the child, the court shall consider the
amount of personal contact between the petitioner and the child which occurred before the petition for the
right to visit was filed.
2. Rights to visit a child may be granted:
(a) In a divorce decree; or
(b) Upon a petition filed by an eligible person after a divorce or the death of the parent to whom the
person was related.
3. Termination of the parental rights of a parent also terminates any rights granted pursuant to this
section to persons related to the parent, and bars any granting of such rights to those persons.
99 Nev. 532, 535 (1983) Daly v. Morse
NRS 159.1905 states, [a] ward or other person may petition the court for the termination
or modification of a guardianship. In Mendive v. Third Judicial District Court, 70 Nev. 51,
253 P.2d 884 (1953), we observed:
[T]he present guardian is but an arm of the district court of Washoe County, [citation
omitted]. She could not arbitrarily and contrary to the best interests of the minor refuse
her consent to the minor's adoption by the maternal grandfather. Her right to custody,
being solely for the child's benefit, may be regulated, controlled, or denied by the court
if necessary in the promotion of the child's best interests.
Id. at 62-63.
In the instant case, appellant's petition should have been considered by the district court
within its power to regulate, control, deny or modify the guardianship over Marcus Daly
Lamb. Such consideration should reflect the parens patriae role of the court in promoting the
best interests of the child.
2
Mendive v. District Court, supra. That it did not do so was error.
We therefore reverse the decision of the district court and remand the case for a hearing on
appellant's petition.
____________________

2
We, of course, do not suggest by this opinion whether appellant's petition should be favorably considered by
the district court. Such a determination must await a full hearing on the merits.
____________
99 Nev. 535, 535 (1983) Koza v. District Court
MAGGIE JOE KOZA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, and THE HONORABLE
ADDELIAR D. GUY, JUDGE OF THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, Respondent.
No. 14360
June 22, 1983 665 P.2d 244
Defendant charged with murder sought relief in prohibition to prevent trial court from
proceeding to trial, alleging that she was entitled to have public defender disqualified from
representing her. The Supreme Court held that: (1) prohibition was not appropriate remedy,
but Court would treat petition as one in mandamus; {2) as representation was adverse to
co-defendant, and deputy public defender was scheduled to be called as witness at trial,
public defender was required to withdraw from representation of defendant; and {3) trial
court's action in appointing public defender to represent defendant was arbitrary and
capricious, and mandamus was available to compel trial court to grant public defender's
motion to be disqualified.
in mandamus; (2) as representation was adverse to co-defendant, and deputy public defender
was scheduled to be called as witness at trial, public defender was required to withdraw from
representation of defendant; and (3) trial court's action in appointing public defender to
represent defendant was arbitrary and capricious, and mandamus was available to compel trial
court to grant public defender's motion to be disqualified.
Writ of mandamus granted.
Morgan D. Harris, Public Defender, Herbert F. Ahlswede, Chief Deputy Public Defender,
Clark County, for Petitioner.
Brian D. McKay, Attorney General, Carson City; Robert J. Miller, District Attorney,
1. Prohibition.
Where petitioner, in seeking to prevent trial court from proceeding to trial on murder charges, did not
challenge jurisdiction of trial court to hear and determine matter at issue, prohibition was not appropriate
remedy.
2. Criminal Law.
Where public defender's representation of defendant in murder prosecution was adverse to co-defendant,
whom public defender had represented for six days prior to his retention of private counsel, and deputy
public defender was scheduled to be witness at trial on question whether defendant's statement to police
was voluntary, public defender was required to withdraw from representation of defendant. SCR 167, 185.
3. Mandamus.
Mandamus will not serve to control proper exercise of discretion or to substitute judgment of appellate
court for that of lower tribunal, except when petitioner is able to show that lower court tribunal has acted
arbitrarily or capriciously.
4. Criminal Law; Mandamus.
Where public defender's representation of defendant charged with murder was adverse to co-defendant
whom he formerly represented, and deputy public defender was scheduled to be witness at trial, trial court
acted arbitrarily and capriciously in appointing public defender to represent defendant, and thus, mandamus
was available to compel trial court to grant public defender's motion to be disqualified as counsel and to
appoint new counsel to represent defendant. SCR 167, 185.
OPINION
Per Curiam:
Petitioner seeks relief in prohibition to prevent the trial court from proceeding to trial on a
criminal information which charges the petitioner with murder. The state is seeking the death
penalty.
death penalty. Petitioner contends that she is entitled to disqualification of the Clark County
Public Defender due to a conflict of interest resulting from previous representation of
petitioner's co-defendant, Joseph Koza, by the public defender's office. Petitioner also alleges
that the Clark County Public Defender cannot represent her because a deputy in that office
will be called as a witness at her trial.
[Headnote 1]
First, we must examine the propriety of extraordinary relief. Petitioner has sought relief in
prohibition although the jurisdiction of the trial court to hear and determine the matter at
issue is not challenged. Thus, prohibition is not an appropriate remedy. Goicoechea v. District
Court, 96 Nev. 287, 607 P.2d 1140 (1980). In the interest of judicial economy, however, we
shall treat the petition as one in mandamus. Under the circumstances presented in this
petition, as discussed below, we have determined that extraordinary intervention is warranted
and that there is no plain, speedy or adequate remedy at law. NRS 34.170.
When petitioner and Joseph Koza were first arrested on November 12, 1980, the public
defender was notified and Deputy James Gubler responded. While he was present at the
office of the district attorney, it is alleged that he was a witness to certain events relevant to a
statement elicited from petitioner. He intends to testify to these events at trial on the issue of
whether petitioner's statement was voluntary. Plea negotiations were initiated and Deputy
Public Defender Gubler spoke with both defendants on November 12, 1980. As a result of
those discussions, Gubler became concerned about a potential conflict of interest and deferred
any further participation in the negotiations until separate counsel could be appointed to
represent one of the defendants.
Petitioner and Joseph Koza made their first court appearance on November 13, 1980. The
Clark County Public Defender's office appeared on behalf of Joseph Koza and private counsel
was appointed to represent petitioner. On November 19, 1980, a motion for substitution of
attorneys was filed as to Joseph Koza, and on November 24, 1980, the appearance of the
public defender was withdrawn and private counsel appeared on behalf of Joseph Koza.
On February 5, 1981, a hearing was held regarding appointment of new counsel for Joseph
Koza. The district court again appointed private counsel rather than the public defender,
based on the specific finding that Gubler could be a witness at trial. On June 25, 1982, a
hearing was held on the issue of counsel for petitioner.
counsel for petitioner. Petitioner's counsel was not present at the hearing, and petitioner
claimed that her counsel refused to come to court. The trial court stated its intention to
relieve petitioner's counsel, without giving any reasons, and continued the hearing until June
29, 1982, in order to see about getting her an attorney at that time. The record reflects that
prior to the June 25th hearing, the public defender had advised the court that the public
defender's office was disqualified. The court minutes reflect that on June 29, 1982, the trial
court tentatively appointed the public defender to represent petitioner. On September 29,
1982, the public defender's office moved to be disqualified as counsel for petitioner. After a
hearing, the motion was denied. Petitioner seeks relief from the denial of that motion.
FORMER REPRESENTATION OF CO-DEFENDANT
SCR 167 provides:
[Headnote 2]
A member of the state bar shall not accept employment adverse to a client or a
former client, relating to a matter in reference to which he has obtained confidential
information by reason of or in the course of his employment by such client or former
client.
The representation of petitioner by the same counsel who represented Joseph Koza, her
co-defendant, must be examined in light of this ethical prohibition. The state argues that the
public defender's representation of Joseph Koza was nominal in nature and that the public
defender has made an insufficient showing of an ethical ground for disqualification.
The limited record before us contains several indications that representation of Maggie is
adverse to . . . a former client, Joseph.
1
Any communication between Joseph and his first
attorney, the Clark County Public Defender, would be confidential, and there does not appear
to be any dispute that during the six days that Joseph was represented by the public defender,
there was attorney-client communication regarding the matter for which Maggie is being
tried. Joseph, through his new counsel, has explicitly refused to waive the attorney-client
privilege between himself and the public defender; Maggie has explicitly refused to waive
any actual or potential conflict of interest.2
____________________

1
For example, at a pretrial evidentiary hearing, the court stated:
the court also has a duty to try and protect the record itselfthat there are definitely places where there is
a conflict of tremendous importance between the parties; and it would appear to the Court . . . that some
time along the way, there is going to come a conflict where counsel is going to learn something from his
client, which is for the best interests of his client, but not for the opposite spouse.
Maggie has explicitly refused to waive any actual or potential conflict of interest.
2

The public defender's office has a conflict between its duty to provide vigorous
representation to petitioner and its duty not to disclose any statements made by its former
client, Joseph Koza. The public defender must also avoid acting adversely to its former client.
These are precisely the considerations underlying SCR 167. Therefore, SCR 167 provides
authority for withdrawal of the public defender in this case.
DEFENSE ATTORNEY AS WITNESS
The inquiry conducted by the trial court focused on the second ground urged in this
petition: because Deputy Public Defender Gubler would be called as a witness on behalf of
petitioner, other members of the office cannot represent petitioner at trial. SCR 185
3
governs
the ethical considerations of this question.
As mentioned earlier, Gubler allegedly witnessed events relating to a statement made by
petitioner to police officers. The defense contends that the statement was coerced. If the
prosecution uses the statement at trial, the defense intends to call Gubler to testify as to
whether the statement was voluntary. The district court has specifically recognized that it
would be improper for the public defender to represent Joseph Koza because of the court's
understanding that Mr. Gubler could potentially be a witness in this case. Because of that
ethical consideration, the district court appointed private counsel to represent Joseph Koza.
We perceive no logical reason why the same consideration does not preclude the public
defender from representing petitioner.
____________________

2
We are mindful of the warning contained in American Bar Association's Standards Relating to the
Administration of Criminal Justice, The Defense Function 3.5(b), p. 123 (1974):
The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a
lawyer should decline to act for more than one of several co-defendants except in unusual situations
when, after careful investigation, it is clear that no conflict is likely to develop and when the several
defendants give an informed consent to such multiple representation.

3
SCR 185 provides:
Lawyer as witness. When a lawyer knows, prior to trial, that he will be a necessary witness, other than
as to merely formal matters such as identification or custody of a document or the like, he should not
conduct the trial. If, during the trial, he discovers that the ends of justice require his testimony, he should,
from that point on, if feasible and not prejudicial to his client's case, leave further conduct of the trial to
other counsel. If circumstances do not permit withdrawal from the conduct of the trial, a lawyer shall not
argue the cause or sum it up to the jury without the permission of the court. In no event shall such
attorney be permitted to comment upon his own testimony before the court or jury. (Emphasis added.)
same consideration does not preclude the public defender from representing petitioner. If
anything, the consideration is even stronger as it relates to petitioner. Therefore, SCR 185
authorizes withdrawal of the public defender in this case.
AVAILABILITY OF MANDAMUS
[Headnote 3]
Mandamus will not serve to control the proper exercise of discretion or to substitute the
judgment of this court for that of the lower tribunal, Kochendorfer v. Board of Co. Comm'rs,
93 Nev. 419, 566 P.2d 1131 (1977), except when petitioner is able to show that the lower
tribunal has acted arbitrarily or capriciously. Gragson v. Toco, 90 Nev. 131, 520 P.2d 616
(1974); Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982).
[Headnote 4]
The record reveals that the trial court attempted to avoid appointment of the public
defender and that the judge had difficulty in finding counsel to represent petitioner.
4
No
reason for the difficulty is stated. It was not until after the apparent problems in securing
appointed counsel that the public defender was again considered.
5

The particular circumstances of this case convince us that the trial court acted arbitrarily
and capriciously in permitting petitioner's appointed counsel to withdraw and in appointing
the public defender to represent her. We have considered the following factors: (1) SCR 167
prohibits the type of conflict-ridden representation presented by the history of appointment of
counsel for petitioner and her co-defendant; (2) multiple representation has been rejected by
petitioner; (3) there has been a refusal to waive the attorney-client privilege by the former
client; and (4) petitioner's counsel has expressed his determination that a conflict of interest
exists.
6
Additionally, we have examined the record with regard to the apparent exhaustion of
avenues for the appointment of counsel other than the public defender, and we have
considered the provisions of SCR 185 which would preclude comment on the testimony of a
material witness at petitioner's trial.
____________________

4
At a hearing on June 25, 1982, the court, after permitting petitioner's appointed counsel to withdraw, stated,
The Court has attempted and has for the last week attempted to get you an attorney.

5
The public defender must have been disqualified initially because other counsel was appointed for
petitioner. NRS 7.115.

6
Although not conclusive, defense counsel's representations as an officer of the court should be regarded with
deference. See Holloway v. Arkansas, 435 U.S. 475, at 485-486 (1978).
witness at petitioner's trial. We have also considered the nature of the harm which may result
from violations of SCR 167 and 185. Finally, we have considered the capital nature of this
case. Based on all of the foregoing circumstances, we have concluded that the trial court acted
arbitrarily and capriciously, and that there is a considerable risk of irreparable harm in
requiring counsel to proceed to trial on behalf of this petitioner.
Accordingly, we order the issuance of a writ of mandamus compelling respondent district
court to grant the public defender's motion to be disqualified as counsel, and to appoint new
counsel to represent petitioner.
____________
99 Nev. 541, 541 (1983) Sheriff v. Hughes
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. THOMAS J.
HUGHES aka PAPPY AND DIANNE STORY, Respondents.
No. 14799
June 22, 1983 665 P.2d 242
Court, Clark County; Addeliar D. Guy, Judge.
Appeal was taken from an order of the district court granting petition for writ of habeas
corpus based on lack of probable cause for indictment relative to charge of manufacture of
controlled substance. The Supreme Court held that evidence produced by State that
petitioners had engaged in cutting heroin was sufficient evidence to establish probable
cause to believe that petitioners had engaged in manufacture of controlled substance, and
therefore district court committed substantial error by granting writ of habeas corpus based on
lack of probable cause.
Reversed.
Bell, Leavitt & Green, James L. Wadsworth, Las Vegas, for Respondents.
1. Habeas Corpus.
Supreme Court review of grant of petition for writ of habeas corpus based on lack of probable cause is
limited to whether district court committed substantial error in determining that there was no probable
cause.
Probable cause to support an indictment may be based upon slight, even marginal evidence.
3. Habeas Corpus.
Evidence presented to grand jury by State that petitioners had engaged in cutting heroin was sufficient
evidence to establish probable cause to believe that petitioners had engaged in manufacture of controlled
substance, and therefore district court committed substantial error by granting writ of habeas corpus based
on lack of probable cause. NRS 453.091, subd. 1, 453.321.
OPINION
Per Curiam:
On February 2, 1983, respondents Thomas J. Hughes and Dianne Story were charged by
indictment with a variety of crimes stemming from their possession and distribution of
heroin. They filed petitions for writs of habeas corpus based on lack of probable cause. The
district court granted their petitions as to one of the counts and this appeal followed. We
reverse.
[Headnote 1]
This court's review is limited to whether the district court committed substantial error in
determining that there was no probable cause. Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265
(1981).
The evidence presented to the grand jury established that Hughes and Story had often
acted as distributors of heroin, and that a typical buy would be set up so that a purchaser
gave money to Hughes and later picked up the drug from Story at a certain residence in Las
Vegas. An informant testified that Hughes was in charge of the operation and would receive
the heroin in bulk, repackage it, and make it available to buyers. On December 22, 1982, a
buy was arranged through the informer. Subsequently, a search warrant was executed at the
residence. Hughes was arrested at the front door and was in possession of keys to the
residence and its alarm system. The search revealed ten packets of packaged heroin between
the mattresses in Story's bedroom, a kilogram of mannite cut
1
in the den, and a larger
quantity of mannite, together with plastic baggies and a scale, in a storage shed.
____________________

1
Cut is a substance which can be combined with a drug so as to reduce the proportion of the drug to the
final product and thus increase the total quantity for sale. The evidence before the grand jury indicated that
mannite is a substance commonly used to cut heroin.
in the den, and a larger quantity of mannite, together with plastic baggies and a scale, in a
storage shed. A police officer experienced in narcotics investigations testified that the
materials found would allow a great quantity of heroin to be cut and repackaged.
Count five of the indictment returned by the grand jury charged Hughes and Story with the
unlawful manufacture of heroin pursuant to NRS 453.321.
2
Manufacture is defined in
NRS 453.091(1) as the production, preparation, propagation, compounding, conversion or
processing of a controlled substance . . . and includes any packaging or repackaging of the
substance or labeling or relabeling of its container.
Respondents Hughes' and Story's petitions for writs of habeas corpus alleged, inter alia,
that insufficient evidence had been presented to the grand jury to allow a finding of probable
cause that they had manufactured heroin.
The orders granting the petitions for writs of habeas corpus fail to explain the rationale of
the district court. The basis of the court's decision, however, appears in the transcript of the
hearing during which the petitions were argued. When it appeared that the court was inclined
to grant the writ as to the manufacturing charge, the following exchange occurred:
Mr. Evans [deputy district attorney]: Am I to understand that despite the evidence of
substantial cut the court doesn't understand cutting heroin, the manufacture of a
controlled substance?
The Court: No, I don't. Manufacture means to make, not to dilute.
The district court's reasoning was clearly erroneous. The act of cutting is encompassed
within NRS 453.091(1).
[Headnotes 2, 3]
The question before the district court was whether the evidence presented to the grand jury
was sufficient to support the charge of manufacturing. Probable cause to support an
indictment may be based upon slight, even marginal evidence. Sheriff v. Miley, 99 Nev.
377, 663 P.2d 343 (1983). See also Sheriff v. Potter, 99 Nev. 389, 663 P.2d 350 (1983). An
examination of the transcript reveals that the state produced sufficient evidence to establish
probable cause to believe that respondents had engaged in the manufacture of a controlled
substance under NRS 453.321 and Nrs 453.091(1). Thus, the district court committed
substantial error by granting the writ in this case.
____________________

2
NRS 453.321(1) provides in relevant part that it is unlawful for any person to . . . manufacture . . . a
controlled . . . substance. . . . Heroin is a controlled substance.
district court committed substantial error by granting the writ in this case.
Consequently, we reverse the district court's orders granting the petitions for writs of
habeas corpus as to the manufacturing charge, and we reinstate the fifth count of the
indictment.
____________
99 Nev. 544, 544 (1983) Van Cleave v. Gamboni Constr.
VIRGINIA VAN CLEAVE, Appellant, v. GAMBONI
CONSTRUCTION COMPANY, Respondent.
No. 14489
June 22, 1983 665 P.2d 250
Appeal from grant of summary judgment, Second Judicial District Court, Washoe County;
Passenger brought action against construction company for injuries sustained in one-car
accident in which construction company's employee was driver. The district court granted
summary judgment in favor of construction company, and passenger appealed. The Supreme
Court held that material questions of fact existed as to whether agreement between employee
and passenger was release or covenant not to sue, precluding entry of summary judgment.
Echeverria and Osborne, and James Michael Walsh, for Appellant.
Hibbs, Roberts, Lemons, & Grundy; Cromer, Barker, Michaelson, Gillock & Rawlings;
Leggett & Hamilton; and Eugene J. Wait, Jr., Reno, for Respondent.
1. Release.
When agreement is in fact intended as release, absent statute to contrary, valid release of one joint
tort-feasor releases all joint wrongdoers and is bar to subsequent litigation, particularly in circumstances
involving wholly derivative liability based on master-servant relationship.
2. Release.
A release extinguishes cause of action as to all joint tort-feasors.
3. Release.
A covenant not to sue does not extinguish cause of action and does not release other joint tort-feasors
even if it does not specifically reserve rights against them.
4. Judgment.
In action by passenger against construction company for injuries sustained in one-car accident
which construction company's employee was driver, material questions of fact
existed as to whether agreement between employee and passenger was release or
covenant not to sue, precluding entry of summary judgment.
sustained in one-car accident which construction company's employee was driver, material questions of fact
existed as to whether agreement between employee and passenger was release or covenant not to sue,
precluding entry of summary judgment.
OPINION
Per Curiam:
The instant appeal arises out of a one-car traffic accident which occurred on Zolezzi Lane
in Reno, Nevada. Appellant Virginia Van Cleave was a passenger in an automobile operated
by Mark Alimisis. Alimisis lost control of the vehicle; the car left the roadway and
overturned. Appellant was rendered a paraplegic as a result of injuries sustained in the
accident. Alimisis, an employee of respondent Gamboni Construction Company, was
allegedly within the scope of his employment at the time of the accident.
Appellant filed a complaint naming Alimisis and several fictitious defendants. After this
complaint was filed, appellant executed a document which purported to release Alimisis
from further liability in exchange for $50,000. The document in question, captioned
RELEASE IN FULL OF ALL CLAIMS AND RIGHTS, was a printed form release
which provided in pertinent part:
For and in consideration of the sum of Fifty Thousand & no/100 ($50,000) receipt of
which is acknowledged, I release and forever discharge Mark Alamisis [sic] their [sic]
principals, agents, representatives and insurance carriers from any and all rights, claims,
demands and damages of any kind, known or unknown, existing or arising in the future,
resulting from or related to personal injuries death or property damage, arising from an
accident that occurred on or about the 26 day of May, 1979, at or near Zolezzi Ln, Reno,
Nv.
(Italics denote terms added to blanks in the printed form.) Immediately following the
foregoing printed provisions, the parties interlineated the following typewritten provision:
It is expressly agreed that this does not release anyone other than Mark Alimisis, and all
rights against the manufacturer of the vehicle and its component parts, Washoe County
and anyone else, are reserved.
(Emphasis added.)
Approximately 14 months after executing the release, appellant filed an amended
complaint which named respondent Gamboni Construction Company as a defendant. The
only allegations against respondent Gamboni in the amended complaint were that
Alimisis was acting within the scope of his employment at the time of the accident, and
that as a result Gamboni is liable under the doctrine of respondeat superior.
allegations against respondent Gamboni in the amended complaint were that Alimisis was
acting within the scope of his employment at the time of the accident, and that as a result
Gamboni is liable under the doctrine of respondeat superior. The amended complaint
contained no allegations of independent acts of negligence on the part of respondent
Gamboni.
Respondent subsequently moved for summary judgment, arguing that where the
employer's liability is based solely on the negligence of the employee, a release such as that
executed in the instant case releases both the named employee and the employer. In
opposition, appellant contended that NRS 17.245
1
a provision of the Uniform Contribution
Among Tortfeasors Actprecluded such an automatic release of an employer.
The district court concluded that the Uniform Act and NRS 17.245 did not apply to an
employer-employee relationship where the sole basis of the employer's liability was
respondeat superior. The court also determined that, as a matter of common law, a release in
favor of a negligent employee also releases the employer when the employer's liability is
predicated solely on respondeat superior. On the basis of this analysis, the district court
concluded the release of Alimisis also released respondent Gamboni Construction Company.
As no other cause of action was asserted against respondent, the district court granted
summary judgment. The district court, however, noted it made no determination as to the
construction and interpretation of the release executed by appellant and Alimisis.
[Headnote 1]
We believe the district court erred in granting summary judgment without construing the
document in question. When such an agreement is in fact intended as a release, absent a
statute to the contrary the valid release of one joint tortfeasor releases all joint wrongdoers
and is a bar to subsequent litigation. Whittlesea v. Farmer, 86 Nev. 347, 469 P.2d 57 (1970).
This is true particularly in circumstances involving wholly derivative liability based on a
master-servant relationship.
____________________

1
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of
two or more persons liable in tort for the same injury or the same wrongful death:
1. It does not discharge any of the other tortfeasors from liability for the injury or wrongful death
unless its terms so provide; but it reduces the claim against the others to the extent of any amount
stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is
the greater; and
2. It discharges the tortfeasor to whom it is given from all liability for contribution to any other
tortfeasor. (Emphasis added.)
particularly in circumstances involving wholly derivative liability based on a master-servant
relationship. See Bacon v. United States, 321 F.2d 880, 884 (9th Cir. 1963); accord, Seaboard
Air Line Railroad Co. v. Coastal Distributing Co., 273 F.Supp. 340 (Col.Div.S.C. 1967);
Sheppard v. Atlantic States Gas Co., 72 F.Supp. 185 (E.D.Pa., 1947). Further, although we do
not specifically address the issue, there appears to be competent authority to support the
district court's conclusion that this common law rule has not been abrogated by the provisions
of the Uniform Act. See Craven v. Lawson, 534 S.W.2d 653 (Tenn. 1976) (Uniform Act does
not apply where liability of defendant is wholly derivative).
[Headnotes 2, 3]
Thus, if the document in question was a release, the decision of the district court may well
have been correct. From the record before us, however, we are unable to determine if the
document in question was a release. This court has previously recognized the technical
distinction between a release and a covenant not to sue. See Whittlesea v. Farmer, 86
Nev. at 349-350. A release extinguishes the cause of action as to all joint tortfeasors. On
the other hand, a covenant not to sue does not extinguish the cause of action and does not
release other joint tortfeasors even if it does not specifically reserve rights against them. See
id.
In the instant case, the document executed by the parties was entitled, RELEASE IN
FULL OF ALL CLAIMS AND RIGHTS, and contains further language of release and
discharge. At the same time, the typewritten interlineation specifically reserves rights against
other tortfeasors. There appears to be a split of authority as to whether such an attempted
reservation of rights is sufficient to preserve a cause of action against joint tortfeasors who
would otherwise escape liability under the release. Compare Henry B. Steeg and Associates
v. Rynearson, 241 N.E.2d 888 (Ind.App. 1968); Wilson v. City of New York, 131 N.Y.S.2d
47 (N.Y.Sup.Ct. 1954) with Holmstead v. Abbott G.M. Diesel, Inc., 493 P.2d 625 (Utah
1972); Dickey v. Estate of Meier, 197 N.W.2d 385 (Neb. 1972). The record presented on
appeal, however, is insufficient to permit this court to address the issue of whether the
document in question is a release or a covenant not to sue.
The question of whether the agreement was a release or a covenant not to sue was not
directly raised in the court below. Although this court has frequently stated that issues raised
for the first time on appeal will not be considered, issues relating to the construction of the
agreement were presented to the district court.
court. Specifically, respondent Gamboni Construction Company argued that it was Alimisis'
principal and thus expressly included within the terms of the release. Although the district
court stated it made no finding on the construction of the release because such a finding
would be unnecessary to its decision, we believe the issue of the construction of the
agreement was before the court below and thus has been preserved for purposes of appellate
review.
[Headnote 4]
As the preceding analysis demonstrates, material questions of fact remain as to whether the
agreement in question was a release or a covenant not to sue. Summary judgment was thus
inappropriate. See Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 (summary
judgment inappropriate where written contract ambiguous and extrinsic evidence required to
ascertain intent of parties). Accordingly, we reverse the decision of the district court and
remand the case for further proceedings consistent with this decision.
____________
99 Nev. 548, 548 (1983) Nelson v. City of Las Vegas
C. A. NELSON, KATHLEEN V. NELSON, and C. A. JACK NELSON, Chtd., a Nevada
Professional Corporation, Appellants, v. CITY OF LAS VEGAS, COUNTY OF CLARK,
DAVID A. FREEMAN, BRUCE J. BLAIR, and DONALD L. PRESBREY, Respondents.
No. 13773
June 23, 1983 665 P.2d 1141
Appeal from orders granting summary judgment to defendants. Eighth Judicial District
Court, Clark County; William P. Beko, Judge.
Plaintiff sought to hold police officers liable for his alleged false arrest and false
imprisonment and his wife sought to hold officers and their employer liable for intentional
infliction of emotional distress and battery. The district court entered judgment, and appeal
was taken. The Supreme Court held that: (1) warrant was valid on its face yet void for lack of
jurisdiction over plaintiff, making summary judgment for county improper; (2) genuine issue
of fact existed as to reasonableness of delay between arrest and release of plaintiff, precluding
summary judgment; (3) wife did not state facts sufficient to establish emotional distress
claim; and {4) battery claim of wife was barred by limitations.
establish emotional distress claim; and (4) battery claim of wife was barred by limitations.
C. A. Nelson, Las Vegas, for Appellants.
Cromer, Barker, Michaelson, Gillock & Rawlings, and John E. Gormley, Las Vegas, for
Respondents.
1. False Imprisonment.
A police officer is not liable for false arrest or imprisonment when he acts pursuant to a warrant that is
valid on its face.
Facially valid arrest warrant provides legal cause or justification for arrest and protects arresting officer
from liability for false arrest, in same way that an arrest made with probable cause is privileged and not
actionable.
3. Criminal Law.
Bench warrant was valid on its face, although judge's signature had been made by a rubber stamp, since
there was no report indicating that a facsimile signature did not satisfy statutory requirements for an arrest
warrant; thus, police officer could not be held liable for plaintiff's arrest. NRS 171.108.
4. Automobiles.
Arrest warrant was not void on its face because parking violation for which it was issued was not criminal
since ordinance governing citation made any violation of the ordinance, including overtime parking, a
misdemeanor and warrant was issued for plaintiff's failure to appear, not for parking violations.
Issuance of a warrant protects arresting officer against false arrest and imprisonment claims where
warrant is regular in form and issuer has authority over described offense and jurisdiction of person named
in warrant, even if warrant was issued erroneously.
There is no false imprisonment where accused is imprisoned under valid legal process.
7. False Imprisonment; Judgment.
Lack of notice to plaintiff of parking violation prevented justice who signed arrest warrant from gaining
jurisdiction over plaintiff and incomplete traffic citation was not an adequate summons; thus, trial court
erred in granting summary judgment for county on false arrest issue.
Even if arrest is made pursuant to valid legal process and therefore is not actionable, imprisonment
following arrest may under some circumstances become unlawful.
Generally, a person who makes an arrest, or his principal or employer, is liable for false imprisonment if
he fails to take arrested person before court or magistrate within reasonable time or without unnecessary
delay.
Even if the delay between an arrest and release becomes unreasonable, only officers who actively
participated in unlawful detention or their principals or employers are liable for false imprisonment.
Plaintiff in false imprisonment action bears burden of proving that delay in releasing him following his
valid arrest was unlawful.
A few hours may constitute an unnecessary delay in releasing an individual after arrest; whether
defendant proceeded with due diligence depends on circumstances of particular false imprisonment case.
In false imprisonment action, trier of fact should resolve question of unnecessary delay in releasing an
individual whenever facts are disputed and it becomes a question of law for the court only when all the
facts are conceded or clearly established.
14. Judgment.
In false imprisonment action, genuine issue of material fact existed with respect to reasonableness of
delay in releasing the plaintiff after arrest on a facially valid warrant, precluding summary judgment except
to police officer whose potential liability for delay ceased when he promptly turned the plaintiff over to
officers who were responsible for taking the plaintiff to jail.
15. Damages.
To recover for intentional infliction of emotional distress, plaintiff must establish that defendant's conduct
was extreme and outrageous, that defendant either intended or recklessly disregarded cause of emotional
distress, that plaintiff actually suffered severe or extreme emotional distress, and that defendant's conduct
actually or proximately caused the distress.
16. Damages.
Recovery by third-party witness to outrageous act is allowed in action seeking recovery for intentional
infliction of emotional distress if third party is a close relative of persons against whom outrage is directed.
17. Damages.
The less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness to
recover on a claim of intentional infliction of emotional distress.
18. Damages.
Wife of individual claiming he was falsely imprisoned did not allege facts indicating that police officers
intended or recklessly disregarded causing of emotional distress nor did she allege that conduct caused her
any physical injury or illness; thus, wife failed to state a cause of action for intentional infliction of
emotional distress or negligent infliction of emotional distress.
If original pleadings give fair notice of fact situation from which new claim for liability arises,
amendment should relate back for limitations purposes. NRCP 15(c).
Where amendment states new cause of action that describes new and entirely different source of
damages, amendment does not relate back, as opposing party has not been put on notice
concerning facts in issue.
back, as opposing party has not been put on notice concerning facts in issue. NRCP 15(c).
Where plaintiffs' original complaint and first amended complaint gave absolutely no indication that a
claim for battery existed and did not allege any physical contact whatsoever between police officers and the
wife of the individual arrested, amendment did not relate back to original pleading and battery claim was
barred by two year statute of limitations. NRS 11.190, subd. 4(c).
OPINION
Per Curiam:
This case arises from the circumstances surrounding issuance of a warrant for appellant C.
A. Nelson's arrest based on his failure to appear or otherwise respond to a $4.00 overtime
parking ticket. Nelson seeks to hold the arresting officers, the City of Las Vegas, and Clark
County liable for false arrest and false imprisonment, and his wife seeks to hold the officers
and their employer liable for intentional infliction of emotional distress and battery. We hold
that the warrant was valid on its face, yet void for lack of jurisdiction over Nelson, making
summary judgment for the county improper; that summary judgment was inappropriate
regarding the reasonableness of the delay between Nelson's arrest and his release; that Mrs.
Nelson did not state facts sufficient to establish an emotional distress claim; and that her
battery claim was barred by the statute of limitations. Accordingly, we affirm in part and
reverse in part and remand for further proceedings consistent with this opinion.
THE FACTS
On March 17, 1975, at approximately 11:45 a.m., Officer Freeman of the Las Vegas
Metropolitan Police Department stopped attorney C. A. Jack Nelson on Casino Center
Boulevard. Nelson was driving home with his wife, Kathleen. Freeman had a bench warrant
for Nelson's arrest that had been issued by Judge Legakes for Nelson's failure to respond to a
parking ticket. The warrant appeared valid and regular on its face, although the judge's
signature was stamped on the document.
Freeman, in compliance with police department policy, refused Nelson's offer to post the
$29 bail at that time. He summoned a squad car manned by Officers Blair and Presbrey to
transport Nelson to the county jail for processing. Freeman also told Mrs. Nelson to leave the
scene; she was not allowed to retain the car, which was impounded.
At the county jail, following another unsuccessful request to post bail, Nelson was strip
searched, fingerprinted, and photographed. His secretary then posted his $29 bail. He was
released approximately two hours after his arrest. When the matter came to trial, the charges
were dropped, and Nelson's bail was returned.
Nelson then sued respondents, alleging false arrest and false imprisonment. Mrs. Nelson
joined in the complaint, alleging intentional infliction of emotional distress. After her cause
of action was dismissed, she amended the complaint to allege battery.
The county admitted during discovery that notice of the parking violation was not given to
Nelson by personal service, mail, or telephone, and that Nelson should have been given
notice. Moreover, the parking citation on which the bench warrant was based did not specify
that the driver must answer to the charge against him within ten days, as required by Clark
County Code 14.64.060. Nelson by affidavit states that he never received any notice of the
parking violation.
On proper motion the district court granted summary judgment for respondents on the
false arrest issue, denied summary judgment for respondents on the issue of whether the time
span between Nelson's arrest and release was unreasonable, ruled that Kathleen Nelson's
action for battery was barred by the statute of limitations, and denied summary judgment for
appellants on all issues. Following our dismissal of Nelson's appeal of that order as improper,
the district court on proper motion granted summary judgment for respondents on the
remaining false imprisonment issue. Appellants had stipulated to the order to gain prompt
review of all issues in the case.
THE ARRESTING OFFICERS
[Headnotes 1, 2]
A police officer is not liable for false arrest or imprisonment when he acts pursuant to a
warrant that is valid on its face. Strung v. Anderson, 529 P.2d 1380 (Mont. 1975). See
Brendel v. County of Pima, 591 P.2d 77 (Ariz.App. 1979); Clipse v. Gillis, 582 P.2d 555
(Wash.App. 1978); J. Dooley, 3 Modern Tort Law 42.13 at 190-91 (1977). The facially
valid warrant provides the legal cause or justification for the arrest, in the same way that an
arrest made with probable cause is privileged and not actionable. See Hernandez v. City of
Reno, 97 Nev. 429, 634 P.2d 668 (1981); Grover v. County of Clark, 97 Nev. 104, 625 P.2d
85 (1981); Cullison v. City of Peoria, 584 P.2d 1156 (Ariz. 1978).
[Headnote 3]
In the instance case, the warrant appeared regular in form, although the signature had been
made by a rubber stamp. Appellants provide no authority indicating that a facsimile signature
does not satisfy NRS 171.108.
1
Respondents accompanied their summary judgment motion
with an affidavit indicating that Judge Legakes has adopted this facsimile signature as his
regular signature on bench warrants. There is no competent evidence in the record indicating
that Judge Legakes did not review the warrant. As the bench warrant was valid on its face,
Officers Freeman, Blair, and Presbrey may not be held liable for Nelson's arrest.
[Headnote 4]
Appellants contend that the warrant was void on its face because a parking violation is not
criminal. This contention lacks merit. The ordinance governing the June 1974 citation in
issue made any violation of the ordinance, including overtime parking, a misdemeanor. Clark
County Ordinance 185 6, 8 (1963) (codified at Clark County Code 20.08 (1966)).
2
Moreover, the warrant was issued for Nelson's failure to appear, not for the parking violation.
Under the county's general traffic laws, overtime parking is a misdemeanor, and a warrant
will issue if a driver fails to comply with a citation issued to the vehicle he was using. Clark
County Code 14.40.030-14.40.050, 14.64.060-14.64.080 (1966).
THE ISSUER OF THE WARRANT
[Headnotes 5, 6]
The issuer of the warrant is protected against false arrest and imprisonment claims where
the warrant is regular in form and the issuer has authority over the described offense and
jurisdiction over the person named in the warrant, even if the warrant was issued erroneously.
There is no false imprisonment where the accused is imprisoned under valid legal process.
Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966); Dixon v. City of Reno, 43
Nev. 413, 187 P. 308 (1920); Cullison v. City of Peoria, 584 P.2d 1156 (Ariz. 1978).
____________________

1
The warrant of arrest is an order in writing in the name of the State of Nevada which shall:
1. Be signed by the magistrate with his name of office.

2
This ordinance was amended in 1975 to provide a schedule of fines for particular parking violations, and to
indicate that an arrest warrant would issue if a traffic citation was ignored for more than thirty days. Clark
County Code 20.08.240 (1976).
[Headnote 7]
In the instant case, however, a lack of notice prevented the justice's court from gaining
jurisdiction over C. A. Nelson, the person named in the warrant. The incomplete traffic
citation was not an adequate summons. The county admitted that it had not given notice to
Nelson in any other way. The district court therefore erred in granting summary judgment for
all respondents on the false arrest issue. We therefore reverse the grant of summary judgment
as to the county, and remand for trial concerning the extent of the county's responsibility for
the invalid warrant and Nelson's damages.
THE POST-ARREST DELAY
[Headnotes 8-10]
Even if an arrest is made pursuant to valid legal process and therefore unactionable,
imprisonment following the arrest may under some circumstances become unlawful. Kellogg
v. State, 621 P.2d 133 (Wash. 1980). Generally, a person who makes an arrest, or his
principal or employer, is liable for false imprisonment if he fails to take the arrested person
before a court or magistrate within a reasonable time or without unnecessary delay. See Lemel
v. Smith, 64 Nev. 545, 187 P.2d 169 (1947); State v. Gilbert, 467 P.2d 63 (Ariz. 1970);
Annot., 98 A.L.R.2d 966, 971 (1964). However, even if a delay becomes unreasonable, only
the officers who actively participate in the unlawful detention (or their principals or
employers) are liable for false imprisonment. Lemel v. Smith, supra; Plancich v. Williamson,
357 P.2d 693 (Wash. 1960).
[Headnotes 11-13]
The plaintiff in a false imprisonment action bears the burden of proving that the delay
following his valid arrest was unlawful. See Hernandez v. City of Reno, 97 Nev. 429, 634
P.2d 668 (1981); Rounds v. Bucher, 349 P.2d 1026 (Mont. 1960). A few hours may constitute
an unnecessary delay; whether the defendant proceeded with due diligence depends on the
circumstances of the particular case. Lemel v. Smith, supra; Annot., 98 A.L.R.2d at 991-99.
See Madsen v. Hutchison, 290 P. 208 (Idaho 1930)(delay of five hours after arrest on warrant
unreasonable as matter of law where magistrates available during that time and no
countervailing circumstances shown). The trier of fact should resolve the question of
unnecessary delay whenever the facts are disputed. It becomes a question of law for the court
only when all the facts are conceded or clearly established. Lemel v. Smith, supra; Anderson
v. Foster, 252 P.2d 199 (Idaho 1953); Annot., 98 A.L.R.2d at 993-96.
[Headnote 14]
The district court properly ruled in the first instance that summary judgment was
inappropriate concerning the reasonableness of the delay between Nelson's arrest and his
release. The rationales for the police department and county policies and actions in this case
are not clearly set forth in the parties' affidavits, and the trier of fact ultimately must balance
these reasons against Nelson's strong desire and obvious ability to post the $29 bail without
delay. The district court eventually granted summary judgment to respondents on this issue on
the basis of appellants' stipulation. We reverse this grant of summary judgment and remand
for trial on the reasonableness of the delay as to all parties except Officer Freeman. Freeman's
potential liability for delay ceased when he promptly turned Nelson over to the officers who
were responsible for taking Nelson to jail.
3

THE EMOTIONAL DISTRESS CLAIM
[Headnotes 15-17]
To recover for the intentional infliction of emotional distress, a plaintiff must establish the
following elements: (1) that the defendant's conduct was extreme and outrageous; (2) that the
defendant either intended or recklessly disregarded the causing of emotional distress; (3) that
the plaintiff actually suffered severe or extreme emotional distress; and (4) that the
defendant's conduct actually or proximately caused the distress. Star v. Rabello, 97 Nev. 124,
625 P.2d 90 (1981). Recovery by a third party witness to the outrageous act is allowed if the
third party is a close relative of the person against whom the outrage is directed. Most third
party recoveries have been allowed where the defendant's conduct was not only outrageous
but unquestionably violent and shocking. Id.; Prosser, Handbook of the Law of Torts 12 at
62 (4th ed. 1971). The less extreme the outrage, the more appropriate it is to require evidence
of physical injury or illness from the emotional distress. See Prosser, supra, at 60.
[Headnote 18]
In the present case, Kathleen Nelson did not allege facts indicating that the officers
intended or recklessly disregarded the causing of emotional distress to her, nor did she allege
that their conduct caused her any physical injury or illness.
____________________

3
We express no opinion as to the liability of the other officers or the city as their employer; their liability
will depend on a showing at trial that the delay was unlawful and that they improperly contributed to the delay. If
the officers did no more than follow departmental policy, they may not be liable at all.
their conduct caused her any physical injury or illness. Under the circumstances of this case,
the district court did not err in dismissing Kathleen Nelson's infliction of emotional distress
claim.
4

THE BATTERY CLAIM
[Headnote 19]
The district court held Kathleen Nelson's claim for battery barred by the two-year statute of
limitations. See NRS 11.190(4)(c). She made the battery allegation in appellants' Second
Amended Complaint, which was filed over four years from the occurrence of the alleged
battery. NRCP 15(c) states as follows:
Whenever the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original pleading.
If the original pleadings give fair notice of the fact situation from which the new claim for
liability arises, the amendment should relate back for limitations purposes. Deal v. 999
Lakeshore Association, 94 Nev. 301, 579 P.2d 775 (1978); Rosenberg v. Martin, 478 F.2d
520 (2d Cir.), cert. denied, 414 U.S. 872 (1973).
[Headnote 20]
On the other hand, where an amendment states a new cause of action that describes a new
and entirely different source of damages, the amendment does not relate back, as the
opposing party has not been put on notice concerning the fact in issue. Rosenberg v. Martin,
supra (where state prisoner's original complaint in civil rights action did not suggest claim of
physical assault, amendment adding such claim does not relate back, and is barred by statute
of limitations). See Mauian Hotel, Inc. v. Maui Pineapple Co., 481 P.2d 310 (Hawaii 1971).
As the court noted in Raven v. Marsh, 607 P.2d 654, 656 (N.M.App. 1980),
[t]he liberality with which Rule 15 is to be viewed applies mainly to the manner in
which the court's discretion shall be exercised in permitting amended pleadings.
____________________

4
Kathleen Nelson also failed to allege facts sufficient to establish a cause of action for negligent infliction
of emotional distress, as the basis of her recovery would be the defendant's liability in negligence. See Keck v.
Jackson, 593 P.2d 668 (Ariz. 1979); Dillon v. Legg, 441 P.2d 912 (Cal. 1968); J. Dooley, 1 Modern Tort Law
15.06, 15.10 at 373-76, 380-83 (1982).
be exercised in permitting amended pleadings. [Citation omitted.] It does not permit us
to so liberalize limitation statutes when new facts, conduct and injuries are pleaded, that
the limitation statutes lose their meaning. [Citations omitted.]
[Headnote 21]
Appellants' original complaint and first amended complaint gave absolutely no indication
that a claim for battery existed. They did not allege any physical contact whatsoever between
the officers and Kathleen Nelson. The district court properly held the battery claim barred by
the statute of limitations.
CONCLUSION
We have determined that because of lack of notice to Nelson, the justice's court was
without jurisdiction to issue the warrant for Nelson's arrest, making summary judgment for
the county on the false arrest issue erroneous. We have also found that summary judgment is
improper as to all parties except Officer Freeman concerning the reasonableness of the delay
between Nelson's arrest and his release. We therefore affirm in part and reverse and remand
in part for further proceedings consistent with this opinion.
____________
99 Nev. 557, 557 (1983) Sierra Pac. Power Co. v. Rinehart
SIERRA PACIFIC POWER COMPANY, a Nevada Corporation; IDAHO POWER
COMPANY, a Foreign Corporation, Appellants, v. SANDRA S. RINEHART, Individually,
and PAMELA WEEKS HAHN, Respondents.
No. 14327
June 24, 1983 665 P.2d 270
Appeal from judgment in wrongful death action. Second Judicial District court, Washoe
County; Robert L. Schouweiler, Judge.
Mother and wife of contractor's employee brought wrongful death action against
landowner-contractees for employee's fatal injuries sustained in 50-foot fall during
construction of cooling tower. The district court found landowner-contractees breached three
separate duties owed to employee and awarded damages to the mother.
Landowner-contractees appealed. The Supreme Court held that: (1) where danger was
obvious to all, landowner-contractees were not under duty to warn invitees of danger; {2)
where dangerous condition was created during course and as necessary consequences of
building cooling tower, landowner-contractees had no common-law duty to take safety
precautions during construction for benefit of independent contractor's employees; {3)
Nevada Occupational Safety and Health Act did not create duty for landowner-contractee
to provide contractor's employees with safe place to work; and {4) nondelegable duty of
employer to take precautions against peculiar risk of harm to others was not applicable
because employee of independent contractor is not included in term "harm to others."
landowner-contractees were not under duty to warn invitees of danger; (2) where dangerous
condition was created during course and as necessary consequences of building cooling
tower, landowner-contractees had no common-law duty to take safety precautions during
construction for benefit of independent contractor's employees; (3) Nevada Occupational
Safety and Health Act did not create duty for landowner-contractee to provide contractor's
employees with safe place to work; and (4) nondelegable duty of employer to take
precautions against peculiar risk of harm to others was not applicable because employee of
independent contractor is not included in term harm to others.
Reversed.
[Rehearing denied September 7, 1983]
Beasley & Holden, Woodburn, Wedge, Blakey and Jeppson, Leggett & Hamilton, Reno,
for Appellants.
Bradley & Drendel, Reno, for Respondents.
1. Negligence.
Employee of contractor is invitee of owner to whom owner owes duty to exercise reasonable care.
2. Negligence.
Owner is under duty to warn invitee of hidden dangers; such duty does not, however, extend to obvious
danger.
3. Negligence.
Where employee of contractor sustained fatal injuries as result of 50-foot fall while working on
construction of cooling tower for electricity generating station, danger, i.e., height of cooling tower, was
obvious to all and landowner-contractees were not under duty to warn invitees of danger.
4. Negligence.
Where dangerous condition of height of electricity generating station's cooling tower was created during
course and as necessary consequence of building cooling tower, landowner-contractees had no
common-law duty to take safety precautions during construction for the benefit of employees of
independent contractor performing work on the tower.
5. Labor Relations.
Nevada Occupational Safety and Health Act did not create duty for landowner-contractee to provide
contractor's employee with safe place to work. NRS 618.395.
6. Master and Servant.
Nondelegable duty of employer to take precautions against peculiar risk of harm to others was not
applicable to employee of independent contractor as such employee was not included in term harm to
others.
Where independent contractor had special skills and experience in construction of cooling
towers, was more aware of particular risks involved in such construction and was in
better position to take special precautions to protect against any peculiar dangers,
landowner-contractees were not liable for injuries to employees of its independent
contractors.
in construction of cooling towers, was more aware of particular risks involved in such construction and was
in better position to take special precautions to protect against any peculiar dangers, landowner-contractees
were not liable for injuries to employees of its independent contractors.
OPINION
Per Curiam:
In this appeal from a judgment in a wrongful death action, appellants challenge the trial
court's decision that: (1) as landowners, appellants breached three separate duties which they
owed to the decedent by not providing any safety devices during construction; and (2) as the
proximate cause of their negligence, the decedent's mother suffered damages in the sum of
$800,280. We conclude that appellants did not owe the decedent a duty under any of the three
theories upon which liability was based. Initially, in light of the obviousness of the danger,
the trial court erred in imposing on appellants the common law duty of a landowner to an
invitee to keep the premises in a reasonably safe condition. Further, the lower court erred in
holding that appellants had a statutory duty, pursuant to NRS 618.395, to provide employees
a safe place to work because, contrary to its ruling, the Nevada Occupational Safety and
Health Act does not create a civil remedy in an employee's favor. Finally, the lower court
improperly ruled that appellants breached their nondelegable duties, under sections 413 and
416 of the Restatement of Torts, to provide special precautions because employees are not
included in the term others for the purposes of those sections. Accordingly, we reverse the
lower court's judgment.
On September 1, 1978, appellant, Sierra Pacific Power Company (Sierra Pacific), hired
Stone & Webster Engineering Corporation (S & W) as a general contractor to design and
construct a coal-fired electricity generating station on a parcel of land which Sierra Pacific
owned in Valmy, Nevada. The construction project was to be known as the Valmy Power
Plant Project.
1
S & W in turn contracted with Ecodyne Cooling Products (Ecodyne) to erect
a cooling tower at Valmy.
____________________

1
On December 12, 1978, Sierra Pacific sold half of its interest in the Valmy Project to appellant Idaho
Power Company (Idaho). As a result of the sale, Idaho acquired a 50 percent interest in the real property on
which the plant would be built, the completed project and the electrical power which would eventually be
generated at the facility. Idaho also shared those contractual obligations into which Sierra Pacific had already
entered.
On April 15, 1980, James Hahn, employed by Ecodyne as a laborer, sustained fatal injuries
as a result of a 50 foot fall while working on the construction of the cooling tower. As a result
of the accident, Nevada Industrial Commission paid and continues to pay Hahn's widow death
benefits under Ecodyne's policy. In addition, Hahn's widow and his mother brought a
wrongful death action against appellants based on negligence, pursuant to NRS 41.085(2).
After a bench trial, judgment was entered in favor of respondents. The court awarded
$800,280 to Hahn's mother, but his widow was denied relief.
The trial court determine that appellants, as landowner-contractees, were liable for the
death of James Hahn in that they breached three separate duties which they owed Hahn by not
providing any safety devices for the protection of the employees during the construction of
the cooling tower. These three duties are as follows: (1) a common law duty of a landowner
to an invitee to keep the premises in a reasonably safe condition; (2) a statutory duty to
provide employees a safe place to work pursuant to NRS 618.395; and (3) a nondelegable
duty to take precautions against peculiar risk of harm to others.
The district judge concluded that appellants, by virtue of their status as landowners, owe a
common law duty to invitees to keep their premises in a reasonably safe condition and to
exercise reasonable care to protect invitees on their property. The court further found that
appellants breached this duty by failing to provide or cause to be provided rails, nets or solid
planking at the construction site. Appellants contend that such a duty does not extend to
obvious dangers that were present in the instant case nor does it require them to provide a
safe place to work. We agree.
[Headnotes 1-4]
An employee of a contractor is an invitee of the owner to whom the owner owes a duty to
exercise reasonable care. Davis v. Whitsett, 435 P.2d 592 (Okla 1967). The owner is also
under a duty to warn an invitee of hidden dangers. This duty does not, however, extend to
obvious dangers. Worth v. Reed, 79 Nev. 351, 384 P.2d 1017 (1963). Therefore, because the
danger, i.e., the height of the cooling tower, was obvious to all, appellants were not under a
duty to warn its invitees of the danger. Furthermore, although there is a common law duty to
provide a safe place to work, Monroe v. City of New York, 414 N.Y.S.2d 718 (1979), the
owner of the property is under no duty to protect the employees of an independent contractor
from risks arising from or intimately connected with defects or hazards which the
contractor has undertaken to repair or which are created by the job contracted."
from risks arising from or intimately connected with defects or hazards which the contractor
has undertaken to repair or which are created by the job contracted. Celender v. Allegheny
County Sanitary Authority, 222 A.2d 461 (Pa. 1966). Here, the dangerous condition
complained of was created during the course, and as a necessary consequence of, building the
cooling tower. Accordingly, appellants, as landowners, had no common law duty to take
safety precautions during the construction.
[Headnote 5]
The district judge also found that appellants had a statutory duty to provide the decedent
with a safe place to work pursuant to NRS 618.395. That section of the Nevada Occupational
Safety and Health Act provides: An employer, owner or lessee of any real property in this
state shall not construct, cause to be constructed or maintained any place of employment that
is not safe and healthful. In rendering judgment in favor of respondents, the trial court
determined that appellants breached this duty by failing to provide any safety devices.
Appellants contend that the trial court erred in relying upon a violation of NRS 618.395 as a
basis for imposing liability. Appellants' contention is meritorious. In Frith v. Harrah South
Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), we held that the Occupational Safety and
Health Act does not create, either directly or impliedly, a private civil remedy in favor of
employees. Id at 451. Thus, NRS 618.395 did not create a duty for appellants to provide
Hahn with a safe place to work.
[Headnote 6]
The final theory of liability is based on the Restatement (Second) of Torts 416 (1965)
which provides:
One who employs an independent contractor to do work which the employer should
recognize as likely to create during its progress a peculiar risk of physical harm to
others unless special precautions are taken, is subject to liability for physical harm
caused to them by the failure of the contractor to exercise reasonable care to take such
precautions, even though the employer has provided for such precautions in the contract
or otherwise.
Relying on the foregoing provision, the trial court determined that appellants breached their
nondelegable duty to take precautions against peculiar risk of harm to others by not providing
any safety devices. Appellants contend that sections 413 and 416 are not applicable to the
instant case because the employee of an independent contractor is not included in the term
"harm to others.
employee of an independent contractor is not included in the term harm to others.
2
We
agree.
A split of authority exists as to the meaning of the word others as used in sections 413
and 416 of the Restatement. A few jurisdictions have held that the employees of an
independent contractor come within the definition of others. See Woolen v. Aerojet
General Corporation, 369 P.2d 708 (Cal. 1962); Giarratano v. Weitz Company, supra. On the
other hand, several courts have held that the phrase harm to others does not include
employees of the independent contractor but refers to third parties. See, e.g., Nelson v. United
States, 639 F.2d 469 (9th Cir. 1980); Welker v. Kennecott Copper Company, 403 P.2d 330
(Ariz. 1965). We believe the better reasoned position is that taken by those courts which have
held that the employees of an independent contractor are not included in the definition of the
word others. For example, in Nelson the court concluded that employees of an independent
contractor should not be included within the Restatement's definition of others when the
contractor is solvent and as well informed and as competent as the employer in the methods
necessary to avoid accidental injuries to workers. In reaching its decision the court stated:
To begin with, the rationale of the independent contractor exception, as well as
criticisms of it, are most soundly based on issues of knowledge and secondary or
indirect costs of avoiding accidents. The decision to place liability on one group of
potential defendants stems from the recognition that, because of greater knowledge
about or ability to reduce safety risks, the placement of liability on this group will keep
the number and costs of accidents, both in economic and human terms, at a minimum.
[Footnote omitted.] In this case, as the trial court observed, the Government was not
privy to any particular knowledge which was not available to the contractor." . . .
____________________

2
Section 413 provides as follows:
One who employs an independent contractor to do work which the employer should recognize as
likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special
precautions are taken, is subject to liability for physical harm caused to them by the absence of such
precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such
precautions.
This section differs from section 416 only to the extent that it imposes direct liability on the employer when he
made no provision in the contract or otherwise for the taking of required precautions.
which was not available to the contractor. . . . There is no suggestion here that the
Government was in a better position than the contractor either to anticipate dangers to
workmen, to foresee and evaluate the best methods of protection, or to implement and
enforce compliance with appropriate on-site safety precautions. As long as an
independent contractor is informed about particular safety risks, and is competent and
solvent, there is no reason in law or policy why he alone should not be fully responsible
for injuries to workmen arising out of the performance of inherently dangerous jobs in
which the contractor has special skill and experience not shared with the owner.
Nelson v. United States, 639 F.2d at 478.
[Headnote 7]
We find the Nelson rationale to be equally applicable to the instant case. Here, Ecodyne,
and not appellants, has special skills and experience in the construction of cooling towers.
Consequently, the independent contractor is more aware of the particular risks involved in
such construction and is in a better position to take special precautions to protect against any
peculiar dangers. It is for these very reasons, i.e., Ecodyne's knowledge and expertise, that
appellants contracted with Ecodyne to build the cooling tower. Furthermore, if we were to
include Ecodyne's employees within the category of others referred to in the Restatement,
we would effectively subvert the cogent holding of Celender v. Allegheny County Sanitary
Authority, supra, which exempts an owner from a duty to protect such employees from risks
arising from an independent contractor's work project. We, therefore, believe that it is
inappropriate in this case to impose liability on appellants. Accordingly, we hold that
appellants are not liable for injuries to the employees of its independent contractors.
Because our decision concerning the issue of liability is dispositive of this appeal, we find
it unnecessary to consider other issues raised by the parties. Accordingly, we reverse the
judgment of the district court.
____________
99 Nev. 564, 564 (1983) Daly v. State
THOMAS DALY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 14228
June 24, 1983 665 P.2d 798
Appeal from judgment of conviction of three counts of sexual assault and from order
denying motion for new trial. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Defendant was convicted in the district court of sexual assault, and he appealed. The
Supreme Court held that: (1) evidence of uncharged acts between defendant and victim were
admissible within common scheme or plan exception to general rule excluding evidence of
prior bad acts; (2) asserted error in admission of evidence or uncharged nonsexual
misconduct by defendant toward victim was not prejudicial; (3) admission of third-party
testimony as to prior consistent statement of victim was prejudicial error in that prosecution's
case rested entirely on credibility of victim; and (4) evidence of character trait of truthfulness
of defendant was properly excluded in that defendant's credibility was not in issue.
Carelli & Miller, Las Vegas, for Appellant.
Tufteland and Vince Consul, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Prosecution may not introduce evidence of other criminal acts of the accused unless such evidence is
substantially relevant for some purpose other than to show probability that the accused committed the
charged act because of a trait of character. NRS 48.045, subd. 2.
2. Criminal Law.
Even where other crimes evidence is relevant and tends to establish motive, intent, plan, identity, absence
of mistake or accident, or some other relevant fact within list of exceptions in statute governing
admissibility of substantive evidence, it may not be admitted if its prejudicial effect outweighs its probative
value. NRS 48.045, subd. 2.
3. Criminal Law.
Decision to admit or exclude evidence of separate and independent offenses rests within sound discretion
of trial court, and will not be disturbed unless it is manifestly wrong.
4. Criminal Law.
In sexual assault prosecution, evidence of at least some uncharged acts allegedly occurring within same
period as charged acts, which alleged acts were between defendant and victim, defendant's stepdaughter,
and which allegedly occurred under circumstances very similar to charged acts, fell within
"common scheme or plan" exception to general rule excluding evidence of prior bad
acts.
99 Nev. 564, 565 (1983) Daly v. State
very similar to charged acts, fell within common scheme or plan exception to general rule excluding
evidence of prior bad acts. NRS 48.045, subd. 2.
5. Criminal Law.
At least in situations where district court has granted party's motion in limine to exclude evidence, error,
if any, does not occur until matter arises during trial and court permits introduction of contested evidence;
motion in limine, without further objection, is not enough in such circumstances to preserve issue on
appeal.
6. Criminal Law.
In sexual assault prosecution, Supreme Court would not consider issue of admissibility of evidence of
uncharged nonsexual misconduct by defendant toward victim, since defendant did not object to such
evidence or remind district judge of his prior ruling that jury could not consider evidence of uncharged
crimes as proof that defendant was of bad character and acted in conformity therewith, or raise issue in his
motion for new trial.
7. Criminal Law.
In sexual assault prosecution, asserted error in trial court's admitting evidence of uncharged nonsexual
misconduct by defendant toward victim was not prejudicial.
8. Criminal Law.
Prior consistent statements, to be admissible under statute defining hearsay, must have been made at
time when declarant had no motive to fabricate. NRS 51.035, subd. 2(b).
9. Criminal Law.
In sexual assault prosecution, admission of testimony of victim's friend that victim had told her that
defendant had required victim to perform fellatio on him, as prior consistent statement of victim, was
prejudicial error where defendant completely denied commission of acts and prosecution's case rested
entirely on credibility of victim, and where prosecution emphasized corroborative nature of such
testimony in closing argument. NRS 41.035, 51.035, subd. 2(b).
10. Criminal Law.
An accused may, in effort to prove his innocence, seek to establish his good character; however, such
proof must be confined to particular traits of character that are relevant to conduct with which the accused
has been charged. NRS 48.045, 50.085.
11. Criminal Law; Witnesses.
Evidence of defendant's character trait of truthfulness is relevant only where offense charged in crimen
falsi, i.e., a lie by defendant is element of the crime, or defendant has testified on his own behalf and his
credibility has been attacked, or truth of out-of-court statements by defendant has been attacked. NRS
48.045, 50.085.
12. Criminal Law.
Mere fact that an accused takes stand does not give him right to present character evidence supporting his
veracity; even contradiction of testimony of the accused does not necessarily give him that right. NRS
48.045, 50.085.
13. Criminal Law.
In sexual assault prosecution, district court did not err in granting state's motion to exclude proffered
evidence of defendant's character trait of truthfulness, as prosecution did not attack defendant's credibility,
and thus, defendant's truthfulness or nontruthfulness were not placed in issue. NRS 48.045, 50.085.
99 Nev. 564, 566 (1983) Daly v. State
OPINION
Per Curiam:
Appellant was convicted of three counts of sexual assault. On appeal, he raises several
objections to the district court's evidentiary rulings. We hold that certain testimony
concerning prior consistent statements of the victim was directly proscribed by the rule of
Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981), and that under the circumstances of
this case, the admission of the proscribed testimony was so prejudicial as to be plain or
fundamental error. We therefore reverse and remand for a new trial.
THE FACTS
After a preliminary hearing, appellant Thomas Daly was charged by information with three
counts of sexual assault allegedly perpetrated on his fourteen-year-old stepdaughter during
the summer of 1981. The prosecution's theory at trial was that Daly had been dominating his
stepdaughter and subjecting her to sexual abuse over the course of several years; the charged
counts represented those particular incidents which the stepdaughter could remember in
detail. The defense theory was that Cami, the stepdaughter, was falsely charging her
stepfather with sexual assault as a means of freeing herself from Daly's disciplinarian
methods of child-rearing and burdensome assignments of household chores. Cami apparently
has disliked her stepfather since the start of the marriage.
Cami was the prosecution's primary witness. Daly was the only defense witness. The jury
chose to believe Cami, and convicted Daly on all three counts. The judge sentenced Daly to
life imprisonment on all three counts, sentences to run concurrently, and denied Daly's
motion for a new trial. This appeal followed.
THE EVIDENCE OF UNCHARGED
SEXUAL MISCONDUCT
Before trial, the district court denied appellant's motion in limine to exclude testimony by
Cami concerning uncharged acts of sexual assault by appellant. At trial, Cami testified that
she had performed fellatio on appellant at his request an average of once or twice a week
since she was about eight years old. She also testified as to several uncharged acts of vaginal
intercourse. She did not specify the dates on which or the places where these alleged acts
occurred. The district judge instructed the jury that it may not consider evidence of uncharged
crimes as proof that the defendant was of bad character and acted in conformity
therewith, but that it may consider such evidence insofar as it shows the defendant's
motive, intent, or plan.
99 Nev. 564, 567 (1983) Daly v. State
as proof that the defendant was of bad character and acted in conformity therewith, but that it
may consider such evidence insofar as it shows the defendant's motive, intent, or plan.
[Headnotes 1-3]
The prosecution may not introduce evidence of other criminal acts of the accused unless
the evidence is substantially relevant for some purpose other than to show the probability that
the accused committed the charged act because of a trait of character. Williams v. State, 95
Nev. 830, 833, 603 P.2d 694, 696 (1979). See NRS 48.045(2). Even where the evidence is
relevant and tends to establish motive, intent, plan, identity, absence of mistake or accident,
or some other relevant fact within the list of exceptions in NRS 48.045(2), it may not be
admitted if its prejudicial effect outweighs its probative value. 95 Nev. at 833, 603 P.2d at
697. See NRS 48.035(1). See also Bonacci v. State, 96 Nev. 894, 897, 620 P.2d 1244, 1246
(1980). The decision to admit or exclude evidence of separate and independent offenses rests
within the sound discretion of the trial court, and will not be disturbed unless it is manifestly
wrong. Bonacci v. State, 96 Nev. at 898, 620 P.2d at 1247; Hill v. State, 95 Nev. 327, 330,
594 P.2d 699, 701 (1979).
[Headnote 4]
The evidence in the instant case fell within the common scheme or plan exception to the
general rule excluding evidence of prior bad acts. See Simpson v. State, 94 Nev. 760, 587
P.2d 1319 (1978); Willett v. State, 94 Nev. 620, 584 P.2d 684 (1978). See also McMichael v.
State, 94 Nev. 184, 577 P.2d 398 (1978). At least some of the uncharged acts allegedly
occurred within the same time period as the charged acts, all alleged acts were between the
appellant and his stepdaughter, and both the charged and uncharged acts allegedly occurred
under very similar circumstances. The district court did not err in denying appellant's motion
in limine to exclude evidence of uncharged acts of sexual misconduct.
1

THE EVIDENCE OF UNCHARGED
NONSEXUAL MISCONDUCT
Before trial, appellant moved to exclude evidence relating to other alleged acts of
misconduct, such as his shouting at, shaking, and striking his stepdaughter. The court granted
this portion of appellant's motion in limine. At trial, witnesses referred at least four times to
the appellant hitting his stepdaughter on one or two occasions.
____________________

1
Moreover, we note that at trial, defense counsel not only failed to object specifically to testimony
concerning the conduct that was more remote in time, but he even elicited such testimony on cross-examination.
99 Nev. 564, 568 (1983) Daly v. State
at least four times to the appellant hitting his stepdaughter on one or two occasions. Defense
counsel did not object to this evidence or remind the judge of his prior ruling, nor did he raise
the issue in his motion for a new trial.
Respondent contends that appellant has waived the right to raise this issue on appeal.
Appellant argues that his motion in limine on the subject adequately preserved his objection
to admission of the evidence.
[Headnotes 5-7]
At least in situations where the district court has granted a party's motion in limine to
exclude evidence, the error, if any, does not occur until the matter arises during trial and the
court permits introduction of the contested evidence. See Tahdooahnippah v. State, 610 P.2d
808, 810 (Okla.Crim.App. 1980). The making of the motion in limine, without further
objection, is not enough in such circumstances to preserve the issue on appeal. Cf. Mathis v.
State, 82 Nev. 402, 408, 419 P.2d 775, 778 (1966) (where defendant failed to object at trial to
evidence that snuck in after being ruled inadmissible, and defendant had been put on notice
by court that it would not anticipate any rulings on objections concerning scope of initial
ruling, defendant failed to preserve issue for appeal). Because appellant did not object to the
evidence of other alleged acts of misconduct or remind the district judge of his prior ruling, or
raise the issue in his motion for a new trial, we shall not consider the issue on appeal.
2
See
Fish v. State, 92 Nev. 272, 276, 549 P.2d 338, 341 (1976); Allen v. State, 91 Nev. 78, 81-82,
530 P.2d 1195, 1197 (1975).
THE VICTIM'S PRIOR CONSISTENT STATEMENTS
At trial, a friend of the stepdaughter testified as to the substance of certain statements that
Cami had made to her in late July 1981. In brief, the witness testified that Cami had told her
that appellant had required Cami to perform fellatio on him. Appellant did not specifically
object to this hearsay testimony.
[Headnote 8]
The evidence in question constituted third party testimony as to prior consistent statements
of the victim, who had already testified concerning the charged acts. Prior consistent
statements, to be admissible under NRS 51.035{2){b),3 must have been made at a time
when the declarant had no motive to fabricate.
____________________

2
We do not consider the asserted error to be prejudicial. We note that defense counsel elicited testimony
from appellant on direct examination that he had spanked Cami after she had tried to run away from homeone
of the instances referred to in the prosecution's case-in-chief.
99 Nev. 564, 569 (1983) Daly v. State
ments, to be admissible under NRS 51.035(2)(b),
3
must have been made at a time when the
declarant had no motive to fabricate. Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981). If
Cami's motives were as the defense suggested, the record would not affirmatively show that
her statements to her friend were made when she had no motive to fabricate. See id. at
301-02, 629 P.2d at 1197.
[Headnote 9]
Under the circumstances of this case, we view the admission of the prior consistent
statement as prejudicial error. The prosecution elicited testimony from several witnesses
referring to Cami's statements to her friend, and emphasized the corroborative nature of this
testimony in closing argument. Appellant completely denied commission of the charged acts.
As in Gibbons, the prosecution's case rested entirely on the credibility of the
victim-prosecutrix. We therefore reverse and remand for a new trial.
THE PROFFERED CHARACTER EVIDENCE
Given our disposition of this appeal, we need not reach appellant's other contentions.
However, since the issue is likely to arise on remand, we shall discuss appellant's argument
that the district court improperly limited his ability to introduce character evidence.
Prior to the presentation of appellant's case, the State moved to exclude character evidence
concerning appellant's truthfulness until such time as appellant's credibility was attacked and
his truthfulness was thereby placed in issue. As an offer of proof, defense counsel stated that
he was prepared to call at least three character witnesses who knew that appellant's
reputation in as far as his character for truthfulness is concerned is excellent; that he is a
person with a reputation of a truthful man and that these witnesses have the personal
opinion him that he is a truthful man.
The district court granted the State's motion. As the State did not attack appellant's
truthfulness, appellant was unable to present his character witnesses either on direct or
as rebuttal witnesses.
____________________

3
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
1. The statement is one made by a witness while testifying at the trial or hearing;
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
(a) Inconsistent with his testimony;
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of
recent fabrication. . . .
99 Nev. 564, 570 (1983) Daly v. State
not attack appellant's truthfulness, appellant was unable to present his character witnesses
either on direct or as rebuttal witnesses.
Appellant argues that NRS 48.045(1) governs under the facts of this case. NRS 48.045(1)
provides in relevant part as follows:
1. Evidence of a person's character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion,
except:
(a) Evidence of his character or a trait of his character offered by an accused, and
similar evidence offered by the prosecution to rebut such evidence.
Appellant contends that this statute merely codifies the common law rule that prohibits the
prosecution from attempting to prove its cause by showing the defendant's bad character, but
allows the accused to introduce evidence of his good character because character is in fact
relevant to resolving probabilities of guilt. See Michelson v. United States, 335 U.S. 469, 476
(1948) (accused may introduce affirmative testimony that the general estimate of his character
is so favorable that jury may infer that he would not be likely to commit offense charged). See
also United States v. Torbert, 496 F.2d 154, 158 (9th Cir.), cert. denied, 419 U.S. 857 (1974).
Cf. Beddow v. State, 93 Nev. 619, 624-25, 572 P.2d 526, 529 (1977) (an accused is permitted
a jury instruction to the effect that jury may infer from evidence of good character that
accused did not commit crime charged).
Respondent argues that NRS 50.085 rather than NRS 48.045 controls. NRS 50.085
provides in relevant part as follows:
1. Opinion evidence as to the character of a witness is admissible to attack or
support his credibility but subject to these limitations:
(a) Opinions are limited to truthfulness or untruthfulness; and
(b) Opinions of truthful character are admissible only after the introduction of
opinion evidence of untruthfulness or other evidence impugning his character for
truthfulness.
2. Evidence of the reputation of a witness for truthfulness or untruthfulness is
inadmissible.
However, NRS 50.085 and its companion provisions concern the impeachment of witnesses,
while NRS 48.045 and its companion provisions deal with the admissibility of substantive
evidence. The Legislature probably did not intend NRS 50.085 to prevent the accused from
presenting opinion and reputation evidence of truthfulness where such evidence is
substantively relevant to the particular offense charged.
99 Nev. 564, 571 (1983) Daly v. State
prevent the accused from presenting opinion and reputation evidence of truthfulness where
such evidence is substantively relevant to the particular offense charged.
[Headnote 10]
The majority rule, which we adopt, is that the accused may, in an effort to prove his
innocence, seek to establish his good character. However, the proof must be confined to the
particular traits of character that are relevant to the conduct with which the accused has been
charged. See, e.g., Freeman v. State, 486 P.2d 967, 972-73 (Alaska 1971); State v.
Altamirano, 569 P.2d 233, 235 (Ariz. 1977); People v. Sexton, 555 P.2d 1151, 1154 (Colo.
1976); State v. Blake, 249 A.2d 232, 234 (Conn. 1968); State v. Dobbins, 639 P.2d 4 (Idaho
1981); State v. Howland, 138 P.2d 424 (Kan. 1943); Hallengren v. State, 286 A.2d 213, 216
(Md.App. 1972). See also United States v. Angelini, 678 F.2d 380 (1st Cir. 1982); United
States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981).
[Headnotes 11, 12]
Evidence of the defendant's character trait of truthfulness is relevant in only three
situations: (1) where the offense charged is crimen falsi, i.e., a lie by the defendant is an
element of the crime; (2) the defendant has testified on his own behalf and his credibility has
been attacked; or (3) the truth of out-of-court statements by the defendant has been attacked.
United States v. Hewitt, 634 F.2d at 279. See Darland v. United States, 626 F.2d 1235 (5th
Cir. 1980), cert. denied, 454 U.S. 1157 (1982) (where defendant did not take stand and crime
charged not crimen falsi, trial court properly excluded evidence of defendant's reputation for
truth and veracity). The mere fact than an accused takes the stand does not give him the right
to present character evidence supporting his veracity; even contradiction of the testimony of
the accused does not necessarily give him that right. United States v. Jackson, 588 F.2d 1046,
1055 (5th Cir.), cert. denied, 442 U.S. 941 (1979). See United States v. Angelini, 678 F.2d at
382 n. 2.
[Headnote 13]
In the instant case, appellant's offer of proof concerned only the character trait of
truthfulness. He did not offer proof of a relevant trait such as law-abidingness or morality. As
appellant was charged with sexual assault, and the prosecution did not attack his credibility,
appellant's truthfulness or nontruthfulness was not placed in issue. The district court did not
err in granting the State's motion to exclude the proffered character evidence.
As the admission of the third party testimony regarding the victim's prior consistent
statement constituted prejudicial error under the circumstances of this case, we reverse
and remand for a new trial.
99 Nev. 564, 572 (1983) Daly v. State
victim's prior consistent statement constituted prejudicial error under the circumstances of
this case, we reverse and remand for a new trial.
__________
99 Nev. 572, 572 (1983) Tomarchio v. State
PHILIP ALEXANDER TOMARCHIO, Jr., Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 12796
June 27, 1983 665 P.2d 804
Appeal from judgment of conviction of first-degree murder and attempted robbery with
use of deadly weapon; sentence of life imprisonment without possibility of parole imposed on
murder conviction, Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
Defendant was convicted before the district court of first-degree murder and attempted
robbery with use of a deadly weapon, and he appealed. The Supreme Court held that: (1)
where detective engaged in elaborate deception by picking up telephone and ordering
release of an individual who detective knew was not in custody at time in order to obtain
defendant's confession, detective's conduct amounted to an interrogation, since it took place
after defendant had asserted a right to counsel, and district court erred in admitting
defendant's confession and related physical evidence without determining first whether
defendant had knowingly and intelligently waived his Miranda rights, but (2) where
prosecution did not have necessary documentation to prove prior felony conviction of witness
in event of denial, its attempt to impeach witness with a prior felony conviction was
improper, and such error, since it might have affected penalty in that it was possible that jury,
were it not for improper impeachment, might have imposed a sentence less severe than life
without possibility of parole, warranted remand for new penalty hearing.
Fitzgibbons & Beatty, Las Vegas, for Appellant.
Tufteland and Thomas R. Green, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Suppression court's determination that defendant did not request an attorney prior to being
questioned by police is a finding of fact which should not be disturbed on appeal if
supported by substantial evidence.
an attorney prior to being questioned by police is a finding of fact which should not be disturbed on appeal
if supported by substantial evidence.
2. Criminal Law.
In prosecution for murder, evidence was insufficient to support finding that defendant, who, when
initially questioned, clearly indicated he did not wish to speak with police until he had spoken to an
attorney, did not request an attorney prior to being questioned by police, even though defendant later
voluntarily requested to speak with police detective concerning possible arrest of defendant's common-law
wife, at which time defendant confessed to murder.
3. Criminal Law.
Totality of the circumstances test is not applicable in analyzing whether a defendant has relinquished
his Fifth Amendment rights against self-incrimination. U.S.C.A.Const. Amend. 5.
4. Criminal Law.
In view of fact that purported waiver of a constitutional right is ineffective unless knowingly and
intelligently made, alleged waiver of Miranda rights must be judged under a knowing and intelligent
waiver standard. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Requirements of Miranda governing custodial interrogation do not apply to volunteered utterances.
6. Criminal Law.
Where detective engaged in elaborate deception by picking up telephone and ordering release of an
individual who detective knew was not in custody at time in order to obtain defendant's confession,
detective's conduct amounted to an interrogation, since it took place after defendant had asserted a right to
counsel, and district court erred in admitting defendant's confession and related physical evidence without
determining first whether defendant had knowingly and intelligently waived his Miranda rights.
7. Criminal Law.
It is improper for prosecution to ask a question of a witness about a prior felony conviction if it is
unprepared to prove such a conviction in the event of denial.
8. Witnesses.
Usual and proper manner of establishing a prior conviction is to ask witness if he had been theretofore
convicted of a felony, and if he denies conviction, to produce a copy of judgment of conviction.
9. Criminal Law.
Where prosecution did not have necessary documentation to prove prior felony conviction of witness in
event of denial, its attempt to impeach witness with a prior felony conviction was improper, and such error,
since it might have affected penalty phase of murder prosecution in that it was possible that jury, were it
not for improper impeachment, might have imposed a sentence less severe than life without possibility of
parole, warranted remand for new penalty hearing.
OPINION
Per Curiam:
Appellant Philip Alexander Tomarchio, Jr. was convicted of first-degree murder after a
jury trial, and sentenced to life imprisonment without the possibility of parole.
first-degree murder after a jury trial, and sentenced to life imprisonment without the
possibility of parole. The district court erred, however, in finding that appellant did not
request an attorney prior to being questioned by police, and in applying an erroneous standard
of review in determining whether appellant's confession was voluntary. Further, the
prosecution improperly attempted to impeach a key defense witness with an undocumented
prior conviction. As we find the evidence of appellant's guilt overwhelming, we decline to
reverse his first-degree murder conviction. However, we believe the asserted errors
prejudiced appellant during the penalty phase of his trial. Accordingly, we affirm appellant's
conviction, but remand the case for a new penalty hearing.
Appellant's involvement in the crime which resulted in this appeal does not appear to be in
dispute. In opening argument at trial, defense counsel conceded that appellant shot and killed
Corrections Officer James Harbin in the course of an attempted armed robbery in Las Vegas.
APPELLANT'S CONFESSION
Appellant argues the district court erred in denying a motion to suppress a confession and
physical evidence obtained as the fruits of that confession. This issue arises out of the
following series of events. The day after the murder, appellant and his common law wife,
Kathleen Reavy, were taken into custody by Las Vegas police. At the time of his arrest,
appellant was advised of his Miranda rights and informed he was to be charged with murder.
Appellant responded, Well, I better have a lawyer if I'm going to be charged with murder.
Detective McGuckin, the arresting officer, later testified at an evidence suppression hearing
that at that time he interpreted appellant's response as to the effect that he didn't want to
speak to me until he spoke with an attorney. The detective noted the apparent refusal on a
rights card he used to read appellant his rights; the notation on the card read, REFUSES
TO MAKE STATEMENT W/O PRESENCE OF AN ATTY.
Appellant was subsequently transported to the Las Vegas jail. Later that evening, appellant
asked a police officer if Reavy was going to be arrested. The officer declined to answer, and
told appellant he would have to speak to Detective McGuckin. At appellant's request, the
detective met with appellant the next morning. At this meeting, McGuckin again advised
appellant of his Miranda rights, and a discussion ensued between appellant and the detective
concerning whether Kathleen Reavy was to be arrested and charged with murder. What
transpired in the course of this discussion is disputed.
Appellant testified, and the district court found, that when appellant sought to bargain for
Reavy's release in return for his confession, McGuckin picked up a telephone and said to
someone at the other end, Order Kathleen Reavy's release. Appellant, who was unaware
that Reavy had been released the night before, claimed to have been deceived by this ruse. He
eventually made a complete videotaped confession, which led to the recovery of the murder
weapon and related physical evidence.
Appellant sought to suppress the confession and physical evidence on the grounds that the
detective's ruse violated his Fifth Amendment rights. The district court denied the motion,
finding that appellant had not requested an attorney and that, under a totality of the
circumstances test, appellant's confession was voluntary. In so doing, we believe the district
court erred.
[Headnotes 1, 2]
Initially, we take issue with the district court's finding that appellant did not request an
attorney prior to being questioned by police. Such a determination is a finding of fact, which
should not be disturbed on appeal if supported by substantial evidence. See Brimmage v.
State, 93 Nev. 434, 567 P.2d 54 (1977); Scott v. State, 92 Nev. 552, 554 P.2d 735 (1976). In
the instant case, however, our review of the record indicates that the district court's finding is
not supported by substantial evidence. When initially questioned, appellant clearly indicated
he did not wish to speak with police until he had spoken to an attorney. The arresting officer
testified that in his opinion appellant had requested an attorney, and unambiguously noted on
the rights card that appellant refused to make a statement without the presence of an attorney.
Although appellant later voluntarily requested to speak with Detective McGuckin concerning
the possible arrest of Reavy, given the record the conclusion that appellant initially requested
counsel before questioning appears inescapable.
As appellant initially requested counsel, the issue becomes whether the district court
applied the correct standard of review in determining whether appellant's confession was
voluntary. The district court applied a totality of the circumstances test, citing Schneckloth
v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973), and under this standard concluded that
appellant's confession was voluntary.
[Headnotes 3, 4]
The totality of the circumstances test may be relevant to a discussion of whether a
defendant's confession is voluntary under due process standards.
under due process standards. See Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408
(1978); Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761 (1966). The totality
of the circumstances test, however, is not applicable in analyzing whether a defendant has
relinquished his Fifth Amendment rights against self-incrimination. See Edwards v. Arizona,
451 U.S. 477, 483, 101 S.Ct. 1880 (1981).
1
Instead, in that the purported waiver of a
constitutional right is ineffective unless knowingly and intelligently made, the alleged waiver
of Miranda rights must be judged under a knowing and intelligent waiver standard. See
Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602 (1966). The application of this higher
standard of review may result in the exclusion of some confessions which might have been
voluntary under the lesser, totality of the circumstances test. See Michigan v. Mosley, 423
U.S. 96, 114, 96 S.Ct. 321 (1975) (Brennan, J., dissenting).
[Headnotes 5, 6]
As appellant initially requested counsel, the district court erred in applying a totality of
the circumstances test in determining whether appellant knowingly and intelligently waived
his rights. Further, although the State urges the district court nonetheless applied the correct
standard of review because appellant voluntarily contacted Detective McGuckin to discuss
the possible prosecution of Reavy, we do not believe that this, standing alone, is sufficient to
show that appellant was outside the protections afforded by Miranda. While the requirements
of Miranda governing custodial interrogation do not apply to volunteered utterances (see
Varner v. State, 97 Nev. 486, 487-488, 634 P.2d 1205 (1981); Ludwig v. State, 97 Nev. 445,
447-448, 634 P.2d 664 (1981)), in the instant case the district court found that Detective
McGuckin had engaged in an elaborate deception by picking up the telephone and ordering
the release of an individual the detective knew was not in custody at the time. The district
court also found that the detective engaged in this charade in order to obtain appellant's
confession. In that the detective intended this conduct to elicit incriminating remarks from
appellant, McGuckin's conduct amounted to an interrogation. See Rhode Island v. Innis, 446
U.S. 291, 100 S.Ct. 1686 (1980). As this interrogation was conducted after appellant had
asserted a right to counsel, the purported waiver of his Miranda rights and the
admissibility of his confession must be evaluated under the "knowing and intelligent
waiver" standard.
____________________

1
In any event, we note that Schneckloth v. Bustamonte is a search and seizure case which articulated the
appropriate standard of review used to determine whether a defendant consented to a Fourth Amendment search.
Thus, that holding is of little relevance to an analysis of whether a confession was voluntary under the Fifth
Amendment. Compare Schneckloth v. Bustamonte, 412 U.S. at 246 with Edwards v. Arizona, 451 U.S. at
483-484.
interrogation was conducted after appellant had asserted a right to counsel, the purported
waiver of his Miranda rights and the admissibility of his confession must be evaluated under
the knowing and intelligent waiver standard. See Edwards v. Arizona, 451 U.S. at 486, n. 9.
Thus, the district court erred in admitting appellant's confession and related physical
evidence without determining whether appellant knowingly and intelligently waived his
Miranda rights.
IMPROPER IMPEACHMENT
The second major issue presented concerns the prosecution's attempt to impeach a defense
witness with a purported prior felony conviction. At trial, Kathleen Reavy testified at some
length regarding the impoverished circumstances in which she and appellant lived, his
Vietnam combat experiences, and appellant's considerable medical and psychological
difficulties. Reavy also testified that appellant suffered blackouts and losses of memory, and
that he had been hysterical and crying after the shooting. Reavy apparently had a considerable
effect on the jury; at least one juror was sobbing or crying during her testimony.
When Reavy was cross-examined by the State, the prosecution attempted to impeach
Reavy with a prior felony conviction. The prosecutor asked Reavy if she had ever been
convicted of a felony; when Reavy answered in the negative, the prosecutor continued by
asking if Reavy had ever been convicted of a felony in Philadelphia. Again, Reavy answered
in the negative.
The prosecution's inquiries were apparently prompted by a written statement by Reavy in
which she referred to having been arrested and placed on probation for selling hashish. At the
time the questions were asked, however, the prosecution had no documentation of her
conviction. Further, the prosecution did not know and apparently made no effort before trial
to ascertain whether the conviction at issue was a misdemeanor or a felony.
[Headnotes 7, 8]
The prosecution's attempt to impeach Reavy was clearly improper. The credibility of a
witness may be attacked with evidence that he has been convicted of a crime, but only if the
crime was punishable by death or imprisonment for more than one year under the law under
which he was convicted. See NRS 50.095(1). This court has noted that it will not condone the
use of cross-examination as a subterfuge to blacken a witness's character by insinuating
criminal convictions which cannot be proven.
character by insinuating criminal convictions which cannot be proven. Jones v. State, 93 Nev.
287, 289, 564 P.2d 605 (1977). It is improper for the prosecution to ask a question about a
prior felony conviction if it is unprepared to prove such a conviction in the event of denial.
See Revuelta v. State, 86 Nev. 224, 226, 467 P.2d 105 (1970). The usual and proper manner
of establishing a prior conviction is to ask the witness if he had been theretofore convicted of
a felony, and if he denies the conviction, to produce a copy of the judgment of conviction. See
Fairman v. State, 83 Nev. 287, 289, 429 P.2d 63 (1967).
[Headnote 9]
In the instant case the State concedes that the prosecution did not have the necessary
documentation, and that absent this documentation the attempt to impeach Reavy was
improper. The State argues, however, that whatever prejudice was incurred was harmless
given the overwhelming evidence against appellant. We do not agree. This court has
previously noted that we consider suspect convictions obtained through trials involving such
prosecutorial tactics, and where a prosecutor in this state asks such a question and is not
prepared to document the conviction, we shall review the point with great care. Revuelta v.
State, 86 Nev. at 227-228. In that appellant conceded at the outset of trial that he shot the
victim, the real issues presented at trial were whether appellant was guilty of first or
second-degree murder and the appropriate penalty. After Reavy's testimony, which apparently
had a substantial impact on the jury, the prosecution attempted to do exactly what this court
has held impermissible: blacken Reavy's character by insinuating a criminal conviction which
could not be proven.
2

Given Reavy's close association with appellant and the nature of the offense alleged, we
believe there was a real danger that the jury might assume that appellant was also involved in
the illegal use of controlled substances. Thus, the prosecution probably managed to blacken
both Reavy's and appellant's characters at the same time.
As previously discussed, the district court erred in admitting appellant's confession and
related physical evidence without determining whether appellant knowingly and intelligently
waived his Miranda rights. In light of the overwhelming evidence establishing appellant's
involvement in the shooting, however, we believe the asserted errors were harmless beyond a
reasonable doubt as to the question of appellant's guilt.
____________________

2
When questioned by the district court judge, the prosecutor justified his actions on the grounds that the jury
appeared to be empathetic to Reavy, and when a juror takes empathy with a witness, then it becomes my job to
get a little bit meaner that I would have normally. . . .
reasonable doubt as to the question of appellant's guilt. Several eye witnesses testified that
appellant shot the victim at point-blank range, and appellant conceded at trial that he shot the
victim. Given the weight and character of this evidence, we believe the addition of appellant's
confession contributed little if anything to the jury's finding as to guilt. At the same time, we
are not convinced that the prosecution's improper attempt to impeach Reavy did not affect the
penalty phase of the trial. In light of the circumstances and the record, we believe that, were it
not for the prosecution's improper impeachment, it is possible that the jury might have
brought back a sentence less than life without the possibility of parole. Accordingly, we
affirm appellant's conviction of first-degree murder, but reverse and remand this case for a
new penalty hearing to determine whether a lesser sentence shall be imposed.
____________
99 Nev. 579, 579 (1983) Beattie v. Thomas
CHRIS BEATTIE, a Single Man, Appellant, v. WILLIAM H. THOMAS, M.D., JAMES D.
PITTS, M.D., Licensed Health Care Providers; MEDASONICS, INC., Respondents.
No. 14006
August 31, 1983 668 P.2d 268
Appeal from order denying plaintiff's motion for new trial. First Judicial District Court,
Injured motorcyclist filed medical malpractice and products liability suit against doctors
and manufacturer of blood-flow monitor. After jury verdict against motorcyclist, the district
court denied motorcyclist's motion for new trial, awarded attorney fees to doctors, and
required motorcyclist to pay for inclusion of opening statements and final arguments of
counsel in record, and motorcyclist appealed. The Supreme Court, Mowbray, J., held that: (1)
district court did not err in refusing injured motorcyclist's proposed instructions on informed
consent or increased risk of harm; (2) while evidence on behalf of manufacturer that it had
never before been sued regarding product which was subject of products liability claim was
inadmissible, admission of evidence did not affect substantial rights of parties; (3) award of
attorney fees to prevailing doctors was improper; and (4) district court erred in requiring
injured motorcyclist to bear cost of adding portions of transcript requested by doctors which
were not relevant to any issues raised on appeal.
requested by doctors which were not relevant to any issues raised on appeal.
Durney, Guinan & Brennan, Reno, for Appellant.
Gary G. Bullis, Ltd., Reno, for Respondents Thomas and Pitts.
Leggett & Hamilton, Reno, for Respondent MedaSonics, Inc.
1. Trial.
Party is entitled to have jury instructed on all theories of case that are supported by evidence and that are
consistent with existing law.
2. Trial.
If other instructions given to jury adequately cover subject of requested instruction, or if there is no proof
in record to support instruction, trial court should not give it.
Where legislature had enacted general rule requiring plaintiffs to demonstrate alleged negligence of
physicians with expert testimony, and injured motorcyclist neither explained why statutory rule should not
apply nor introduced sufficient expert testimony to support informed consent instruction under rule, district
court did not err in refusing motorcyclist's informed consent instruction. NRS 41A.100, subd. 1.
Where requested instruction applied only to rendering of services, manufacturer supplied product but did
not render any services, and instruction actually given correctly outlined applicable law, district court did
not err in refusing injured motorcyclist's proposed instruction on increased risk of harm in products liability
action against manufacturer of blood-flow monitor.
In strict tort liability cases, evidence of prior or subsequent mishaps similar to one in issue, involving
same product, are admissible to show faulty design or manufacture or other elements of strict liability cause
of action, but there is distinct difference between showing accident/injury history of product and legal
history of product.
In products liability action against manufacturer of blood-flow monitor, testimony that manufacturer had
never before been sued regarding product was inadmissible; however, given massive amount of evidence
introduced both for and against manufacturer, admission of evidence did not affect substantial rights of
parties.
7. New Trial.
District court did not abuse its discretion, in medical malpractice action, by refusing to grant new trial on
basis of negative response of father of injured motorcyclist to question whether he was critical of
treatment of his son where it instructed jury to consider only expert testimony when
determining standard of professional learning, skill, and care required of doctors.
treatment of his son where it instructed jury to consider only expert testimony when determining standard
of professional learning, skill, and care required of doctors.
8. Costs.
Statute authorizing court to award attorney fees to prevailing defendant only when plaintiff has not sought
more than $10,000, and statute which expressly governs judgment offers and allows recovery of only costs
and expert witness fees, not attorney fees, by offeror whose opponent fails to obtain judgment more
favorable than offer, are not exclusive, and thus rule permitting award of attorney fees to offeror if
judgment finally obtained by offeree is not more favorable than offer is not invalid as being inconsistent
with such statutes. NRCP 68; NRS 17.115, 17.115, subd. 4, 18.010, 18.020.
9. Costs.
Provision in Rule of Civil Procedure requiring payment of costs and attorney fees of party making offer if
judgment finally obtained by offeree is not more favorable than offer encompasses situation in which
offeror obtains judgment against offeree as well as situation in which offeree obtains judgment less
favorable than offer. NRCP 68.
10. Costs.
Purpose of Rule of Civil Procedure providing for payment of costs and attorney fees by offeree where
judgment finally obtained by offeree is not more favorable than offer is to encourage settlement, not to
force plaintiffs unfairly to forego legitimate claims. NRCP 68.
11. Costs.
In exercising discretion regarding allowance of fees and costs under Rule of Civil Procedure providing
for payment of costs and attorney fees by offeree when judgment finally obtained by offeree is not more
favorable than offer, trial court must evaluate whether plaintiff's claim was brought in good faith, whether
defendants' offer of judgment was reasonable and in good faith in both timing and amount, whether
plaintiff's decision to reject offer and proceed to trial was grossly unreasonable or in bad faith, and whether
fees sought by offeror are reasonable and justified in amount; where court has failed to consider those
factors, it is abuse of discretion for court to award full amount of fees requested. NRCP 68.
Where district court in medical malpractice suit found only that settlement offers of doctors had been
reasonable and in good faith, but took no evidence and made no findings on other factors required to be
considered before awarding costs and attorney fees, cause had to be remanded for redetermination on
record of amount of attorney fees to be awarded under Rule of Civil Procedure providing for payment of
costs and attorney fees by offeree when judgment finally obtained by offeree is not more favorable than
offer. NRCP 68.
Appellant and counsel are under duty to omit from record on appeal all material that is not essential to
decision of questions on appeal, and party who prevailed in lower court does not have unqualified right to
require appellant to file full trial transcript. NRAP 10.
14. Costs.
District court erred in requiring appellant to bear cost of adding opening and closing statements of
counsel to transcript as requested by respondents, because no issue on appeal concerned propriety of such
statements, and such statements could not constitute evidence.
OPINION
In this medical malpractice and products liability suit, Beattie appeals from an order of the
district court denying him a new trial and awarding respondents Thomas and Pitts $29,700 in
attorney's fees. While we disagree with appellant's assertions regarding error during trial, we
hold that, by awarding Drs. Thomas and Pitts all of their requested attorney's fees pursuant to
NRCP 68 without analyzing on the record the factors relevant to such a decision, the district
court abused its discretion. The court also erred in requiring appellant to pay the cost of
including certain portions of the trial transcript in the record on appeal. We therefore affirm in
part and reverse and remand in part for a redetermination on the record of the amount of
attorney's fees to be awarded, the redetermination to accord with the factors set forth in this
opinion.
THE FACTS
On May 18, 1978, appellant Beattie was seriously injured in a motorcycle accident. He
was admitted to Carson-Tahoe Hospital with a dislocated right knee, considerable tissue
damage in and around the knee, and a transected popliteal artery. The popliteal artery is the
principal artery to the lower leg. Within a reasonably short time after Beattie was admitted,
respondents Dr. Thomas and Dr. Pitts successfully completed an anastomosis of the popliteal
artery, sewing the ends of the artery back together and restoring blood flow to the lower leg.
Dr. Thomas also made an incision, known as a fasciotomy, in one of the muscle
compartments of the leg, to relieve pressure on the leg's arteries caused by internal swelling.
An orthopedic surgeon then repaired the major structural damage to the knee.
An instrument known as a hand-held Doppler, manufactured by respondent MedaSonics,
was used both during the operation and frequently during the post-operative period to check
for pulses indicating restored blood flow. The Doppler is a noninvasive electronic diagnostic
instrument used, among other things, to detect the presence and velocity of blood flow when
for one reason or another a pulse cannot be detected manually. The instrument is very
sensitive, and can pick up pulses when the blood pressure is very low. Without the use of a
blood pressure cuff to take pressure readings, the Doppler cannot indicate the volume of
circulation, but only the presence of some circulation. The doctors at Carson-Tahoe Hospital
did not use the Doppler in conjunction with a pressure cuff in Beattie's case.
For the first few days following the surgery, Beattie appeared to be recuperating favorable.
Then, on or around May 22, the condition of his leg began to deteriorate. Dr. Thomas
suspected that blood clots in the veins of the leg were interfering with circulation, and began
heparin therapy to reduce clotting. Beattie's condition seemed to improve temporarily, but
again worsened following Dr. Thomas' departure on the 26th. Dr. Pitts eventually performed
a second fasciotomy on the 28th in an attempt to restore circulation to Beattie's deteriorating
leg.
On May 29th, Beattie was transferred at his parent's request to Stanford University
Hospital. After further fasciotomies and debridement of dead tissue, Beattie's leg was
amputated below the knee on June 7th.
Beattie filed suit against respondents on April 25, 1980, alleging that Drs. Thomas and
Pitts were negligent in their care and treatment of him. He also alleged that the Doppler blood
flow monitor manufactured by MedaSonics, Inc. was defective in that MedaSonics failed to
provide adequate instructions or warnings concerning the use and limitations of the Doppler.
Ultimately, the jury found against Beattie and for all respondents. The district court denied
Beattie's motion for a new trial, and awarded $29,700 in attorney's fees to respondents
Thomas and Pitts under NRCP 68. At the request of Drs. Thomas and Pitts, the district court
also required Beattie to pay for inclusion of the opening statements and final arguments of
counsel in the record on appeal. This appeal followed.
APPELLANT'S PROPOSED INFORMED
CONSENT INSTRUCTION
Appellant contends that the district court erred in refusing to give a proposed jury
instruction on informed consent. He argues that the instruction was justified by evidence that
Drs. Thomas and Pitts did not discuss with him or his parents the possibility of early
amputation to save more of his leg.
[Headnotes 1, 2]
A party is entitled to have the jury instructed on all of his theories of the case that are
supported by the evidence. See American Cas. Co. v. Propane Sales & Serv., 89 Nev. 398,
400, 513 P.2d 1226, 1227 (1973); Rocky Mtn. Produce v. Johnson, 78 Nev. 44, 52, 369 P.2d
198, 202 (1962). In addition to being supported by evidence, the requested instruction must
be consistent with existing law. Federal Ins. Co. v. Public Service Co., 570 P.2d 239, 242
(Colo. 1977). If the other instructions given to the jury adequately cover the subject of the
requested instruction, or if there is no proof in the record to support the instruction, the trial
court should not give it.
instruction, the trial court should not give it. Village Development Co. v. Filice, 90 Nev. 305,
312, 526 P.2d 83, 87-88 (1974). See Watters v. Querry, 626 P.2d 455, 458 (Utah 1981).
[Headnote 3]
Appellant's proposed instruction varies from the traditional and perhaps still majority view
of informed consent. Under the traditional view, the physician's duty to disclose is measured
by a professional medical standard, which the plaintiff must establish with expert testimony.
The standard is either the customary disclosure practice of physicians in the relevant
community, or what a reasonable physician would disclose under the circumstances.
Annot., 88 A.L.R.3d 1008, 1011-12 (1978). See Natanson v. Kline, 350 P.2d 1093, 1107
(Kan. 1963). Insofar as we have considered standards of care for the medical profession, our
holdings have been consistent with the traditional view. See, e.g., Orcutt v. Miller, 95 Nev.
408, 411, 595 P.2d 1191, 1193-94 (1979). In addition, the Nevada Legislature has seen fit to
enact a general rule requiring plaintiff's to demonstrate the alleged negligence of a physician
with expert testimony. See NRS 41A.100(1).
1
Appellant does not explain why this statutory
rule does not apply. Moreover, he fails to direct us to sufficient expert testimony in the record
to support an informed consent instruction under the rule. For these reasons, the district court
did not err in refusing appellant's informed consent instruction.
THE PROPOSED INCREASED RISK
OF HARM INSTRUCTION
Beattie attempted to show at trial that MedaSonics, Inc. had not adequately communicated
to the users of the Doppler the inability of the machine, when used without a pressure cuff, to
determine whether blood flow is adequate to sustain tissue life. The requested instruction on
the concept of increased risk of harm was an attempt by Beattie to lighten his burden of
showing that MedaSonic's breach, if any, of its duty to warn was a proximate cause of the
eventual high amputation of Beattie's leg.
The requested instruction closely follows the language of Section 323 of the Restatement
{Second) of Torts.2 This section by its terms relates only to the rendering of services, and
the comment on the section makes the focus on services clear.
____________________

1
NRS 41A.100(1) provides in relevant part as follows:
Liability for personal injury or death shall not be imposed upon any provider of medical care based on
alleged negligence in the performance of such care unless evidence consisting of expert medical
testimony . . . is presented to demonstrate the alleged deviation from the accepted standard of care in the
specific circumstances of the case and to prove causation of the alleged personal injury or death. . . .
Section 323 of the Restatement (Second) of Torts.
2
This section by its terms relates only to
the rendering of services, and the comment on the section makes the focus on services clear.
Appellant cites no authority indicating that Section 323 applies to products as well.
MedaSonics did not render any services in Beattie's case.
[Headnote 4]
In addition, most of the cases cited by appellant are concerned with the trial court's
improper taking of the question of proximate cause from the jury. The district court left the
question of proximate cause to the jury in the instant case, and gave several instructions that,
taken together, correctly outlined the applicable law. Where the instructions given adequately
cover the applicable law, it is not error to refuse further instructions on the same subject.
Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555 (1982). See Village Development
Co. v. Filice, 90 Nev. at 314, 526 P.2d at 88. Therefore, the district court did not err in
refusing appellant's proposed instruction on increased risk of harm.
THE EVIDENCE THAT MEDASONCIS HAD NOT
BEEN PREVIOUSLY SUED
[Headnotes 5, 6]
At one point during the three-week trial, over appellant's objection, the court admitted into
evidence testimony on behalf of MedaSonics that it had never before been sued regarding the
Doppler. This was error. In strict tort liability cases, evidence of prior or subsequent mishaps
similar to the one in issue, involving the same product, are admissible to show faulty design
or manufacture or other elements of the strict liability cause of action. Ginnis v. Mapes Hotel
Corp., 86 Nev. 408, 415-16, 470 P.2d 135, 139-40 (1970). See Reiger v. Toboy Enterprises,
609 P.2d 402 (Or. 1980); Stolz v. McKowen, 545 P.2d 584 (Wash. 1976). However, there is a
distinct difference between showing the accident/injury history of a product and the legal
history of a product. Many factors influence the filing of a lawsuit, among them the
amenability of defendant's insurer to prompt out-of-court settlements.
____________________

2
Section 323 reads as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he should
recognize as necessary for the protection of the other's person or things, is subject to liability to the other
for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
influence the filing of a lawsuit, among them the amenability of defendant's insurer to prompt
out-of-court settlements. Even if the absence of prior lawsuits concerning a particular product
remotely tends to indicate that no substantial defect exists, the prejudicial value and
confusing nature of such evidence would seem to outweigh considerably its probative value.
Respondent cites no cases holding that the prior legal history of a product is admissible.
However, in its order denying appellant's motion for a new trial, the district court
specifically held that even if the evidence of the absence of prior suits against MedaSonics
was irrelevant and inadmissible, the admission of the evidence did not affect the substantial
rights of the parties. Given the massive amount of evidence introduced both for and against
MedaSoncis, the court did not palpably abuse its discretion in so holding. As we have stated
in the past,
Even if error had been present . . . , the appellant has not revealed any particular
prejudice other than an adverse verdict. It has failed to show that the errors complained
of would have so substantially affected its rights that it could be reasonably assumed
that if it were not for the alleged errors, a different result might reasonably have been
expected.
El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971). See
Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 666-67, 448 P.2d 46, 49-50 (1968), cert.
denied, 395 U.S. 910 (1969).
THE TESTIMONY OF APPELLANT'S FATHER
REGARDING THE TREATMENT OF
HIS SON
Near the end of the trial, over objection, the district court allowed the following question
to and answer from appellant's father:
Q: You're not critical of Dr. Pitts or Dr. Thomas' treatment of your boy, are you?
A: No, sir.
Appellant characterizes his father's testimony as a lay opinion on the issue of the negligence
of Drs. Thomas and Pitts, noting that a lay witness may not express an opinion as to matters
which are beyond the realm of common experience and which require the skill and
knowledge of an expert witness. Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th
Cir. 1979). Under NRS 50.265, a lay opinion is admissible only when the opinion is both
rationally based on the perception of the witness" and "helpful to a clear understanding of
his testimony or the determination of a fact in issue."
of the witness and helpful to a clear understanding of his testimony or the determination of
a fact in issue.
[Headnote 7]
As respondents point out, Mr. Beattie's testimony could just as easily be characterized as
an expression of his personal feeling about his son's treatment. Moreover, the district court
cured any possible prejudice by instructing the jury to consider only expert testimony when
determining the standard of professional learning, skill, and care required of the doctors.
Given this curative instruction, and in the context of a three-week trial amassing twenty
volumes of record, the district court did not abuse its discretion by refusing to grant a new
trial on the basis of two words of testimony.
ATTORNEY'S FEES UNDER NRCP 68
Prior to trial in the instant case, Drs. Thomas and Pitts each tendered a $15,000 offer of
judgment to Beattie under NRCP 68.
3
Beattie elected to proceed to trial against both Thomas
and Pitts, although he accepted a $15,000 settlement offer from the orthopedic surgeon. The
jury returned a verdict in favor of Drs. Thomas and Pitts. On proper motion, the district court
held that their settlement offers had been reasonable and in good faith, and awarded them
their costs in the amount of $7,415 and attorney's fees in the amount of $29,700.
[Headnote 8]
Appellant first contends that insofar as NRCP 68 permits an award of attorney's fees, it is
an invalid court rule, because it is inconsistent with NRS 17.115 and NRS 18.010. The latter
statute authorizes the court to award attorney's fees to a prevailing defendant, but only when
the plaintiff has not sought more than $10,000. See Ecklund v. Nevada Wholesale Lumber
Co., 95 Nev. 430, 596 P.2d 218 (1979). NRS 17.115 expressly governs judgment offers, but
varies from NRCP 68 in that it allows recovery of only costs and expert witness fees, and not
attorney's fees, by an offeror whose opponent fails to obtain a judgment more favorable than
the offer. NRS 17.115(4).
____________________

3
NRCP 68 provides in relevant part as follows:
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. . . . An offer not accepted shall be deemed
withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the
judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover
costs, nor attorneys' fees, but shall pay the costs and attorneys' fees, if any be allowed, of the party
making the offer from the time of the offer.
Appellant does not cite any authority holding that these statutes are exclusive, and our
comments in Armstrong v. Riggi, 92 Nev. 280, 549 P.2d 753 (1976), indicate just the
opposite.
4

[Headnote 9]
Appellant argues secondly that NRCP 68 does not apply where the jury gave its verdict for
the defendant. He relies on Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981), in which the
High Court, in a 5-4 decision, held that the phrase judgment finally obtained by the offeree
as used in Federal Rule of Civil Procedure 68 does not encompass a judgment against the
offeree as well as a judgment in favor of the offeree. We decline to follow the Delta Air Lines
reasoning, not only because of the differences between NRCP 68 and FRCP 68,
5
but because
such reasoning leads to an anomalous result. Under the rule proposed by appellant and
followed by the majority in Delta Air Lines, and offeree would be penalized for recovering a
judgment less favorable than the offer, but would suffer no penalty if he did not recover any
judgment whatsoever. As the Alaska Supreme Court held in Wright v. Vickaryous, 611 P.2d
20, 23 (Alaska 1980), [w]e see nothing to recommend such a result, and thus reject the
interpretation offered by [appellant].
[Headnotes 10, 11]
On the other hand, while the purpose of NRCP 68 is to encourage settlement, it is not to
force plaintiffs unfairly to forego legitimate claims. In exercising its discretion regarding the
allowance of fees and costs under NRCP 68, see Armstrong v. Riggi, supra, the trial court
must carefully evaluate the following factors: (1) whether the plaintiff's claim was brought in
good faith; (2) whether the defendants' offer of judgment was reasonable and in good faith in
both its timing and amount; (3) whether the plaintiff's decision to reject the offer and proceed
to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the
offeror are reasonable and justified in amount.
____________________

4
As we said in that case, [i]nsofar as counsel fees for the defendants who lost the case are concerned, [NRS
18.010] obviously has no application since they did not prevail. The court need only have concerned itself with
Rule 68 in deciding whether to exercise its discretion in favor of the motion for fees. 92 Nev. at 282, 549 P.2d
at 754.

5
NRCP 68 expressly includes attorney's fees, while FRCP 68 applies only to costs. Thus, NRCP 68 provides
an additional incentive to settle. Moreover, Nevada has not adopted FRCP 54(d), on which the High Court
partially relied. Rather, Nevada enacted NRS 18.020, under which allowance of costs to the prevailing party in
certain specified cases is mandatory rather than discretionary. See Lyon v. Walker Boudwin Constr. Co., 88 Nev.
646, 650, 503 P.2d 1219, 1221 (1972); Randono v. Turk, 86 Nev. 123, 133, 466 P.2d 218, 224 (1970).
whether the fees sought by the offeror are reasonable and justified in amount. After weighing
the foregoing factors, the district judge may, where warranted, award up to the full amount of
fees requested. On the other hand, where the court has failed to consider these factors, and
has made no findings based on evidence that the attorney's fees sought are reasonable and
justified, it is an abuse of discretion for the court to award the full amount of fees requested.
[Headnote 12]
In the instant case, the district court found only that the settlement offers of Drs. Thomas
and Pitts had been reasonable and in good faith. The district court took no evidence and made
no findings on the other factors mentioned above. We therefore reverse the district court's
award of $29,700 in attorney's fees to respondents Thomas and Pitts, and remand for a
redetermination on the record of the amount of attorney's fees to be awarded in light of the
factors enumerated in this opinion.
THE COST OF SUPPLEMENTING THE
RECORD ON APPEAL
[Headnotes 13, 14]
Respondents Thomas and Pitts obtained a court order requiring appellant to include in the
record on appeal the opening and closing statements of counsel. No issue on appeal
concerned the propriety of such statements, and of course they cannot constitute evidence.
NRAP 10 does not invest the party who prevailed in the lower court with the unqualified
right to require the appellant to file a full trial transcript. Appellant and his counsel are under
a duty to omit from the record on appeal all material that is not essential to decision of the
questions on appeal. See Driscoll v. Erreguible, 87 Nev. 97, 102, 482 P.2d 291, 294 (1971).
In the case of Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105 (1959), the respondents had
required the appellant to include in the record on appeal trial testimony that was not relevant
to any of the issues raised on appeal, and we held that the appellant was entitled to be
reimbursed for the costs of including that irrelevant testimony. Id. at 348, 341 P.2d at 108.
The same reasoning applies in this case. We hold that the district court erred in requiring
appellant to bear the cost of adding the requested portions of transcript.
In sum, we reverse and remand for further proceedings both the district court's award of
attorney's fees to respondents Thomas and Pitts and its order requiring appellant to include at
his cost certain portions of the trial transcript in the record on appeal.
at his cost certain portions of the trial transcript in the record on appeal. We uphold the
judgment of the district court in all other respects.
____________
99 Nev. 590, 590 (1983) Namow Corp. v. Egger
NAMOW CORPORATION, dba WOMENS HOSPITAL, Appellant, v.
ALISON McKAY EGGER and JOHN EGGER, Respondents.
No. 12584
August 31, 1983 668 P.2d 265
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Plaintiff appealed from a judgment of the district court awarding plaintiff an equitable lien
on the proceeds of a pending sale of a condominium. The Supreme Court held that plaintiff
was entitled to a constructive trust on the condominium purchased by former employee and
her husband where some of the funds embezzled from plaintiff by employee were used to
make the down payment; however, insofar as husband, who was unaware of his wife's
activities, made principal payments on the mortgage and improvements, and had paid taxes
and other charges related to the condominium, he was entitled to reimbursement.
Ordowski & Eads, Las Vegas, for Appellant.
Morse-Foley, Las Vegas, for Respondents.
1. Trusts.
A constructive trust is a remedial device by which holder of legal title to property is deemed to be a
trustee of that property for benefit of another who in good conscience is entitled to it.
2. Trusts.
When a thief embezzles money and uses it to purchase property, he or she can be required to convey the
property to person from whom the money was taken by means of a constructive trust.
3. Trusts.
Where property which is subject to a constructive trust is gratuitously transferred to a donee, donee holds
the property upon a constructive trust for the equitable owner.
4. Trusts.
Plaintiff was entitled to constructive trust on condominium purchased by former employee and her
husband where some of the funds embezzled from plaintiff by employee were used to make down payment
on the condominium, and where former employee gratuitously quitclaimed her interest in the condominium
to her husband; however, insofar as husband, who was unaware of his wife's activities, made principal
payments on the mortgage and improvements, and had paid taxes and other charges related to the
condominium, he was entitled to reimbursement.
OPINION
Per Curiam.
1

This is an appeal from a judgment awarding appellant an equitable lien in the amount of
$8,959.36 on the proceeds of a pending sale of a condominium located at Incline Village,
Nevada. Appellant contends that it should have been allowed to enforce a constructive trust
upon the property rather than being limited to the amount of the lien. Additionally, appellant
contends that the community property of the respondents is available to satisfy the amount of
a default judgment entered against respondent, Alison Egger.
In 1973, Alison Egger commenced working in the accounting department of the Womens
Hospital, a hospital located in Las Vegas and owned by appellant. Over the course of the next
four years, she embezzled some $215,000 from the hospital. In 1976, the Eggers purchased
the condominium at issue here, and some of the embezzled funds were used to make the
down payment.
2
In 1977, Alison Egger's misappropriations were discovered and she was
discharged. Shortly thereafter, she quitclaimed her interest in the condominium to her
husband John Egger. In 1978, John Egger signed escrow instructions for the sale of the
condominium for a price approximately $37,000 greater than the Eggers paid. Close of
escrow has been held up by a lis pendens pending the outcome of this case.
In November of 1977, appellant filed suit against the Eggers seeking to recover its funds.
____________________

1
Justice John Mowbray voluntarily disqualified himself from the decision in this case.

2
The district court did not make a specific finding that the down payment was made with embezzled funds.
Nevertheless, the amount of the equitable lien imposed by the district court was the exact amount of the down
payment. There is no explanation for the district court's action other than an implied finding that the $8,959.36
down payment was made entirely with embezzled funds.
seeking to recover its funds. Appellant contended that the Eggers jointly conspired to deprive
it of its funds. It sought a judgment holding the Eggers jointly and severally liable for the
amount of the misappropriations and sought to enforce a constructive trust upon property held
by the Eggers or other third parties which had been purchased with the misappropriated
funds.
At trial it was determined that John Egger was unaware of his wife's activities. This
finding is not challenged by appellant. The trial court also found that John Egger had not
benefitted from his wife's activities, that there was no existing community property as of the
time of trial and that the misappropriated funds could not be traced into any former
community asset. In its judgment the trial court held Alison Egger personally liable for the
full amount of the misappropriated funds based on her default. The court refused to hold John
Egger personally liable, but it did grant an equitable lien on the proceeds of the sale of the
condominium in the amount of the down payment.
Appellant contends that because misappropriated funds were used for the down payment
on the condominium, the condominium was held subject to a constructive trust for appellant's
benefit. Respondents do not contest that the down payment was made with misappropriated
funds; they do assert that an equitable lien is the proper remedy for the return of
misappropriated property in the hands of an innocent party.
[Headnotes 1-3]
A constructive trust is a remedial device by which the holder of legal title to property is
deemed to be a trustee of that property for the benefit of another who in good conscience is
entitled to it. Locken v. Locken, 98 Nev. 369, 650 P.2d 803 (1982); see also Schmidt v.
Merriweather, 82 Nev. 372, 418 P.2d 991 (1966). When a thief embezzles money and uses it
to purchase property, he or she can be required to convey the property to the person from
whom the money was taken, by means of a constructive trust. See Haskel Engineering &
Supply v. Hartford Acc., 144 Cal Rptr. 189 (Ct. App. 1978); G & M Motor Co. v. Thompson,
567 P.2d 80 (Okla. 1977); Lane County Escrow Serv., Inc. v. Simth, 560 P.2d 608 (Or.
1977); Restatement of Restitution 202 (1937). Where the property which is subject to a
constructive trust is gratuitously transferred to a donee, the donee holds the property upon a
constructive trust for the equitable owner. See Kline v. Orebaugh, 519 P.2d 691 (Kan. 1974);
Corporation of Pres. of Ch. of Jesus Christ v. Jolley 467 P.2d 984 (Utah 1970); Restatement
of Restitution 201; see also Restatement (Second) of Trusts 289 (1959); Annot., 38
A.L.R.3d 1354 (1971).
[Headnote 4]
John Egger contends that a constructive trust is inapplicable because the condominium has
now been sold. As mentioned earlier, however, the contract of sale is still executory. Legal
title is consequently still in respondent Egger. Thus, Egger's contention is without merit. We
find no basis for the district court's judgment limiting appellant to an equitable lien in the
amount of the down payment. Appellant should have been awarded a constructive trust on the
condominium.
Insofar as John Egger has made principal payments on the mortgage, and improvements,
and has paid taxes and other charges related to the condominium, he is entitled to
reimbursement. See Church v. Bailey, 203 P.2d 547 (Cal.Ct.App. 1949); cf. Janson v. Schier,
375 A.2d 1159 (N.H. 1977) (reimbursement for costs of improvements available where
transfer set aside as being in fraud of creditors); Angers v. Sabatinelli, 293 N.W. 173 (Wis.
1940) (reimbursement for taxes, other charges, and payments on mortgage available where
transfer set aside as in fraud of creditors); Restatement (Second) of Trusts 291 comment p,
292 comment d (1959) (reimbursement for expenses of taxes, other charges and
improvements available where property subject to constructive trust because transferred in
breach of express trust).
Appellant also seeks a declaration that other community property of the Eggers is available
to satisfy the liability incurred as a result of Alison's misappropriations. The trial court made
findings that no community assets existed between the Eggers, and that funds of plaintiff
could not be traced into any former community asset. Appellant has challenged the evidence
in support of this finding only insofar as it relates to the condominium. As it has already been
determined that appellant is entitled to a constructive trust on the condominium, this issue
need not be addressed.
The district court's judgment against John Egger is reversed. This matter is remanded for a
determination of the amount of reimbursement to which John Egger is entitled, and for entry
of a judgment declaring a constructive trust on the condominium and any sale proceeds.
____________
99 Nev. 594, 594 (1983) Southwest Gas Corp. v. Ahmad
SOUTHWEST GAS CORPORATION, Appellant and Cross-Respondent, v. KAREN
AHMAD, Respondent and Cross-Appellant.
No. 13891
August 31, 1983 668 P.2d 261
Cross-appeals from judgments awarding damages to respondent for breach of employment
contract; Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
The district court entered judgment against employer for breach of employee's oral
employment contract. Employer and employee cross appealed. The Supreme Court, Springer
J., held that parties were bound by termination clause appearing in employee information and
benefits handbook provided to employee by employer.
Affirmed.
Steffen, J., and Manoukian, C. J., dissented.
Fitzgibbons & Beatty, and Joshua M. Landish, Las Vegas, for Appellant and
Cross-Respondent.
John Peter Lee, and Daniel Marks, Las Vegas, for Respondent and Cross-Appellant.
Fact that employer issued to its employees employee information and benefits handbook and that
employee had knowledge of pertinent provisions therein concerning termination supported inference that
handbook formed part of parties' employment contract.
Employee's continued employment after employer's formal delivery of employee information and benefits
handbook provided sufficient consideration for modified oral employment agreement by inclusion of
handbook provisions governing termination.
OPINION
By the Court Springer, J.:
Ahmad recovered a judgment against Southwest for breach of her oral employment
contract. The issue in this case is whether or not the parties are bound by a termination clause
appearing in the Employee Information and Benefits Handbook provided to Ahmad by
Southwest. The district court found that the handbook created employment and contractual
rights between the parties and that Southwest violated the contract.
[Headnote 1]
There is testimony by Ahmad that she had knowledge of the termination section of the
handbook throughout the length of [her] employment. The fact that the company issued
such handbooks to its employees and that Ahmad had knowledge of the pertinent provisions
therein supports an inference that the handbook formed part of the employment contract of
the parties.
[Headnote 2]
There is also evidence of formal delivery of the handbook after the commencement of
employment. Her continued employment after formal delivery of the handbook provides
sufficient consideration for modifying the employment agreement by inclusion of the
handbook provisions. See Yartzoff v. Democrat-Herald Publishing Co., Inc., 576 P.2d 356
(Or. 1978); 1AA. Corbin, Corbin on Contracts 122, 175 (1963).
Yartzoff is similar to the instant case. There, summary judgment was entered in favor of
the employer. The judgment was reversed on the ground that material issues of fact existed as
to whether an employment handbook issued by the employer was part of the employment
contract. A handbook was delivered by the employer to the employee several days after
commencement of employment. The court held that even under such circumstances a fact
finder could find that the handbook was intended by the parties to be part of the original
contract of employment. The court went on to hold that even if the book were not part of the
original contract, it could be considered as a subsequent modification of the contract. The
court reasoned that since the employee was free to leave her employment, her continued
employment after receiving the handbook provided sufficient consideration for the
modifications. We agree with this reasoning and hold that the district court's action is
supportable on the ground that the handbook could be found to be part of the original contract
or to be a modification supported by sufficient consideration. Either way the district court's
judgment should be affirmed. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d 1155
(1981). It is so ordered.
Mowbray and Gunderson, JJ., concur.
Steffen, J., with whom Manoukian, C. J., joins, dissenting:
I respectfully dissent.
My review of the record has revealed no basis in law or the evidence upon which to
sustain the decision of the district court. Additionally, it would seem that my brethren in the
majority have propelled Nevada law above and beyond those jurisdictions who have
carefully engrafted limited exceptions to the common law doctrine regarding "at-will"
employment.
jurisdictions who have carefully engrafted limited exceptions to the common law doctrine
regarding at-will employment.
Nevada has not as yet seen fit to legislatively abrogate the common law rule concerning
at-will employment. This rule, which remains in general effect throughout the United
States, provides that employment for an indefinite term may be terminated at any time for any
reason or for no reason by either the employee or the employer without legal liability. Phillips
v. Goodyear Tire & Rubber Co., 651 F.2d. 1051 (5th Cir. 1981). Although some jurisdictions
retain the rule without exception, most have limited the employer's right to terminate at-will
employees to situations where such terminations do not undermine a firmly established public
policy or statutory objective. Roberts v. Atlantic Richfield Co., 568 P.2d 764 (Wash. 1977);
Alford v. Life Savers, Inc., 315 N.W.2d 260 (Neb. 1982); Bruffett v. Warner
Communications, Inc., 692 F.2d 910 (3rd Cir. 1982); Brower v. Holmes Transp., Inc., 435
A.2d 952 (Vt. 1981); Petermann v. International Brotherhood of Teamsters, etc., 344 P.2d 25
(Cal.App. 1959); Chin v. American Tel. & Tel. Co., 410 N.Y.S.2d 737 (1978). In the instant
case, it is uncontroverted that Ahmad was employed on an indefinite basis with Southwest.
We are thus not faced with a breach of an employment contract for a specified term. Nor do
we have basis for deciding a public policy limitation on the common law terminable at-will
doctrine.
The trial judge found that Ahmad was discharged for cause. Nevertheless, Southwest was
assessed damages by reason of its asserted failure to abide by the termination provisions of its
Employee Information and Benefits Handbook. The trial court's decision was thus bottomed
on either a contract or estoppel theory. In my considered judgment, neither applies.
It is clear on the record that the handbook at issue was in no sense part of the bargaining
process by which Ahmad accepted employment with Southwest. At best, Ahmad became
generally aware of the handbook after her employment, and with respect to the termination
provision, not until at least a year after her hiring date.
1
The majority nevertheless concludes
that since Southwest issued the handbook to its employees, and since "Ahmad had
knowledge of the pertinent provisions therein," an inference arises that the handbook
formed part of the employment contract of the parties.
____________________

1
The record actually reflects a clear admission by Ahmad that she first became aware of the termination
provision of the handbook after her discharge when another employee directed her attention to it. In respondent's
words, the day I came in to pick up my letters of recommendation [subsequent to her discharge] a woman from
the word processing department told me they could not terminate me without giving me notice and it was at the
time that one of the girls in the office opened to the termination section and told me to read it. The question was
then asked: [s]o you really had no knowledge whatsoever of that section until you were terminated?
Respondent replied: I had no reason to have knowledge of it, no.
since Southwest issued the handbook to its employees, and since Ahmad had knowledge of
the pertinent provisions therein, an inference arises that the handbook formed part of the
employment contract of the parties. The case of Yartzoff v. Democrat-Herald Publishing Co.,
Inc., 576 P.2d 356 (Or. 1978), is then cited by the majority as support for such an inference.
Yartzoff, I suggest, affords no such support. The Oregon court had before it a case disposed of
by the lower court on summary judgment. In reversing the entry of summary judgment against
the employee, the reviewing court held that at trial, a jury might infer from the employee's
facts that the statements in the handbook were intended and considered by both parties to be
a part of the terms of plaintiff's original contract of employment. Finally, the Oregon court
disclaimed any predisposition as to the merits of the case by anything contained in its
opinion. I am unaware of any rule or principle of law which would create an inference of a
contract resulting only from evidence of the unilateral dissemination of an employees'
handbook coupled with an employee's awareness of the provisions or contents of such a
handbook. Certainly the Yartzoff opinion provides no support or basis for such an inference.
The majority's alternative assertion that formal delivery of a revised handbook to Ahmad
constituted a modification of the original contract of employment supported by the
consideration of continued employment is also unsupported by the facts as well as the law.
Here, delivery of the revised handbook to which the majority refers took place in April, 1980,
some two years after respondent was hired. There was neither an express nor an implied
representation by Southwest that the handbook was to be a part or modification of any
agreement between the parties. Indeed, Ahmad has neither contended nor proved any such
modification.
There further appears to be no basis for the majority's finding of reliance on or
consideration for any modification of the contract. There was no evidence of bargaining
between the parties for a contract modification, nor any indication that after having received
the manual, Ahmad in any way changed her position or acted in any manner except to fulfill
her regular job responsibilities for Southwest. The fact that Ahmad continued working after
having received the manual, although she was under no obligation to do so, cannot be viewed
as consideration for a contract modification. Here, the non-exercise of a pre-existing legal
right was neither bargained for nor given in exchange for any promise. It certainly did not
work to Ahmad's detriment, nor did it confer any new benefit on Southwest.
Southwest. Ahmad's continued employment falls short of being consideration for a contract
modification. See Restatement of Contracts 2d 17(1), 71, 73. Corbin on Contracts
152-209, Williston on Contracts, 3rd ed. 99-107. See also Sargent v. Illinois Institute of
Technology, 397 N.E.2d 443 (Ill.App. 1979); Edwards v. Citibank, N.A., 418 N.Y.S.2d 269
(1979); Williams v. Biscuitville, Inc., 253 S.E.2d 18 (N.C. 1979); Simmons v. Westinghouse,
311 So.2d 28 (La.App. 1975); Zagar v. Field Enterprises Educational Corporation, 374
N.E.2d 897 (Ill.App. 1978).
In the instant case, the trial judge failed to make clear the theory upon which he based
appellant's liability. In one sentence, the judge found evidential substantiation of reliance on
the termination provision by respondent. The record simply does not support such a finding.
To the contrary, as noted previously, respondent was unaware of the termination provision of
the handbook until after her discharge. See note 1. It is thus apparent that if the trial court
reached its conclusion under a theory of estoppel, the essential element of detrimental
reliance was absent.
The majority divined from the decision of the district court an award of damages based
upon the breach of a contract of employment. In that regard, the trial judge did find that
Ahmad did not receive due warning of her termination. The lower court concluded, I
believe erroneously, that the termination provision of the handbook required warning of
termination and an opportunity to correct an unsatisfactory performance as a predicate to
termination. This Court, if indeed the exercise has relevance, may interpret the language of
the termination provision under a plenary standard of review. The termination provision of
the handbook reads as follows:
TERMINATION
A regular employee may not be terminated without cause. Termination for cause can
occur only after notification from the employee's department head (except in the case of
direct insubordination or gross misconduct) of unsatisfactory performance. The
employee must have been given an opportunity to correct it. An employee terminated
for failure to correct unsatisfactory performance after due warning shall never be denied
the right to discuss the matter with the manager in charge of that activity.
Temporary, part-time or probationary employees may be terminated without cause at
any time.
I have sought in vain for language within the referenced provision which requires due
warning or indeed, any prior warning or notice of termination. The provision does require
"due warning" or notification of unsatisfactory performance and an opportunity to correct
same.
due warning or notification of unsatisfactory performance and an opportunity to correct
same. Both conditions were satisfied in the instant case. The record reveals that Ahmad's
supervisors informed Ahmad of her numerous deficiencies on many occasions. Her formal
supervisor, Marilyn Bollinger, invited Ahmad to her office to apprise her of the need for
better administration and greater accuracy. Bollinger later met with Ahmad to admonish her
to stay at her desk area and not spend time wandering in other departments. In the interim,
the attorneys for whom Ahmad rendered service complained to both Ahmad and Bollinger
regarding Ahmad's deficiencies. In short, the record strongly reflects the fact that Ahmad was
notified on several occasions of her unsatisfactory performance. The record further reflects
substantial forebearance by Southwest in working with Ahmad in the hope of achieving a
satisfactory overall performance level. In an effort to salvage an otherwise unsatisfactory
situation, Southwest unsuccessfully attempted to relocate Ahmad in other of its departments
prior to her termination.
In view of the foregoing, and after having thoroughly reviewed the record, I must conclude
that Southwest's conduct was in substantial compliance with the termination provision of its
handbook.
There are, however, other reasons why I must dissent from the majority opinion. First,
without evidence that the parties actually intended the handbook to be part of the employment
contract, I deem it unsound to incorporate it therein by judicial fiat. The handbook provided
by Southwest was simply a unilateral publication of company policies and employee benefits.
It did not purport to be a contractual document, but rather a current directory of policies,
information, procedures and benefits. At the outset of the handbook, Southwest made clear
the transient, non-vested nature of the publication by stating: employee information and
benefits are frequently revised to reflect changing circumstances and the Company reserves
the right to make changes without prior notice. Under these circumstances it transcends law,
reason and logic to arrogate to the handbook the status of an implied or express contract of
employment.
Numerous cases have rejected attempts to engraft employee manuals or handbooks onto
employment contracts. See, e.g., Weiner v. McGraw-Hill, Inc., 442 N.Y.S.2d 11 (App.Div.
1981) (employment application indicated employment would be subject to employees
handbook; held, the application did not prohibit McGraw-Hill from unilaterally amending or
withdrawing any of the provisions in the handbook); Johnson v. National Beef Packing
Company, 551 P.2d 779 (Kan. 1976) {employee sought to avoid general rule regarding
termination at will by asserting employee handbook as an express or implied contract;
held, handbook only a unilateral expression of company policies and procedures not
bargained for by the parties and any benefits conferred by it were mere gratuities; no
meeting of the minds was evidenced by unilateral publication of company policy);
Williams v. Biscuitville, Inc., supra, {held, employee handbook provision regarding
termination after verbal and written warning not exclusive manner of terminating where
policy unilaterally implemented by employer and subject to change by employer);
Schroeder v. Dayton-Hudson Corp., 44S F.Supp. 910 {E.D.Mich., S.D.
(employee sought to avoid general rule regarding termination at will by asserting employee
handbook as an express or implied contract; held, handbook only a unilateral expression of
company policies and procedures not bargained for by the parties and any benefits conferred
by it were mere gratuities; no meeting of the minds was evidenced by unilateral publication of
company policy); Williams v. Biscuitville, Inc., supra, (held, employee handbook provision
regarding termination after verbal and written warning not exclusive manner of terminating
where policy unilaterally implemented by employer and subject to change by employer);
Schroeder v. Dayton-Hudson Corp., 448 F.Supp. 910 (E.D.Mich., S.D. 1977) (held,
employee's handbook cannot be construed to be a contract; its purpose is to inform employees
of benefits, privileges and corporate policies); Sargent v. Ill, Institute of Technology, supra,
(held, employee manual defines duties, responsibilities and serves as code of conduct; by
agreeing to be bound by handbook guidelines, employee merely agrees to properly perform
his dutiescourt found no consideration to support predischarge hearing requirement);
Edwards v. Citibank, N.A., supra, (employee contended employee handbooks and manuals
comprised written contract; held, such a position unsupported by logic or lawfirst, lacking
in mutuality; second, hornbook law that employment contract of indefinite term is terminable
at the will of either party at any time; third, written manuals do not form employment contract
since they do not exclusively and completely define terms and conditions of employment, its
duration or rate of compensation; consequently, manuals are merely broad internal policy
guidelines which cannot be held to include exclusive termination procedures).
Those few cases, including Yartzoff, which seem to validate the proposition that employee
handbooks may constitute part of the employment contract, generally do so on the basis that
the provisions of the handbook were intended by the parties to be part of the contract. There
is no evidence or support in this record for such a conclusion here. Indeed, Ahmad's
complaint failed to allege incorporation of the handbook as part of the employment contract.
Instead, she asserted termination without cause and in violation of defendant's personnel
policies as a basis for relief. In this setting I am unable to support the premise that
Southwest's dissemination of a company policy manual to an employee claiming a general
awareness thereof equals a contract by inference.
Second, even if we were to condone the majority position as being within the outer reaches
of the law, it would be unwise to so extend ourselves.
so extend ourselves. Judicial restraint in the area of employer-employee relations subserves
the best interests of society. The legislature is best equipped to discern the public pulse
through extensive hearings, analyses and debate involving multi-faceted groups having
specific interests in the subject.
Ironically, the consequences of the majority position are not difficult to project. Employers
who have structured personnel handbooks to reflect beneficial employee policies will most
likely retrench and designedly avoid the web of unintended liability fashioned by this Court's
decision. It is, I submit, unfortunate that these foreseeable consequences are spawned by the
circumstances of the instant case, where the employee was terminated for cause in substantial
conformity with company-established termination procedures.
Although it is clear that I find no basis in fact or law for an award of damages, I
nevertheless concur with the trial court's approach to the determination of damages, if such
were justified.
Because the trial court's decision was unsupported by the facts and the law, I would
reverse.
____________
99 Nev. 601, 601 (1983) State v. Orme
THE STATE OF NEVADA, Appellant, v. JON ORME
aka Walter Paul Thomas, Respondent.
No. 13766
August 31, 1983 668 P.2d 275
Appeal from order granting motion to dismiss an information, Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
James Tufteland, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and James L. Gubler, Deputy Public Defender, Clark
OPINION
Per Curiam:
Having reviewed this matter, we conclude that our recent decision in Sheriff v. Berman, 99
Nev. 102, 659 P.2d 298 {19S3), is dispositive.
99 Nev. 601, 602 (1983) State v. Orme
(1983), is dispositive. Accordingly, we reverse the order granting the motion to dismiss, and
we remand this matter to the district court for reinstatement of the information and trial on the
merits.
____________
99 Nev. 602, 602 (1983) Forrest v. Forrest
PEGGY JEAN FORREST, Appellant, v.
RONALD FORREST, Respondent.
No. 13628
August 31, 1983 668 P.2d 275
Appeal from judgment awarding divorce decree and dividing property and from order
denying motion to amend judgment. Second Judicial District Court, Washoe County; Grant
L. Bowen, Judge.
A judgment of the district court awarded divorce and divided property, and denied wife's
motion to amend judgment. On appeal by the wife, the Supreme Court held that: (1) where
there were only a few conclusory statements by parties as to character of real property, it was
to be presumed that the real property belonged to the community; (2) alimony is incidental to
divorce, pursuant to statute, and need not be specifically pleaded, and where, also, issue was
tried by consent of parties, wife was not precluded from seeking alimony at trial though she
had requested only $5 a month separate maintenance in her complaint; and (3) under statutes
clearly mandating that all property acquired by parties until formal dissolution of marriage is
community property, district court erred in making implicit legal finding that separation of
parties in 1973 was tantamount to sufficient dissolution of marital relationship to dissolve the
community, rendering property thereafter acquired by the parties separate property.
William M. O'Mara, Reno, for Appellant.
W. H. Tobeler, Reno, for Respondent.
1. Husband and Wife.
All property acquired after marriage is presumed to be community property, but such presumption may
be rebutted with clear and convincing evidence. NRS 123.220.
Valid deed showing that title to property is held in joint tenancy is clear and certain proof needed to
overcome community property presumption, and such deed raises rebuttable presumption
that property is in fact held in joint tenancy, i.e., as separate property of husband and
wife, but opinion of either spouse as to whether property is separate or community is
of no weight whatsoever.
presumption, and such deed raises rebuttable presumption that property is in fact held in joint tenancy, i.e.,
as separate property of husband and wife, but opinion of either spouse as to whether property is separate or
community is of no weight whatsoever. NRS 123.220.
Where, at trial of divorce case, there were only a few conclusory statements by parties as to character of
real property, it was to be presumed that the real property belonged to the community. NRS 123.220.
4. Divorce.
Alimony is incidental to divorce, pursuant to statute, and need not be specifically pleaded, and where,
also, issue was tried by consent of parties, wife was not precluded from seeking alimony at trial though she
had requested only $5 a month separate maintenance in her complaint. NRCP 15(b); NRS 125.150,
subd. 1.
5. Divorce.
Where trial court does not indicate in its divorce judgment or decree that it gave adequate consideration
to relevant factors in failing to award any alimony to wife, reviewing court should remand for
reconsideration of the issue. NRS 125.150, subd. 1.
Under statutes clearly mandating that all property acquired by parties until formal dissolution of marriage
is community property, district court erred in making implicit legal finding that separation of parties in
1973 was tantamount to sufficient dissolution of marital relationship to dissolve the community, rendering
property thereafter acquired by the parties separate property. NRS 123.130, 123.190, 123.220.
7. Divorce.
In divorce case, husband's contention that there would be little or no equity left in mobile home after
three years of depreciation raised factual issues within province of the district court to resolve and would
be addressed by that court upon remand.
8. Divorce.
Where, in divorce suit, only passing reference was made to fact that husband was recipient of retirement
plan with a club, apportionment of retirement benefits could not intelligently be made, without more, and it
would be proper for the trial court on remand to admit further evidence, if any, so that just and equitable
division of all community property might be made. NRS 123.220.
OPINION
Per Curiam:
This is an appeal from a judgment awarding a decree of divorce and dividing property and
from an order denying appellant's motion to amend judgment. For the reasons set forth
hereinafter, we reverse the order denying the motion to amend judgment and remand for
further proceedings.
Appellant and respondent were married in 1955 in Reno. There are no minor children of
this marriage. In July 1973, the parties separated and have been living apart since that time.
During the first month of their separation, appellant filed a complaint for separate
maintenance, seeking to be awarded the family residence in Sparks as her share of the
community property, fifty percent of the parties' net savings, and $5.00 per month in
maintenance payments. In respondent's answer to appellant's separate maintenance complaint,
it was claimed that the residence in Sparks was held in joint tenancy rather than as
community property. Respondent also counterclaimed for a decree of divorce and division of
marital property, including the equal division of the property held in joint tenancy.
After multiple continuances, a brief trial was held in 1981. Despite the fact that no deed or
other substantial evidence was produced indicating that a joint tenancy existed in the Sparks
residence, the district court found that the residence was held in joint tenancy. The court then
ordered the immediate sale of the residence, and the equal division of the net proceeds, or, in
the alternative, the payment within 30 days by appellant to respondent of $24,000.00 as
appellant's share of the equity in the residence. The court gave no consideration to the
mortgage payments made by appellant following the separation. No provision was made for
alimony, nor was any finding or ruling made regarding a mobile home purchased by
respondent after the separation but before the decree of divorce.
Appellant moved to amend the judgment, objecting to the order to sell, the court's failure
to set off mortgage payments, the court's failure to award alimony, and the lack of any
findings concerning the mobile home. In its order denying the motion, the district court
stated, in part:
In this case and at the trial thereof, we were primarily concerned with the disposition
of the house and lot. . . .
We were not concerned with alimony, except in the alternative; we were not really
concerned with defendant's to-be-acquired ownership of a mobile home, acquired after
separation; . . .
This case once again presents one of the difficulties of joint tenancy and it is not the
first time that I have been required to make such a decision in lieu of credible
community property testimony. . . .
Under the facts of this case, it appears that the district court was in error in characterizing
the residence at issue as separate property held by the respective parties in joint tenancy.
[Headnotes 1, 2]
All property acquired after marriage is presumed to be community property. This
presumption may be rebutted with clear and convincing evidence.
and convincing evidence. Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982); Roggen v.
Roggen, 96 Nev. 687, 615 P.2d 250 (1980). See NRS 123.220. A valid deed showing that
title to property is held in joint tenancy is the clear and certain proof needed to overcome the
community property presumption, and such a deed raises the rebuttable presumption that the
property is in fact held in joint tenancy (i.e., as the separate property of the husband and wife).
Waldman v. Waldman, 97 Nev. 546, 635 P.2d 289 (1981); Neumann v. McMillan, 97 Nev.
340, 629 P.2d 1214 (1981); Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). On the other
hand, the opinion of either spouse as to whether the property is separate or community is of
no weight whatsoever. Peters v. Peters, 92 Nev. at 692, 557 P.2d at 716.
[Headnote 3]
In the instant case, a review of the record indicates that neither appellant nor respondent
introduced a copy of the deed to the family residence into evidence at trial. On appeal,
respondent asserts at several points that it is undisputed that title to the home was taken in
joint tenancy. Appellant, however, has consistently maintained that the property is community
property. The record contains no evidence beyond a few conclusory statements by the parties
as to the character of the real property. Therefore, on this record, the real property must be
presumed to belong to the community.
We remand the case for a reconsideration by the district court of the property's character.
In this regard, respondent should be allowed to introduce sufficient evidence of joint tenancy,
if such exists, in order to overcome the presumption of community property.
In addition, the district court must reconsider the issue of alimony.
In light of the facts of the case, the trial court's explanation that [w]e were not concerned
with alimony, except in the alternative is a non sequitur. Here, appellant presented her
request for alimony as an alternative to keeping the house. As hereinbefore mentioned, the
court did not award the house to appellant.
[Headnote 4]
Respondent argues that appellant was precluded from seeking alimony at trial since she
had requested only $5.00/month separate maintenance in her complaint. This argument is
meritless. Not only was the issue here tried by the consent of the parties, NRCP 15(b),
Johnson v. Johnson, 76 Nev. 318, 322, 353 P.2d 449, 451 (1960), but alimony is incidental to
a divorce under NRS 125.150 (1) and need not be specifically pleaded. Woodruff v.
Woodruff, 94 Nev. 1, 4, 573 P.2d 206, 208 (1978).
[Headnote 5]
Courts have broad discretion in the distribution of community property. Johnson v. Steel
Inc., 94 Nev. 483, 581 P.2d 860 (1978). See NRS 125.150(1). However, there are limits to the
trial court's discretion in awarding or refusing to award alimony. Much depends on the
particular facts of each individual case. Among the matters to be considered are the following
factors: the financial condition of the parties; the nature and value of their respective
property; the contribution of each to any property held by them as tenants by the entirety [or
joint tenants]; the duration of the marriage; the husband's income, earning capacity, age,
health, and ability to labor; and the wife's income, age, health, station, and ability to earn a
living. Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). Where the trial court
does not indicate in its judgment or decree that it gave adequate consideration to the
Buchanan factors in failing to award any alimony to the appellant, this Court shall remand for
reconsideration of the issue. Waldman v. Waldman, supra; Johnson v. Steel Inc., 94 Nev. at
489, 581 P.2d at 864.
In the instant case, the district judge gave no indication that he had considered the
evidence in light of the Buchanan factors, and suggested that alimony was at best a minor
issue.
For the reasons set forth above, we reverse the trial court's order which awarded no
alimony, and remand the matter for consideration within the guidelines set forth above.
[Headnote 6]
We must also reverse the district court's order failing to divide as community property the
parties' interest in the mobile home acquired by respondent after separation but before the
divorce.
In stating that [w]e were not really concerned with defendant's to-be-acquired ownership
of a mobile home, acquired after separation, the district court made an implicit legal finding
that the separation of the parties in 1973 was tantamount to a sufficient dissolution of the
marital relationship to dissolve the community, rendering property thereafter acquired by the
parties separate property. Such a conclusion was erroneous.
The legal standards applicable to the instant case are clear. NRS 123.220 states:
All property, other than that stated in NRS 123.130, acquired after marriage by either
husband or wife, or both, is community property unless otherwise provided by:
both, is community property unless otherwise provided by:
1. An agreement in writing between the spouses, which is effective only as between
them.
2. A decree of separate maintenance issued by a court of competent jurisdiction.
3. NRS 123.190.
NRS 123.130 provides that all property of a spouse owned by him or her before marriage, and
that acquired after marriage by gift, bequest, devise, descent, or an award for personal injury
damages, with the rents, issues, and profits thereof, is separate property. NRS 123.190
provides that one spouse may in writing authorize the other spouse to retain and control his or
her earnings as separate property.
Here, despite the fact that since the time of separation both parties were represented by
counsel, no written agreement or authorization between the parties was entered into, nor was
a decree of separate maintenance obtained. In such a case, the statutes clearly mandate that all
property acquired by the parties until the formal dissolution of the marriage is community
property.
[Headnote 7]
On appeal, respondent cites no authority indicating that property acquired following an
informal separation may be considered separate property. Instead, he argues that there was
little or no equity left in the $24,000.00 mobile home after three years of
depreciationregardless of the $3,700.00 down payment and the three years of installment
paymentsbecause of an (eventual) $28,000.00 finance charge. Resolution of these factual
issues is within the province of the district court, and should be addressed by that court upon
remand.
[Headnote 8]
Finally, appellant assigns as error the district court's failure to divide as community
property respondent's retirement benefits with Harold's Club. Generally, retirement benefits
are divisible as community property to the extent that they are based on services performed
during the marriage, whether or not the benefits are presently payable. See In re Marriage of
Gillmore, 629 P.2d 1 (Cal. 1981); In re Marriage of Brown, 544 P.2d 561 (Cal. 1976). In the
instant case, however, sufficient evidence to support an apportionment of respondent's
retirement benefits was not adduced by appellant. Here, only passing reference was made to
the fact that respondent was recipient of a retirement plan with Harold's Club.1 Without
more, an apportionment of respondent's retirement benefits could not intelligently have
been made.
was made to the fact that respondent was recipient of a retirement plan with Harold's Club.
1
Without more, an apportionment of respondent's retirement benefits could not intelligently
have been made.
In view of our remand of this case for consideration of the other issues discussed above,
however, we deem it proper for appellant to introduce further evidence, if any exists,
regarding respondent's retirement plan and its relation to services performed by respondent
during marriage, in order that a just and equitable division of all the community property may
be made.
In summary, we reverse the order of the district court denying appellant's motion to amend
judgment and remand the case for further proceedings. In this regard, both parties should be
allowed to present evidence in order that proper characterization of the property at issue may
be made, and that an equitable division of the property may ensue. Furthermore, the district
court should consider the matter of alimony within the standards set forth in this opinion and
in the cases cited herein.
It is so ordered.
____________________

1
The sum of the evidence regarding respondent's retirement benefits is found in this exchange between
appellant's attorney and respondent:
BY MR. O'MARA:
Q. Is it not also true that you have a retirement or profit-sharing plan with Harold's Club?
A. Harold's Club just installed it. Yes.
Q. You are a recipient of those?
A. Retirement plan.
MR. O'MARA: I have no further questions.
____________
99 Nev. 608, 608 (1983) Washoe Co. v. John A. Dermody, Inc.
WASHOE COUNTY, a Political Subdivision of the State of Nevada; THE STATE BOARD
OF EQUALIZATION, an Administrative Agency of the State of Nevada; JACK J. HUNTER,
Jr., Chairman; RONALD R. ZIDECK; WILLIAM E. MOONEY; GARY KENT; and RON
GASH, as Members of Said Board, Appellants, v. JOHN A. DERMODY, INC., a Nevada
Corporation; G & M PROPERTIES, A Partnership Consisting of GEULA GAIL MOSLIN
and MICHAEL CRAIG DERMODY; JOHN A. DERMODY, E. W. McKENZIE as
Individuals, Respondents.
No. 13328
August 31, 1983 668 P.2d 280
Appeal from judgment reversing decision of Nevada State Board of Equalization, Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
Appeal was taken from a judgment of the district court in favor of landowners in the
proceeding concerning the valuation and appraisal of certain real property and improvements.
The Supreme Court held that: (1) decision by State Board of Equalization applying a 100-year
structure life for purposes of depreciation was not supported by substantial evidence, and (2)
the district court erroneously required State Board to employ a particular valuation method on
remand, since the district court could not usurp State Board's exercise of independent
judgment.
Brian McKay, Attorney General; Timothy Hay, Chief Deputy Attorney General; and David
M. Norris, Deputy Attorney General, Carson City, for Appellants.
Lionel Sawyer & Collins, and Richard G. Campbell, Reno, for Respondents.
1. Taxation.
In proceeding concerning valuation and appraisal of certain real property and improvements, decision by
State Board of Equalization to calculate depreciation based on a 100-year structure life was not supported
by substantial evidence where only evidence which related to the 100-year structure life was testimony to
the effect that such a lengthy structure life was unreasonable. NRS 233B.140, subds. 5, 5(e).
Sworn testimony of a witness appearing before an administrative agency can constitute substantial
evidence.
District court should not foreclose exercise of administrative agency's independent judgment on matters
within its competence. NRS 233B.140, subd. 5.
4. Taxation.
In proceeding concerning valuation and appraisal of certain real property and improvements, district
court erroneously required State Board of Equalization to employ a particular valuation method after
correctly finding that State Board's decision as to depreciation valuation method was not supported by
substantial evidence, since court could not usurp State Board's exercise of independent judgment by
restricting it on remand to application of a particular depreciation method and a particular structure life.
NRS 233B.140, subd. 5(e).
OPINION
Per Curiam:
This case presents a challenge to the district court reversal of a decision of the Nevada
State Board of Equalization (State Board) concerning the valuation and appraisal of certain
real property and improvements.
property and improvements. We conclude that the district court correctly found that the State
Board's decision was clearly erroneous in view of the reliable, probative and substantial
evidence on the record, and decline to reverse that part of the district court's decision. See
NRS 233B.140(5)(e). However, we also conclude that the district court erred in remanding
the case to the State Board with overly specific instructions as to the valuation methods and
procedures to be utilized in assessing the property in question.
Respondents (Dermody, Inc. et al.) are owners of a number of commercial and industrial
properties located in Washoe County. In 1976, the Washoe County Assessor reassessed that
section of the Reno-Sparks area in which respondents' property was located. In reassessing
the property, the Assessor apparently utilized average replacement cost figures for
comparable structures. The Assessor then applied a depreciation rate to the replacement cost
which was based on estimated structure lives that ranged from 37 to 142 years. No
explanation was apparently provided as to why the Assessor found it necessary or desireable
to use such lengthy structure lives, although there is some evidence in the record that might
support an inference that these figures were drawn from a commercial depreciation table.
Respondents appealed the reassessment to the Washoe County Board of Equalization
(County Board). The Board granted partial relief, but both respondents and the Assessor
appealed to appellant Nevada State Board of Equalization.
The State Board reviewed the valuations of the Assessor and the County Board. The State
Board then undertook a valuation of respondents' property, apparently utilizing the same
approach and methodology utilized by the Assessor. The State Board, however, rejected the
37 to 142-year structure lives applied by the Assessor, and instead calculated depreciation at 1
percent per year. This would equate to the application of a 100-year structure life, although it
appears that the State Board arrived at this figure without discussion, explanation or
evidentiary support.
Still dissatisfied with the valuation of their property, respondents sought judicial review of
the State Board's decision. After reviewing the record, the district court found that the State
Board's actions were arbitrary, capricious and clearly erroneous in view of the reliable,
probative and substantial evidence on the record. The court accordingly entered judgment in
favor of respondents, remanding the case to the State Board with instructions that the State
Board use a particular valuation advanced by respondents. This appeal followed.
The State Board initially argues that the district court erred in rendering judgment for
respondents. This contention is without merit. Respondents appealed the decision of the State
Board, an administrative agency, to the district court. It is well established that under such
circumstances the district court shall not substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact. See NRS 233B.140(5). At the same time, the
district court may reverse or modify the decision of an administrative agency if substantial
rights of an appellant have been prejudiced because the findings are clearly erroneous in view
of the reliable, probative and substantial evidence on the whole record. See NRS
233B.140(5)(e). Thus, the dispositive issue is whether there is substantial evidence in the
record to support the State Board's use of a 100-year structure life in calculating valuation.
[Headnotes 1, 2]
We find the State Board's decision is not supported by substantial evidence, and that the
district court did not err by reversing the administrative agency's decision. The district court
found that there was no evidentiary support for a 100-year structure life, and an independent
review of the record reveals that this is an accurate characterization. In fact, the only evidence
in the record which relates to the 100-year structure life is testimony to the effect that such a
lengthy structure life was unreasonable. Further, although the sworn testimony of a witness
appearing before an administrative agency can constitute substantial evidence (see Board of
Supervisors of Modoc County v. Archer, 96 Cal.Rptr. 379 (Cal.App. 1971)), in the instant
case it does not appear that there was sworn testimony which would support the use of a
100-year structure life. Although the State Board directs this court's attention to testimony of
the Assessor's representative, the sections of the transcript cited by the State Board establish
only that the Assessor was basing his calculations on his experience as an appraiser and that
for some properties he utilized a 40-year structure life from a commercial depreciation table.
This is hardly testimony which would support the reasonableness of a 100-year structure life.
Thus, although there is a presumption of validity which attaches to determinations of value
made by the State Board when those determinations are properly based on independent
judgment (NRS 361.430; Kelly v. State of Nevada, 91 Nev. 150, 532 P.2d 1029 (1975)), in
the instant case the district court correctly found that the State Board's use of a 100-year
structure life was clearly erroneous in view of substantial evidence on the record.
The second issue presented concerns the appropriateness of certain instructions the district
court included in its decision. In addition to reversing the State Board's decision, the district
court also remanded the case with directions that [i]n all calculations regarding depreciation
in this case, the State Board shall apply the straight line' method based upon a 40 year useful
life. The State Board now contends that the order requiring it to employ a particular
valuation method was erroneous in that the district court impermissibly substituted its
judgment for that of the administrative agency. We believe this argument has merit.
[Headnotes 3, 4]
As previously noted, the district court shall not substitute its judgment for that of the
administrative agency as to the weight of evidence on questions of fact. See NRS
233B.140(5). Further, the district court should not foreclose the exercise of the administrative
agency's independent judgment on matters within its competence. See Nevada Industrial
Comm'n v. Williams, 91 Nev. 686, 541 P.2d 905 (1975). This is particularly true in light of
the circumstances of the instant case, given that there is a specific statutory requirement that
the State Board be composed of members with a particular expertise in valuing property. See
NRS 361.375(2). Thus, although the district court could reverse the State Board's decision
when it correctly found that the challenged decision was not supported by substantial
evidence, the district court could not usurp the State Board's exercise of independent
judgment by restricting the State Board on remand to the application of a particular
depreciation method and a particular structure life.
On the basis of the preceding analysis, the district court's decision reversing the decision of
the State Board is affirmed. However, the case is remanded to the district court with
directions that it be remanded to the State Board for further consideration and the adoption of
a structure life or depreciation formula supported by substantial evidence.
____________
99 Nev. 612, 612 (1983) Cen Val Leasing v. Bockman
CEN VAL LEASING CORPORATION, Appellant,
v. DONALD J. BOCKMAN, Respondent.
No. 14003
August 31, 1983 668 P.2d 1074
Appeal from order denying motion to set aside default judgment, Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Action was instituted against lessor for alleged malicious and wrongful removal of leased
vehicles from lessee's property. After a default judgment was entered against lessor, the
district court entered order denying lessor's motion to set aside default, and lessor appealed.
The Supreme Court held that where lessee's attorney knew identity of lessor's attorney and
that latter intended to file a response in lawsuit on lessor's behalf, lessee's attorney should
have inquired of other attorney about his intention to proceed before seeking lessor's default,
and since he failed to do so, default judgment entered against lessor should have been set
aside.
Morris & Gorman, Las Vegas, for Appellant.
James J. Brown, Las Vegas, for Respondent.
Judgment.
Where attorney for lessee, alleging that lessor maliciously and wrongfully removed leased vehicles from
lessee's property, knew identity of lessor's attorney and that latter intended to file a response in lawsuit on
lessor's behalf, lessee's attorney should have inquired of other attorney about his intention to proceed
before seeking lessor's default, and since he failed to do so, default judgment entered against lessor should
have been set aside. SCR 187.
OPINION
Per Curiam:
This is an appeal from an order denying appellant's motion to set aside a default judgment.
We reverse and remand for further proceedings.
In July of 1981 the appellant (Cen Val) repossessed two vehicles it had previously
leased to respondent Bockman. Bockman thereafter commenced this action against Cen Val
in August of 1981, charging that Cen Val maliciously and wrongfully removed these vehicles
from Bockman's property.
Through an error in its attorney's office, Cen Val did not timely file an answer, and a
default judgment was therefore entered on October 23, 1981. A motion to set aside the default
was filed but was denied. This appeal followed.
In the proceedings below, Bockman's attorney, James J. Brown, admitted that in early
September, 1981, his office was contacted by John T. Gorman, representing Cen Val. Brown
was informed that Gorman intended to file a response in this lawsuit on Cen Val's behalf.
Brown thus knew the identity of Cen Val's attorney. Therefore, before seeking Cen Val's
default, Brown should have inquired of Cen Val's attorney about his intention to proceed.
about his intention to proceed. See Rowland v. Lepire, 95 Nev. 639, 600 P.2d 237 (1979);
SCR 187.
1

Because Brown failed to contact Cen Val's attorney, the district court was required to set
aside the default. Id. Accordingly, we reverse the district court's order refusing to set aside the
default judgment, and we remand this case for further proceedings.
____________________

1
SCR 187:
A member of the state bar. . . . [w]hen he knows the identity of a lawyer representing an opposing party . .
. should not take advantage of the lawyer by causing any default or dismissal to be entered without first
inquiring about the opposing lawyer's intention to proceed.
____________
99 Nev. 614, 614 (1983) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Clark, THE HONORABLE JOSEPH S.
PAVLIKOWSKI, District Judge, Respondent.
No. 14668
August 31, 1983 668 P.2d 282
After the justice's court dismissed charges against the defendant based on the conclusion
that defendant's due process right to privacy would be violated if she were to be prosecuted
for soliciting to commit an act of prostitution since the alleged act of solicitation occurred in a
private hotel room, the district court affirmed that order. State brought a petition for writ of
certiorari. The Supreme Court held that prosecution of the defendant for soliciting to commit
an act of prostitution would not violate the due process clause even though the acts occurred
in a private hotel room.
Writ of certiorari granted, order vacated and case remanded.
Petition granted.
James Tufteland, Deputy District Attorney, Clark County, for Petitioner.
Keith E. Galliher, Las Vegas, for Respondent.
While due process clause does protect many aspects of intimate sexual relations privately engaged in
between consenting adults, state may constitutionally regulate and prohibit commercialized sexual
activities, such as prostitution and solicitation. U.S.C.A.Const. Amends. 5, 14.
Right to privacy simply does not extend to commercial sexual activities, even when such activities take
place in private area such as private hotel room. U.S.C.A.Const. Amends. 5, 14.
3. Constitutional Law; Prostitution.
Fact that alleged acts of solicitation to commit act of prostitution occurred in private hotel room did not
mean that prosecution for solicitation would violate defendant's due process right to privacy.
U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Theresa Fagan, real party in interest, was originally charged with two violations of Clark
County, Nev., Code 12.08.020 (1976) which provides that:
It is unlawful for any person to accost, solicit, or invite another in any public place or
in or from any building or vehicle by word, gesture or any other means to commit,
offer, agree or afford an opportunity to commit an act of prostitution.
The justice's court, however, upon Fagan's motion, dismissed the charges against her. In so
doing, the court concluded that it would violate Fagan's due process right to privacy under
Griswold v. Connecticut, 381 U.S. 479 (1965), if she were to be prosecuted under the above
ordinance, since the alleged acts of solicitation occurred in a private hotel room. On appeal,
the district court affirmed the justice's court's order, and the state then brought the present
petition for a writ of certiorari, contending that the district court erred in affirming the
dismissal.
1
We agree.
[Headnotes 1-3]
It is generally accepted that while the Due Process Clause does protect many aspects of
intimate sexual relations privately engaged in between consenting adults, a state may
nevertheless constitutionally regulate and prohibit commercialized sexual activities, such as
prostitution and solicitation. See Lutz v. United States, 434 A.2d 442 (D.C. 1981); State v.
Henderson, 269 N.W.2d 404 (Iowa 1978). The right to privacy simply does not extend to
commercial sexual activities, even when such activities take place in a private area such as a
private hotel
____________________

1
Contrary to Fagan's argument, we conclude that a writ of certiorari will properly issue to review the lower
courts' decisions, since by finding that the ordinance could not constitutionally be applied to Fagan's conduct, the
lower courts did in fact pass upon the constitutionality of the ordinance as required by NRS 34.020(3).
room. See Lutz v. United States, supra; Com. v. Dodge, 429 A.2d 1143 (Pa.Super.Ct. 1981).
See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-66 (1973) (right to privacy only
encompasses and protects personal intimacies of the home, the family, marriage,
motherhood, procreation, and child rearing, and not such things as commercialized
obscenity).
We have considered Fagan's contentions in opposition to the petition, and find them to be
without merit. Accordingly, we hereby grant the writ of certiorari. We vacate the district
court's order affirming the decision of the justice's court which dismissed the charges against
Fagan. The case is remanded to the justice's court for trial on the merits.
____________
99 Nev. 616, 616 (1983) Oak Grove Inv. v. Bell & Gossett Co.
OAK GROVE INVESTORS, a California Limited Partnership, Appellant, v. BELL &
GOSSETT COMPANY, an Illinois Corporation, Respondent.
No. 14062
August 31, 1983 668 P.2d 1075
Appeal from order granting summary judgment certified as final pursuant to NRCP 54(b).
Second Judicial District Court, Washoe County; James H. Thompson, Judge.
Owner of apartment complex brought products liability action against manufacturer of
plumbing fittings alleging that fittings were defective and caused damage to complex. The
district court entered summary judgment in favor of manufacturer, and owner appealed. The
Supreme Court, Mowbray, J., held that: (1) owner supplied record adequate to determine
statute of limitation's issue; (2) term accrued, is used in four-year statute of limitations
applicable to suits for tortious damage to real property, incorporates same diligent
discovery rule that is present in other statutes of limitation; (3) complaint which alleged that
owner's predecessor in interest discovered damage to apartment complex from defective
plumbing and heating system, and which averred that predecessor in interest represented to
owner that problems were minor raised genuine issue of material fact as to when owner
discovered or should have discovered defects, precluding summary judgment; (4) strict
liability may extend not only to dealer and retail seller of product, but to manufacturer of
product; and (5) owner was not seeking to recover purely economic losses, and therefore
stated causes of action in negligence and strict liability.
therefore stated causes of action in negligence and strict liability.
Petersen & Petersen; Robison, Lyle, Belaustegui & Robb, Reno, for Appellant.
Hibbs, Roberts, Lemons & Grundy, Reno, for Respondent.
Purpose of appellant's statement of points is to inform respondent of points in issue on appeal, so that
respondent may determine whether material designated for inclusion in record is sufficient for him to
answer appellant's contentions and present a fair and complete picture of the issues. NRAP 10(d).
Noncompliance with rule providing that appellant shall serve a concise statement of points on which he
intends to rely on in the appeal is not ground for dismissal of appeal unless respondent has shown that he
was misled or prejudiced by appellant's noncompliance, and has had insufficient time to supplement an
otherwise incomplete record. NRAP 10(d).
Where respondent did not show how it was prejudiced by asserted discrepancy between appellant's
statement of points and appellant's opening brief regarding issue of statute of limitations, nor did
respondent indicate that additional portions of record would be necessary to decide the issue fairly,
appellant supplied record adequate to determine the issue. NRAP 10(d).
Where appellant in his statement of points asserted that respondent failed to warn of dangers of its
product, appellant adequately claimed that produce was defective. NRAP 10(d).
Four-year statute of limitations is applicable statute for suits concerning tortious damage to real property.
NRS 11.220.
Rationale for rule that an action for legal malpractice does not accrue until plaintiff discovers, or should
have discovered, all facts material to elements of cause of action, including sustaining damages, is that
client has right to rely upon attorney's expertise; moreover, injury is often to intangible property interests,
and thus difficult to detect. NRS 11.207.
Term accrued, as used in four-year statute of limitations applicable to suits concerning tortious damage
to real property, incorporates same diligent discovery rule that is present in other statutes of limitation.
NRS 11.190, subds. 3, 3(b)(c)(d); 11.207, 11.220, 41A.097, 41A.097, subd. 1.
With respect to statute of limitations, when a plaintiff knew or in exercise of proper diligence should have
known of facts constituting elements of his cause of action is question of fact for trier of fact.
9. Judgment.
With respect to summary judgment, a litigant has right to trial where slightest doubt as to facts exists.
In evaluating propriety of a grant of summary judgment, Supreme Court will review evidence in light
most favorable to party against whom summary judgment was rendered.
11. Judgment.
In products liability action against manufacturer of plumbing fittings which were installed in apartment
complex, complaint which alleged that apartment complex owner's predecessor in interest discovered
damage to apartment complex from defective plumbing and heating system, and which averred that
predecessor in interest represented to owner that problems were minor maintenance problems raised
genuine issue of material fact as to when owner discovered or should have discovered defects in system
and resulting damage to apartment complex, precluding summary judgment.
Where manufacturer has reason to anticipate that danger may result from particular use of his product,
and he fails to warn adequately of such a danger, product sold without a warning is in a defective
condition, and failure to warn may constitute a defect for products liability purposes.
Strict liability may be imposed even where product is faultlessly made, if it was unreasonably dangerous
to place product in hands of consumer without adequate warnings concerning its safe and proper use.
In a products liability action, adequacy of warnings provided is ordinarily a jury question.
Strict liability applies to claims based on property damage as well as to personal injury cases.
Strict liability may extend not only to dealer and retail seller of product, but to manufacturer of product
and manufacturers of its component parts.
Issue of damages was not properly before Supreme Court, where district court did not rule on issue of
damages in its order granting summary judgment.
18. Damages.
Amount of property damages sustained is question for finder of fact.
Where owner of apartment complex alleged in both its strict liability and negligence causes of action that
defective plumbing and heating system in complex caused substantial leakage of water throughout complex
and damage to an apartment within complex, owner was not seeking to recover purely economic losses,
and therefore stated causes of action in negligence and strict liability.
OPINION
The district court in this products liability action entered summary judgment for
respondent Bell & Gossett Company on several grounds. Appellant Oak Grove Investors
contends that the district court erred in its conclusions regarding the statute of limitations, the
potential existence of a product defect, and the effect of an intermediary in the distribution
chain. We agree with appellant's contentions, and therefore reverse and remand this matter for
further proceedings consistent with this opinion.
THE FACTS
Appellant Oak Grove Investors (Oak Grove), a California limited partnership, owns an
apartment complex in Washoe County known as Sundance West. Oak Grove purchased the
complex in January 1979 from Elwood Partners, another limited partnership. Soon after the
purchase, Oak Grove discovered extensive water damage from the plumbing and heating
system of the complex.
Respondent Bell & Gossett Company (Bell & Gossett), an Illinois corporation,
manufactured the Monoflo plumbing fittings used in the apartment complex plumbing and
heating system. The fitting is a copper T, incorporating an internal cone, that diverts part of
the water flowing through the pipe into the heating unit for each apartment and eventually
back into the original pipe. The Monoflo fittings allegedly were inappropriate for the
open-loop system developed for the apartment complex. The system involved sending both
hot water for domestic use and hot water for heating through the same pipes, requiring the
constant introduction of outside aggressive
1
water and high water velocities. The Monoflo
fitting allegedly increased the water velocity beyond safe limits, causing erosion and
corrosion.
Oak Grove filed its first amended complaint against respondent and others on June 30,
1981. The complaint alleged that the plumbing and heating system was defective in design,
manufacture, and installation, and that the defects had caused extensive corrosion and
leakage throughout the apartment complex.
____________________

1
Appellant's counsel at oral argument represented that Reno water is aggressive, i.e., is high in minerals
and dissolved gases. Apparently, such water loses its aggressive qualities over time in a closed system, but has
no opportunity to do so in an open system where outside water is continually being introduced.
corrosion and leakage throughout the apartment complex. The complaint also alleged that the
defendants, including respondent, knew or reasonably should have known that the defective
design of the system would cause the damage that occurred. Oak Grove alleged that it did not
know of the defects in the system when it purchased the complex, although it admitted that
the defects had begun to manifest themselves while its predecessor in interest was operating
the complex, in December 1977.
Respondent moved for summary judgment on several grounds. Following a hearing, the
district court granted the motion. In concluding that there was no genuine issue as to any
material fact, the court found that there was no defect in the Bell & Gossett product which
was used in the plumbing system at plaintiff's apartment complex, that the product was not
from Bell & Gossett but was through an intermediary, and that the four year statutes of
limitations are available to Bell & Gossett and are a complete defense to the claims. This
appeal followed.
APPELLANT'S STATEMENT OF POINTS
Oak Grove designated only a partial record on appeal, and pursuant to NRAP 10(d)
2
served on respondent Bell & Gossett and included in the record a concise statement of the
points on which it intended to rely. As a threshold matter, Bell & Gossett contends that it was
prejudiced by three discrepancies between the statement of points and appellant's arguments
on appeal.
[Headnotes 1, 2]
The purpose of the statement of points is to inform the respondent of the points in issue on
appeal, so that the respondent may determine whether the material designated for inclusion in
the record is sufficient for him to answer the appellant's contentions and present a fair and
complete picture of the issues. Noncompliance with the rule is not ground for dismissal of the
appeal unless the respondent has shown that he was misled or prejudiced by the appellant's
noncompliance, and has had insufficient time to supplement an otherwise incomplete record.
See Basic Refractories v. Bright, 71 Nev. 248, 256, 286 P.2d 747, 751 (1955); Christensen v.
Pryor, 255 P.2d 195, 197 (Ariz. 1953). See also Island Creek Coal Co. v. Local 187, UMW,
568 F.2d 7 (6th Cir. 1977).
____________________

2
NRAP 10(d) provides as follows:
No assignment of errors is necessary. If the appellant does not designate for inclusion the complete
record and all the proceedings and evidence in the action, he shall serve with his designation a concise
statement of the points on which he intends to rely on the appeal.
In its Statement of Points, appellant averred that respondent manufactured the Monoflo
fittings and failed to warn of the dangers from the increased water velocity caused by the
fittings. Respondent asserts that appellant's opening brief demonstrates that appellant is
basing its allegations of liability on respondent's alleged participation in the design of the
plumbing and heating system. A fair reading of appellant's entire brief indicates otherwise.
The allegations of liability on appeal rest on Bell & Gossett's role as manufacturer of the
Monoflo fittings, not on any alleged role as designer.
[Headnote 3]
Second, respondent notes that while in its Statement of Points appellant contended that
NRS 11.205 was the applicable statute of limitations, appellant did not mention NRS 11.205
in its opening brief; rather, appellant argued that NRS 11.220 was the relevant statute. Both
statutes of limitation were discussed during the district court hearing. Respondent does not
show how it was prejudiced by the asserted discrepancy, nor does it indicate what additional
portions of the record would be necessary to decide the issue fairly. Appellant has supplied a
record adequate to determine the issue concerning the operation of NRS 11.220.
[Headnote 4]
Lastly, respondent argues that appellant failed to claim in its Statement of Points that the
Monoflo fittings were defective. This argument is frivolous, because appellant stated that Bell
& Gossett failed to warn of the dangers of its product. As we point out below, a failure to
warn may constitute a defect for the purposes of a products liability cause of action.
THE STATUTE OF LIMITATIONS
[Headnote 5]
In its motion for summary judgment, respondent argued that appellant's negligence and
strict liability claims were barred by NRS 11.220, which provides that [a]n action for relief,
not hereinbefore provided for, must be commenced within 4 years after the cause of action
shall have accrued. NRS 11.220 is the applicable statute for suits concerning tortious
damage to real property. Hartford Ins. v. Statewide Appliances, 87 Nev. 195, 484 P.2d 569
(1971). Respondent contends, and the district court apparently agreed, that the four-year
limitations period began to run at some time prior to appellant's discovery of the damage to
its property, although neither respondent nor the district court specified when the period
began to run.
Appellant asserts that a cause of action accrues within the meaning of NRS 11.220 at
the time the injury is discovered or becomes reasonably discoverable, rather than at the
time the damage physically occurs or begins to occur.
meaning of NRS 11.220 at the time the injury is discovered or becomes reasonably
discoverable, rather than at the time the damage physically occurs or begins to occur.
Appellant convincingly argues that in situations where the occurrence and the manifestation
of damage are not contemporaneous, a discovery rule will not only satisfy the purpose of
the statute of limitations, but will produce more equitable results than an occurrence rule.
[Headnote 6]
We have held that an action for legal malpractice does not accrue until the plaintiff
discovers, or should have discovered, all facts material to the elements of the cause of action,
including the sustaining of damages. The rationale for the rule is that a client has the right to
rely on the attorney's expertise; moreover, the injury is often to intangible property interests,
and is thus difficult to detect. Sorenson v. Pavlikowski, 94 Nev. 440, 443-44, 581 P.2d 851,
853-54 (1978). See Jewett v. Patt. 95 Nev. 246, 591 P.2d 1151 (1979). This rule was adopted
legislatively in 1981, when NRS 11.207 was enacted to limit actions against attorneys,
accountants, and veterinarians to a four-year period after the plaintiff sustains damage and
discovers or through the exercise of reasonable diligence should have discovered the material
facts which constitute the cause of action. NRS 11.207(1). See also NRS 11.190(3)(b)-(d);
NRS 41A.097(1).
Many jurisdictions have adopted a diligent discovery rule with respect to tortious
damage to property. As the Oklahoma Supreme Court noted in Smith v. Johnston, 591 P.2d
1260 (Okla. 1978), the statute of limitations is intended to run against those who fail to use
reasonable and proper diligence in the enforcement of their rights. In Smith, a homeowner had
failed to discover a hazardous condition created by a hidden defect in electrical wiring not
because he had been negligent in investigation, but because he lacked sufficient knowledge to
perceive the injury. The court held that the statute of limitations did not begin to run until the
plaintiff learned or in the exercise of reasonable diligence should have learned of the harm to
his property caused by the existence of the defect. Id. at 1263-64. Accord Regents of the
Univ. of Cal. v. Hartford Accident & Indemn. Co., 581 P.2d 197, 200 (Cal. 1978); Malesev v.
Bd. of County Road Comm'rs, 215 N.W.2d 598 (Mich.App. 1974). See Thompson v.
Nebraska Mobile Homes Corp., 647 P.2d 334, 338 (Mont. 1982).
[Headnote 7]
Respondent attempts to distinguish the cases cited by appellant on their facts, but does
note cite any authority that rejects a discovery rule for real property damage; nor does
respondent explain why this Court should not adopt such a rule.
discovery rule for real property damage; nor does respondent explain why this Court should
not adopt such a rule. We therefore hold that the term accrued, as used in NRS 11.220,
incorporates the same diligent discovery rule that is present in NRS 11.190(3), 11.207, and
41A.097. As the court said in Malesev v. Bd. of County Road Comm'rs, supra, [t]o hold
otherwise would transmute the statute from one of limitation into one of abolition. . . . Such a
result is not consonant with the legislative purpose of the statute. 215 N.W.2d at 599.
[Headnotes 8-11]
When the plaintiff knew or in the exercise of proper diligence should have known of the
facts constituting the elements of his cause of action is a question of fact for the trier of fact.
See Havas v. Engebregson, 97 Nev. 408, 411-12, 633 P.2d 682, 684 (1981); Millspaugh v.
Millspaugh, 96 Nev. 446, 449, 611 P.2d 201, 202 (1980); Golden Nugget, Inc. v. Ham, 95
Nev. 45, 48-49, 589 P.2d 173, 175-76 (1979). A litigant has the right to a trial where the
slightest doubt as to the facts exists. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260
(1981). In evaluating the propriety of a grant of summary judgment, we will review the
evidence in the light most favorable to the party against whom summary judgment was
rendered. Id.; McDermond v. Siemens, 96 Nev. 226, 607 P.2d 108 (1980).
Appellant alleged in its complaint that its predecessor in interest, Elwood Partners,
discovered the damage to the apartment complex from the defective plumbing and heating
system in December 1977. Appellant also averred that Elwood Partners represented to it
before the January 1979 sale that the only problems in the complex were minor maintenance
problems pertaining to a few insignificant leaks in the space heating and domestic hot water
system. In support of its motion for summary judgment, respondent had the burden of
showing the absence of a genuine issue of material fact as to when appellant discovered or
should have discovered the defects in the system and the resulting damage to the apartment
complex. Respondent failed to support its burden, as it argued only that the discovery rule
should not apply in Nevada. The district court therefore erred in granting the motion for
summary judgment on statute of limitations grounds.
A FAILURE TO WARN MAY BE
A PRODUCT DEFECT
In its order granting summary judgment, the district court found, inter alia, that there was
no defect in the Bell & Gossett product which was used in the plumbing system . . . [and] that
the product was not from Bell & Gossett but was through an intermediary. . . ."
an intermediary. . . . Respondent argued at the hearing and in its appellate brief that the
Monoflo fitting was not dangerous, unsafe, or defectively manufactured. It appears that
respondent did not accompany its summary judgment motion with evidence relating to the
need for a warning or the adequacy of any warnings given, although it presented evidence that
it did not in fact know of appellant's proposed use of its product. Appellant presented
evidence indicating that respondent should have foreseen the use of the Monoflo fitting in
dual systems such as appellant's.
[Headnotes 12-14]
Where the defendant has reason to anticipate that danger may result from a particular use
of his product, and he fails to warn adequately of such a danger, the product sold without a
warning is in a defective condition. Strict liability may be imposed even where the product is
faultlessly made, if it was unreasonably dangerous to place the product in the hands of the
consumer without adequate warnings concerning its safe and proper use. Outboard Marine
Corp. v. Schupbach, 93 Nev. 158, 162-63, 561 P.2d 450, 453 (1977). See General Electric
Co. v. Bush, 88 Nev. 360, 364-65, 498 P.2d 366, 369 (1972); Jacobsen v. Ducommun, Inc.,
87 Nev. 240, 484 P.2d 1095 (1971). See also Anderson v. Heron Engineering Co., 604 P.2d
674, 676 (Colo. 1979); McKee v. Moore, 648 P.2d 21, 23 (Okla. 1982). The adequacy of the
warnings provided is ordinarily a jury question. Reiger v. Toby Enterprises, 609 P.2d 402,
405 (Or.App. 1980).
[Headnotes 15, 16]
Strict liability applies to claims based on property damage as well as to personal injury
cases. See Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Rocky Mountain Fire &
Cas. Co. v. Biddulph Oldsmobile, 640 P.2d 851, 855 (Ariz. 1982). See also Local Joint Exec.
Bd. v. Stern, 98 Nev. 409, 651 P.2d 637 (1982). Strict liability may extend not only to the
dealer and retail seller of the product, but to the manufacturer of the product and the
manufacturers of its component parts. Rocky Mountain Fire & Cas. Co. v. Biddulph
Oldsmobile, 640 P.2d at 854.
As the above authorities amply demonstrate, the district court erred insofar as the grant of
summary judgment was based on the purportedly nondefective condition of the Monoflo
fittings and the presence of an intermediate party in the chain of distribution of the fittings.
THE DAMAGES ISSUE
[Headnote 17]
Respondent attempts on appeal to raise an additional argument in support of the grant of
summary judgment, by contending that appellant is seeking to recover only economic
losses rather than damages for injury to property. The district court did not rule on the issue
of damages in its order granting summary judgment. Thus, the issue is abstract and not
properly before this Court. See NCAA v. Univ. of Nevada, 97 Nev. 56, 624 P.2d 10 (1981);
Boulet v. City of Las Vegas, 96 Nev. 611, 614 P.2d 8 (1980). Cf. Sink v. School Dist. No. 6,
649 P.2d 1263 (Mont. 1982) (since trial court did not rule that plaintiff's claim for statutory
penalties was barred by statute of limitations, court's discussion of limitations issue was
gratuitous, and issue was not properly before Supreme Court).
[Headnotes 18, 19]
To guide the district court upon remand, however, we shall note that appellant alleged in
both its strict liability and negligence causes of action that the defective plumbing and heating
system caused substantial leakage of water throughout, and damage to, the apartment [sic]
within the . . . complex. The amount of property damage sustained is a question for the
finder of fact. Appellant is not seeking to recover purely economic losses, and therefore has
stated causes of action in negligence and strict liability. See Local Joint Exec. Bd. v. Stern,
supra. See also Hales v. Green Colonial, Inc., 490 F.2d 1015, 1022 (8th Cir. 1974); Russell v.
Ford Motor Co., 575 P.2d 1383, 1387 (Or. 1978).
Bell & Gossett failed to show that Oak Grove discovered or reasonably should have
discovered the damage to its property at a time more than four years before Oak Grove filed
its complaint in the instant case. Moreover, the allegation regarding Bell & Gossett's failure to
warn supplied an averment of defect adequate to support a products liability action. Bell &
Gossett was not insulated from liability by the passing of its product through an intermediary.
For all of these reasons, the district court erred in granting summary judgment to Bell &
Gossett. We therefore reverse the judgment of the district court and remand the case for
further proceedings consistent with this opinion.
____________
99 Nev. 626, 626 (1983) State ex rel. Tax Comm'n v. Saveway
STATE OF NEVADA, ex rel. NEVADA TAX COMMISSION, Appellant,
v. SAVEWAY SUPER SERVICE STATIONS, INC., Respondent.
No. 14352
August 31, 1983 668 P.2d 291
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Tax Commission appealed from a decision of the district court which enjoined
Commission from disallowing dealer deduction on motor vehicle fuel taxes or assessing any
penalty or interest against taxpayer for late filing of its fuel tax return and remittance. The
Supreme Court, Mowbray, J., held that: (1) pursuant to applicable motor vehicle fuel tax
ruling, Tax Commission properly denied dealer deduction to taxpayer on basis of its late
motor vehicle fuel tax return and remittance, and (2) statutorily mandated assessment of
interest for late filing of fuel tax return and remittance was not a penalty and therefore could
not be waived.
Reversed.
Brian McKay, Attorney General, David M. Norris, Deputy Attorney General, Carson City,
for Appellant.
Morris & Wood, Las Vegas, for Respondent.
1. Taxation.
Pursuant to applicable motor vehicle fuel tax ruling, Tax Commission properly denied dealer deduction
to taxpayer on basis of its late motor vehicle fuel tax return and remittance. NRS 365.330.
Properly adopted substantive rule establishes a standard of conduct which has force of law.
Rules adopted by an agency are binding on the agency until agency repeals them or a court declares them
invalid.
Great deference will be afforded to an administrative body's interpretation of a rule when it is within the
statutory language; moreover, legislature's acquiescence in and agency's reasonable interpretation indicates
that the interpretation is consistent with legislative intent.
5. Taxation.
Statutorily mandated assessment of interest for late filing of fuel tax return and remittance was not a
penalty and therefore could not be waived. NRS 365.340, subd. 1.
6. Taxation.
Purpose of a penalty provision for late payment of a tax is to encourage timely payment of the tax and to
punish those who do not pay on time.
7. Interest.
Even where statutory penalties are waivable, interest may not be waived.
OPINION
Respondent Saveway Super Service Stations, Inc., (Saveway) filed its June 1977 motor
vehicle fuel tax return and remittance on July 27, 1977, two days late, in violation of NRS
365.170. Because of the delinquency, the Nevada Tax Commission denied to Saveway the
two percent dealer deduction allowed by NRS 365.330, and also assessed interest against
Saveway pursuant to NRS 365.340. Saveway sought judicial review of the Commission's
action, and the district court subsequently enjoined the Commission from disallowing the
dealer deduction or assessing any penalty or interest against Saveway. We hold that the
Commission properly denied the dealer deduction pursuant to Motor Vehicle Fuel Tax Ruling
No. 1 (NAC 365.010), and that no relief may be granted from the assessment of interest. We
therefore reverse the judgment of the district court and reinstate the decision of the
Commission.
THE FACTS
Respondent Saveway is a licensed dealer of motor vehicle fuels in the State of Nevada.
Pursuant to NRS 365.170, every dealer of motor vehicle fuels in Nevada is required to file a
return and remit a motor vehicle fuel tax on or before the 25th day of the calendar month
following the month the tax liability is incurred.
For the month of June 1977, the Nevada Department of Taxation received Saveway's
return and check in the amount of $377,132.71 after the July 25, 1977, deadline. The
envelope was postmarked July 27, 1977. The Department notified Saveway on August 1,
1977, that it was being assessed $12,306.64 in penalties and interest for the late filing of its
return. The amount included the loss of the two percent dealer deduction provided by NRS
365.330(2).
Upon request, the executive director of the Department by letter waived the $300 penalty
and the interest of $3,925.26. Although he believed that Saveway had not been negligent in
the preparing and mailing of its return, the executive director did not waive the loss of the
two percent dealer discount, believing that he lacked the authority to do so.
the preparing and mailing of its return, the executive director did not waive the loss of the
two percent dealer discount, believing that he lacked the authority to do so. A Department
hearing officer upheld the executive director's decision on November 29, 1977, on the
grounds that NRS 365.330 and Motor Vehicle Fuel Tax Ruling No. 1, adopted by the Tax
Commission and effective July 24, 1970, precluded him from allowing the dealer discount
where the return was not duly and punctually rendered on or before the 25th of each month.
Saveway appealed the hearing officer's decision to the Nevada Tax Commission. After a
hearing, the Commission upheld the prior decisions in each and every respect, save and
except that portion which deals with the waiver of interest, which was reversed on the
ground that the executive director lacked the statutory authority to waive interest. While the
Commission found that the late filing was due to inadvertence on the part of the
taxpayer . . . , the Commission concluded that the staff properly disallowed the 2 percent
collection allowance because the privilege of deducting the 2 percent . . . is predicated upon
the taxpayer complying with all of the provisions of Chapter 365 which includes timely
payment. Therefore, the Commission determined that $12,766.29 was the total amount owed
by Saveway at that time, including the disallowed dealer discount ($7,696.55) and interest.
Saveway filed a complaint for judicial review of the Commission's decision. Following a
hearing on the parties' cross-motions for summary judgment, the district court granted
Saveway's motion, and enjoined the Commission from imposing penalties, interest, and
forfeiture of the dealer discount on Saveway for its alleged noncompliance with the
provisions of Chapter 365. This appeal followed.
THE DEALER DISCOUNT
[Headnote 1]
The Department of Taxation and the Tax Commission denied Saveway the two percent
dealer discount on the authority of NRS 365.330(2) and Tax Commission Motor Vehicle Fuel
Tax Ruling No. 1. NRS 365.330(2) provides as follows:
From the tax found to be due upon any statement duly and punctually rendered, the
dealer or user shall be allowed to deduct 2 percent thereof to cover the dealer's or user's
costs of collection of the tax and of compliance with this chapter and the dealer's or
user's handling losses occasioned by evaporation, spillage or other similar causes.
Motor Vehicle Fuel Tax Ruling No. 1 provides in relevant part as follows:
1. Except as provided in subsection 2, if the return, report or statement is not filed
together with a remittance for the amount of the tax due, on or before the 25th day of
each calendar month, the discount provided by NRS 365.330 will not be allowed.
2. A statement, report or return which is filed pursuant to an extension granted
under NRS 365.170 shall be deemed to be punctually rendered for the purpose of the
discount.
NAC 365.101. Appellant contends that a statement is not duly and punctually rendered if it
is not submitted by the 25th of the month pursuant to NRS 365.170,
1
and that the
Department is simply not authorized to allow the two percent deduction when the return is
untimely.
Appellant is incorrect is asserting that the statute mandates disallowance of the deduction
when the return is filed late. The statute does no more than require that the discount be
allowed when the return is timely; it is silent as to whether the Department has discretion to
allow the discount when the return is late.
[Headnotes 2-4]
However, Motor Vehicle Fuel Tax Ruling No. 1 (NAC 365.010) fills the gap in NRS
365.330, by specifying that if the return and remittance are not received on or before the
25th day of the month, and the due date is not extended under NRS 365.170, the
statutory discount will not be allowed.
____________________

1
NRS 365.170 (1975) provides in relevant part as follows:
1. In addition to any other taxes provided by law, every dealer shall, not later than the 25th day of
each calendar month:
(a) Render to the department a statement of all motor vehicle fuel sold, distributed or used by him in
the State of Nevada, as well as all motor vehicle fuel sold, distributed or used in this state by a purchaser
thereof upon which sale, distribution or use the dealer has assumed liability for the tax thereon under
NRS 365.020, during the preceding calendar month; and
(b) Pay an excise tax of 4.5 cents per gallon on all motor vehicle fuel so sold, distributed or used, in
the manner and within the time prescribed in this chapter.
. . .
3. Any report, return, remittance to cover a payment or claim for credit or refund required by this
chapter which is transmitted through the United States mail shall be deemed filed or received by the
department on the date shown by the post office cancellation mark stamped upon the envelope containing
it, or on the date it was mailed if proof satisfactory to the department establishes that such document or
remittance was timely deposited in the United States mail properly addressed to the department.
The statute was amended in 1980 to increase the amount of the tax and distinguish between petroleum-ethanol
mixtures and other motor fuel.
365.010) fills the gap in NRS 365.330, by specifying that if the return and remittance are not
received on or before the 25th day of the month, and the due date is not extended under NRS
365.170, the statutory discount will not be allowed. A properly adopted substantive rule
establishes a standard of conduct which has the force of law. State Board of Equalization v.
Sierra Pacific Power, 97 Nev. 461, 464, 634 P.2d 461, 463 (1981). See Higginson v.
Westergard, 604 P.2d 51, 54 (Idaho 1979). Rules adopted by an agency are binding on the
agency until the agency repeals them or a court declares them invalid. See Burke v. Children's
Services Div., 607 P.2d 141, 144 (Or. 1980). Saveway has not challenged the rule in question.
Even if it had, we will not readily disturb an administrative construction that is within the
language of the statute. Pub Employees' Ret. Bd. v. Washoe County, 96 Nev. 718, 615 P.2d
972 (1980). Great deference will be afforded to an administrative body's interpretation when
it is within the statutory language; moreover, the Legislature's acquiescence in an agency's
reasonable interpretation indicates that the interpretation is consistent with legislative intent.
Sierra Pacific Power v. Department of Taxation, 96 Nev. 295, 607 P.2d 1147 (1980); Oliver
v. Spitz, 76 Nev. 5, 9-10, 348 P.2d 158, 160-61 (1960). See Homewood Investment Co. v.
Moses, 96 Nev. 326, 330, 608 P.2d 503, 506 (1980). The Commission ruling in question has
been in effect since 1970, and the Legislature has not seen fit to disturb it. Under the ruling,
the Commission properly denied Saveway's request for allowance of the two percent dealer
discount for the June 1977 return that Saveway filed past the July 25 deadline.
Saveway contends that disallowance of the deduction constitutes a penalty, and that the
Department should have relieved Saveway from this penalty, pursuant to NRS 360.410(1),
2
for the same reasons that it waived the $300 penalty. In essence, Saveway argues that the
waiver of the $300 penalty implies a finding pursuant to NRS 360.410 that it was not
negligent, and that under such circumstances it is an abuse of discretion for the Department
not to waive the loss of the dealer discount.
3
Saveway cites no authority for the
proposition that failing to meet statutory criteria for an entitlement is the same as being
assessed a penalty.
____________________

2
If the department finds that a person's failure to make a timely return or payment of a tax imposed by this
Title, except for chapters 364, 366 and 371, is due to circumstances beyond his control and occurred
notwithstanding the exercise of ordinary care and in the absence of willful neglect, the department may
relieve such persons of all or part of any penalty imposed.

3
In addition, Saveway contends that no penalty may be assessed where a check given in payment of the
motor vehicle fuel tax is dated five days before the due date and, though received two days late, is duly
deposited and honored, such that the state is not materially deprived of the tax
Saveway cites no authority for the proposition that failing to meet statutory criteria for an
entitlement is the same as being assessed a penalty. Even if disallowance of the deduction
could be characterized as a penalty, Saveway fails to address the limitation on the
Department's discretion created by NAC 365.010. Pursuant to the fuel tax ruling, the
Commission properly denied the dealer deduction to Saveway on the basis of the late return.
THE ASSESSMENT OF INTEREST
NRS 365.340(1), the statute under which the Department assessed the $300 penalty (later
waived) and interest against Saveway, provides as follows:
If the amount of any excise tax for any month is not paid to the state on or before the
25th day of the next month thereafter as prescribed by this chapter, it shall become
delinquent at the close of business on that day, and a penalty of 1 percent of such excise
tax shall be added thereto for delinquency together with interest at the rate of 1 percent
per month or fraction thereof until paid; but in no case shall the penalty be less than $10
nor more than $300.
Saveway contends that the assessment of interest is in itself a penalty, and is subject to the
$300 limit. Saveway also asserts that the interest penalty should have been waived, given
the implied findings underlying the waiver of the $300 penalty.
[Headnotes 5-7]
The assessment of interest does not constitute a penalty within the meaning of NRS
365.340 and NRS 360.410. NRS 365.340 clearly distinguishes between the penalty and the
interest to be assessed against delinquent returns. See also NRS 365.350 (prosecution of
actions to collect delinquent tax, penalties and interest). The purpose of a penalty provision
for the late payment of a tax is to encourage the timely payment of the tax and to punish those
who do not pay on time. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 546
(Alaska 1978). The assessment of interest, however, has no punitive element, and is
nonpejorative; the taxpayer must pay interest on late payments for the same reason the state
must pay interest on over-payments. Id. Even where statutory penalties are waivable,
interest may not be waived. Id.; see Morrison-Knudson Co. v. State Bd. of Equalization,
135 P.2d 927, 936-37 {Wyo.
____________________
revenue. Saveway does not cite any relevant authority for this proposition, and seems to be ignoring the
mandatory language of NRS 365.340(1) (see infra). See Camden Fire Ins. Ass'n v. Johnson, 109 P.2d 447
(Cal.App. 1941); Miller Oil Co. v. Abramson, 109 N.W.2d 610, 612 (Iowa 1961); Walkemeyer v. Stevens
County Oil & Gas Co., 470 P.2d 730, 733-34 (Kan. 1970); Gooch v. Rogers, 238 P.2d 274, 287-88 (Or. 1951).
pay interest on over-payments. Id. Even where statutory penalties are waivable, interest may
not be waived. Id.; see Morrison-Knudson Co. v. State Bd. of Equalization, 135 P.2d 927,
936-37 (Wyo. 1943). Therefore, the Commission properly assessed approximately $5,000 in
interest
4
against Saveway pursuant to NRS 365.340(1) for the latter's late filing of its fuel tax
return and remittance.
Because the lateness of its return disqualified Saveway from receiving the two percent
dealer deduction, and because the statutorily mandated assessment of interest is not a penalty
and may not be waived, the district court erred in enjoining the Commission from imposing
interest and loss of the dealer discount on Saveway. We therefore reverse the judgment of the
district court and reinstate the decision of the Nevada Tax Commission.
____________________

4
This amount includes interest on the unpaid portion of the tax represented by the disallowed dealer
deduction.
____________
99 Nev. 632, 632 (1983) In re Estate of Riddle
IN THE MATTER OF THE ESTATE OF MAJOR A. RIDDLE, Deceased, ALL HEIRS IN
THE ABOVE ENTITLED ACTION EXCEPT MARION M. RIDDLE, Appellants, v.
MELVIN D. CLOSE, Jr., EXECUTOR OF THE ESTATE OF MAJOR A. RIDDLE,
Respondent.
No. 14488
August 31, 1983 668 P.2d 290
Appeal from probate orders, Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
Appeal was taken from probate orders of the district court. The Supreme Court held that
interlocutory probate orders not encompassed within rule setting forth determinations from
which, generally, appeals may be taken, were appealable only by virtue of statute under which
an appeal must be taken within 30 days of date of entry of order appealed from: however,
respondent's subsequent notice of entry of those orders had no legal effect and could not serve
to extend statutory time for appeal, and therefore because notice of appeal was filed more
than 30 days after entry of each of the orders at issue, appeal was untimely in its entirety.
than 30 days after entry of each of the orders at issue, appeal was untimely in its entirety.
Appeal dismissed.
Harding & Dawson, and James E. Smith, Las Vegas, for Appellants.
Jones, Jones, Bell, Close & Brown, Las Vegas; O'Connor, Cavanagh, Anderson,
Westover, Killingsworth & Beshears, Phoenix, Arizona, for Respondent.
Wills.
Interlocutory probate orders not encompassed within rule setting forth determinations from which,
generally, appeals may be taken, were appealable only by virtue of statute under which an appeal must be
taken within 30 days of date of entry of order appealed from; however, respondent's subsequent notice of
entry of those orders had no legal effect and could not serve to extend statutory time for appeal, and
therefore, because notice of appeal was filed more than 30 days after entry of each of the orders at issue,
appeal was untimely in its entirety. NRS 155.190; NRAP 3A(b).
OPINION
Per Curiam:
1

On May 31, 1983, this court issued an order directing the parties to file points and
authorities addressing the timeliness of this appeal. Both parties have filed responses.
A notice of appeal was filed July 30, 1982, from a series of eleven orders entered by the
district court between July 10, 1980 and December 21, 1981. The orders concerned the
disposition of the estate of Major A. Riddle.
The orders appealed from were interlocutory probate orders not encompassed within
NRAP 3A(b), which sets forth the determinations from which, generally, appeals may be
taken. These probate orders were thus appealable only by virtue of NRS 155.190,
2
under
which an appeal must be taken within thirty days of the date of entry of the order appealed
from.
____________________

1
Justice Steffen has voluntarily disqualified himself from consideration of this appeal.

2
In addition to any order or decree from which an appeal is expressly permitted by this Title, an appeal
may be taken to the supreme court within 30 days after its entry, from an order or decree:
1. Granting or revoking letters testamentary or letters of administration.
2. Admitting a will to probate or revoking the probate thereof.
thirty days of the date of entry of the order appealed from. Appellants argue, however, that the
statute must be read in conjunction with NRAP 4(a),
3
so that the time for filing a notice of
appeal did not begin to run until respondent served appellants with written notice of the entry
of the orders. We disagree.
We perceive no reason why the legislature, having granted a right to appeal where it did
not otherwise exist, should not be free to place restrictions upon the exercise of that right.
See, e.g., NRS 177.015(2) (state granted limited right to appeal from order granting or
denying a motion to suppress evidence, but notice of appeal must be filed with clerk of
district court within two judicial days).
This is not a situation where there is a conflict between a general rule of this court and a
general statute, each of which clearly applies to an appeal. See, e.g., State v. Connery, 99
Nev. 342, 661 P.2d 1298 (1983). Rather, the legislature has determined that certain probate
orders are appealable so long as the appeal is taken within thirty days after the entry thereof.
As the notice of appeal was filed more than thirty days after the entry of each of the orders
here at issue, the appeal was untimely in its entirety. Respondent's subsequent notice of entry
of those orders had no legal effect, and could not serve to extend the statutory time for appeal.
Appellants' other contentions have been considered and are without merit.
Accordingly, this appeal is dismissed.
4

____________________
. . . .
6. Directing or authorizing the sale or conveyance or confirming the sale of property.
. . . .
Respondent contends that certain of the orders appealed from were unappealable under NRAP 3A or NRS
155.190. In light of our determination that the appeal is untimely as to all of the orders, we need not address this
contention.

3
NRAP 4(a) provides, in pertinent part, that the notice of appeal in a civil case shall be filed . . . within
thirty (30) days of the date of service of written notice of the entry of the judgment or order appealed from.

4
In light of our disposition of this appeal, we need not rule on appellants' motion to supplement the record on
appeal or respondent's motion to strike appellants' brief and dismiss this appeal.
____________
99 Nev. 635, 635 (1983) Caldwell v. Consolidated Realty
ROY E. CALDWELL and PHYLLIS CALDWELL, Appellants, v. CONSOLIDATED
REALTY AND MANAGEMENT COMPANY and KAY SULLIVAN, Respondents.
No. 14399
August 31, 1983 668 P.2d 284
Appeal from money judgment following nonjury trial. Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Vendors appealed from a decision of the district court which granted judgment in favor of
real estate brokers, in suit for a commission. The Supreme Court, Mowbray, J., held that word
purchaser contained in ambiguous extension clause in real estate listing agreement, which
was meaningless as printed when read as a whole, would be construed to mean purchase so
as to give the clause a meaning that was reasonable and consistent with purposes of such
clauses; thus, brokers were not entitled to a commission where none of the parties secured
purchase of vendors' property within term of listing agreement with a subsequent 45-day
period specified in extension clause.
Reversed.
John P. Foley and Elizabeth J. Foley, Las Vegas, for Appellants.
Darrell Lincoln Clark, Las Vegas, for Respondents.
1. Brokers.
Where a broker's action to recover a commission for sale of real property is based on a listing agreement,
terms of the agreement govern broker's right to compensation.
Reviewing court is not bound by trial court's interpretation of a written agreement where court's
interpretation arose solely from four corners of the written instrument rather than from any extrinsic
evidence as to meaning of the terms used.
3. Contracts.
Any ambiguity in a written contract is to be construed against party who prepared the agreement or
selected the language used.
4. Brokers.
Where a broker has used a form listing agreement, the contract should be strictly construed against the
broker as author of the instrument.
5. Brokers.
Word purchaser contained in ambiguous extension clause in real estate listing agreement, which was
meaningless as printed when read as a whole, would be construed to mean purchase so as to give the
clause a meaning that was reasonable and consistent with purposes of such clauses;
thus, brokers were not entitled to a commission where none of the parties secured
purchase of vendors' property within term of listing agreement or a subsequent
45-day period specified in extension clause.
the clause a meaning that was reasonable and consistent with purposes of such clauses; thus, brokers were
not entitled to a commission where none of the parties secured purchase of vendors' property within term of
listing agreement or a subsequent 45-day period specified in extension clause.
OPINION
This appeal centers on the construction of an extension clause in a printed exclusive listing
agreement furnished by respondents. In an attempt to validate the clause, which is
meaningless as printed when read as a whole, we construe the word purchaser to mean
purchase, thus giving the clause a meaning that is reasonable and consistent with the
purposes of such clauses. As neither appellants nor respondents secured a purchase of
appellants' property within the term of the listing agreement or the subsequent 45-day period
specified in the extension clause, respondents are not entitled to a commission on the sale
which eventually occurred. We therefore reverse the judgment of the district court.
THE FACTS
In August 1979, the Caldwells entered into an exclusive multiple listing agreement with
respondent Consolidated Realty and Management Company (Consolidated), in an effort to
sell their bar in Henderson, the Scotch & Soda (then known as the Victory Club). The listing
agreement was to expire on December 14, 1979, but it contained the following extension
clause:
In the event a purchaser is secured by said REALTOR, his agent, or cooperating
REALTORS, brokers and agents, or anyone, including myself, during the period of this
agreement, or the subsequent 45 days; to persons with whom REALTOR has negotiated
this agreement, or offered or presented my property or who has inspected my property
during the term of this listing; I hereby agree to pay said listing REALTOR 10 percent
of the selling price, as commission, for professional services rendered.
The original listing price was $245,000.
In mid-November 1979, a broker from Consolidated and another broker, respondent Kay
Sullivan, introduced a Mr. Blackburn to the Caldwells. About three meetings took place
between the Caldwells and Blackburn with a Consolidated broker present. Two of the
meetings occurred on the same day.
Ms. Sullivan took Blackburn to see an attorney to determine whether Henderson or county
gaming laws would apply to the Scotch & Soda if it were converted to a casino. She also
made efforts to find him a potential manager for the Scotch & Soda, and took him to the bar
several times so he could evaluate the level of business.
According to Mr. Caldwell, Blackburn desired to build a casino in the Henderson area, and
would have paid $225,000 for the Scotch & Soda if he could have acquired one of the
properties adjacent to the bar for additional space. However, Blackburn did not want the
Scotch & Soda if he could not obtain one of the adjacent properties. Caldwell met with the
owners of the adjacent properties, but they refused to sell.
The three meetings arranged by Consolidated did not result in an offer during the period of
the listing. Blackburn went to Texas for Christmas, and neither Consolidated nor Sullivan had
any further dealings with him. Consolidated also had no contact with the Caldwells between
the time of the third meeting and approximately December 1st, when Mr. Caldwell notified
Consolidated that he wished to reduce the listed price to about $185,000. Caldwell also
indicated at that time that he was dissatisfied with the efforts being made to sell his property.
The Caldwells maintained a relationship with Blackburn. According to Mr. Caldwell,
Blackburn wanted him to manage whatever casino Blackburn eventually acquired in the area,
because of Caldwell's experience in the gaming business and his gaming license. Caldwell
found a 5.3 acre parcel on the Boulder Highway a short distance from the Scotch & Soda, and
Blackburn purchased it for $419,000. Caldwell also helped bring some roof beams to that
property to be used in the casino that Blackburn planned to build.
Finally, on or about February 13, 1980, Blackburn told Caldwell that because he wanted
Caldwell to help him build and manage a casino, he would take the Scotch & Soda off
Caldwell's hands for $165,000. Caldwell agreed. They consummated the sale on February 15,
and recorded the deed on April 7. Blackburn died a few months later, and his casino was
never built.
After Consolidated and Sullivan found out about the sale of the Scotch & Soda to
Blackburn, they sued the Caldwells to recover a commission on the sale. At trial, after the
close of the plaintiffs' case, the district court found no evidence of fraud or collusion, and
dismissed all causes of action other than the one based on the listing agreement itself. The
district court ultimately concluded that Consolidated and Sullivan were entitled to $16,500
plus costs and attorney's fees under the agreement, as the "procuring causes" of a ready,
willing, and able buyer within the meaning established by the contract and the case of
Humphrey v. Knobel, 7S Nev. 137
as the procuring causes of a ready, willing, and able buyer within the meaning established
by the contract and the case of Humphrey v. Knobel, 78 Nev. 137, 369 P.2d 872 (1962). The
court so concluded despite the occurrence of the sale more than two weeks after the
expiration of the 45-day extension period established by the listing agreement.
Appellants moved to alter or amend judgment or in the alternative for a new trial. The
district court denied the motion. This appeal followed.
THE LISTING AGREEMENT
[Headnotes 1-4]
Where a broker's action to recover a commission for the sale of real property is based on a
listing agreement, the terms of the agreement govern the broker's right to compensation. See
Reese v. Utter, 92 Nev. 377, 379, 551 P.2d 1099, 1100 (1976); Nollner v. Thomas, 91 Nev.
203, 207, 533 P.2d 478, 480-81 (1975). See also Di Gregorio v. Marcus, 86 Nev. 674, 677,
475 P.2d 97, 99 (1970). We are not bound by the trial court's interpretation of the listing
agreement in this case, because the court's interpretation arose solely from the four corners of
the written instrument rather than from any extrinsic evidence as to the meaning of the terms
used. See Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978); Clarkin v. Reimann, 638 P.2d
857, 863 (Hawaii App. 1981). Any ambiguity in a written contract is to be construed against
the party who prepared the agreement or selected the language used; where a broker has used
a form listing agreement, as in the instant case, the contract shall be strictly construed against
the broker as the author of the instrument. See Morgan v. Golder, 446 P.2d 948, 949
(Ariz.App. 1968); Sherman Agency v. Carey, 577 P.2d 759, 761 (Colo. 1978); Boutelle v.
Chrislaw, 150 N.W.2d 486, 492 (Wis. 1967); McCartney v. Malm, 627 P.2d 1014, 1020
(Wyo. 1981). See generally Annot., 51 A.L.R.3d 1149, 1161-65 (1973).
[Headnote 5]
Respondents contend that, under the wording of the extension clause noted above, they
were entitled to a commission so long as they secured a purchaser by negotiating with or
offering or presenting the property to the ultimate purchaser during the period of the listing
agreement or the subsequent 45 days, no matter when the sale finally occurred. The district
court adopted respondents' interpretation of the agreement, and found that respondents'
actions during the contract period satisfied the terms of the agreement.
However, when read as a whole, as printed, the extension clause lacks meaning.
clause lacks meaning. First, the portion of the clause between the semicolons has no sensible
connection with the rest of the paragraph. The fragment set off by the semicolons describes a
class of prospective purchasers,
1
and it would make no sense to secure a purchaser to a
member of this class. Secondly, if the word purchaser in the extension clause were to be
accepted and applied as printed (as respondents suggest), the clause would require a property
owner to pay a commission even when the owner, without any participation whatsoever by
the broker, secured a purchaser during the 45-day period following expiration of the listing
agreement. We cannot believe that the parties intended such a result.
Lastly, under respondents' interpretation of the extension clause wording, respondents need
only present the property to the ultimate purchaser during the term of the listing agreement to
become entitled to a commission upon the sale of the property, whether the sale occurred
during the contract term or two years later. This interpretation would allow respondents to
gain commissions from sales which are causally unrelated to the brokers' actions, and would
also seem to violate the policy underlying the requirement of NRS 645.320(2) that every
exclusive listing shall set forth in its terms a definite, specified, and complete termination.
In construing an ambiguous contract, we must seek a reasonable interpretation. Crestview
Bowl, Inc. v. Womer Construction Co., 592 P.2d 74, 79 (Kan. 1979). We should not interpret
the contract so as to render its provisions meaningless. Phillips v. Mercer, 94 Nev. 279, 282,
579 P.2d 174, 176 (1978). If at all possible, we should give effect to every word in the
contract. Royal Indemnity Co. v. Special Service Supply Co., 82 Nev. 148, 150, 413 P.2d
500, 502 (1966).
If we assume that the r in purchaser is a typographical error,
2
and we construe
purchase as synonymous with sale, the entire clause bears a reasonable meaning, and no
word or phrase need be ignored. Moreover, the clause as construed closely resembles the sort
of extension clause which commonly appears in exclusive listing agreements of this kind. See
51 A.L.R.3d at 1156, 1175-79 See also Nollner v. Thomas, 91 Nev. 203, 207 n.1, 533 P.2d
478, 480 n.1 (1975) (In case a sale is made within sixty (60) days after termination of this
listing to parties with whom said broker negotiated during its life . . . , I agree to pay said
broker the commission herein provided.").
____________________

1
Those with whom the realtor has negotiated or to whom he has presented or offered the property during the
term of the exclusive listing.

2
Given the overall quality of the form agreement in issue, we consider this assumption to be entirely
reasonable.
life . . . , I agree to pay said broker the commission herein provided.).
The purpose of an exclusive listing agreement is to secure the uninhibited assistance of a
broker in obtaining the sale or exchange of a piece of real property at acceptable terms. The
purpose of an extension clause is to protect the broker against fraudulent or unscrupulous
attempts by the property owner to escape paying the broker for his services by delaying the
time of sale. See 51 A.L.R.3d at 1175. A fixed and definite time limit also protects the
property owner, by precluding the broker from claiming a commission on any sale that occurs
after the expiration of the time limit. Our construction of the extension clause in the instant
case satisfies these purposes, gives the entire clause a reasonable meaning, and reasonably
carries out the parties' intent in entering into the exclusive listing agreement.
3

Reading the word purchaser as purchase, the extension clause establishes two
prerequisites to the broker's recovery of a commission. First, the broker must have negotiated
with or shown the property to the ultimate purchaser during the term of the exclusive listing.
Respondents satisfied this requirement by showing the Scotch & Soda to Blackburn and by
setting up the meetings between Blackburn and appellants prior to the expiration of the listing
agreement in December 1979. Second, the purchase must have been secured during the
period of the listing agreement or during the subsequent 45-day grace period. At the very
least, a purchase cannot have been secured until one of the persons listed in the
agreement has produced a buyer who is ready, willing, and able to consummate the
transaction on terms acceptable to the seller. See Estate of Greenberg v. Skurski, 95 Nev. 736,
739, 602 P.2d 178, 180 (1979); Bell v. Krupp, 86 Nev. 247, 250, 467 P.2d 1013, 1016
(1970). A less liberal reading would require that a sale or at least an agreement to sell be
executed before the expiration of the extension period. See 51 A.L.R.3d at 1175-79, 1208-10.
See also Nollner v. Thomas, 91 Nev. at 207-08, 533 P.2d at 480-81 (a broker employed for a
definite period of time to effect a sale of property must negotiate the sale within the time
fixed in the agreement to be entitled to his commission).
____________________

3
We note that our other alternative is to void the extension clause as printed. For respondents, the result in
the case at bar would be the same. Respondents complaint that our construction of the extension clause will force
realtors to prove fraud or collusion to recover commissions on sales that occur after the expiration of the
extension period. In response, we merely point out that brokers may set the duration of the extension period at
whatever length they feel is necessary to protect their interests.
In the instant case, there is no evidence indicating that Blackburn presented himself (or
was presented by anyone else) as a ready, willing, and able buyer prior to February 13, 1980,
more than two weeks after the extension period had lapsed. Thus, respondents are not entitled
to a 10 percent commission on the sale of the Scotch & Soda to Blackburn. We therefore
reverse the judgment of the district court. Given our disposition of this appeal, we need not
reach appellants' other contentions.
____________
99 Nev. 641, 641 (1983) Sealed Unit Parts v. Alpha Gamma Ch.
SEALED UNIT PARTS COMPANY, INC., Appellant, v. ALPHA GAMMA CHAPTER OF
GAMMA PHI BETA SORORITY INCORPORATED OF RENO, a Nevada Corporation,
Respondent.
No. 13570
August 31, 1983 668 P.2d 288
Appeal from default judgment, Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Defendant appealed from a default judgment entered by the district court contending that
the trial court erred in refusing to set aside an entry of default. The Supreme Court held that
the trial court abused its discretion in refusing to set aside the entry of default where the
defendant stated that it believed that its codefendant would be assuming the defense on the
defendant's behalf, the defendant promptly took steps to set aside the entry of default upon
learning of the default, the proposed answer set forth a number of defenses which, if true,
would establish a defense to the complaint and the decision prevented the merits of the
defense from being heard.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Victor Alan Perry, Reno, for
Appellant.
C. Nicholas Pereos, Reno, for Respondent.
Trial court's decision in response to motion to set aside entry of default will not be disturbed in absence
of abuse of discretion. NRCP 55(c).
2. Judgment.
Trial court abused its discretion in refusing to set aside entry of default where defendant stated that it
believed that its codefendant would be assuming defense on defendant's behalf, although there was some
delay between entry of default and motion to set it aside, defendant promptly took steps upon learning of
default, defendant's proposed answer set forth defenses which, if true, would establish a defense to the
complaint and court's decision prevented merits of defense from being heard. NRCP 55(c).
OPINION
Per Curiam:
This is an appeal from a default judgment. Appellant raises a number of issues on appeal,
including its contention that the lower court erred in refusing to set aside an entry of default.
We agree.
On April 14, 1978, a fire damaged respondent's sorority house in Reno. The cause of the
fire was allegedly traced to a defective drip-evaporation pan attached to the refrigerator in the
house.
The sorority filed suit against various parties including appellant Sealed Unit Parts
Company (SUPCO), the alleged supplier of the pan. The sorority later amended its complaint
to include Standard-Keil Manufacturing Company (Standard-Keil), the alleged manufacturer
of the part, as a party to the action.
On October 15, 1980, when SUPCO had failed to respond to the complaint, the clerk of
the lower court entered a default. It is uncontested that SUPCO did not learn of the entry of
the default until early January of 1981. It authorized counsel for Standard-Keil to move to set
aside the entry of default. This motion was filed on January 23, 1981. The motion was denied
and upon application by respondent a default judgment in the amount of $149,088 was
entered. SUPCO appeals from the judgment, and challenges the denial of its motion to set
aside the entry of default.
NRCP 55(c) authorizes a court to set aside an entry of default upon good cause shown.
This court has generally required a party moving to set aside an entry of default to make a
showing similar to that necessary to vacate a default judgment pursuant to NRCP 60(b). See
Tahoe Village Realty v. DeSmet, 95 Nev. 131, 590 P.2d 1158 (1979); Intermountain Lumber
v. Glens Falls, 83 Nev. 126, 424 P.2d 884 (1967). The good cause standard, however, may
be broader than the standard which must be met pursuant to NRCP 60(b) to vacate a default
judgment. Intermountain Lumber v. Glens Falls, supra.
[Headnote 1]
A lower court's decision in response to a motion to set aside an entry of default will not be
disturbed in the absence of an abuse of discretion. Tahoe Village Realty v. DeSmet, supra;
Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968). This court has, however, set forth certain
guides which should be considered by the lower courts in exercising their discretion. First, the
moving party must show some excuse for its failure to answer or otherwise defend; second,
there must be a showing that a meritorious defense exists to the claim for relief; and third, the
lower court should recognize that the basic underlying policy is to have each case decided on
its merits. See Tahoe Village Realty v. DeSmet, supra; Lentz v. Boles, supra; Hotel Last
Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963).
[Headnote 2]
In the present case SUPCO, by affidavit, stated that it believed its co-defendant
Standard-Keil would be assuming the defense on SUPCO's behalf. A similar understanding
has previously been accepted by this court as establishing grounds for vacating a default
judgment. See Banks v. Heater, 95 Nev. 610, 600 P.2d 245 (1979). It is true that there was
some delay between entry of the default and the motion to set it aside, and that the delay was
a relevant factor to be considered in determining whether to set aside a default. See Union
Petrochemical Corp. v. Scott, 96 Nev. 337, 609 P.2d 323 (1980). SUPCO, however, did not
learn of the default until January and promptly took steps thereafter to set aside the default.
There is no indication that SUPCO sought to delay the proceedings below.
SUPCO accompanied its motion to set aside the default with a proposed answer. The
answer set forth a number of defenses which, if true, would establish a defense to the
complaint. This satisfies the requirement that a party allege the existence of a meritorious
defense. Jenkins v. Goldwater, 84 Nev. 422, 442 P.2d (1968). See Ogle v. Miller, 87 Nev.
573, 491 P.2d 40 (1971).
Finally, the court's decision below prevented the merits of SUPCO's defense from being
heard. In light of the fact that SUPCO tendered a meritorious defense and established grounds
excusing its failure to plead or otherwise defend, we conclude that the lower court abused its
discretion in refusing to set aside the entry of default.
The default judgment is reversed and this case is remanded for further proceedings.
____________
99 Nev. 644, 644 (1983) Montesano v. Donrey Media Group
RONALD KENT MONTESANO, Appellant, v. DONREY MEDIA GROUP,
dba LAS VEGAS REVIEW JOURNAL and SUE VOLEK, Respondents.
No. 12275
September 6, 1983 668 P.2d 1081
Appeal from Order of Dismissal With Prejudice. Eighth Judicial District Court, Clark
Person mentioned in news report brought suit against newspaper and reporter for tortious
public disclosure of private facts and violation of privilege of confidentiality. The district
court dismissed plaintiff's complaint with prejudice, and he appealed. The Supreme Court,
Manoukian, C.J., held that: (1) the interests of plaintiff in privacy had faded because the
information involved had already been on public record, and (2) plaintiff's conviction for hit
and run was intimately connected to subject matter of the news story, and therefore no
actionable tort resulted from the publication.
Affirmed.
[Rehearing denied December 12, 1983]
Gunderson, J. and Zenoff, Sr. J., dissented.
Lehman and Nelson and Harold M. Hecht, Las Vegas, for Appellant.
Dickerson, Miles & Pico, Las Vegas, for Respondents.
1. Judgment.
Appellate courts rely on two factors in determining whether trial court rendered summary judgment rather
than dismissed cause for failure to state claim: first, reviewing court looks for indications that lower court
affirmatively excluded material outside pleading, and second, reviewing court looks to see whether reason
for dismissal indicates that district court did, in fact, consider matters outside complaint. NRCP 12(b),
(b)(5).
2. Judgment.
Dismissal of action was treated as summary judgment where lower court relied on matters outside
pleading when arriving at its decision to dismiss claim for relief, and trial judge transcended bare
allegations in complaint to find that as matter of law, no cause of action existed. NRCP 12(b), (b)(5).
3. Torts.
To maintain cause of action for public disclosure of private facts, one must prove that public disclosure
of private facts has occurred which would be offensive and objectionable to reasonable person of ordinary
sensibilities.
4. Torts.
There is no liability for public disclosure of private facts when defendant merely gives further publicity to
information about plaintiff that is already public.
5. Torts.
For purposes of tort of invasion of privacy, material properly contained in court's official records are
public fact.
6. Infants.
Under statute providing that name of any child shall not be published in newspaper in connection with
proceedings under Juvenile Court Act, defendant's adjudication as juvenile delinquent for hit and run
should never have been published in newspaper. NRS 62.211, subd. 3.
7. Infants.
Publication of juvenile court proceedings once defendant is older than 21 still violates statute providing
for anonymity for any child in connection with any proceedings under Juvenile Court Act, despite fact that
juvenile court loses jurisdiction over individual who is 21 years old. NRS 62.211, subd. 3.
Arguments raised for first time on appeal need not be considered.
9. Statutes.
General presumption favors prospective application of statutes.
Where statute providing that information obtained in discharge of official duty by parole and probation
officers shall be privileged was enacted two years after parole and probation report was prepared, and
legislature did not expressly provide that statute was to be given retrospective effect, statute did not operate
to make probation report privileged. NRS 213.1098.
11. Torts.
Material published by newspaper detailing offense committed by plaintiff while juvenile should have
been considered public facts, for purposes of action for invasion of privacy, where newspaper drew its
information from official court records of adult offense which contained little or no evidence that
hit-and-run conviction of plaintiff while a juvenile could not be reported. NRS 62.211, subd. 3.
12. Torts.
Passage of time since incidents reported is relevant factor, with other facts, in determining whether
publicity given to facts about individual involved matter of legitimate public concern, for purposes of tort
of invasion of privacy.
Balance between interest of free press and individual's right to privacy should be weighted in favor of
free speech when publication involves public facts which have been spread upon public record. U.S.C.A
Const.Amend. 1.
14. Torts.
Disclosure of plaintiff's conviction for hit-and-run killing of police officer in newspaper was of legitimate
public concern, and thus did not result in liability for invasion of privacy, even though publication occurred
20 years after incident reported therein, where disclosure of conviction was closely related to subject
matter of news story documenting many daily hazards which police officers face in line of duty,
disclosure of plaintiff's identity contributed constructively to impact of article by
lending specificity and credibility to report, and because all information disclosed was
contained in public records.
line of duty, disclosure of plaintiff's identity contributed constructively to impact of article by lending
specificity and credibility to report, and because all information disclosed was contained in public records.
OPINION
1

This appeal concerns the claimed tortious public disclosure of private facts. Appellant
contends that the actionable wrong resulted from the respondents' publication of his
involvement in a hit-and-run accident twenty years earlier in which a police officer was
killed. Respondents argue that because the news article was drawn from public records and
because appellant's misdeeds were directly related to a subject of current public interest, the
hit-and-run accident which occurred twenty years earlier was newsworthy at the time of
publication. Being persuaded that the interests of privacy fade when the information
involved already appears on the public record and that appellant's conviction for hit-and-run
was intimately connected to the subject matter of the news story, we conclude that no
actionable tort resulted from respondents' publication. Accordingly, we affirm the lower
court's order dismissing the complaint with prejudice.
The seed of this dispute was sown in April 1955, when a Las Vegas police officer, who
was responding to an emergency call, was killed in a collision. Appellant, Ronald Kent
Montesano, was a passenger in the car which collided with the officer's motorcycle. Both
appellant and the driver of the car in which he was riding fled the scene of the accident. At
that time, appellant was seventeen years old. He was adjudicated as a juvenile delinquent and
spent several weeks in the State Industrial School at Elko.
Appellant's criminal history did not end with the hit-and-run conviction. When appellant
was nineteen, his Las Vegas apartment was the target of a narcotics raid. As a result of the
raid, he was charged with and convicted for felony possession of marijuana. Appellant was
sentenced as an adult offender to two years at the Nevada State Prison.
On February 24, 1978, the respondents printed a story describing the recent murder of a
policeman. The newspaper article also recounted the history of Las Vegas law enforcement
officers who had lost their lives in the line of duty.
____________________

1
The Honorable David Zenoff, Senior Justice, was designated to sit in this case in the place of The
Honorable Cameron Batjer. Nev. Const., art. 6, 19; SCR 10.
officers who had lost their lives in the line of duty. The specifics of appellant's hit-and-run
conviction were detailed, as well as his conviction for possession of marijuana. Appellant was
identified by name in the article.
2

Appellant brought an action grounded on two claims for relief. First, he alleged a claim for
public disclosure of private facts. Appellant contended that the twenty year span between the
hit-and-run and the respondents' publication eroded any newsworthiness his misfortunes
may have had because during that period he married, raised a family and became a law
abiding citizen. Secondly, he alleged that the newspaper violated his statutory privilege of
confidentiality provided by NRS 62.200(3) (now NRS 62.211(3)) because he was a juvenile
when the collision occurred.
3

Respondents moved to dismiss the complaint under NRCP 12(b)(5) for failure to state a
claim upon which relief can be granted. They noted that the relevant information of
appellant's hit-and-run conviction was contained in a parole and probation report prepared
in 1955 to assist the court's sentencing decision on his possession conviction.
____________________

2
The Las Vegas Review Journal article of February 24, 1978, under the byline of Sue Volek read in pertinent
part:
[In 1966] it had been more than 11 years since motorcycle policeman Sgt. Robert Dula was struck and
killed by a car as he was rushing to an emergency call in April 1955.
Records indicate that Marlin Bray, then 16, and Ronald Kent Montesano, then 17, allegedly had
beaten a Nellis Airman at Fifth and Fremont Street. As Dula and another officer answered that emergency
call, Dula was hit by the car driven by Bray. He never regained consciousness and died after reaching the
hospital.
Police records indicate the two juveniles ran from the accident scene, later bragging about the
incident at a drive-in restaurant. The pair was arrested the following morning.
Bray and Montesano were sent to the State Industrial School at Elko but were back home on parole a
few weeks later. At that time, officials said the releases probably were made because the two had plans to
leave the state.
But exactly two years later, Montesano's Las Vegas apartment was the target of a narcotics raid. He
pleaded guilty to charges of possession of marijuana and was sentenced to two years in prison.

3
In 1955, NRS 62.200(3) provided in relevant part that:
[T]he name or race of any such child in connection with any proceedings under [the Juvenile Court
Act shall not] be published in any newspaper without a written order of the court. 1943 N.C.L. 1038.19.
In 1978, NRS 62.200(3) provided in relevant part that:
[T]he name . . . or the race of any such child in connection with any proceedings under [The Juvenile
Court Act shall not] be published in or broadcasted or aired by any news medium without written order of
the court. 1977 Nev. Stats. ch. 531 9, ch. 309 1.
probation report prepared in 1955 to assist the court's sentencing decision on his possession
conviction. Respondents alleged that the report was a matter of public court record.
Because appellant's misdeeds were of public record, respondents contended that he could not
avail himself of the protections of NRS 62.211(3), nor could he maintain an action for public
disclosure of private facts. Additionally, respondents argued that because appellant's
hit-and-run conviction was relevant to an issue of contemporary public interest, mere passage
of time did not erode the newsworthiness of appellant's criminal history.
The lower court ruled that the complaint failed to state a claim upon which relief can be
granted because no publication of private facts occurred. The complaint was dismissed with
prejudice. Appellant now challenges the lower court's ruling.
1. Standard of Review.
On appeal, respondents argue that matters outside the pleadings were attached to their rule
12(b)(5) motion which were not excluded by the court and that, pursuant to Rule 12(b), the
motion [was] treated as one for summary judgment and disposed of as provided in Rule 56. . .
. See also Cummings v. City of Las Vegas Mun., Corp., 88 Nev. 479, 499 P.2d 650 (1972);
Kellar v. Snowden, 87 Nev. 488, 489 P.2d 90 (1971). Appellant seems to contend that
because respondents did not submit any affidavits in support of their motion, the trial court
did not treat it as one for summary judgment.
[Headnotes 1, 2]
Respondents' motion was accompanied by the court records of appellant's offenses and by
a copy of the news article. Appellate courts generally rely on two factors in determining
whether a trial court rendered summary judgment rather than dismissed the cause for failure
to state a claim. First, the reviewing court looks for indications that the lower court
affirmatively excluded material outside the pleading. Lodge 1380, Broth. of Ry., etc. v.
Dennis, 625 F.2d 819, 824 (9th Cir. 1980). In the instant case, the lower court relied on
matters outside the pleading when arriving at its decision to dismiss appellant's claim for
relief. The second factor is whether the reason for dismissal indicates that the district court
did, in fact, consider matters outside the complaint. Lodge 1380, 625 F.2d at 825. Here, the
trial court found that, as a matter of law, no cause of action existed for invasion of privacy
because the facts disclosed were not private facts. This ruling indicates that the trial judge
transcended the bare allegations in the complaint and considered matters outside the
pleadings. Therefore, the dismissal of appellant's action should be treated as a summary
judgment.
dismissal of appellant's action should be treated as a summary judgment.
Appellant, however, has conceded in his opposition to the motion to dismiss and on appeal
that the relevant facts herein are undisputed. Thus, we can rule on this issue as purely a
question of law.
2. The Public Record Ground.
[Headnote 3]
This court has impliedly recognized an action for invasion of privacy in Norman v. City of
Las Vegas, 64 Nev. 38, 177 P.2d 442 (1947). In the instant case, appellant has based his
claim for relief on the fourth branch of the tort of invasion of privacy. The Second
Restatement of the Law of Torts has named that branch the tort of Publicity Given to Private
Life. Restatement (Second) of Torts 652D (1977). To maintain a cause of action for public
disclosure of private facts one must prove that a public disclosure of private facts has
occurred which would be offensive and objectionable to a reasonable person of ordinary
sensibilities. Forsher v. Bugliosi, 608 P.2d 716, 725 (Cal. 1980); Restatement (Second) of
Torts 652D (1977). At issue in the present case is whether the publicity concerned the
private, as distinguished from public life, of the appellant and whether the matter publicized
is of a kind that is not of legitimate concern to the public. See Howard v. Des Moines
Register & Tribune Co., 283 N.W.2d 289, 298 (Iowa 1979), cert denied, 445 U.S. 904
(1980).
[Headnotes 4, 5]
As noted in Comment b to Section 652D, [t]here is no liability when the defendant
merely gives further publicity to information about the plaintiff that is already public.
Accord Howard, 283 N.W.2d at 298; Winegard v. Larsen, 260 N.W.2d 816, 823 (Iowa 1977).
See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 214 (1890). The courts
have universally recognized that, for the purposes of the tort of invasion of privacy, materials
properly contained in a court's official records are public facts. Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975); Melvin v. Reid, 297 P. 91, 93 (Cal.App. 1931); Bell v. Courier
Journal and Louisville Times Co., 402 S.W.2d 84, 88 (Ky. 1966); Hubbard v. Journal
Publishing Co., 368 P.2d 147, 148 (N.M. 1962); Schnabel v. Meredith, 107 A.2d 860,
862-863 (Pa. 1954). To resolve this issue, we must determine whether the information which
the respondents printed in the Las Vegas Review Journal was properly contained in the
court's official record. See Howard, 283 N.W.2d at 299.
[Headnotes 6-10]
Section 1038.19 of the 1943 NCL provides, in relevant part, that the name or race of any
such child in connection with any proceedings under [the Juvenile Court Act shall not] be
published in any newspaper without a written order of the court. This statute or its
substantial equivalent was in effect in 1955 when the accident occurred and in 1978 when the
article was published. The records indicate that appellant was adjudicated as a juvenile
delinquent. It follows that his conviction for hit-and-run should have never been published
in a newspaper.
4
NRS 62.211(3). Nevertheless, some of the information concerning the 1955
accident found its way into a State Parole and Probation report which was prepared for the
judge who sentenced appellant on the possession charge. This information was incorporated
into official court records regarding a criminal charge for which appellant was tried as an
adult. It is the publication of this information which prompted this litigation.
5

[Headnote 11]
Although NRS 62.211(3) and its predecessors plainly state that the name of a child shall
not be published in any news medium in connection with a juvenile court proceeding, for the
purpose of this appeal, the material published by the respondents should be considered
public facts. The tort of invasion
____________________

4
Respondents contend that because a juvenile court loses jurisdiction over an individual who is 21 years old,
publication of juvenile court proceedings once the defendant is older than 21, does not violate NRS 62.211(3) or
its predecessors. Given the protective goals of NRS 62.211(3), which seek to encourage of privacy by
publication of private rehabilitation of the youthful offender, such a construction is wholly without merit.

5
Appellant's complaint did not allege NRS 213.1098 as a separate statutory claim to a privilege of
confidentiality. Nevertheless, in an over-abundance of caution, respondents addressed in their motion to dismiss
the applicability of that statute which provides that any information obtained in the discharge of an official duty
by a parole and probation officer or employee of the board shall be privileged. Appellant's Opening Brief
contends that because respondents' news article was based on information obtained in the discharge of an official
duty by a parole and probation officer or employee, the respondents violated his statutory privilege of
confidentiality. Arguments raised for the first time on appeal need not be considered. Williams v. Zellhoefer, 89
Nev. 579, 517 P.2d 789 (1973). Additionally, NRS 213.1098 was enacted in 1959, two years after the parole
and probation report was prepared. 1959 Nev. Stats. ch. 461, 17. The Legislature did not expressly provide
that the statute was to be given retrospective effect. The general presumption favors prospective application of
statutes. See Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971). Since the probation report was an
unprotected public record in 1957, NRS 213.1098 does not now operate to make the probation report privileged.
of privacy by publication of private facts pits society's interest in a free press against an
individual's right to privacy. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489 (1975).
Here, the respondents drew their information from official court records of an adult offense
which contained little or no evidence that the hit-and-run conviction could not be reported.
Penalizing the respondents for relying on such public records would do little to protect an
individual's right to privacy and would greatly hinder the media in its investigations. Because
as a free society we have an enormous public interest in a vigorous and unfettered press, we
are impelled to hold that the information contained in the court records of appellant's
possession conviction was in the public domain.
3. Legitimate Concern to the Public.
Appellant argues that, even if the information surrounding the death of the police officer
and appellant's conviction for possession of marijuana were public facts properly contained in
court records, the lapse of 20 years between the hit-and-run conviction and the publication
eroded the public nature of those facts. Specifically, appellant contends that because he has
returned to the private, lawful and unexciting life led by the great bulk of the community, the
facts and circumstances surrounding his crimes and his identity are no longer matters of
legitimate public concern.
[Headnote 12]
Comment h of Section 652D provides that:
In determining what is a matter of legitimate public interest, account must be taken of
the customs and conventions of the community; and in the last analysis what is proper
becomes a matter of the community mores. The line is to be drawn when the publicity
ceases to be the giving of information to which the public is entitled, and becomes a
morbid and sensational prying into private lives for its own sake, with which a
reasonable member of the public, with decent standards, would say that he had no
concern. The limitations, in other words, are those of common decency, having due
regard to the freedom of the press and its reasonable leeway to choose what it will tell
the public, but also due regard to the feelings of the individual and the harm that will be
done to him by the exposure. Some reasonable proportion is also to be maintained
between the event or activity that makes the individual a public figure and the private
facts to which publicity is given.
Passage of time, of course, is a relevant factor, with other facts, in determining whether the
publicity involves a matter of legitimate public concern.
facts, in determining whether the publicity involves a matter of legitimate public concern.
Restatement (Second) of Torts 652D Comment k (1977).
In Howard, supra, the Iowa Supreme Court ruled on an article which concerned the
involuntary sterilization of the plaintiff while a resident of a county home. The article was
drawn from records accessible under Iowa's Freedom of Information Act. Although it was
printed in the defendant's newspaper five years after the sterilization occurred, the publication
was held not actionable. The Howard court determined that although the defendant identified
the plaintiff by her maiden name in the article, the disclosure of the plaintiff's sterilization and
her identity were matters of legitimate public concern, i.e., they were newsworthy. The
article was published in response to the revocation of the county home's license by the State
Health Department for poor care and lax administration. Howard, 283 N.W.2d at 292. The
Iowa court found that the plaintiff's involuntary sterilization at the age of 18 was one of the
better documented examples of abuse which led to the revocation. The addition of the
plaintiff's identity to the article personalized the report of administrative excesses and lent
specificity and credibility to the article. Additionally, at the time of the publication, the
subject of involuntary sterilizations in public institutions was one of grave public interest. Id.
at 303. Thus, the Iowa Supreme Court held that [a] reasonable person could not find the
disclosure in [Howard] was not of legitimate public concern under the Restatement standard
applied in light of the First and Fourteenth Amendments. Id. at 304.
In Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963) the Delaware Supreme Court
found that the defendant's publication of the plaintiff's misfortune to be [t]he last person to
feel the lash [at the New Castle Correctional Institution in June, 1952] under Delaware's
whipping post . . ., id. at 773-774, was not an actionable wrong. Although the plaintiff was
identified by name and had, during the nine years between the whipping and the publication
returned to a blameless life as a good workman and a good family man, the Barbieri court
held that the incident was still of legitimate public concern. Id. at 775. At the time of the
publication, the subject matter of the articlethe use of corporal punishment to deter
crimewas of acute public interest because a state senator had introduced a bill which would
have made whipping mandatory punishment for certain crimes. Id at 773, 775. The plaintiff's
experience had a real bearing on the public issue, even though the court questioned the
defendant's judgment in identifying the plaintiff and not crediting him with his
rehabilitation.
questioned the defendant's judgment in identifying the plaintiff and not crediting him with his
rehabilitation. Nevertheless, the Delaware court rejected the plaintiff's argument, which was
premised on Melvin v. Reid, 297 P.91 (Cal.App. 1931), that the use of his name was
unjustified. The standard enunciated in Melvin, that the use of plaintiff's true name was
unnecessary and indelicate and a willful and wanton disregard of that charity which should
activate us in our social intercourse, Barbieri, 189 A.2d at 776, citing, Melvin v. Reid, 297
P. 91, 93 (Cal.App. 1931), was too subjective a standard to impose on a free press.
6
Thus, in
Barbieri, the publication of the plaintiff's whipping was held to be a newsworthy event and
was not actionable. Barbieri, 189 A.2d at 777. See also Hubbard v. Journal Publishing Co.,
368 P.2d 147 (N.M. 1962); Smith v. Doss, 37 So.2d 118 (Ala. 1948).
The United States Supreme Court, in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975), overturned on First Amendment grounds a Georgia statute making it a misdemeanor
to publish or broadcast the name or identity of a rape victim and held that the defendant's
publication of the rape victim's name could not support an action for invasion of privacy.
7
In
Cox Broadcasting, the Supreme Court noted that, more than any other branch of the tort of
invasion of privacy, the tort of public disclosure of private facts directly confronts the
constitutional freedoms of speech and press. This confrontation occurs [b]ecause the
gravamen of the claimed injury is the publication of information, whether true or not, the
dissemination of which is embarrassing or otherwise painful to an individual. . . . Cox
Broadcasting, 420 U.S. at 489. In recognition that the defendants obtained the victim's name
from court records, the Supreme Court stated that "even the prevailing law of invasion of
privacy generally recognizes that the interests of privacy fade when the information
involved already appears on the public record.
____________________

6
Melvin v. Reid, 297 P. 91 (Cal.App. 1931), concerned a suit for invasion of privacy brought by a former
prostitute who had been tried for murder and acquitted. After the trial, she married and lived an exemplary and
honorable life. Seven years later, the defendants distributed a film based on the plaintiff's life story which
identified her by her maiden name. The California court held that because the incidents of plaintiff's trial
appeared in the official records of the court the facts surrounding the trial were public and could not support an
action for invasion of privacy. Id at 93. Nevertheless, the court held that the use of the plaintiff's true name
coupled with those facts was not justified by any standard of morals or ethics and was a direct invasion of her
privacy. Id. Aside from the criticism of the nebulous standard employed by the Melvin court, the Melvin decision
is readily distinguishable on its facts. In Melvin, the publication was unrelated to any current issue and made in a
medium suggestive of entertainment. See Howard, 283 N.W. 2d at 302.

7
Respondents have not challenged the constitutionality of NRS 62.211(3).
court records, the Supreme Court stated that even the prevailing law of invasion of privacy
generally recognizes that the interests of privacy fade when the information involved already
appears on the public record. The conclusion is compelling when viewed in terms of the First
and Fourteenth Amendments and in light of the public interest in a free press. Id. at 494-495.
(Emphasis added.) Following the Cox Broadcasting decision, the Kansas Supreme Court
rejected the test of current newsworthiness which required a case by case evaluation of the
current public interest where the facts published are public facts concerning a present or
former public official. The Kansas court reasoned that [s]uch a test would impose an
intolerable burden on the press to publish at the peril of having its news judgment later
declared faulty in an action for damages. Rawlins v. Hutchinson Publishing Co., 543 P.2d
988, 996 (Kan. 1975).
8

[Headnote 13]
The balancing process inherent in the Restatement test is more responsive to the
conflicting interests of a free press and an individual's right to privacy than the absolute
position adopted by the Kansas Supreme Court. Nevertheless, in light of the Supreme Court's
holding in Cox Broadcasting and the fact that the purpose of this tort is to protect an
individual against unwarranted publication of private facts, the balance should be weighted in
favor of free speech when the publication involves public facts which have been spread upon
a public record.
9
The case relied on by the appellant, Briscoe v. Reader's Digest Ass'n, 483
P.2d 34, 57 ALR3d 1 (Cal. 1971), was issued before the Supreme Court's opinion in Cox
Broadcasting.
____________________

8
Although Cox Broadcasting concerned a publication of a public fact contemporaneously with the rape trial,
[t]here can be no doubt that one quite legitimate function of the press is that of educating or reminding the
public as to past history, and that the recall of former public figures, the revival of past events that once were
news, can properly be a matter of present public interest. Prosser, Privacy, 48 Cal.L.Rev. 383, 418 (1960),
quoted with approval in, Werner v. Times-Mirror Co., 14 Cal.Rptr. 208, 212 (Cal.App. 1961).

9
In Cox Broadcasting, the Supreme Court stated its reluctance to embark on a course that would make
public records generally available to the media but forbid their publication if offensive to the sensibilities of the
supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the
public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely
lead to the suppression of many items that would otherwise be published and that should be made available to
the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability
for truthfully publishing information released to the public in official court records. Id., 420 U.S. at 495-496.
was issued before the Supreme Court's opinion in Cox Broadcasting. In Briscoe, the
California court added the weight of the state's interest in the integrity of the rehabilitative
process along with an individual's interest in privacy to tip the balance in favor of prohibiting
the identification of a reformed criminal. Briscoe, 483 P.2d at 40. Although California's
interest in the rehabilitation and reformation of the criminal is strong, it is no greater than
Georgia's interest in protecting rape victims from untoward publicity and encouraging
reporting and prosecution of rapes which the Supreme Court held in Cox Broadcasting was
overshadowed by the First Amendment.
[Headnote 14]
In the instant case, the disclosure of appellant's conviction for hit-and-run was closely
related to the subject matter of the news story. It documented the many daily hazards which
police officers face in the line of duty. The killing of police officers is a subject of grave
public interest and, unfortunately, was an item of current public concern because of the recent
murder of a police officer. The history of police fatalities in the City of Las Vegas was of
equal legitimate public interest. While serving an appropriate news function, the disclosure of
the appellant's identity contributed constructively to the impact of the article. It lent
specificity and credibility to the report and strengthened the accuracy of the public perception
of the gravity of the problem. Because all the information disclosed was contained in public
records, we hold that a reasonable person could not find that the disclosure in this case was
not of legitimate public concern under the Restatement standard applied in the light of the
First and Fourteenth Amendments. This is so even though the publication occurred 20 years
after the incident reported therein. See Howard, 283 N.W.2d at 303-304. Therefore, the lower
court's summary judgment and order dismissing appellant's complaint with prejudice is
affirmed.
Springer and Mowbray, JJ., concur.
Most respectfully, I must dissent.
The majority appear to understand that, pursuant to the balancing test articulated by the
Restatement of Torts, the trier of factthe jury, not this courtshould normally decide
whether referring to appellant by name constituted a tortious invasion of his right of privacy.
Nonetheless, in this instance, the majority have elected to decide the issue as one of law, in
favor of respondents Donrey Media Group and the Las Vegas Review-Journal.
In this case as in others, however, I believe we should apply the law as delineated in the
Restatement, and should allow appellant to have his day in court.
Zenoff, Sr. J., dissenting:
The majority's espousal of the sacred rights of speech, press and religion is shared by
everyone, and no one has a corner on America's devotion to those freedoms of the First
Amendment, but since its inception, and longer, the courts have maintained boundaries
beyond which some expressions become unlawful invasion of privacy.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997 (1974), cited in the majority
opinion, said there is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advance society's interests in uninhibited,
robust and wide open' debate on public issues. (Emphasis added.)
Here, the news article centered on the killing of policemen in the line of duty, which in
turn was sparked by the recent murder of a law officer. The policeman in our case was killed
in a traffic accident. That Montesano was a passenger in the car which collided with the
motorcycle officer speeding in answer to a call was coincidental. He was not chasing the car
in which Montesano was riding; the death was not a criminal murder.
The majority opinion scarcely brushes the commitment of the state of Nevada that the state
will help a youngster in his attempts to correct the error of his ways. Confidentiality by statute
of juvenile offenses and probation reports are promises with a purpose, i.e., to provide
incentive that if a youngster or culprit will straighten out and clean up his life, the state will
give the security that his past offenses will be behind him and not used as a cloud over him or
his family forever.
Cox, cited by the majority, involves a case then in progress. Montesano's offense was over
twenty years old, and by the time the article was written was old news. Usually, time erodes a
public figure status. Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 99 S.Ct.
2701 (1979). The accident was old, was unrelated to the point of the news article and the
identity of the appellant was irrelevant to the story. Gertz, supra; Wolston, supra; Briscoe v.
Reader's Digest Association, Inc., 483 P.2d 34 (Cal. 1971). Major incidents may bring lasting
notoriety to some criminals, but most criminal incidents are of public interest for a short
while only, and then slip into obscurity. As to those, publication of an ex-offender's name
serves no useful purpose.
Appellant should be permitted to present his case to a jury to decide: (a) his public figure
status at the time of the publication of the article; (b) whether respondents acted in a reckless
disregard for the harm that might ensue; and (c) to determine the extent of Montesano's
damages, if any.
____________
99 Nev. 657, 657 (1983) In re Ross
In the Matter of JOHN TOM ROSS and
PETER FLANGAS, Attorneys at Law.
No. 11114
September 12, 1983 668 P.2d 1089
Applications for review of Decision and Recommendation of Board of Bar Governors,
in Bar disciplinary proceedings.
Disciplinary proceeding was brought. The Supreme Court, 656 P.2d 832, dismissed all
charges on the grounds that due process rights of attorneys charged had been violated during
proceedings. Bar prosecutor filed petition for rehearing containing new allegation and seeking
to determine whether dismissal barred further proceedings. The Supreme Court held that: (1)
petition for rehearing did not direct court's attention to controlling matter overlooked or
misapprehended in original opinion, and therefore request for rehearing was denied, and (2)
dismissal of disciplinary proceedings barred further proceedings.
On Petition for Rehearing, rehearing denied.
John D. O'Brien, President, State Bar, Las Vegas; and Kent Robison, Reno, for State Bar.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas; and Robert A. Grayson, Carson City,
for John Tom Ross.
David Goldwater, and Peter L. Flangas in proper person, Las Vegas, for Peter L. Flangas.
Petition for rehearing filed by bar prosecutor in disciplinary proceeding did not direct court's attention to
any germane legal or factual matter previously relied upon by him and overlooked in the court's original
opinion, and therefore rehearing was denied.
99 Nev. 657, 658 (1983) In re Ross
2. New Trial.
Litigant may not raise new legal points for first time on rehearing.
3. New Trial.
Petition for rehearing may not be utilized as vehicle to reargue matters considered and decided in court's
initial opinion; rather, petition should, in concise and nonargumentative manner, direct attention to some
controlling matter which court overlooked or misapprehended.
Dismissal of disciplinary proceedings by Supreme Court barred further proceedings, where it seemed
inevitable that defenses would be raised that would not be satisfactorily resolved in state court, such as
breach of confidentiality and other prejudicial practices, and where attorneys against whom further
proceedings were contemplated had been subject to inflammatory and unfair publicity for almost a decade.
OPINION ON PETITION FOR REHEARING
Per Curiam:
As set forth in our original opinion, a number of charges of professional misconduct were
initiated before the Board of Bar Governors, accusing petitioners Ross and Flangas of
conspiring in diverse ways with another attorney and with District Judge Richard Waters. See
In re Ross, 99 Nev. 1, 656 P.2d 832 (1983). Following an extensive and costly, but
unproductive investigation, a week-long hearing was held before the Board of Governors.
The Board then ascertained and expressly found that there was neither evidence to
substantiate any of several charges of conspiracy and related impropriety involving Judge
Waters and the aforesaid attorneys, nor evidence of an alleged political plot against Judge
Waters' successor. Accordingly, the Board of Governors acknowledged to us in its
recommendations that these charges, which formed the basis for the Bar's inquiry in the first
instance, lacked merit as to all three accused attorneys.
Nonetheless, in its recommendations the Board of Governors requested us to impose
disciplinary sanctions on Ross and Flangas, including assessment of the entire costs of the
aforesaid investigation and hearing. In justification, the Board tendered factual findings that
Ross and Flangas had in certain respects not been truthful, when responding to the probes
instituted on the strength of the initial suspicions. In our decision, however, we determined
that all charges against Ross and Flangas should be dismissed, because proceedings against
them had been conducted in a manner derogating their constitutional rights to due
process of law.1 See Nev. Const., art. 1, S; U.S. Const., amend.
99 Nev. 657, 659 (1983) In re Ross
had been conducted in a manner derogating their constitutional rights to due process of law.
1
See Nev. Const., art. 1, 8; U.S. Const., amend. XIV, 1. The Bar prosecutor has filed a
petition for rehearing.
[Headnotes 1-3]
Upon review of the petition for rehearing, we find it does not direct our attention to any
germane legal or factual matter, previously relied upon by the Bar prosecutor, which was
overlooked in our original opinion. Under our established practice, a litigant may not raise
new legal points for the first time on rehearing. Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313
(1972); In re Lorring, 75 Nev. 334, 349 P.2d 156 (1960). Nor may a petition for rehearing be
utilized as a vehicle to reargue matters considered and decided in the court's initial opinion.
Gershenhorn v. Stutz, 72 Nev. 312, 306 P.2d 121 (1957). Instead, in a concise and
non-argumentative matter, such a petition should direct attention to some controlling matter
which the court has overlooked or misapprehended. Id.
We deem it essential to notice one particularly inappropriate argument, tendered by the
petition for rehearing. For the first time, the bar prosecutor has contended that there was,
indeed, substantial evidence of the alleged conspiracies between the deceased district judge,
Ross, and Flangas. We must observe that this assertion, which received substantial attention
in the press, is totally without merit. It is also highly unfair and insensitive to the surviving
family of a well respected and now deceased judge. The argument is not only tendered for the
first time on rehearing; in addition, as we have noted, it is contrary to explicit findings of the
Bar Governors. Moreover, by this argument the Bar prosecutor seeks to contradict his own
concession to this court on October 19, 1978, whereby the prosecutor acknowledged that the
third attorney charged in regard to the alleged conspiracies should be dismissed from these
proceedings because the prosecutor felt unable to question the correctness of the Bar
Governors' factual findings.
____________________

1
Unfortunately, bar counsel appears to have misperceived the thrust of our opinion. It is suggested that
somehow our decision calls into question the integrity of the elected members of the Board of Governors or their
commitment to sworn duty. We therefore emphasize that our decision neither deprecates the Board of
Governors nor questions the bona fides of their actions. As stated in our original opinion, it should be stressed
that we are dealing here not with a charge of actual bias, but with a challenge to a procedure as presenting a
constitutionally unacceptable potential for bias, based upon the premise that any tribunal permitted by law to try
cases and controversies not only must be unbiased but also must avoid even the appearance of bias.' In re Ross,
supra, 99 Nev. at 13, 656 P.2d at 839-40.
99 Nev. 657, 660 (1983) In re Ross
All other contentions are equally inappropriate and without merit. We adhere to our view
that the proceedings against petitioners Flangas and Ross denied them due process of law, in
derogation of both the Constitution of the United States and the Constitution of the State of
Nevada. Accordingly, the request for rehearing must be denied.
[Headnote 4]
Bar counsel has asked us to clarify whether or not new proceedings against Flangas and
Ross might be instituted, presumably premised on contentions as to their untruthfulness. Our
response is that our dismissal in this matter, was, and is, intended as a bar to further
proceedings. We note that this ruling is predicated, in part, on the tortured and unfortunate
history of this matter. Due to that history, it seems inevitable that in any further proceedings
petitioners would raise various defenses which would not be amenable to satisfactory and
final resolution within the court system of Nevada. Among the more serious of these are
contentionsconsideration of which has been deferred by the Ninth Circuit Court of
Appealsthat the breaches of confidentiality mentioned in our original opinion, as well as
other prejudicial practices, have tainted petitioners' prospects for fair treatment in our state
courts.
2

Moreover, what this court has said in other disciplinary matters is applicable to the instant
case. To the extent that petitioners' asserted lack of candor in defending themselves may have
warranted punishment, retribution has already been exacted, albeit improperly and
unlawfully. See in Re Reno, 57 Nev. 314, 330, 64 P.2d 1036, 1041 (1937); Flanders v. State
Dep't of Commerce, 87 Nev. 303, 486 P.2d 499 (1971). Although these professional persons
were entitled to confidential proceedings conducted with decorum, and consistently with a
presumption of innocence, it is clear that they have been subjected to an extensive amount of
improper, inflammatory, unfair and concerted public obloquy. Again, we emphasize that we
in no way suggest that any of the Bar Governors intentionally played a culpable role in the
aforesaid practices. Nonetheless, a price of substantial dimension has already been exacted
from said petitionerswho have been the subject of this extra-legal torment for almost a
decade.
____________________

2
See Flangas v. State Bar of Nevada, 655 F.2d 946 (1981). On application of petitioner Flangas, the United
States District Court for the District of Nevada heretofore enjoined further proceedings before this court. The
Ninth Circuit Court held, in effect, that this and other claims relating to petitioners' civil rights were prematurely
raised in federal court, but that after exercise of state remedies petitioners might return to federal court if
dissatisfied with their treatment in state tribunals.
99 Nev. 657, 661 (1983) In re Ross
Accordingly, the said proceedings in all respects should be, and hereby are, dismissed with
prejudice.
3

Springer, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
Chief Justice Noel E. Manoukian is disqualified in this matter, Justice John C. Mowbray has voluntarily
recused himself. Pursuant to order entered by the former Chief Justice, Senior Justice David Zenoff has been
assigned to participate in the court's deliberation and determination of this matter. See Nev. Const., art. 6,
19(1)(a) and 19(1)(c), and SCR 10.
____________
99 Nev. 661, 661 (1983) Barren v. State
ANTHONY BARREN, Appellant, v. THE STATE
No. 13222
September 27, 1983 669 P.2d 725
Appeal from judgment of conviction of murder, robbery, and burglary, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
Defendant was convicted in the district court of murder, robbery, and burglary and he
appealed. The Supreme Court, Gunderson, J., held that: (1) evidence sustained finding that
defendant's statement was admissible, but (2) where State seeks to establish guilt on a theory
of aiding and abetting, the indictment must specifically allege that defendant aided and
abetted.
Conviction of burglary, affirmed; convictions of murder and robbery, reversed and
remanded.
Frank J. Cremen and James O. Porter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney; and James
Tufteland and Randall Weed, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Evidence sustained finding that defendant's statements were not induced by promise of leniency or by
defendant's expectation that he was being interviewed solely as a witness.
2. Criminal Law.
When State seeks to introduce a statement obtained from a defendant by the police, State must
demonstrate by preponderance of the evidence that defendant's alleged waiver of his
Fifth and Sixth Amendment rights was knowing and voluntary.
defendant by the police, State must demonstrate by preponderance of the evidence that defendant's alleged
waiver of his Fifth and Sixth Amendment rights was knowing and voluntary. U.S.C.A.Const. Amends. 5, 6.
3. Criminal Law.
Where police officer told defendant that the crimes involved were felonies and that anyone involved
could be tried as a principal, defendant's subsequent statements were not inadmissible on the theory that
they were induced by his expectation that he was being interviewed solely as a witness.
Where prosecution seeks to establish a defendant's guilt on a theory of aiding and abetting, the indictment
should specifically allege that the defendant aided and abetted and should provide additional information as
to the specific acts constituting the means of the aiding and abetting so as to afford the defendant adequate
notice to prepare his defense; overruling McWilliams v. State, 87 Nev. 302, 486 P.2d 481.
5. Criminal Law.
Indictment which charged defendant with murder, robbery and burglary but which did not charge him as
an aider and abettor did not give defendant sufficient notice as to the offenses of murder and robbery where
it was not until immediately prior to opening statements that prosecution indicated that it might be
contending that defendant was responsible as an aider and abettor.
OPINION
On the morning of June 18, 1979, Rose Licker Shapiro was found unconscious in her
North Las Vegas house trailer, severely beaten about the face and head. Some ten days later,
she died in the hospital from her injuries. Police initially made little headway in the
investigation of the Shapiro homicide; their identification of the killer came as a result of
information supplied by appellant Anthony Barren.
On July 20, 1979, appellant Barren was in the North Las Vegas Jail on unrelated burglary
charges which the investigating officer decided did not warrant prosecution. Following
Barren's release from custody, the officer took him into the detective bureau to discuss the
possibility of appellant joining the military. As they conversed, appellant suddenly
volunteered that the officer was the only cop that had treated him nice, and, evidently
motivated by regard for the officer, appellant then offered to reveal who had murdered an
old lady in a house trailer in North Las Vegas.
The first officer immediately contacted Officer King, the detective assigned to the
Shapiro case.
detective assigned to the Shapiro case. King took appellant to an interview room and read
him his Miranda rights. After talking with appellant to determine whether his information
was worth pursuing, King decided to record the interview. When recording equipment was
secured, King again advised appellant of his Miranda rights, and the interview proceeded.
In his recorded statement, appellant recounted in considerable detail events surrounding
the Shapiro beating. Appellant told King that on the evening of June 17, he and a Peter Dyer
had left their boxing class and gone to the Shapiro trailer with the intention of burgling that
residence. Appellant remained in the screened porch area, while Dyer broke into the trailer
where it seems he unexpectedly found Shapiro at home. Although appellant had not entered
the trailer's interior, he looked through a window and was surprised to see Dyer pummeling
Shapiro. At this point, he became frightened and knocked on the window, yelling to Dyer to
stop. Appellant then ran from the scene and only later met Dyer at his home. Thus, it would
seem from appellant's story that he had never agreed Shapiro should be physically abused in
any way, and that he arguably had withdrawn from the burglary scheme before Dyer
administered the fatal blows.
Following the interview with King, appellant agreed to assist police by wearing an
electronic eavesdropping device and initiating a conversation with Dyer. The contents of this
conversation substantiated the story appellant had told to Officer King. In addition, appellant
took a polygraph examination, which corroborated his story.
Although appellant clearly had been involved in a burglary, he was not arrested after his
interview with King. Instead, appellant was released and driven home by King in accordance
with an earlier offer by the detective. He subsequently cooperated with the police in every
possible way. Although King sought prosecution of Dyer for the Shapiro murder on July 23,
1979,
1
it was not until some three weeks later, on August 15, 1979, that King submitted a
request for the prosecution of appellant.
Appellant ultimately was charged with murder, robbery and burglary, and, at trial, his
recorded statements were admitted over timely objection. He was convicted on all three
counts and this appeal followed
____________________

1
Dyer was subsequently convicted of first-degree murder, robbery and burglary. See Dyer v. State, 99 Nev.
422, 663 P.2d 699 (1983).
ADMISSIBILITY OF APPELLANT'S STATEMENTS
[Headnote 1]
On appeal, appellant renews objections made during trial that his statements to Officer
King were involuntary and inadmissible. He contends they were impermissibly induced by a
promise of leniency or by the expectation that he was being interviewed solely as a witness.
In response, the State argues that appellant was not in custody at the time he made the
statements to King, and that consequently the protections afforded by Miranda and its
progeny do not apply. We need not address the State's argument because, assuming arguendo
that appellant was actually in custody when he made statements to King, the trial court found
the statements were not induced either by a promise of leniency or by appellant's expectation
that he was being interviewed solely as a witness. We decline to disturb that ruling.
[Headnote 2]
When the State seeks to introduce a statement obtained from a defendant by the police, the
State must demonstrate, by a preponderance of the evidence, that the defendant's alleged
waiver of his fifth and sixth amendment rights was knowing and voluntary. Laursen v. State,
97 Nev. 568, 634 P.2d 1230 (1981); Scott v. State, 92 Nev. 552, 554 P.2d 735 (1976).
However, where the trial court's determination that a defendant was not improperly induced
to make the statement is supported by substantial evidence, as it seems to be here, such a
finding will not be disturbed on appeal. Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977).
If appellant's statements had been induced by a promise of leniency, they arguably would
have been inadmissible. See Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732 (1980). It
appears, though, that the alleged promise of leniency to which appellant draws attention can
be viewed as no more than an innocuous and ambiguous comment by Officer King that
appellant would be going home. King made this statement in the context of an offer to
drive appellant home, which he subsequently honored. From independent review of the
record, we are satisfied the district court's determination that Officer King's statements were
not an offer of leniency is supported by substantial evidence. Although another judge might
have viewed the evidence differently, we will not disturb this finding on appeal.
[Headnote 3]
Appellant's alternative argumenti.e., that his statements are inadmissible because they
were induced by an expectation he was being interviewed solely as a witnessis also
without merit.
he was being interviewed solely as a witnessis also without merit. Officer King testified
that, before taking appellant's statement, he expressly told appellant the crimes involved were
felonies, and that anyone involved could be tried as a principal. King also testified he
informed appellant that he was a suspect. This evidence, which the district court was entitled
to credit, contradicts appellant's contention that he was induced to believe he was being
interviewed solely as a witness.
SUFFICIENCY OF THE INDICTMENT
Appellant was charged by grand jury indictment. He now challenges the indictment's
sufficiency, arguing it failed to provide adequate notice of the offenses charged so as to
enable him to prepare an adequate defense. The indictment was worded, in pertinent part:
COUNT IMurder
[Appellant] did then and there, without authority of law and with malice
aforethought, wilfully and feloniously kill ROSE LICKER SHAPIRO, a human being,
by striking the said ROSE LICKER SHAPIRO repeatedly about the head with an
unknown object.
COUNT IIRobbery
[Appellant] did then and there wilfully, unlawfully and feloniously take personal
property belonging to ROSE LICKER SHAPIRO, to-wit: lawful money of the United
States, from the person of ROSE LICKER SHAPIRO, or in her presence, by means of
force or violence or fear of injury to, and without the consent and against the will of the
said ROSE LICKER SHAPIRO.
2

On its face, the indictment thus alleges that appellant was responsible for the victim's
death because he personally struck her, and committed robbery by personally taking Shapiro's
property from her person or presence by force or fear. Nothing in the indictment indicates
either that a third party, Dyer, inflicted the beating which resulted in Shapiro's death, or that
Dyer took Shapiro's property from her person or presence by force or fear. As a result, the
language of the indictment gives no indication that the State was proceeding on any other
theory than that of appellant's direct, personal commission of the criminal acts alleged.
Despite the wording of the indictment, at trial the State presented little or no evidence that
appellant struck the victim or took property from her presence by force or fear.
____________________

2
Appellant does not challenge the sufficiency of the related burglary count. Accordingly, we do not address
the question of whether the burglary indictment was defective.
took property from her presence by force or fear. Instead, the State appears to have proceeded
primarily on a theory of vicarious liability, arguing that appellant was guilty of murder and
robbery on the basis of acts committed by Dyer to further a mutual plan to burgle Shapiro's
residence. Thus, appellant maintains there is a fatal variance between the evidence presented
at trial and the indictment, without adequate evidence being adduced to show that appellant
personally committed the acts charged.
In regard to this contention, we must note initially that this court has previously upheld a
quite similar indictment against a challenge like that now advanced by appellant. In
McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971), by brief per curiam opinion, we
found an indictment charging robbery sufficient where the evidence at trial established only
that the defendant had aided and abetted another in the commission of the crime. We noted:
One who aids or abets another in the commission of a felony shall be proceeded
against and punished as a principal. . . . Accordingly, the charge was permissible and,
since the proof established that the accused was concerned in the acts charged as an
offense, the verdict may stand. . . .
Id. at 303.
3

Under McWilliams, then, the defendant who aids and abets another in the commission of
an offense may be charged as a principal, and an indictment charging the defendant
personally committed the acts constituting the charged offense is sufficienteven though the
evidence adduced at trial establishes only that the defendant aided and abetted another. There
are decisions of other jurisdictions in accord. See People v. Bohmer, 120 Cal.Rptr. 136
(Cal.App. 1975) cert. den. 423 U.S. 990, 96 S.Ct. 402 (1975); State v. Smolin, 557 P.2d 1241
(Kan. 1976); People v. Scheidt, 513 P.2d 446 (Colo. 1973); State v. Capitan, 494 P.2d 443
(Or.App. 1972). See generally 2 C.E. Torcia, Wharton's Criminal Procedure (12th ed. 1975)
284.
On the other hand, the continued use of such indictments is not consistent with other
holdings of this court in regard to conclusionary indictments.
____________________

3
This result arguably gains support from NRS 195.020, which defines principal as follows:
Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether
he directly commits the act constituting the offense, or aids and abets in its commission, and whether
present or absent; . . . is a principal, and shall be proceeded against and punished as such. . . .
conclusionary indictments. For example, when an indictment charges that a defendant aided
and abetted another in the commission of a crime, this court has held the indictment must
provide sufficient information as to the acts of the defendant which constituted the aiding
and abetting, so that the defendant may adequately prepare his defense. In Sheriff v. Standal,
95 Nev. 914, 604 P.2d 111 (1979), this court reviewed an indictment which alleged that a
defendant had aided and abetted another in the commission of a crime, but which failed to
allege any facts in regard to the aiding and abetting allegation. We declared such a
conclusory indictment inadequate, noting: The state apparently contends that respondent's
course of conduct makes her guilty of aiding and abetting. We see no reason why the state
cannot set forth the course of conduct with reasonable clarity in the indictment. Id. at 917.
More recently, in Lane v. Torvinen, 97 Nev. 121, 624 P.2d 1385 (1981), we held that:
Specifically, an indictment alleging that a defendant aided and abetted the commission of a
crime must provide information as to the acts performed by the defendant. Id. at 123. Our
decision in Lane v. Torvinen was in part based upon applicable statutory law. NRS
173.075(1) expressly provides that an indictment shall be a plain, concise and definite
written statement of the essential facts constituting the offense charged. NRS 173.075(2)
requires the indictment to include either the means by which the offense was accomplished,
or to show that such means are unknown.
The precedents of this jurisdiction thus present an odd dichotomy in regard to the
sufficiency of indictments. Under our terse, per curiam holding in McWilliams, an indictment
charging an aider and abettor with the direct personal commission of the offense is adequate
even if the evidence later presented at trial tends only to prove that the defendant aided and
abetted. However, under Standal, an indictment specifically alleging that the defendant aided
and abetted another must provide information as to the specific acts which constituted the
aiding and abetting. The result is that a defendant charged as an aider and abbettor, who has at
least been apprised of the prosecution's general theory of the case, in entitled to still more
informationwhile an aider and abbetor charged as a principal, who has not been informed
of the prosecution's theory of the case and who thus has a greater need, is not entitled to any
clarifying information whatsoever.
Clearly our precedents now lead to anomalous and illogical results, and, in the instant case,
it appears the appellant may have fallen victim to the basic danger that insufficient
indictments create. Appellant was forced to proceed to trial with no direct notice whether
the prosecution would attempt to prove that appellant personally struck the fatal blows,
or would instead try to show he was for other reasons vicariously liable for Dyer's actions.
direct notice whether the prosecution would attempt to prove that appellant personally struck
the fatal blows, or would instead try to show he was for other reasons vicariously liable for
Dyer's actions. Even during trial, the State was apparently uncertain as to its theory of the
case. At one point, the State offered testimony from appellant's boxing coach in an apparent
attempt to imply that Shapiro's injuries had been caused by someone with appellant's boxing
and punching abilities; however, ultimately the State seemed to fall back on an unpleaded
theory of vicarious liability.
Although any prosecutor might well desire the luxury of having an option not to reveal his
or her basic factual theories, and wish for the right to change the theory of a case at will, such
practices hardly comport with accepted notions of due process. As we observed in Simpson v.
District Court, 88 Nev. 654, 503 P.2d 1225 (1972):
The indictment under consideration would allow the prosecutor absolute freedom to
change theories at will; it affords no notice at all of what petitioner may ultimately be
required to meet; thus, it denies fundamental rights our legislature intended a definite
indictment to secure. . . .
Id. at 661.
[Headnote 4]
Accordingly, we now hold that where the prosecution seeks to establish a defendant's guilt
on a theory of aiding and abetting, the indictment should specifically allege the defendant
aided and abetted, and should provide additional information as to the specific acts
constituting the means of the aiding and abetting so as to afford the defendant adequate notice
to prepare his defense.
4
See Sheriff v. Standal, 95 Nev. 914; Lane v. Torvinen, 97 Nev. 121.
To the extent this holding is inconsistent with McWilliams v. State, that case is hereby
overruled.
REDUCED STANDARD OF REVIEW
Despite the conclusion reached in the preceding analysis, the State argues that even if there
was a variance between the indictment in this case and the proof presented at trial, the
variance did not result in a denial of due process.
It is true that appellant did not challenge the sufficiency of the indictment prior to trial. We
have previously held: An element of waiver is involved, when an accused proceeds to trial
without challenging the indictment.
____________________

4
As pointed out in Simpson v. State, 88 Nev. at 658 n. 4, NRS 175.075(2) allows flexibility in pleading when
the evidence is unclear as to the means by which a crime has been committed.
An element of waiver is involved, when an accused proceeds to trial without
challenging the indictment. Thereafter, he should not be heard to complain if the
indictment, with the Grand Jury transcript, gave notice of what later transpired at trial;
and to determine this, we can examine the trial transcript also.
Simpson v. District Court, 88 Nev. at 661: see also Logan v. Warden, 86 Nev. 511, 471 P.2d
249 (1970). Further, in State v. Jones, 96 Nev. 71, 605 P.2d 202 (1980), addressing an
allegation of variance made after all the evidence was adduced, this court commented that
such an eleventh hour challenge, after the close of all the evidence, belies any claim of
prejudice. . . . Id. at 74.
[Headnote 5]
Nevertheless, despite this reduced standard of review, we conclude in the instant case that
appellant did not have sufficient notice as to the offenses of murder and robbery, and that he
may have been substantially prejudiced as a result. Cf. State v. Jones, 96 Nev. at 74. In
reaching this conclusion, we have carefully reviewed the record presented on appeal, which
includes the trial and grand jury transcripts. We find it particularly significant that although
the grand jury transcript contained some evidence (of questionable admissibility) suggesting
appellant might have struck the fatal blows, it was not until the day of trial that the
prosecution filed a motion in limine asking the court to preclude appellant from introducing
the statements in which this evidence was contained. In effect, the prosecution managed to
conceal its primary theory until the day of trial, revealing only immediately prior to opening
statements that it might be contending appellant was responsible as an aider and abettor.
Furthermore, even after trial commenced, the prosecution seemed to vacillate in its theory of
the case, presenting testimony of appellant's boxing coach as previously described. Finally,
we note appellant's respected counsel asserts that uncertainty concerning the State's theories
prejudiced his ability to present to the jury his own theories as to appellant's withdrawal from
the burglary scheme, prior to the murder and robbery. This seems not entirely implausible.
In sum, given the record, and given appellant's entitlement to a presumption of innocence
on the murder and robbery charges, we are unable to conclude that the indictment's
insufficiency was non-prejudicialeven when the indictment is tested by a reduced standard.
As previously noted, appellant has neither questioned the sufficiency of the burglary
indictment, nor challenged the burglary conviction obtained by virtue of the indictment.
sufficiency of the burglary indictment, nor challenged the burglary conviction obtained by
virtue of the indictment. Accordingly, we take no action concerning appellant's burglary
conviction. On the basis of the preceding analysis, however, we reverse and remand
appellant's convictions of murder and robbery.
Manoukian, C.J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
99 Nev. 670, 670 (1983) Alford v. Harold's Club
LORETTA SUE ALFORD; STELLA M. COLAGIOVANE-ARCHULETA; JUDY GISLER;
SHARON LEE; SHANNON O'ROARK; PATRICIA A. SEAMAN; DEBBIE WOLLAND;
RUTH NEIGHOFF; SUSAN M. GAW; and CAROL BRATCHER, Appellants, v.
HAROLDS CLUB, HUGHES PROPERTIES, INC., SUMMA CORPORATION,
Respondents.
No. 13420
September 27, 1983 669 P.2d 721
Appeal from involuntary dismissal pursuant to NRCP 41(b); Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Employees sought to recover against their employer, a casino operator, for allegedly
violating a statutory prohibition by imposing tip-pooling arrangement upon them. The district
court entered involuntary dismissal of complaint, and employees appealed. The Supreme
Court, held that: (1) statute prohibiting an employer from taking all or part of any tips or
gratuities bestowed on employees did not operate to prohibit employer from unilaterally
imposing a tip-pooling agreement on employees as a condition of their employment as long
as employer did not retain any part of the tips for its own use or reap any direct benefit from
the pooling, and (2) there was insufficient evidence on which to submit remaining claims for
wrongful termination, intentional infliction on emotional distress, fraud, conversion, and
conspiracy to blacklist.
Affirmed.
Davenport & Perry, Reno, for Appellants.
McDonald, Carano, Wilson, Bergin, Bible, Frankovich & Hicks, Reno, for Respondents.
Michael J. Morrison, Reno, for Nevada Trial Lawyers Association, Amicus Curiae.
1. Labor Relations.
Statute prohibiting an employer from taking all or part of any tips or gratuities bestowed on employees
did not operate to prohibit employer from unilaterally imposing a tip-pooling agreement on employees as a
condition of their employment as long as employer did not retain any part of the tips for its own use or reap
any direct benefit from the pooling. NRS 608.160.
2. Trial.
A defense motion for involuntary dismissal admits the truth of the plaintiff's evidence and all inferences
that reasonably may be drawn therefrom. NRCP 41(b).
3. Trial.
The evidence on a defense motion for involuntary dismissal must be interpreted in a light most favorable
to the plaintiff. NRCP 41(b).
4. Labor Relations.
Employer, a casino operator, had right to impose a tip-pooling policy as a condition of employment, and
thus employees were not wrongfully terminated when they refused to comply with such legitimate
employment policy and had no grounds to recover for intentional infliction of emotional distress, fraud, or
conversion.
5. Appeal and Error; Conspiracy.
Evidence of events which occurred after employees filed complaint against employer, a casino operator,
for conspiracy to blacklist was admissible as evidence of a continuing conspiracy and, though its exclusion
may have been error, that error was not a basis for obtaining reversal on conspiracy claim when there still
would have been insufficient evidence upon which to submit case to jury.
6. Conspiracy.
Claim which employees filed against the employer, a casino operator, for conspiracy to blacklist was not
supported by sufficient evidence.
OPINION
Per Curiam:
The instant case presents an appeal from the involuntary dismissal of appellant employees'
suit alleging a casino employer improperly imposed a tip-pooling agreement in violation of
NRS 608.160, a provision restricting an employer's access to employees' tips and gratuities.
We hold that the district court correctly concluded that NRS 608.160 does not prohibit an
employer from requiring employees to enter into a tip-pooling arrangement such as that
imposed in the instant case. We also hold that the district court correctly determined that
there was insufficient evidence to support appellants' related claims for wrongful termination,
intentional infliction of emotional distress, fraud, conversion, and conspiracy to blacklist
appellants from the gaming industry. Accordingly, we affirm the district court's involuntary
dismissal of appellants' complaint pursuant to NRCP 41{b).
court's involuntary dismissal of appellants' complaint pursuant to NRCP 41(b).
This controversy was triggered by a change in employment policy instituted by respondent
Harolds Club on January 15, 1980. Prior to that date, Harolds Club allowed its casino dealers
to keep tips or gratuities awarded them individually by customers. On January 15, Harolds
Club instituted an employment policy change and ordered dealers to pool their tips and
divide them evenly with other dealers working the same shift. The casino did not retain any
part of the pooled tips, although Harolds Club later conceded that as a result of the change it
reaped collateral benefits of higher employee morale and lower employee turnovers. Harolds
Club was apparently the last of the large casinos in northern Nevada to institute such a
pooling policy, which apparently brought the casino into conformity with general gaming
industry practice throughout the state.
The change in policy and the business reasons behind it were explained to employees prior
to each of the three shifts working on January 15. A number of employees had heard rumors
about the impending change and, after consulting with counsel, decided to refuse to comply
with the new policy. Nine of the ten appellants accordingly refused to comply with the new
policy, and in the period between January 15, 1980 and January 17, 1980, each of these
employees was fired for refusing to comply with Harolds Club's pooling policy.
1

Less than two weeks after the first terminations, appellants filed suit claiming wrongful
termination, intentional infliction of emotional distress, fraud, conversion, and conspiracy to
blacklist appellants from the gaming industry. Appellants also alleged Harolds Club's
tip-pooling policy violated NRS 608.160, a statute which restricts an employer's access to tips
and gratuities awarded employees. At trial, the district court concluded that Harolds Club's
tip-pooling policy did not violate NRS 608.160, and that there was insufficient evidence of
intentional infliction of emotional distress, fraud or conspiracy to blacklist appellants from
the gaming industry to present the case to the jury. Accordingly, the district court dismissed
appellants' suit pursuant to an NRCP 41(b) motion.
TIP POOLING AND NRS 608.160
The underlying issue presented in this appeal is whether NRS 608.160 bars Harolds Club
from imposing a tip-pooling policy as a condition of employment.
____________________

1
One of the appellants apparently resigned of her own accord rather than await termination.
as a condition of employment. The statute in question provides:
1. It is unlawful for any person to:
(a) Take all or part of any tips or gratuities bestowed upon his employees.
(b) Apply as a credit toward the payment of the statutory minimum hourly wage
established by any law of this state any tips or gratuities bestowed upon his employees.
2. Nothing contained in this section shall be construed to prevent such employees
from entering into an agreement to divide such tips or gratuities among themselves.
On its face, NRS 608.160 prohibits an employer from taking all or part of any tips or
gratuities bestowed on his employees. The statute conditions this prohibition, however, by
providing that it shall not be construed to prevent employees from agreeing to divide tips
among themselves. The issue which must be addressed in the resolution of this appeal is
whether NRS 608.160 prohibits the employer from unilaterally imposing a tip-pooling
agreement on employees as a condition of their employment, even though the employer does
not retain any part of the tips for his own use or reap any direct benefit from the pooling.
We have not had occasion to address whether NRS 608.160 bars an employer from
imposing a tip-pooling agreement. However, in Moen v. Las Vegas International Hotel, Inc.,
402 F.Supp. 157 (D.Nev. 1975), aff'd, 554 F.2d 1069 (9th Cir. 1977), the court addressed an
employee challenge to a tip-pooling policy similar to the one presented in the instant case.
The court conducted an extensive review of the legislative history of NRS 608.160 and prior
related legislation, and concluded: The evident purpose and proper interpretation of the
statute is that it was enacted to prevent the taking of tips by an employer for the benefit of the
employer. 402 F.Supp. at 160. Based on this construction of the statute, the district court
concluded that NRS 608.160 did not bar the employer from imposing a tip-pooling agreement
among employees as a condition of employment. Id.
[Headnote 1]
Although this court is not bound by a federal district court's interpretation of a Nevada
statute, we believe that the interpretation advanced in Moen is, in light of the legislative
history and well established and commonly known Nevada employment practices, the correct
one. Accordingly, the district court did not err when it found that NRS 608.160 did not
prohibit Harolds Club from imposing a tip-pooling policy in the instant case.
Harolds Club from imposing a tip-pooling policy in the instant case.
INVOLUNTARY DISMISSAL UNDER NRCP 41(b)
Appellants also maintain that the district court erred in granting Harolds Club's motion for
involuntary dismissal pursuant to NRCP 41(b)
2
on their claims for wrongful termination,
intentional infliction of emotional distress, fraud, conversion and conspiracy to blacklist
appellants from the gaming industry. This argument is without merit.
[Headnotes 2, 3]
The standard of review applicable to an involuntary dismissal under NRCP 41(b) is well
established. A defense motion for involuntary dismissal pursuant to NRCP 41(b) admits the
truth of the plaintiff's evidence and all inferences that reasonably may be drawn therefrom,
and the evidence must be interpreted in a light most favorable to the plaintiff. Baley &
Selover v. All Amer. Van, 97 Nev. 370, 373, 632 P.2d 723 (1981); Humboldt Basin
Newspapers v. Sunderland, 95 Nev. 794, 797, 603 P.2d 278 (1979).
[Headnote 4]
After reviewing the record presented on appeal, we find that even when the evidence
presented is viewed in a light most favorable to appellants, the district court did not err in
concluding appellants had failed to prove a sufficient case for the matter to go to the jury. See
NRCP 41(b). As discussed above, the district court correctly concluded that Harolds Club had
the right to impose a tip-pooling policy as a condition of employment. Given that Harolds
Club had the right to insist on its employees' participation in a tip-pooling arrangement, it is
difficult to see how appellants could have been wrongfully terminated when they refused to
comply with such a legitimate employment policy. The same conceptual difficulty undercuts
appellants' claims for intentional infliction of emotional distress, fraud, and conversion.
____________________

2
NRCP 41(b) provides, in pertinent part:
After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury. Unless
the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join
a party under Rule 19, operates as an adjudication upon the merits.
[Headnotes 5, 6]
Further, the district court did not err in dismissing appellants' claim for conspiracy to
blacklist. As previously noted, appellants' claim of a past and continuing conspiracy to
blacklist was filed less than two weeks after they were terminated. At trial, appellants
attempted to prove the existence of a conspiracy by offering evidence of events which
occurred both before and after the complaint was filed. However, the district court excluded
the evidence of events which occurred subsequent to the filing of the complaint. Although the
district court may have erred in excluding evidence of events occurring after the complaint
was filed which were offered as evidence of a continuing conspiracy, (see Cornwell Quality
Tools Co. v. C.T.S. Company, 446 F.2d 825 (9th Cir. 1971), cert. den., 404 U.S. 1049, 92
S.Ct. 715 (1972)), the court expressly stated that even had this proffered evidence been
admitted, there still would have been insufficient evidence to submit the case to the jury. We
have reviewed the record presented, which includes lengthy offers of proof concerning the
events occurring after the complaint was filed, and conclude that there was insufficient
evidence of a conspiracy presented. The district court therefore did not err in refusing to
submit the case to the jury.
Those other issues raised by appellants have been considered, and are without merit. As
we conclude the district court did not err in concluding that NRS 608.160 did not bar Harolds
Club from instituting the challenged tip-pooling policy, and did not err dismissing appellants'
related claims for wrongful termination, intentional infliction of emotional distress, fraud,
conversion, and conspiracy to blacklist, we affirm the decision of the district court.
____________
99 Nev. 675, 675 (1983) Stewert v. American Bumper
NEIL K. STEWERT, Appellant, v. AMERICAN BUMPER COMPANY,
INC., and FAIRWAY CHEVROLET COMPANY, Respondents.
No. 14233
September 27, 1983 669 P.2d 253
Appeal from dismissal of third party complaint pursuant to NRCP 41(b); Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
Suit arose out of vehicular accident in which horse trailer pulled by pickup truck driven
by the appealing defendant separated from the truck, crossed highway median and struck
automobile in which injured plaintiffs were riding.
pulled by pickup truck driven by the appealing defendant separated from the truck, crossed
highway median and struck automobile in which injured plaintiffs were riding. The seller of
the pickup tuck and the manufacturer of a bumper thereon were dismissed as defendants
before trial by the district court and the defendant pickup operator appealed. The Supreme
Court held that testimony to support finding that chain was attached to pickup bumper
manufactured by second defendant permitted inference that chain was secured to bumper by
safety loop which pulled loose after ball trailer hitch failed, and there was error in pretrial
dismissal of pickup seller and the bumper manufacturer.
Reid & Alverson, Las Vegas, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings; Keefer, O'Reilly & Haight, Las Vegas,
for Respondents.
Products Liability.
In suit arising after horse trailer pulled by pickup truck driven by one defendant separated from truck,
crossed highway median and struck automobile in which injured plaintiffs were riding, testimony to
support finding that chain was attached to pickup bumper manufactured by second defendant permitted
inference that chain was secured to bumper by safety loop which pulled loose after ball trailer hitch failed,
and there was error in dismissal of pickup seller and the bumper manufacturer. NRCP 41(b).
OPINION
Per Curiam:
This action arises out of a vehicular accident in which a horse trailer pulled by a pickup
truck driven by appellant Stewert separated from the truck, crossed a highway median, and
struck an automobile in which the injured plaintiffs were riding.
The appeal is brought by Stewert contending that the trial judge improperly dismissed two
of his co-defendants, respondents American Bumper Company, Inc. and Fairway Chevrolet
Company.
American Bumper manufactured the bumper to which the runaway trailer was claimed to
be hitched. Fairway was the seller of the pickup. Stewert claims that there is a sufficient case
to hold American Bumper and Fairway on theories of strict liability and warranty and that it
was improper for the trial court to dismiss them as defendants under NRCP 41(b).
A motion for involuntary dismissal under NRCP 41(b) admits the truth of the
non-moving party's evidence and all inferences that reasonably may be drawn therefrom,
and the evidence must be interpreted in a light most favorable to the non-moving party.
admits the truth of the non-moving party's evidence and all inferences that reasonably may be
drawn therefrom, and the evidence must be interpreted in a light most favorable to the
non-moving party. See Baley & Selover v. All Amer. Van, 97 Nev. 370, 632 P.2d 723 (1981);
Humboldt Basin Newspapers Inc. v. Sunderland, 95 Nev. 794, 603 P.2d 278 (1979).
Using this standard, the jury reasonably could have found the following: Fairway sold the
pickup to Stewert's principal, Nevada Rock and Sand Company, and that Fairway had
installed on the pickup a bumper manufactured by American Bumper. The bumper came
equipped with a safety loop designed for the attachment of a safety chain between truck and
trailer. There was no direct evidence that on the day of the accident the chain was in fact
secured to the safety loop; however, since there was testimony to support a finding that the
chain was attached to the bumper, it could reasonably be inferred that the chain was secured
to the bumper by the safety loop. When the ball trailer hitch failed and the trailer was joined
to the truck only by a safety chain, the safety loop pulled loose and freed the trailer so that it
crossed the median, striking plaintiff's car.
There are many other possible inferences that can be drawn from the evidence in this case,
but there is certainly ample evidence to support the foregoing inferences. Such inferences
could reasonably have been drawn by a jury; consequently, the trial court erred in dismissing
respondents.
The case is reversed and remanded.
1

____________________

1
Justice Thomas L. Steffen has voluntarily recused himself in this matter.
____________
99 Nev. 677, 677 (1983) Transamerica Ins. Co. v. C. B. Concrete Co.
TRANSAMERICA INSURANCE COMPANY, Appellant, v. C. B.
CONCRETE COMPANY, a Nevada Corporation, Respondent.
No. 14400
September 27, 1983 669 P.2d 246
Appeal from an order granting summary judgment; Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Bonding company appealed from an order of the district court granting summary judgment
in favor of plaintiff and awarding plaintiff prorata entitlement to company's bond.
awarding plaintiff prorata entitlement to company's bond. The Supreme Court held that
company could not be said to have had such notice of plaintiff's claim as to preclude its good
faith payment of an earlier judgment and consequent extinction of its bond liability, even if
service of process on the commissioner of insurance which allegedly took place prior to
company's payment of its bond constituted notice to company of plaintiff's claim, since such
service by itself did not notify company of the claim until the forwarded process was
received.
Reversed.
Cromer, Barker, Michaelson, Gillock & Rawlings, Las Vegas, and Ken Bick, Reno, for
Appellant.
Hill, Cassas, deLipkau & Erwin, and Frank Thompson, Reno, for Respondent.
A surety is not a trustee for all claimants and is not under a duty to ascertain identities of all present and
possible future claimants in order to insure that a prorate distribution is made.
If a claimant seeks to enjoy proceeds of a bond established for his benefit, it is incumbent upon claimant
to affirmatively assert his rights to that bond; if he does not do so and a surety, in good faith and without
knowledge of competing claimants, exhausts its liability under the bond by paying only those claimants that
are known to it, its liability is extinguished. NRS 624.273, subds. 4, 7.
Bonding company could not be said to have had such notice of plaintiff's claim as to preclude its good
faith payment of a judgment to another party and consequent extinction of its bond liability, even if service
of process on commissioner of insurance which allegedly took place before company paid full amount of
its bond liability constituted notice to company of plaintiff's claim, since company had to actually be
notified of plaintiff's claim, and service to commissioner of insurance by itself did not notify company of
the claim until forwarded process was received. NRS 624.273, subds. 4, 7.
OPINION
Per Curiam:
The facts of this case are quite simple: Transamerica wrote a contractor's license bond in
the sum of $5,000.00 for B.J.A. Development Corporation. On February 20, 1981, Cain and
Milner, dba Commercial Colour, obtained a judgment against B.J.A. Development and
Transamerica for $5,230.63. On May 1, 1981, Transamerica paid on the judgment the full
amount of its bond liability, $5,000.00. On the same day respondent C. B.
Concrete, another claimant against B.J.A. Development, served process on Transamerica by
delivering a copy of a summons and complaint on the state insurance commissioner.
1
Such
process is complete when a copy is mailed by certified mail to the entity served. NRS
680A.260(2). The record is silent as to when on May 1st the commissioner was served and as
to when service was complete by the required mailing. It is also silent as to what time of day
payment was made to the judgment creditors. It is not known whether payment was made
before or after completion of service. Transamerica did not receive the summons and
complaint until May 7, 1981.
On the basis of the foregoing facts both Transamerica and C. B. Concrete moved for
summary judgment. The trial court granted C. B. Concrete's motion and awarded $3,249.46
as C. B. Concrete's pro-rata entitlement to the $5,000.00 bond sum. Transamerica appeals.
The trial court based its ruling on a finding that service of process on the commissioner of
insurance constituted notice to Transamerica of C. B. Concrete's claim. Even if the service of
process on the commissioner placed Transamerica on notice of C. B. Concrete's claim, since
the record does not disclose whether service was complete before the payment of the
$5,000.00 bond, the court erred in granting a summary judgment to C. B. Concrete.
The trial court also erred in not granting summary judgment to Transamerica because, on
the above facts, Transamerica is entitled to judgment as a matter of law whether or not
service was completed prior to payment. It is clear from the record that Transamerica was not
put on notice of C. B. Concrete's claim prior to its payment of $5,000.00 on the judgment and
the consequent exhaustion of the $5,000.00 bond limit.
NRS 624.273(7) provides that claims against a bond have equal priority and that if the
bond is insufficient to pay all claims in full, claims must be paid pro-rata.
[Headnotes 1, 2]
A bonding company can hardly be expected to pay claimants whose claims are not known
to it. A surety is not a trustee for all claimants and is not under a duty to ascertain the
identities of all present and possible future claimants in order to insure that a pro-rata
distribution is made.
____________________

1
NRS 680A.250(1) requires all foreign insurance companies that conduct business within the State of
Nevada to appoint the commissioner of insurance as its attorney to receive service of legal process issued
against the insurer in this state. A claimant is precluded from accomplishing service of process on a foreign
insurer in any other manner. NRS 680A.250(3). Upon receipt of such service, the commissioner is required to
forward a copy of the legal process to the insurer by certified mail. Service of process is not complete until the
copy has been so mailed. NRS 680A.260(2).
of all present and possible future claimants in order to insure that a pro-rata distribution is
made. If a claimant seeks to enjoy the proceeds of a bond established for his benefit, it is
incumbent upon the claimant to affirmatively assert his rights to that bond. If he does not do
so and a surety, in good faith
2
and without knowledge of competing claimants, exhausts its
liability under the bond by paying only those claimants that are known to it, its liability is
extinguished. Southern Surety Co. v. Bender, 180 N.E. 198 (Ohio Ct.App. 1931).
[Headnote 3]
Even if it were established that service of process of the C. B. Concrete claim was
completed before the $5,000.00 payment on the judgment was made, Transamerica cannot be
said to have had such notice of the C. B. Concrete claim as to preclude its good faith payment
of the judgment and consequent extinction of its bond liability. Transamerica must actually be
notified of C. B. Concrete's claim. Although service of process properly forwarded by the
commissioner of insurance may be sufficient to initiate legal proceedings against the insurer,
such service by itself does not notify the insurer of the claim until the forwarded process is
received.
The point has been considered by other courts. In Home Life Ins. Co. v. Requeira, 243,
So.2d 460 (Fla.App. 1970), cert. denied, 248 So.2d 170 (1971), the Florida Court of Appeals
discussed a resident agent statute similar to Nevada's. In Home Life a beneficiary of a life
insurance policy served copies of a summons and complaint on the state treasurer, ex officio
the insurance commissioner. Pursuant to Florida law, a copy of the summons and complaint
was to be promptly forwarded by certified mail to the out-of-state insurance carrier. Instead of
sending the complaint to the carrier, it was mistakenly sent to plaintiff's attorney.
Subsequently a default judgment was entered against the insurance company when it failed to
appear. On appeal the court stated that since there was not strict compliance with the
provisions of the statute there was insufficient service of process. The Florida court pointed
out that the central purpose of service of process is notice and the aim of a service of process
statute is in the receipt of the process. The court stated on page 461:
But forwarding isn't the gravaman or aim of a service of process statutereceipt is.
This is because, as we noted in a very similar, though not controlling case . . . the
essential purpose of process is notice, . . .; and there can be no notice in the legal
sense without receipt of process.
____________________

2
NRS 624.273(4) mentions payment in good faith as a condition of reducing bond liability.
notice in the legal sense without receipt of process. Oftentimes, of course,
circumstances defy ready delivery and receipt of process, hence the necessity for
statutes providing for substituted or constructive service thereof; but by strict
compliance with prescribed forwarding procedures in such cases the contemplated
receipt is rendered reasonably likely, thus satisfying due process. Indeed, receipt may
often be presumed, (citation omitted). It follows, therefore, that notice, as contemplated
by service of process, must be equated with, or predicated upon, actual or presumed
receipt of such process, not upon transmittal thereof. Stated otherwise, the formalities
of forwarding are not to accomplish forwarding itself, but rather are intended to
reasonably assure receipt.
(Emphasis added.)
It is unquestioned that Transamerica did not receive the summons and complaint until May
7, six days after it paid the $5,000.00 and exhausted its bond liability. Therefore it did not
have notice of the C. B. Concrete claim when it paid the proceeds of the bond to Commercial
Colour on May 1. There is nothing in the record to suggest that Transamerica acted other than
in good faith in paying out its full bond liability. Transamerica is entitled to judgment as a
matter of law; let judgment be entered accordingly.
Reversed.
____________
99 Nev. 681, 681 (1983) Kluttz v. Warden
JAMES R. KLUTTZ, Appellant, v. WARDEN,
No. 14533
September 27, 1983 669 P.2d 244
Appeal from order denying petition for post-conviction relief, First Judicial District Court,
The district court denied post-conviction habeas corpus petition, and petitioner appealed.
The Supreme Court held that prosecutor, in advising sentencing judge that state had entered
into plea bargain without knowledge of all salient facts, implicitly sought sentence in excess
of that agreed to and violated spirit of plea bargain.
Thomas E. Perkins, State Public Defender, Carson City, and Norman Y. Herring, Special
Deputy Public Defender, Incline Village, for Appellant.
Brian McKay, Attorney General, Brooke A. Nielsen, Deputy Attorney General, and Dan R.
Reaser, Deputy Attorney General, Carson City, for Respondent.
1. Criminal Law.
In determining whether prosecution has fulfilled its part of plea bargain, prosecution is held to most
meticulous standards of both promise and performance.
2. Criminal Law.
Although prosecutor did not expressly violate plea bargain, he implicitly sought sentence in excess of that
agreed to in bargain and violated spirit of bargain by advising sentencing judge that state had entered into
plea bargain without knowledge of all salient facts.
OPINION
Per Curiam:
This is an appeal from an order denying appellant Kluttz's post-conviction habeas corpus
petition. Kluttz contends that the state breached a plea bargain made by the parties. We agree
and therefore reverse and remand.
In July, 1981, Kluttz was arraigned in district court on an information charging him with
possession of a stolen motor vehicle, burglary of a vehicle, and carrying a concealed weapon.
At that time the parties informed the court that they had entered into a plea bargain. Under the
terms of the bargain, Kluttz had agreed to plead guilty to possession of a stolen motor vehicle.
In exchange, the state had agreed to dismiss the other charges in the information, and to seek
a prison sentence of no more than two years. Kluttz then entered his plea pursuant to his
bargain with the state.
At the sentencing hearing, held in August, 1981, the following exchange occurred between
the prosecutorMr. Dinningand the court:
MR. DINNING: If your Honor please, the bargaining in this case was reached upon
reliance that the State had on what was at that time a fairly naked record. We had no
idea what the various prior felony and misdemeanor convictions [were] of what [sic]
the defendant has been punished in various jurisdictions, including that of Alabama
where he now says he wishes to return.
The prosecutor then detailed appellant's prior criminal record until interrupted by the Court:
THE COURT: Mr. Dinning, I know all these things are in the report, and I just hate
toI don't know what the purpose of your argument is if you feel you're bound by plea
bargaining.
MR. DINNING: My feeling is, your Honor, that
THE COURT: I just don't want us to get into any more trouble than
MR. DINNING: Very well. He ought to be sentenced to a period of incarceration in
the Nevada State Prison, and I would recommend, pursuant to the bargain, two years.
At the conclusion of the sentencing hearing, the court sentenced Kluttz to six years in state
prison.
In April, 1982, Kluttz filed a post-conviction habeas corpus petition, alleging that the
prosecutor had breached the plea bargain. Following an evidentiary hearing, the court denied
the petition, concluding that the prosecutor had complied with the plea bargain. This appeal
followed.
Kluttz contends that the prosecutor breached the plea bargain by stating to the sentencing
judge that at the time the plea bargain was made, the state was not aware of all of the facts
concerning Kluttz's prior criminal record. Kluttz argues that in making this statement, the
prosecutor was implicitly expressing the state's dissatisfaction with the plea bargain, and was,
in substance, seeking a prison sentence in excess of two years. Kluttz recognizes that the
prosecutor ostensibly recommended a two year sentence, but notes that the prosecutor made
this recommendation only after in effect being told to be quiet by the sentencing judge.
The state contends that the prosecutor did not breach the plea bargain, because that bargain
only required the prosecutor to recommend a two year sentence. The state suggests that the
prosecutor's comments regarding Kluttz's prior criminal record were proper because the
prosecutor could have believed that argument of these aggravating circumstances was
tactically necessary to insure imposition of the entire two year term bargained for in the
negotiations.
[Headnote 1]
In determining whether the prosecution has fulfilled its part of a plea bargain, the
prosecution is held to the most meticulous standards of both promise and performance.
Gamble v. State, 95 Nev. 904, 604 P.2d 335 (1979). Matter of Palodichuk, 5S9 P.2d 269
{Wash.Ct.App.
589 P.2d 269 (Wash.Ct.App. 1978) illustrates the application of this rule. There, the parties
entered a plea bargain in which the prosecutor agreed to recommend a probation term of four
years. The prosecutor then learned new facts concerning the accused's prior parole history. At
the sentencing hearing, the prosecutor recommended a probation term of four years, but stated
to the trial court that in light of the newly learned facts, he had second thoughts about the
recommendation. The court held that the prosecutor's less than wholehearted support . . . for
the plea bargain constituted a breach.
[Headnote 2]
This case is indistinguishable from Palodichuk, which we have decided to follow. Like the
prosecutor in that case, the prosecutor here did not expressly violate the plea bargain.
Nevertheless, in advising the sentencing judge that the state had entered into the plea bargain
without knowledge of all of the salient facts, the prosecutor implicitly was seeking a sentence
in excess of two years. The vice in the state's conduct was not that it mentioned Kluttz's prior
criminal record, see Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983), but its insinuation
that the plea bargain should not be honored. The prosecutor's comments to the district judge,
quoted above, simply do not support the state's present contention that the prosecutor was
merely trying to insure imposition of a two year sentence.
As in Palodichuk, the state here violated the spirit of the plea bargain. See State v.
Sodders, 633 P.2d 432 (Ariz.Ct.App. 1981). Accordingly, we reverse and remand to the
Second Judicial District Court, with instructions to resentence Kluttz before a different judge.
____________
99 Nev. 684, 684 (1983) Housewright v. Lefrak
VERNON G. HOUSEWRIGHT, Appellant v.
EDWARD GARY LEFRAK, Respondent.
No. 14435
September 27, 1983 669 P.2d 711
Court, Clark County; Michael J. Wendell, Judge.
Director of state Department of Prisons appealed from an order of the district court
granting habeas petitioner's post-conviction petition. The Supreme Court held that: (1)
petitioner waived any right to challenge validity of detainer where after filing of detainer he
made voluntary request for temporary transfer of custody to California, where charges
were pending, and {2) it is only when one state officially requests another state to act on
detainer, by filing request for temporary custody to obtain involuntary transfer of prisoner
under Article IV of interstate agreement on detainers that approval of governor or other
executive authority of demanding state is necessary as procedural safeguard attendant to
extradition proceedings.
after filing of detainer he made voluntary request for temporary transfer of custody to
California, where charges were pending, and (2) it is only when one state officially requests
another state to act on detainer, by filing request for temporary custody to obtain involuntary
transfer of prisoner under Article IV of interstate agreement on detainers that approval of
governor or other executive authority of demanding state is necessary as procedural safeguard
attendant to extradition proceedings.
Reversed.
Brian McKay, Attorney General, Carson City, and Ellen Whittemore, Deputy Attorney
General, Las Vegas, for Appellant.
Morgan D. Harris, Public Defender, and Terrance M. Jackson, Deputy Public Defender,
Clark County, for Respondent.
1. Extradition and Detainers.
All procedural safeguards provided by Uniform Criminal Extradition Act are preserved to prisoners
subject to interstate agreement on detainers. NRS 178.620, Arts. III, III(e), 179.177 et seq.
After filing of detainer relative to charges pending against petitioner in California, petitioner voluntarily
requested temporary transfer to custody of California for disposition of those charges; therefore, he waived
any right to challenge validity of detainer. NRS 178.620, Arts. III, III(e).
Standard that waiver must be knowing and intelligent applies only to fundamental constitutional rights.
Procedural rights afforded prisoner subject to transfers under interstate agreement on detainers, including
right to challenge detainer and contest transfer, are statutory, not constitutional rights; accordingly,
standard that waiver must be knowing and intelligent within meaning of Johnson does not apply to
waivers or extradition under Article III of the agreement. NRS 178.620, Arts. III, III(e), 179.177 et seq.
Detainer is simply an informal notice of charges pending in another jurisdiction, and it is not a request
that state in which prisoner is incarcerated do any act or effect any transfer of prisoner; as such, detainer
may be filed by prosecuting or law enforcement officer without involvement or approval of executive
authority of state seeking custody.
It is only when one state officially requests another state to act on detainer, by filing request for
temporary custody to obtain involuntary transfer of prisoner under Article IV of interstate agreement on
detainers that approval of governor or other executive authority of demanding state is necessary as
procedural safeguard attendant to extradition proceedings. NRS 178.620, Art. IV.
OPINION
Per Curiam:
The director of the Nevada Department of Prisons appeals from an order granting
respondent's post-conviction petition for writ of habeas corpus. Respondent, serving a
fifteen-year sentence for robbery, was served with a notice of three robbery charges pending
against him in the Municipal Court of the City and County of San Francisco, California. Such
notice constitutes a detainer within the meaning of the Interstate Agreement on Detainers,
NRS 178.620. Respondent sought habeas corpus relief, challenging any custody occasioned
by the filing of the California detainer. He argued that the detainer was invalidly issued under
the rule of Director, Dep't Prisons v. Blum, 98 Nev. 40, 639 P.2d 559 (1982), because it was
not issued by or with the approval of the Governor of California. The district court, following
Blum, ruled the detainer invalid and granted the writ. Appellant contends that this was error.
We agree.
[Headnote 1]
The Interstate Agreement on Detainers (Agreement) provides two alternative means by
which a prisoner serving a sentence in one state may be temporarily transferred to the custody
of another state for disposition of criminal charges there pending. When a detainer is filed
against a prisoner, he or she is thereby notified of the out-of-state charges and may voluntarily
request temporary transfer under Article III of the Agreement. In the alternative, once a
detainer has been filed the state seeking custody may file a request for temporary custody
and obtain involuntary transfer of the prisoner. All procedural safeguards provided by the
Uniform Criminal Extradition Act, NRS 179.177 et seq., are preserved to a prisoner subject
to the Agreement, save those safeguards eliminated by the Agreement's express terms. Cuyler
v. Adams, 449 U.S. 433 (1981). By the express terms of the Agreement, an Article III request
is deemed to be a waiver of extradition with respect to any charge or proceeding
contemplated [by] or included [in the detainer] . . . . [and] shall also constitute a consent by
the prisoner to the production of his body in any court where his presence may be required in
order to effectuate the purposes of this agreement. . . . NRS 178.620, Art. III, (e).
[Headnote 2]
It is undisputed that after the filing of the detainer respondent made an Article III request.
By the terms of the Agreement, as interpreted by the United States Supreme Court in
Cuyler, respondent thereby waived extradition and any procedural safeguards that would
allow a challenge to the impending transfer, and consented to the production of his body
in the California courts.
as interpreted by the United States Supreme Court in Cuyler, respondent thereby waived
extradition and any procedural safeguards that would allow a challenge to the impending
transfer, and consented to the production of his body in the California courts. Accordingly, he
has waived any right to challenge the validity of the detainer.
[Headnotes 3, 4]
Respondent argues that although the language of Article III renders his request a waiver of
the right to challenge the detainer, his waiver is invalid because it was not knowing and
intelligent within the meaning of Johnson v. Zerbst, 304 U.S. 458 (1938). The stringent
waiver standard set forth in Johnson, however, applies only to fundamental constitutional
rights. Id. at 464, 467-68. See also Miranda v. Arizona, 384 U.S. 436, 475 (1966). The
procedural rights afforded a prisoner subject to interstate transfer under the Agreement,
including the right to challenge the detainer and contest the transfer, are statutory, not
constitutional rights. See Cuyler v. Adams, supra. Accordingly, the higher standard of waiver
set forth in Johnson does not apply to waivers of extradition under Article III. We conclude,
therefore, that respondent waived his right to challenge the validity of the detainer, and that it
was error to grant the writ.
Appellant contends, in the alternative, that even if respondent had not waived his right to
challenge the validity of the detainer, the writ should not have been granted. The district
court, apparently overlooking the waiver issue, granted the writ because the detainer had not
been filed by or with the approval of the Governor of California. Appellant contends that
insofar as our Blum decision appears to require the prior approval of the executive authority
of the demanding state before it may file a detainer against a Nevada prisoner, that decision is
incorrect. Upon reconsideration of Blum, we are persuaded that appellant's arguments have
merit.
[Headnote 5, 6]
A detainer is simply an informal notice of charges pending in another jurisdiction, and is
not a request that the state in which the prisoner is incarcerated do any act or effect any
transfer of the prisoner. As such, a detainer may be filed by a prosecuting or law enforcement
officer, without involvement or approval of the executive authority of the state seeking
custody. See Cuyler v. Adams, 449 U.S. at 436 n. 3; United States v. Mauro, 436 U.S. 340
(1978); Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977), cert. denied, 436 U.S. 946
(1978); People v. McLemore, 311 N.W.2d 720 (Mich. 1981). It is only when one state
officially requests another state to act on a detainer, by filing a request for temporary
custody to obtain involuntary transfer of a prisoner under Article IV, that the approval of
the governor or other executive authority of the demanding state is necessary, as a
procedural safeguard attendant to extradition proceedings retained by the Agreement on
Detainers.
officially requests another state to act on a detainer, by filing a request for temporary custody
to obtain involuntary transfer of a prisoner under Article IV, that the approval of the governor
or other executive authority of the demanding state is necessary, as a procedural safeguard
attendant to extradition proceedings retained by the Agreement on Detainers. See Cuyler v.
Adams, supra. Thus, since only a detainer had been filed against respondent, rather than an
official request for transfer, prior executive approval was not required, and the petition for
writ of habeas corpus should not have been granted on this ground.
We hold that respondent waived any right to challenge the validity of the California
detainer. We further hold that even without a waiver, the district court should not have
granted the writ because only an Article IV request for temporary custody, not the informal
filing of a detainer, requires prior approval of the executive authority of the state seeking
custody. Accordingly, we hereby modify our holding in Blum in accordance with the views
expressed in this opinion, and we hereby reverse the order granting the writ of habeas corpus.
____________
99 Nev. 688, 688 (1983) Barnes v. Delta Lines, Inc.
GEORGE BARNES and LISA BARNES, Appellants, v. DELTA
LINES, INC.; ADOLPH SALAZAR, Respondents.
No. 13699
September 27, 1983 669 P.2d 709
Appeal for judgment, Eighth Judicial District Court, Clark County; Addeliar D. Guy,
Judge.
Action for personal injuries was brought. The district court entered judgment for
defendants, and plaintiffs appealed. The Supreme Court held that trial court committed
reversible error in refusing to give plaintiffs' proposed instruction on violation of statute as
negligence per se.
Cochrane & Rose, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Respondents.
Adequate objection to trial court's refusal to give instruction on violation of statute as negligence
per se in personal injury action was made where plaintiff provided trial court with
citation to relevant legal authority in support of giving instruction, even though
extensive legal arguments did not take place concerning propriety of giving
instruction.
violation of statute as negligence per se in personal injury action was made where plaintiff provided trial
court with citation to relevant legal authority in support of giving instruction, even though extensive legal
arguments did not take place concerning propriety of giving instruction. NRCP 51.
2. Negligence.
When defendant violates statute which was designed to protect class of persons to which plaintiff
belongs, and thereby proximately causes injury to plaintiff, such violation constitutes negligence per se,
unless defendant can show that violation was excused.
3. Appeal and Error; Automobiles.
In action for personal injuries arising out of traffic accident, trial court erred in refusing to give plaintiffs'
proposed instruction on violation of statute as negligence per se where traffic statutes in question were
clearly enacted to protect motorist such as plaintiff, and such error was prejudicial in that negligence per se
instruction would have served to shift burden of proof. NRS 484.321, 484.449.
4. Negligence.
Questions of whether violation of statute occurred and whether violation was proximate cause of
plaintiff's injuries are questions of fact for the jury.
OPINION
Per Curiam:
This appeal arises out of a traffic accident which occurred on July 25, 1978, when the
automobile which was owned and operated by appellant George Barnes collided with a
semi-truck owned by respondent Delta Lines, Inc. Shortly before the collision occurred, the
driver of the truck, respondent Adolph Salazar, had apparently pulled the truck forward from
the righthand side of the road, and was in the process of backing the truck into a private
parking lot on that same side of the road. When Barnes collided with the truck, it was
apparently blocking both of the eastbound lanes of the road in the direction in which Barnes
had been traveling. Barnes suffered various injuries in this accident, and he and his wife,
appellant Lisa Barnes, subsequently brought a cause of action alleging that respondents had
negligently owned and operated a motor vehicle.
At the trial on this matter, the judge instructed the jury that it was a violation of Nevada
law to fail to yield the right of way to moving traffic while backing a vehicle on a roadway, or
when entering a highway from a private way. See NRS 484.321, 484.449. Appellants then
requested that the judge give the following negligence per se instruction to be read in
conjunction with the above instructions on Nevada traffic laws: If you find that a party to
this action violated any of the statutes just read to you and that such violation was a
proximate cause of injury to another or to himself, you will find that such violation was
negligence unless such party proves by a preponderance of the evidence that he did what
might reasonably be expected of a person of ordinary prudence, acting under similar
circumstances, who desired to comply with the law.
If you find that a party to this action violated any of the statutes just read to you and
that such violation was a proximate cause of injury to another or to himself, you will
find that such violation was negligence unless such party proves by a preponderance of
the evidence that he did what might reasonably be expected of a person of ordinary
prudence, acting under similar circumstances, who desired to comply with the law.
[Headnote 1]
The trial judge refused to give this instruction, and the jury returned a verdict for
respondents. Appellants now contend that the judge's refusal was error.
1
We agree.
[Headnotes 2-4]
When a defendant violates a statute which was designed to protect a class of persons to
which the plaintiff belongs, and thereby proximately causes injury to the plaintiff, such a
violation constitutes negligence per se, unless the defendant can show that the violation was
excused. See Gordon v. Hurtado, 96 Nev. 375, 609 P.2d 327 (1980); Southern Pacific Co. v.
Watkins, 83 Nev. 471, 435 P.2d 498 (1967). See generally W. Prosser, Handbook of the Law
of Torts, 36 (4th ed. 1971). In the present case, the two traffic statutes in question were
clearly enacted to protect motorists such as appellant Barnes from other motorists who
negligently proceed onto a roadway without yielding the right of way to moving traffic.
Moreover, since the questions of whether a violation of a statute occurred and whether the
violation was a proximate cause of the plaintiff's injuries are questions of fact for the jury, see
White v. Demetelin, 84 Nev. 430, 442 P.2d 914 (1968), we must conclude that it was error
for the trial judge to refuse to give appellants' proposed instruction.
Additionally, we reject respondents' contention that the refusal to give the negligence per
se instruction was not prejudicial to appellants' case. A negligence per se instruction would
____________________

1
Respondents assert that we should not reach the merits of this contention, alleging that appellants did not
make an adequate objection to the trial judge's refusal to give the instruction. See NRCP 51. We conclude,
however, that by providing the trial judge with a citation to relevant legal authority in support of giving the
instruction, the requirements of NRCP 51 were met, despite the fact that extensive legal arguments did not take
place concerning the propriety of giving this instruction. See Tidwell v. Clarke, 84 Nev. 655, 447 P.2d 493
(1968) (where counsel timely calls to court's attention the issues of law involved, a have served to shift the
burden slight omission in compliance with NRCP 51 will not preclude appellate review). Cf. Carson Ready
Mix v. First Nat'l Bk., 97 Nev. 474, 635 P.2d 276 (1981) (general objection to trial court's refusal to give
proposed instruction is alone insufficient to satisfy requirements of NRCP 51).
have served to shift the burden of proof to respondents to show excuse or justification,
thereby relieving appellants of the burden of establishing actual negligence. See Lopez v.
Bowen, 495 P.2d 64, 66 (Alaska 1972). As such, there is no question that the jury may have
reached a different result in this case if it had been properly instructed on the law of
negligence per se.
Accordingly, the judgment is reversed and the case is remanded for a new trial.
____________
99 Nev. 691, 691 (1983) Simas Floor Co. v. Tysen
SIMAS FLOOR CO., INC., Appellant, v. DRUSILLA TYSEN,
dba STRAWBERRY SHORTCAKE, et al., Respondents.
No. 14245
September 27, 1983 669 P.2d 708
Appeal from judgment, Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Floor company brought action against retailer to recover alleged monies due under
contract, and for special and general damages in excess of $10,000. The district court
entered judgment for retailer, including $750 attorney fee award, and floor company
appealed. The Supreme Court held that where complaint stated no basis for award of damages
in addition to damages claimed for breach, and floor company presented no evidence at trial
supporting award of additional damages, floor company did not seek recovery in excess of
$10,000 within meaning of statute permitting attorney fee award to defendant as prevailing
party when plaintiff has not sought recovery in excess of $10,000.
Affirmed.
Fran P. Archuleta, Reno, for Appellant.
Sala, McAuliffe, White & Long, and J. Michael Memeo, Reno, for Respondents.
Costs.
Where floor company's complaint was based solely on theory of breach of contract seeking recovery of
$5,383.50 for services rendered, and complaint stated no basis for award of damages in addition to
damages claimed for breach and floor company presented no evidence at trial supporting award of
additional damages, allegation of additional damages in excess of $10,000 in complaint was properly
disregarded by district court in determining whether attorney fees could be awarded, as floor
company did not "seek recovery in excess of $10,000" within meaning of statute
permitting attorney fee award to defendant as prevailing party when plaintiff has not
"sought recovery in excess of $10,000."
could be awarded, as floor company did not seek recovery in excess of $10,000 within meaning of statute
permitting attorney fee award to defendant as prevailing party when plaintiff has not sought recovery in
excess of $10,000. NRS 18.010, subd. 2(c).
OPINION
Per Curiam:
This is an appeal from a judgment in a contract dispute. The sole issue presented is
whether the district court committed reversible error in awarding attorney's fees to the
defendant below, respondent Tysen. We conclude that the district court did not commit
reversible error, and we therefore affirm the award of attorney's fees.
Appellant (Simas), plaintiff below, filed a complaint against Tysen, alleging that Tysen
had failed to pay Simas for certain services rendered by Simas. Simas specifically alleged that
Tysen had agreed to pay $5,383.50 for these services, and prayed for judgment in this
amount, with interest. Simas also alleged that it had suffered special and general damages
in excess of $10,000, and prayed for judgment in that amount.
Tysen filed an answer and counterclaim in the lawsuit, and the matter proceeded to trial.
At trial, Simas presented evidence that the price for the services rendered to Tysen was
$5,383.50. Simas presented no evidence, however, supporting the allegation of special and
general damages. At the conclusion of trial, the district court entered judgment for Tysen on
Simas' complaint, and awarded Tysen $750 in attorney's fees. The district court also entered
judgment for Simas on Tysen's counterclaim. This appeal followed.
Simas contends on appeal that under NRS 18.010(2)(c),
1
the district court had no
authority to award attorney's fees to Tysen, because Simas sought recovery in excess of
$10,000. Simas relies on Peacock Jewelers, Inc. v. Nevada St. Bk., 92 Nev. 654, 556 P.2d
1266 (1976), where we summarily vacated an award of attorney's fees to a prevailing
defendant because the complaint sought more than $10,000.
Although Peacock Jewelers, Inc. seemingly supports Simas' position, Tysen contends that
that decision should not control here, because Simas provided absolutely no support, in its
pleadings, at trial or otherwise, for its allegation of damages in excess of $10,000.
____________________

1
That section provides that the court may make an allowance of attorney's fees to the defendant as prevailing
party when the plaintiff has not sought recovery in excess of $10,000.
pleadings, at trial or otherwise, for its allegation of damages in excess of $10,000. We agree
with Tysen's contention. The complaint in this case was based solely on a theory of breach of
contract, and Simas alleged a specific amount of money owed by Tysen because of the
breach. The complaint stated no basis for an award of damages in addition to damages
claimed for the breach, and as noted above, Simas presented no evidence at trial supporting
an award of additional damages. Therefore, the allegation of additional damages was properly
disregarded by the district court in determining whether attorney's fees could be awarded.
In reaching this conclusion, we express no opinion regarding the propriety of awarding
attorney's fees under NRS 18.010(2)(c) in other factual contexts. We hold only that under the
circumstances of the case before us, Simas did not seek recovery in excess of $10,000
within the meaning of NRS 18.010(2)(c).
The judgment of the district court is affirmed.
____________
99 Nev. 693, 693 (1983) Phillips v. State
JESSE WILLARD PHILLIPS, Jr. Appellant, v. THE
No. 14437
September 27, 1983 669 P.2d 706
Appeal from conviction, after a jury trial, of two counts of robbery with use of a deadly
weapon, burglary and escape. Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Defendant was convicted in district court of two counts of robbery with the use of a deadly
weapon, burglary and escape, and he appealed. The Supreme Court held that mere presence
during robbery of jewelry store of customer who had no possessory interest in any of property
taken was insufficient to establish elements of robbery offense against customer, and thus,
was insufficient to support conviction.
Reversed in part, affirmed in all other respects.
David G. Parraguirre, Public Defender, and James R. Lucas, Deputy Public Defender,
Mills B. Lane III, District Attorney, and Michael L. Mahaffey, Deputy District Attorney,
Washoe County, for Respondent.
1. Robbery.
Phrase in his presence in statute prohibiting unlawful taking of personal property from person of
another, or in his presence, was added to increase area in which taking by force or fear constitutes crime of
robbery, but element of possession must still be satisfied. NRS 200.380, 200.380, subd. 1.
2. Robbery.
In prosecution for robbery, evidence failed to establish that customer who entered store during robbery of
store had any possessory interest in any of property taken, and thus, failed to support conviction for
robbery of customer. NRS 200.380, 200.380, subd. 1.
OPINION
Per Curiam:
A jury convicted Jesse Willard Phillips, Jr., the appellant, of (1) two counts of robbery
with the use of a deadly weapon; (2) burglary; and (3) escape. On appeal, appellant urges that
the conviction for one of the robbery counts must be reversed since there was no evidence
that the victim had any interest in the property taken in the robbery. We agree, and
accordingly reverse the robbery conviction on that count.
THE FACTS
On April 10, 1982, appellant entered a jewelry store planning to rob it. Displaying a pellet
pistol, appellant forced the proprietor of the store and two employees into a back room where
he taped their hands together and gagged one employee. A customer entered the store.
Appellant bound and gagged the customer as well, and carried him back into the shop where
he placed him behind the service counter. Appellant then forced the proprietor to show him
the cash box, and the bag with the daily receipts. Appellant took the contents of these bags as
well as eight diamond rings and sixty-six gold chains.
The police arrived on the scene. Appellant came out of the store with his hands raised. The
officers twice attempted to search the appellant. Despite being held under guard with a .12
gauge shotgun, appellant ran. He was apprehended two blocks away after being shot.
CHARGE OF ROBBERY OF THE CUSTOMER
The jury found appellant guilty of two counts of robbery. The first count involved the store
owner and is not appealed.
The second count was based upon an indictment stating that appellant did willfully and
unlawfully take personal property, to wit, United States currency, various checks to JAY'S
JEWELERS and numerous items of jewelry, in the presence of JOHN LESLIE LAKE [the
customer who entered the store], . . . , against his will, and by means of force and violence
and fear of immediate and future injury to his person . . . . The court permitted this count to
go to the jury over appellant's objection by way of motion to dismiss. This was error.
The issue centers on the construction of Nevada Revised Statute Section 200.380, defining
robbery.
1
The state argues that one is robbed if he is present during a taking of an item of
personal property, regardless of whether he has any interest in the item taken, provided only
that he is subjected to force in order to facilitate [the] taking. This test, however, ignores
other essential elements of the offense. Just as we are unwilling to read an unstated element
into a silent statute, see Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1228-1229 (1981),
so are we unwilling to ignore one that is stated.
We set forth a definition of presence in Robertson v. Sheriff, 93 Nev. 300, 302, 565 P.2d
647, 648 (1977). The generally accepted definition states that [a] thing is in the presence of
a person, in respect to robbery, which is so within his reach, inspection, observation or
control, that he could, if not overcome by violence or prevented by fear, retain his possession
of it.' (Emphasis added.) We held that a bartender was present despite his remaining in a
washroom throughout the robbery of the bar. We noted that the bartender was prevented by
fear from retaining possession of the money. Id. (Emphasis added.)
[Headnotes 1, 2]
If the statute meant that robbery was limited to a taking from only the person, the holding
would have been different in Robertson. To preclude such a result, the phrase in his
presence was added to increase the area in which a taking by force or fear constituted the
crime of robbery. W. LaFave & A.
____________________

1

1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of
the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent
or overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used
merely as a means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it
appears that, although the taking was fully completed without the knowledge of the persons from whom
taken, such knowledge was prevented by the use of force or fear.
or fear constituted the crime of robbery. W. LaFave & A. Scott, Handbook on Criminal Law,
sec. 94 (1972); 4 C. Torcia, Wharton's Criminal Law, sec. 482 (14th ed. 1981); 2 Bishop on
Criminal Law, secs. 1177-1178 (9th ed. 1923). But the element of possession must still be
satisfied. Robertson v. Sheriff, 93 Nev. at 302, 565 P.2d at 648; State v. Nelson, 11 Nev. 334,
339 (1876) (stage coach driver under prior statute omitting presence); see also People v.
Ramos, 639 P.2d 908, 927-929 (Cal. 1982) reversed on other grounds sub nom. California v.
Ramos, 103 S.Ct. 3446 (1983), (two counts where co-employees had joint possession).
The record shows that the customer had no possessory interest in any of the property
taken. Whatever crimes might be chargeable for appellant's assault of the customer, robbery
was not one of them. Accordingly, the conviction for robbery of the customer must be set
aside.
Other assigned errors have been considered and are rejected for lack of merit.
Reversed in part; affirmed in all other respects.
____________
99 Nev. 696, 696 (1983) State v. Dunckhurst
THE STATE OF NEVADA, Appellant, v. GEORGE
DUNCKHURST, Respondent.
No. 14755
September 27, 1983 669 P.2d 243
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
A pretrial petition for writ of habeas corpus was granted by the district court which ruled
that the State could not charge petitioner with the use of a deadly weapon in the commission
of the offense of murder. The Supreme Court, held that even if knife wounds were
superficial and did not contribute to victim's death, evidence presented to grand jury that
defendant had strangled victim with his hands and then moved her into another room where
he stabbed her with a knife was sufficient to establish use of the knife in commission of the
murder, and it was therefore error to dismiss the charge based on use of a deadly weapon.
Wright, Shinehouse & Stewart, Las Vegas, for Respondent.
Habeas Corpus.
Even if knife wounds were superficial and did not contribute to victim's death, evidence presented to
grand jury that defendant had strangled victim with his hands and then moved her into another room where
he stabbed her with a knife was sufficient to establish use of the knife in commission of the murder, and
it was therefore error to dismiss, on pretrial petition for habeas corpus, charge based on use of deadly
weapon. NRS 193.165, 200.010, 200.030.
OPINION
Per Curiam:
This is an appeal from an order granting respondent Dunckhurst's pretrial petition or a writ
of habeas corpus. The sole issue presented is whether the district court committed reversible
error in concluding that the state could not charge Dunckhurst with the use of a deadly
weapon in the commission of the offense of murder. Having concluded that the district court
erred, we reverse and remand.
On February 9, 1983, the Clark County grand jury indicted Dunckhurst under NRS
200.010 and NRS 200.030 for open murder, and under NRS 193.165 for the use of a deadly
weapon in the commission of that offense. The indictment was based on evidence that
Dunckhurst strangled the victim with his hands, and then moved her into another room. He
then got a knife from the kitchen and stabbed the victim in the neck.
Following his indictment, Dunckhurst filed a petition for a writ of habeas corpus in district
court. Dunckhurst sought dismissal of the use of a deadly weapon charge on the ground that
the evidence presented to the grand jury was insufficient to support that charge. In support of
this argument Dunckhurst cited medical testimony that the victim died as a result of
strangulation, and that the knife wounds did not contribute to her death.
The district court concluded that Dunckhurst could not be charged with the use of a deadly
weapon, because the testimony, as viewed by the district court, showed that the knife wounds
were superficial and did not contribute to the victim's death. We disagree. Even if we
accept the district court's view of the evidence, it does not follow that a deadly weapon
enhancement is unavailable. The term use in the context of deadly weapon enhancements
has been broadly construed. See Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980); State v.
Trujillo, 578 P.2d 342 (N.M.Ct.App. 1978). The facts of this case are sufficient to establish
use of the knife in the commission of the murder.
The district court therefore committed reversible error in dismissing the charge based on
the use of a deadly weapon. Accordingly, we reverse the order of the district court granting a
writ of habeas corpus, and we remand the matter for trial on both the murder charge and the
deadly weapon charge.
____________
99 Nev. 698, 698 (1983) Burton v. Burton
PHYLLIS BURTON, Appellant, v. JIMMIE H.
BURTON, Respondent.
No. 14836
September 27, 1983 669 P.2d 703
Appeal from order denying motion to modify decree of divorce, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Appeal was taken from an order of the district court denying wife's motion to modify
divorce decree. The Supreme Court held that: (1) order denying motion to amend divorce
decree was appealable as a special order made after final judgment, and (2) conservation of
judicial resources would best be served by allowing wife to seek relief in district court under
new state law.
Motion to remand granted.
Robert C. LePome, Las Vegas, for Appellant.
Joan D. Buckley, Las Vegas, for Respondent.
Not all postjudgment orders are appealable; rather, post-judgment order must affect rights of parties
growing out of final judgment in order to be appealable as a special order made after final judgment,
within meaning of Rule of Appellate Procedure. NRAP 3A(b).
2. Divorce.
Order denying motion to amend divorce decree based upon changed factual or legal circumstances, where
moving party is not attacking original judgment, is the only adjudication of facts and law at issue in motion
and should be appealable as a special order made after final judgment, within meaning of Rule of
Appellate Procedure NRAP 3A(b).
3. Divorce.
Order denying motion to amend divorce decree was appealable where wife's argument was that
subsequent to divorce decree, in which trial court determined husband's military retirement benefits to be
his sole and separate property, Congress essentially gave former military spouses
new substantive right to seek retroactive division of military retirement benefits;
therefore, wife was asserting changed circumstance of law, occurring after judgment,
so that order denying motion to modify was a "special order made after final
judgment" within meaning of Rule of Appellate Procedure.
be his sole and separate property, Congress essentially gave former military spouses new substantive right
to seek retroactive division of military retirement benefits; therefore, wife was asserting changed
circumstance of law, occurring after judgment, so that order denying motion to modify was a special order
made after final judgment within meaning of Rule of Appellate Procedure. NRAP 3A(b).
4. Divorce.
Record demonstrated that district court, in denying motion to amend divorce decree, which confirmed
husband's military retirement benefits to be his sole and separate property, likely concluded that it lacked
jurisdiction to modify the decree, therefore, since state legislature expressly granted such jurisdiction,
conservation of judicial resources would best be served by allowing wife to seek relief in district court
under new state law. 10 U.S.C.A. 1408.
OPINION
Per Curiam:
This appeal is taken from a district court order that denied appellant's motion to modify a
decree of divorce. Appellant has now filed a motion to remand the matter to the district court
on the ground that motions to modify were expressly authorized by the Nevada Legislature
after the district court denied appellant's motion below. The motion to remand is unopposed.
Appellant was divorced from respondent on June 18, 1982. The decree contained a
property division that, inter alia, confirmed respondent's military retirement benefits to be
his sole and separate property. Such a property allocation was proper under McCarty v.
McCarty, 453 U.S. 210 (1981) (state courts precluded from dividing federal military
retirement benefits pursuant to state community property laws).
Subsequent to the parties' divorce, Congress effectively reversed the policy established in
McCarty by enacting the Uniformed Services Spousal Protection Act, 10 U.S.C. 1408
(1982), under which state courts are permitted to divide benefits such as those at issue here in
accordance with state law.
Shortly after the federal statute became effective, appellant filed a motion to modify the
divorce decree. The motion was denied on March 10, 1983, and appellant filed a notice of
appeal on March 28, 1983.
The Nevada Legislature enacted a law, effective May 15, 1983, that allows former military
spouses who obtained divorces between June 26, 1981, and January 31, 1983, to request a
modification in the district court of the adjudication of property rights in the decree of divorce
to determine the spouse's rights to support or to a military pension. 1983 Nev.
Stats. ch. 301, 1, at 740. Appellant filed the motion to remand, based upon the new law, on
June 6, 1983.
Before turning to the merits of the motion to remand, we are obliged to address the
question of whether this court has jurisdiction to entertain an appeal from an order denying a
motion to modify a divorce decree.
NRAP 3A(b) designates the judgments and orders from which appeals may be taken in
civil cases, and where no authority to appeal is granted, no right exists. Kokkos v. Tsalikis, 91
Nev. 24, 530 P.2d 756 (1975); Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961). NRAP
3A(b) provides, in part, that an appeal may be taken from any special order made after final
judgment, except an order . . . pursuant to NRCP 60(b)(1).
[Headnote 1]
This court has previously held that not all post-judgment orders are appealable. Rather a
post-judgment order must affect the rights of the parties growing out of final judgment in
order to be appealable as a special order made after final judgment. See Wilkinson v.
Wilkinson, 73 Nev. 143, 311 P.2d 735 (1957); Tardy Et Al. v. Tarbell Et Al., 54 Nev 342, 16
P.2d 656 (1932). In other words, the later order would be appealable if such rights were found
to be affected. Under this analysis it is arguable that because an order refusing to modify a
judgment does not change any rights arising out of the judgment, such an order is not
appealable.
[Headnote 2]
A different analysis, however, should be required in the context of an order denying a
motion to amend a divorce decree, where the motion is based upon changed factual or legal
circumstances and the moving party is not attacking the original judgment. Such a motion is
generally based upon some change in fact or law which occurred after the judgment was
granted, and in light of which the moving party claims that the judgment is no longer just. In
this context, the denial of a motion for modification serves as the only adjudication of the
facts and law at issue in the motion and should be appealable as a special order made after
final judgment. See Brooks v. Abbott, 59 Cal.Rptr. 911 (Ct.App. 1967) (court's refusal to
modify payment terms of property settlement agreement is special order after judgment).
See also Raff v. Raff, 39 Cal.Rptr. 366 (Cal. 1964) (order denying motion to remove a
receiver appealable because court not called upon merely to repeat or overrule its prior
decisions); Carrow v. Carrow, 294 S.W.2d 595 {Mo.Ct.App.
(Mo.Ct.App. 1956) (order overruling motion to quash execution is special order after
judgment where divorce action completed and motion proceedings independent).
The analysis above is in keeping with this court's practice of reviewing the merits of orders
denying motions to modify divorce decrees. See, e.g., Walport v. Walport, 98 Nev. 301, 646
P.2d 1215 (1982); Duke v. Duke, 98 Nev. 148, 643 P.2d 1205 (1982); Waldman v. Waldman,
97 Nev. 546, 635 P.2d 289 (1981); Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305
(1951). Cf. Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139 (1931) (order denying motions to
modify custody award held appealable).
[Headnote 3]
Appellant's argument to the district court was that subsequent to the divorce decree in this
case Congress essentially gave former military spouses such as appellant a new substantive
right to seek retroactive division of military retirement benefits. This is the assertion of a
changed circumstance of law, occurring after judgment, such that the order denying the
motion to modify was a special order made after the final judgment within the meaning of
NRAP 3A(b), as discussed above. Therefore, the order was appealable.
[Headnote 4]
Turning to the merits of the unopposed motion to remand, we note that the district court
did not reveal the reason for its refusal to modify the decree. An examination of the pleadings
before the district court on the motion to modify, however, reveals that the district court most
likely concluded that it lacked jurisdiction to modify the decree. Since the Nevada Legislature
has now expressly granted such jurisdiction, the conservation of judicial resources can best be
served by allowing appellant to seek relief in the district court under the new state law.
Accordingly, the motion to remand is granted. This appeal is remanded to the district court
for consideration of appellant's motion to modify in light of the statutory changes in federal
and state law noted above.
1

____________________

1
This opinion shall constitute our final disposition of this appeal. Any challenge to the district court's ruling
upon reconsideration of appellant's motion to modify should be raised in a new appeal, if appropriate.
____________
99 Nev. 702, 702 (1983) Gilbert v. State
BRUCE WAYNE GILBERT, Appellant, v. THE
STATE of NEVADA, Respondent.
No. 14187
September 27, 1983 669 P.2d 699
Appeal from a four year prison sentence and a $2,000 fine for a conviction for driving
under the influence of intoxicating liquor when death results. First Judicial District Court,
Defendant was convicted in the district court of causing the death of another by driving a
motor vehicle while under the influence of intoxicating liquor, was sentenced to a four-year
prison term and fined $2,000, and he appealed. The Supreme Court held that: (1) before a
defendant may be imprisoned for nonpayment of fine, hearing must be held to determine his
financial condition, and indigent defendant must be allowed reduction of fine or discharge of
fine through installment payments, and (2) indigent defendant who had not yet been
imprisoned for nonpayment of fine was not entitled to appellate relief on constitutional
grounds.
Affirmed.
Thomas E. Perkins, State Public Defender, Annabelle Whiting Hall, Deputy Public
Brian McKay, Attorney General, William A. Maddox, District Attorney, Charles P.
Cockerill, Deputy District Attorney, Carson City, for Respondent.
1. Chemical Dependents.
Corrected statute governing alcoholic rehabilitation treatment did not permit election of such treatment by
defendant convicted of causing the death of another by driving a motor vehicle while under influence of
intoxicating liquor. NRS 484.379, subds. 1, 2, 5, 6, 6(c)(2), 484.3795.
2. Fines.
Before criminal defendant may be imprisoned for nonpayment of fine, a hearing must be held to
determine his present financial ability; if defendant is indigent, sentencing court must permit discharge of
fine through installment payments or reduction of fine. NRS 176.065, 176.085.
3. Fines.
State is not prohibited from imprisoning defendant who has financial means with which to pay fine but
who wilfully fails or refuses to satisfy fine, nor from imprisoning indigent defendant who wilfully fails or
refuses to make good-faith effort to comply with alternative payment plan established by court. NRS
176.065, 176.085.
4. Fines.
No constitutional impediment exists to imposing a mandatory fine on an indigent defendant; the
state, however, is barred from automatically converting fine to a sentence of
imprisonment for nonpayment of fine.
fine on an indigent defendant; the state, however, is barred from automatically converting fine to a sentence
of imprisonment for nonpayment of fine.
5. Criminal Law.
Indigent defendant who was sentenced to prison term and fine and who had not yet been imprisoned for
nonpayment of his fine could not obtain appellate relief overturning sentence and fine based on
constitutional prohibition of imprisonment of indigent defendant for good-faith failure to pay fine.
OPINION
Per Curiam:
This is an appeal from a four year prison sentence and a $2,000 fine imposed on an
indigent defendant for violating NRS 484.3795. Appellant contends that he is entitled to elect
rehabilitative treatment under NRS 484.379(6) (1981) and that the State cannot
constitutionally imprison him for nonpayment of the fine. For reasons hereafter specified, we
conclude that appellant is not entitled to appellate relief.
On February 13, 1982, appellant ran a red light at the intersection of U.S. Highway 395
South and U.S. Highway 50 West in Carson City and collided with the car in which Evelyn
Bentley was riding. Mrs. Bentley died from the injuries received during the collision. Blood
drawn from the appellant shortly after the collision contained between .206 and .226 percent
alcohol. Appellant was arrested and charged with (1) causing the death of another by driving
a motor vehicle while under the influence of intoxicating liquor, in violation of NRS
484.3795; or in the alternative, (2) involuntary manslaughter, in violation of NRS 200.040,
200.070 and 200.090.
Appellant pleaded guilty to violating NRS 484.3795. Before the formal judgment was
pronounced, appellant filed a notice of election requesting that he receive treatment as an
alcoholic under NRS 484.379(6) (1981). The lower court ruled that to be consistent with NRS
458.300 and 484.3795, NRS 484.379(6) (1981) did not permit defendants convicted under
NRS 484.3795 to elect alcoholic rehabilitation treatment. The lower court then raised, sua
sponte, a question concerning the constitutionality of imposing a mandatory fine upon an
indigent defendant.
1
Although the lower court expressed concern, it felt compelled to
impose a fine on the premise that the statute was not clearly unconstitutional on its face.
____________________

1
The lower court joined in the presentence report's characterization of appellant as an indigent. Appellant's
family, although supportive, is equally destitute. Appellant is represented by the state public defender.
Respondent has not challenged the fact of appellant's indigency.
compelled to impose a fine on the premise that the statute was not clearly unconstitutional on
its face. Thus, appellant was sentenced to four years in the Nevada State Prison and fined
$2,000.
[Headnote 1]
Appellant first contends that NRS 484.379(6)(c)(2) (1981)
2
can be construed to permit
those persons convicted under NRS 484.3795 to elect rehabilitative treatment. This argument,
however, was predicated on an earlier version of NRS 484.379(6) (1981) which erroneously
included of between subsection 1 or 2 and NRS 484.379(5). Compare 1981 Nev. Stats.
ch. 755 5 with NRS 484.379(6)(c)(2) (1981). In its present corrected form, NRS 484.379(6)
(1981) clearly defines the class of defendants who may elect rehabilitative treatment as those
persons who have been convicted of a violation of subsection 1 or 2 of NRS 484.379.
Appellant's conviction was for a violation of NRS 484.3795. Thus, appellant was not entitled
to elect treatment under NRS 484.379(6) (1981).
The lower court's concerns regarding the imposition of mandatory fines on indigent
defendants are inextricably bound with the issue of imprisoning indigents for nonpayment of
fines.
3
To resolve the former question, we must address the latter.
____________________

2
NRS 484.379(6) (1981) provides that:
A person who has been convicted of a violation of subsection 1 or 2 may elect to undergo treatment
approved by the court for at least 1 year if:
(a) He is classified as an alcoholic or abuser of drugs by a:
(1) Counselor certified to make that classification by the bureau of alcohol and drug abuse of
the rehabilitation division of the department of human resources; or
(2) Physician certified to make that classification by the state board of medical examiners;
(b) He agrees to pay the costs of the treatment;
(c) He has served a term of imprisonment in the county jail of:
(1) Five days if it is his second conviction; or
(2) Thirty days if it is his third conviction, in any jurisdiction of violating subsection 1 or 2,
NRS 484.3795, or a law which prohibits the same conduct, within 5 years; and
(d) The court orders the department to suspend his driver's license for a period specified in the order
which must not be less than 90 days and not more than the time required to complete the treatment. The
court may not allow him any limited driving privileges unless his inability to drive to and from work or in
the course of his work would cause extreme hardship or prevent his earning a living.
A person may elect treatment pursuant to this subsection once in any period of 5 years.

3
The issue concerning incarceration of indigents for nonpayment of fines has evoked substantial
uncircumscribed analysis. See Note, Discriminations Against the Poor and the Fourteenth Amendment, 81
Harv.L.Rev. 435, 436 (1967). Due process and equal protection principles converge in the Court's analysis in
these cases. Bearden v. Georgia, 103 S.Ct. 2064, 2068 (1983).
resolve the former question, we must address the latter. Appellant's four year prison sentence
and $2,000 fine were imposed on him pursuant to NRS 484.3795.
4
Under the terms of NRS
176.065,
5
whenever both a fine and imprisonment are imposed the defendant is to be
incarcerated in prison or jail for an additional day for each $4 of the amount imposed until the
fine is discharged.
Appellant contends that under the holding of Williams v. Illinois, 399 U.S. 235 (1970),
and its progeny, the combined effect of these statutes constitutes a violation of the equal
protection and due process clauses of the Fourteenth Amendment to the United States
Constitution. This is so, appellant argues, because an indigent defendant may be imprisoned
for nonpayment of a fine simply because of an inability to pay.
The Supreme Court first addressed this issue in Williams v. Illinois, supra. There, the
defendant received the maximum sentence provided for petty theft in Illinois: one year
imprisonment and a $500 fine. The defendant was also taxed $5 in court costs. As permitted
by statute, the judgment directed that if the fine was not satisfied at the end of the one year
sentence, the defendant would remain in jail to work off the fine and costs at the rate of five
dollars each day. Williams, 399 U.S. at 236. In Williams, the effect of the Illinois work off
statute required the defendant to be confined for 101 days beyond the maximum period of
confinement fixed by statute solely because he could not pay the fine and costs. Id. at
236-237. The court reasoned that once the State has defined the outer limits of incarceration
necessity [sic] to satisfy its penological interest and policies, it may not then subject a certain
class of convicted defendants to a period of imprisonment beyond the statutory maximum
solely by reason of their indigency. Id. at 241-242. Thus, the judgment was vacated because
the work off statute created an impermissible discrimination founded solely on the ability
to pay. Id. at 241.
____________________

4
[Any person who violates NRS 484.3795] shall be punished by imprisonment in the state prison for
not less than one year nor more than six years and must be further punished by a fine of not less than
$2,000 nor more than $5,000. . . .

5
NRS 176.065 provides that:
Whenever a person is sentenced to both fine and imprisonment, or to pay a forfeiture in addition to
imprisonment, he shall be confined in the state prison or in the county jail, whichever is designated in his
sentence of imprisonment, for an additional period of 1 day for each $4 of the amount until such fine or
forfeiture is satisfied or the maximum term of imprisonment prescribed by law for the offense committed
has elapsed, whichever is earlier, but his eligibility for parole is governed only by his sentence of
imprisonment.
The Williams doctrine was fleshed out in the companion case of Morris v. Schoonfield,
399 U.S. 508 (1969). There the Court vacated and remanded a Maryland judgment for
reconsideration in light of intervening state legislation and its decision in Williams. Id.
Nevertheless, a four justice concurrence, penned by Justice White, shed some light on
Williams by stating that:
[T]he same constitutional defect condemned in Williams also inheres in jailing an
indigent for failing to make immediate payment of any fine, whether or not the fine is
accompanied by a jail term and whether or not the maximum term that may be imposed
on a person willing and able to pay a fine. In each case, the Constitution prohibits the
State from imposing a fine as sentence and then automatically converting it into a jail
term solely because the defendant is indigent and cannot forthwith pay the fine in full.
Id. at 509 (Emphasis added.)
Justice White's concurrence was adopted by a majority of the court in Tate v. Short, 401
U.S. 395, 398 (1971). There, the defendant was fined a total of $425 for offenses which were
punishable by fines only. Id. at 396-397. The defendant was unable to pay the fines because
of his indigency and was committed to a municipal prison farm pursuant to a state statute and
municipal ordinance which required him to work off the fines at the rate of $4 per day. Id.
After adopting the White concurrence, the Tate court stated that because the State had
legislated a fines only policy for traffic offenses, imprisonment of an indigent defendant
without the means to pay his find did not further any penal objective of the State. Id. at 399.
As it noted in Williams and Tate, other alternatives exist to which a state may resort to
constitutionally collect its fines. See Tate, 401 U.S. at 400 n. 5; Williams, 399 U.S. at 244-245
nn. 21, 22. Because imprisonment of the defendant in Tate constituted the same
unconstitutional discrimination as in Williams, the judgment was reversed and remanded for
reconsideration. Id. at 401.
The Williams-Morris-Tate authority was most recently applied by the Court in a review of
an order revoking an indigent's probation for failure to pay a fine imposed as a condition of
the probation. Bearden v. Georgia, 103 S.Ct. 2064 (1983). In reversing the judgment of the
Georgia Court of Appeals, which upheld the revocation, the Supreme Court concluded that
the petitioner's probation could not be automatically revoked without a determination by the
trial court that petitioner had not made sufficient bona fide efforts to pay or that adequate
alternative forms of punishment did not exist." Id. at 2067.
that adequate alternative forms of punishment did not exist. Id. at 2067.
Pursuant to NRS 176.065, appellant faces an additional 500 days in prison if he has not
satisfied the $2,000 fine at the end of his four year sentence. If appellant did not pay his fine
and served 500 days in addition to his four year prison term, the aggregate imprisonment
would not exceed the 6 year maximum imprisonment set by NRS 484.3795. Respondent's
sole argument is that because NRS 176.065 does not operate, in this case, to extend
appellant's imprisonment beyond the maximum provided by NRS 484.3795, the sentence is
not contrary to the holding in Williams.
6

In Williams, Chief Justice Burger attempted to limit the opinion to hold only that a state
may not constitutionally imprison beyond the maximum duration fixed by statute a defendant
who is financially unable to pay a fine. Williams, 399 U.S. at 243. This limitation was
seemingly turned aside by the Tate Court's adoption of Justice White's expansive concurrence
in Morris. In any event, the Tate decision was bolstered by the state's selection of a fines
only policy which demonstrated to the Court that imprisonment of indigent convicts for
nonpayment of fines would not serve any penological interest. In view of the Supreme Court's
recent description of the Williams-Tate rule as prohibiting the state from impos[ing] a fine as
sentence and then automatically conver[ting] it into a jail term solely because the defendant is
indigent and cannot forthwith pay the fine in full, Bearden, at 2070, there is no longer doubt
that the limitation imposed in Williams has been abandoned. See also, Frazier v. Jordan, 457
F.2d 726, 728 (5th Cir. 1972); Hood v. Smedley, 498 P.2d 120 (Alaska 1972); State v.
Snyder, 203 N.W.2d 280 (Iowa 1972); Spurlock v. Noe, 467 S.W.2d 320 (Ky. 1970); State v.
DeBonis, 276 A.2d 137 (N.J. 1971); Commonwealth ex rel., Parrish v. Cliff, 304 A.2d 158
(Pa. 1973).
This court has also applied in different contexts the Williams-Tate rule which
constitutionally prohibits the state from imposing a fine as a sentence and then automatically
converting it into a jail term solely because the defendant is indigent and cannot forthwith pay
the fine in full. Tate, 401 U.S. at 398. See, e.g., Burke v. State, 96 Nev. 449, 611 P.2d 205
(1980) (Probation cannot be revoked for defendant's failure to make restitution absent finding
that he was not indigent); Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1975) (Indigent
defendant financially unable to post bail must be given credit on prison term for
detention).
____________________

6
The legislature, of course, provided in NRS 176.065 that imprisonment for nonpayment shall not exceed the
maximum term of imprisonment prescribed by law for the offense committed.
financially unable to post bail must be given credit on prison term for detention).
[Headnotes 2, 3]
NRS 176.085 permits a judge to reduce a fine or order installment payments if after
imposition of the fine but before its discharge by confinement it is made to appear that the
fine is beyond the defendant's financial resources of present ability to pay.
7
According to the
Williams-Tate rule, this statute is constitutionally insufficient. Conceivably, under NRS
176.085, an indigent defendant could be imprisoned for nonpayment of a fine before a
hearing was held to determine the defendant's ability to pay the fine.
The mandate of the Williams-Tate rule is clear. Before a defendant may be imprisoned for
nonpayment of a fine, a hearing must be held to determine the present financial ability of the
convict. If the convict is indigent, the sentencing court must permit discharge of the fine
through one or more of the alternatives contemplated in NRS 176.085. Of course, nothing in
this opinion prohibits the state from imprisoning a defendant who has the financial means
with which to pay but wilfully fails or refuses to satisfy the fine or from imprisoning an
indigent who wilfully fails or refuses to make a good faith effort to comply with an
alternative payment plan established by the court. See Bearden, 103 S.Ct. at 2072-2073; In re
Antazo, 473 P.2d 999 (Cal. 1970).
[Headnotes 4, 5]
No constitutional impediment exists to imposing a mandatory fine on an indigent
defendant. The state, however, is barred from automatically converting the fine to a sentence
of imprisonment for nonpayment of the fine. Since appellant has not yet been imprisoned for
nonpayment of his fine, the sentence and fine imposed upon him under NRS 484.3795 are
affirmed.
____________________

7
NRS 176.085 provides that:
Whenever, after fine has been imposed but before it has been discharged by payment or confinement,
it is made to appear to the judge or justice imposing such fine or his successor:
1. That the fine is excessive in relation to the financial resources of the defendant, such judge or
justice or his successor may reduce the fine accordingly.
2. That the discharge of the fine is not within the defendant's present financial ability to pay, such
judge or justice or his successor may direct that the fine be paid in installments.
____________
99 Nev. 709, 709 (1983) Ridings v. State
DOMINIC RIDINGS, Appellant, v. THE STATE
No. 13807
September 27, 1983 669 P.2d 718
Appeal from judgment of conviction upon guilty plea, Eighth Judicial District Court, Clark
County; James A. Brennan, District Judge.
Defendant was convicted in the district court of attempting to obtain money under false
pretenses and he appealed. The Supreme Court held that where record did not show that
defendant ever had the elements of offense explained to him and defendant did not admit to
having an intent to defraud, an element of the crime, guilty plea was not shown to be entered
knowingly and voluntarily.
Peter L. Flangas, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney and
1. Criminal Law.
In order for a guilty plea to be constitutionally valid, the record must affirmatively show either that
the defendant understood the elements of the offense to which the plea was entered or made factual
statements to the court which constituted an admission to the offense pled to.
2. Criminal Law.
Where no one explained to defendant the elements of the crime of attempting to obtain money by
false pretenses and defendant admitted to some of the facts underlying the charged offense but did not
admit to attempted fraud, which is an element of the crime, guilty plea was not shown to be knowing and
voluntary.
3. False Pretenses.
Intent to defraud is an element of the crime of obtaining money under false pretenses. NRS
205.380.
OPINION
Per Curiam:
1

Pursuant to a plea bargain, appellant pleaded guilty to one count of attempting to obtain
money under false pretenses in violation of NRS 205.3S0.
____________________

1
Chief Justice Manoukian and Justice Mowbray voluntarily disqualified themselves from the consideration of
this case.
99 Nev. 709, 710 (1983) Ridings v. State
violation of NRS 205.380. On appeal he contends that his plea was constitutionally infirm
because the record does not affirmatively show that the plea was entered knowingly and
voluntarily. We agree.
[Headnote 1]
In order for a plea to be constitutionally valid, the record must affirmatively show either
that the defendant himself (not just his attorney) understood the elements of the offense to
which the plea was entered . . . [or] made factual statements to the court which constitute an
admission to the offense pled to. Hanley v. State, 97 Nev. 130, 135, 624 P.2d 1387, 1390
(1981) (footnote omitted).
[Headnotes 2, 3]
At no time on the record did anyone explain to appellant the elements of the crime of
attempting to obtain money under false pretenses. Moreover, at the plea hearing appellant did
admit to some of the facts underlying the charged offense, but he did not admit to having an
intent to defraud, which is an element of the crime.
2
See Gonzales v. State, 96 Nev. 562, 613
P.2d 410 (1980).
Accordingly, the requisite showing that the plea was entered knowingly and voluntarily
does not appear of record. The judgment of conviction is therefore reversed. The plea of
guilty is set aside, and the matter is remanded to the district court for further proceedings.
____________________

2
NRS 205.380 provides in part that:
1. Every person who knowingly and designedly by any false pretense obtains from any other person . .
. money . . . or other valuable thing . . . with intent to cheat or defraud the other person, is a cheat, and . . .
shall be punished. . . .
____________
99 Nev. 710, 710 (1983) Eagle's Nest v. Brunzell
EAGLE'S NEST LIMITED PARTNERSHIP, a Limited Partnership, and CHARLES
KETCHAM, Appellants and Cross-Respondents, v. EVERETT S. M. BRUNZELL,
Respondent and Cross-Appellant.
No. 14000
September 27, 1983 669 P.2d 714
Appeal and cross-appeal from judgment, Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Contractor brought action against property owner to recover additional costs and expenses
incurred due to construction delay.
delay. The district court entered judgment for the contractor, and property owner appealed.
The Supreme Court held that: (1) contractor sufficiently complied with notice and claim
provision of the parties' contract; (2) property owner was estopped from invoking notice and
claim provision as a defense to payment; and (3) contractor was entitled to prejudgment
interest from the time the sums became due and at the rate applicable when the sums became
due.
Affirmed.
Robison, Lyle, Belaustegui & Robb, Reno, for Appellants/Cross-Respondents.
Hill, Cassas, deLipkau & Erwin, Reno, for Respondent/Cross-Appellant.
1. Contracts.
Contractor's letter to property owner stating that contractor was being delayed as a result of difficulties
caused by mechanical problems with a precast concrete form which property owner was to have supplied
and indicating that the contractor disclaimed any liability for the resulting extra costs and intended to bill
property owner at a later date sufficiently complied with notice and claim provision of the parties' contract,
particularly in light of fact that property owner shared an office on the construction site with the contractor
and was thus well aware of the difficulties which arose during construction.
2. Estoppel.
Contractor who entered cost plus agreement with property owner in an attempt to resolve disputes
which had resulted from previous construction delays reasonably relied upon the agreement to extent that
the contractor believed that notice and claim provision of the parties' contract would no longer be
binding, and thus, property owner was estopped from invoking the notice and claim provision as a defense
to payment.
3. Interest.
Contractor who prevailed against property owner in action to recover additional contract costs and
expenses incurred due to delay was entitled to prejudgment interest from the time the sums became due and
at the rate applicable when the sums became due. NRS 108.237, 108.237, subd. 3.
OPINION
Per Curiam:
The instant dispute between appellant/cross-respondent property owner Eagle's Nest
Limited Partnership (Eagle's Nest) and respondent/cross-appellant contractor Brunzell arose
after difficulties developed in the course of Brunzell's construction of condominiums ordered
by Eagle's Nest.
In 1977, Eagle's Nest and Brunzell agreed that Brunzell would construct the
condominiums in question using a new technique known as the "Wham-T" system.
would construct the condominiums in question using a new technique known as the
Wham-T system. This Wham-T system was a new construction method which utilized
large precast concrete forms poured directly at the job site. If this system was effectively
utilized considerable savings could be realized, because massive concrete forms did not have
to be transported to the job site. In order to realize the savings possible through the use of this
method, however, an appropriate number of Wham-T molds had to be available on the job
site during the course of construction. These molds could only be obtained from the Wham-T
parent distributor, and it was the contractual responsibility of Eagle's Nest to provide an
appropriate number of molds.
During the course of construction, difficulties arose in the operation of the Wham-T molds
which resulted in substantial delays in construction. A witness for Brunzell testified that at
least two large Wham-T molds would have been required to bring the job in on time.
However, Eagle's Nest provided only one large and one small mold. Further, mechanical
difficulties with the small mold prevented Brunzell from using that piece of equipment at
normal or expected rates of production.
As a result of delays incurred due to the difficulties with the molds, the project was
completed late in 1979, several months later than anticipated. Brunzell subsequently brought
an action against Eagle's Nest to recover the additional costs and expenses incurred due to
this delay. The main factual issue presented at trial was whether the use of the Wham-T
system resulted in delays which were not contemplated by the parties. The district court found
that Brunzell had bid on the job on the assumption that Eagle's Nest would provide an
appropriate number of molds, but that Eagles's Nest had failed to provide sufficient molds for
the contractor to bring the job in on time. The district court accordingly found that Eagle's
Nest had caused substantial delays in the completion of the project, and that under an
equitable adjustment provision of the contract between Eagle's Nest and Brunzell, Eagle's
Nest was liable for the extra costs which were incurred. The district court entered judgment in
the amount of $544,386.78 for Brunzell, and this appeal followed.
EQUITABLE ADJUSTMENT
On appeal, Eagle's Nest first argues that the district court erred in ruling that Brunzell was
entitled to an equitable adjustment under the contract. This contention is without merit. We
initially note that neither party to this appeal appears to contest the district court's finding that
delays occurred in the course of construction, and that these delays were caused in large
part by the failure of Eagle's Nest to deliver the appropriate number of molds to the
construction site.
construction, and that these delays were caused in large part by the failure of Eagle's Nest to
deliver the appropriate number of molds to the construction site.
Instead, appellant Eagle's Nest argues that the district court erred because it failed to
recognize that Brunzell failed to comply strictly with a contractual provision which
established specific methods and procedures to be followed if the contractor wished to make
a claim for an increase in the contract price. Eagle's Nest maintains that because Brunzell
failed to comply with this provision, the contractor may not later claim an increase in the
agreed contract price.
The provision in question, Section 9.2.1 of the construction contract, established a
procedure by which Brunzell could seek an adjustment in the guaranteed maximum contract
price. That section provided:
If the contractor wishes to make a claim for an increase in the Guaranteed
Maximum Price, or increase his Fee or an extension of the Contract Time Schedule, he
shall give the Owner written notice thereof within a reasonable time after the
occurrence of the event giving rise to such claim. This notice shall be given by the
Contractor before proceeding to execute the Work, except in an emergency endangering
life or property in which case the Contractor shall act, at his discretion, to prevent
threatened damage, injury or loss. Claims arising from the delay shall be made within
a reasonable time after delay. . . . No such claim shall be valid unless so made. . . . Any
change in the Guaranteed Maximum Price, the Contractor's Fee or Contract Time
Schedule resulting from such claim shall be authorized by Change Order.
(Emphasis added.)
It is clear from the contractual language used that this notice and claim provision was
material to the parties. The issue presented is whether the district court erred in finding that
Brunzell complied with this material notice and claim provision. The district court ruling that
the notice and claim provision had been complied with was based on a letter sent by Brunzell
to appellant some time after the contractor began experiencing mechanical problems with the
small Wham-T mold. That letter provided, in pertinent part:
We are currently being delayed as a result of misalignment and unworkability of
certain parts within the small Wham-T mold (affectionately called Rusty Dusty by its
Maker). This equipment was damaged in transit and has undergone considerable
repair and modification since being shipped to the jobsite.
undergone considerable repair and modification since being shipped to the jobsite.
Major repairs have been made as directed by Wham-T however, this work has not
completely resolved this problem since the rear door closing jacks are still inoperative.
Due to this and other problems we have not benefited from having this mold. We have
not been able to doordinate [sic] its use with the large mold, consequently have had to
bear the additional cost for lifting and erection of poured units after our equipment has
moved to a different location.
For example, the large Wham-T molds for building No. 3 are almost finished yet
due to breakdown we have only poured one small mold at this time. This will
necessitate moving the crane and labor back to Building 3 site when the molds poured
in Rusty Dusty are available. We do not believe we should be responsible for the
resultant extra costs. Accordingly, it is our intent to submit our billing to you at a later
date.
We trust you will consider this matter favorable in the light of the circumstances
known to you.
The district court ruled this letter gave sufficient notice of additional costs and expenses
which Brunzell later detailed in a Change Order 19. These additional charges and expenses
totaled $380,537.09.
[Headnote 1]
The letter clearly indicated that Brunzell was being delayed as a result of difficulties
caused by mechanical problems with one of the Wham-T molds. Further, the letter indicated
that the contractor disclaimed any liability for the resulting extra costs, and intended to bill
Eagle's Nest at a later date. The letter thus provided some notice that Brunzell was incurring
additional costs, for which the contractor expected to recover from Eagle's Nest. The question
presented is whether the district court correctly found that the letter provided sufficient notice
to comply with the requirements of Section 9.2.1.
We believe that the letter did provide sufficient notice, and that the district court did not
err in finding that Brunzell had complied with Section 9.2.1. Section 9.2.1 provides that
[c]laims arising from the delay shall be made within a reasonable time after delay.
Appellant apparently would interpret this provision to require Brunzell to prognosticate in
some fashion all delay costs before they had been incurred. However, we believe that under
the circumstances presented in this case appropriate notice might consist of an initial notice
that difficulties had arisen, to be followed by a detailed statement of the extra costs incurred
when those costs could be determined with sufficient accuracy.
the extra costs incurred when those costs could be determined with sufficient accuracy.
Brunzell's letter that he was having trouble with the molds clearly provided appellant with
warning that the contractor was experiencing overruns and additional costs, and gave Eagle's
Nest the opportunity to take appropriate remedial measures.
Further, the question of notice raised by appellant must be considered in light of the
specific circumstances of this case. Appellant's representative shared an office on the
construction site with the contractor, and was well aware of the difficulties which arose
during construction. The Brunzell letter impliedly makes reference to the representative's
knowledge of the problems the contractor was encountering; the letter closes: We trust you
will consider this matter favorably in light of the circumstances known to you. Given that
appellant was aware that Brunzell was experiencing difficulties and additional costs for
which he expected to be compensated, we do not believe the district court erred in ruling that
the letter provided sufficient notice to meet the requirements of Section 9.2.1 of the contract.
See, e.g., Farnsworth & Chambers Co. v. United States, 346 F.2d 577 (U.S.Ct. Claims 1965)
(notice need not be set forth specifically and in detail; notice sufficient if owner knows
contractor claiming condition in certain area).
ESTOPPEL
In addition to the equitable adjustment, the district court also allowed Brunzell to recover
for additional cost overruns incurred after the additional charges detailed in Change Order 19
arose. Shortly before these additional costs were incurred, Brunzell and Eagle's Nest allegedly
entered into a cost plus agreement in an attempt to resolve disputes which had resulted
from the delays. Under the terms of this agreement, Brunzell was to receive an amount equal
to his costs plus eight percent. This agreement was later modified to provide that the
contractor would receive reimbursement for the additional costs incurred, plus a flat profit of
$1,000 per week. Brunzell apparently attempted to reduce this to writing in the form of
several confirmatory memoranda which were sent to Eagle's Nest. There was no response, but
Eagle's Nest subsequently made a $155,000 payment to Brunzell in apparent compliance with
this agreement.
The district court refused to enforce this subsequent cost plus agreement, on the ground
that it was unenforceable due to lack of consideration. However, the district court ruled that
Brunzell had reasonably relied upon the agreement to the extent that the contractor believed
that the notice and claim provisions of Section 9.2.1 would no longer be binding.
provisions of Section 9.2.1 would no longer be binding. As a result of Brunzell's reliance, the
district court concluded that Eagle's Nest should be estopped from invoking Section 9.2.1 as a
defense to payment.
[Headnote 2]
Eagle's Nest now maintains that the district court erred in applying such an estoppel
theory, arguing that Brunzell did not demonstrate that he relied on the agreement or that his
reliance was reasonable. Appellant's argument is without merit. The record indicates that the
district court properly could have found that Brunzell relied on the agreement, even though
the contractor's accountant apparently continued to prepare change orders for a period after
the cost plus modification was agreed to by the parties. Appellant's argument on this point is
apparently premised on a provision in a separate loan agreement which provided that any
modification of the construction agreement required the approval of the third party lender.
Although Brunzell admitted he was legally bound by the provisions of this loan contract, the
contractor stated that he had counted on the owner to obtain the necessary approval rather
than seeking such approval himself. In that the modification appears to have been the result of
mutual discussion and negotiation by Brunzell and Eagle's Nest in an attempt to find a
satisfactory solution to a legitimate contract dispute that was potentially damaging to both
parties, we are not prepared to say that the district court erred in finding Brunzell's reliance
reasonable. Accordingly, we reject this assignment of error.
BRUNZELL'S CROSS-APPEAL
[Headnote 3]
In addition to the issues raised on appeal by Eagle's Nest, respondent Brunzell presents
several contentions on cross-appeal. At least one of these contentions has merit. Brunzell
argues that the court erred in failing to award prejudgment interest. As appellant Eagle's Nest
expressly concedes, Brunzell is correct. In Paradise Homes v. Central Surety, 84 Nev. 109,
437 P.2d 78 (1968), this court determined that prejudgment interest should be awarded in
contract actions from the time the amount in question becomes due. As Brunzell is the
prevailing party in this action, the contractor is entitled to prejudgment interest from the time
the sums became due.
There remains the question of what represents the appropriate rate of prejudgment interest
to be applied in the instant case. Although Brunzell argues that NRS 108.237
1
mandates that
the contractor recover prejudgment interest at 12 percent per annum, the 12 percent per
annum rate set forth in this statute was established by a 19S1 amendment and applies
only to causes of action which arose on or after July 1, 19S1.
____________________

1
1. Any number of persons claiming liens may join in the same
that the contractor recover prejudgment interest at 12 percent per annum, the 12 percent per
annum rate set forth in this statute was established by a 1981 amendment and applies only to
causes of action which arose on or after July 1, 1981. See 1981 Nev. Stats. 1858-1859.
However, the record in the instant case indicates that Brunzell was originally entitled to
payment in 1979; thus, the contractor's cause of action arose well before July 1, 1981. The
contractor is therefore entitled to prejudgment interest at the rate applicable before NRS
108.237 was amended, or seven percent per annum. See 1981 Nev. Stats. 1858-1859.
In addition to prejudgment interest, Eagle's Nest concedes that NRS 108.237(3) establishes
that Brunzell is also entitled to recover attorney's fees incurred in the instant action.
Accordingly, this case is remanded to the district court with instructions that Brunzell be
awarded appropriate prejudgment interest in the amount of seven percent per annum pursuant
to NRS 108.237, and appropriate attorney's fees.
____________________
action. When separate actions are commenced the court may consolidate them.
2. The court may also allow interest at the rate of 12 percent per annum on the amount of the lien
found payable, such interest to have been due, and may allow, as part of the costs, the money paid for
recording the lien.
3. The court shall also allow to the prevailing party reasonable attorney's fees for the preparation of
the lien and for representation of the lien claimant in the action.
____________
99 Nev. 717, 717 (1983) Lueck v. State
ROBERT W. LUECK, Appellant, v. THE STATE
No. 14204
RICHARD A. WRIGHT, Appellant, v. DARREL R. DAINES,
Clark County Comptroller, Respondent.
No. 14288
September 27, 1983 669 P.2d 719
Appeals from orders denying motions for payment of excess fees to appointed counsel,
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Appeals were taken from orders of the district court denying motions for attorney fees in
excess of statutory maximum allowed for representation of indigent criminal defendants by
appointed counsel.
99 Nev. 717, 718 (1983) Lueck v. State
appointed counsel. The Supreme Court held that the District Court abused its discretion in
denying the motions.
Robert W. Lueck, Las Vegas, for Appellant Lueck.
Wright, Shinehouse & Stewart, Las Vegas, for Appellant Wright.
Johnnie B. Rawlinson, Deputy District Attorney, Clark County, for Respondents.
Attorney and Client.
Trial court abused its discretion in denying motions for attorney fees in excess of statutory maximum
allowed for representation of indigent criminal defendants by appointed counsel. NRS 7.125, subd. 4.
OPINION
Per Curiam:
These are appeals from orders denying motions for attorney fees in excess of the statutory
maximum allowed for the representation of indigent criminal defendants by appointed
counsel. Appellants both contend that the lower court abused its discretion in denying their
respective motions. We agree.
Appellant Lueck sought excess fees for his representation of an indigent through jury trial
on both the substantive offense of burglary and a related offense in municipal court, and in
attendant probation revocation proceedings. Lueck submitted a claim for $2,897.65 which
included $1,503.00 of in-court time, $538.50 of out-of-court time and $856.15 in actual
expenses. Lueck was awarded a fee of $1,000.00 pursuant to NRS 7.125(2)(b).
1

Appellant Wright sought payment for representation of Frank Ralph LaPena in the appeal
of LaPena's convictions for first degree murder and robbery with the use of a deadly weapon.
See LaPena v. State, 98 Nev. 135, 643 P.2d 244 (1982). Wright also represented LaPena in
several matters resulting from the remand of the case.
____________________

1
NRS 7.125(2)(b) provides:
2. The total fee for each attorney in any matter regardless of the number of offenses charged or
ancillary matters pursued must not exceed:
(b) If the most serious crime is a felony other than a felony included in paragraph (a) or is a gross
misdemeanor, $1,000; . . ..
99 Nev. 717, 719 (1983) Lueck v. State
resulting from the remand of the case. Wright submitted a claim for $6,864.80 which
included $172.50 for in-court time, $6,505.00 for out-of-court time and $187.30 in actual
expenses. Wright was awarded $1,000.00 pursuant to NRS 7.125(2)(e).
2

The comptroller of Clark County concedes that the time and effort claimed was expended;
the comptroller does not contend that there was any failure to document the time or expenses
or to comply with the procedural requirement of the statute. Therefore, the only issue before
us is whether, under the circumstances presented, the trial court abused its discretion in
failing to award fees in excess of the statutory maximum as provided by NRS 7.125(4).
3

No reasons are stated in the record for the denial by the trial court of Lueck's motion for
excess fees. In denying Wright's motion, the court below reasoned that just because he put a
lot of time in as research, . . . under the law . . . I can't grant it. I would have to do it all the
time. On reconsideration, the lower court further found that extraordinary circumstances did
not exist as defined by Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976).
Prior to 1975, there was no statutory provision for fees in excess of the limitations
specified in subsection (2) of NRS 7.125. The provision for extraordinary fees which is
applicable to this case was added by the legislature in 1975. Although the comptroller has
discussed Daines v. Markoff, supra, and its predecessors in his opposition to the appellants'
requests for compensation, only one decision of this court has been based on the provision of
the statute which is at issue herein: County of Clark v. Smith, 96 Nev. S54
____________________

2
Subsection (e) of NRS 7.125(2) provides that the total fee for an appeal of one or more felony convictions
must not exceed $1,000.

3
NRS 7.125(4) provided, at all times relevant to this case:
As used in this subsection extraordinary circumstances means financial burdens and hardships far in
excess of those normally attendant upon the defense of indigent persons. If the appointing court deems it
appropriate because of extraordinary circumstances to grant a fee in excess of the applicable maximum,
the payment may be made only if the court in which the representation was rendered certifies that the
amount of the excess payment is both reasonable and necessary and the payment is approved by the
presiding judge of the judicial district in which the attorney was appointed, or if there is no such
presiding judge or if he presided over the court in which the representation was rendered, then by the
district court judge who holds seniority in years of service in office.
The legislature in 1983, amended section (4) and deleted the terms extraordinary circumstances,
substituting a consideration of factors such as complexity of the case and severity of the offense. (1983) Nev.
Stats. ch. 429, 1, at 1096. The services at issue in these appeals, and the district court rulings, were rendered
before the amendment.
99 Nev. 717, 720 (1983) Lueck v. State
of Clark v. Smith, 96 Nev. 854, 619 P.2d 1217 (1980). Although the trial judge is in the best
position to gauge the reasonableness of the fees claimed, Smith, supra, the factors which
should be considered in making the necessary assessment were listed in Smith. Those factors
are: the amount, character and complexity of the work required; the responsibilities involved;
the manner in which the necessary duties were performed, the amount of knowledge, skill,
and judgment displayed by counsel; and the professional standing of counsel.
On appeal, the comptroller has not contended that any of the factors listed above are
lacking.
4
Instead, the comptroller argues that appointed counsel must show personal
financial hardship resulting from the appointment. Additionally, the comptroller argues that
as a result of the obligation of all attorneys to represent indigents, appointed counsel must
disregard financial reward. As to the ethical obligation of counsel, we need only note that
neither counsel seeks an hourly rate greater than the $20.00 for out-of-court time and $30.00
for in-court time specified by the statute, an hourly rate substantially less than that probably
charged by the bar in non-appointed cases.
The requirement of financial ruin as expressed in Brown v. Board of County
Commissioners, 85 Nev. 149, 451 P.2d 708 (1969) is not applicable as that case was decided
before the statute was amended in 1975, and we are not convinced that our opinion in Smith
should be overruled. Therefore, because the Smith factors were raised in the district court and
were not contested, we must find that the denial of excess fees to appellants was an abuse of
discretion and accordingly, we reverse the orders of denial in both cases. Furthermore,
because the amount of the claims has not been disputed on appeal, and because the
comptroller has not contended on appeal that any of the Smith factors are lacking in these
cases, we remand these cases to the trial court for the entry of orders granting the relief sought
by appellants.
____________________

4
The comptroller argued to the trial court that certain of Wright's research time was not compensable but
apparently has abandoned that argument on appeal.
____________
99 Nev. 721, 721 (1983) Whetstine v. Stroud
ROY E. WHETSTINE, Appellant, v. MARDEN M.
STROUD, Respondent.
No. 14586
September 27, 1983 669 P.2d 252
Appeal from judgment, Eighth Judicial District Court, Clark County; Paul S. Goldman,
Judge.
Plaintiff filed complaint seeking to recover on promissory note allegedly executed by
defendant. Defendant answered, asserted affirmative defense, and counterclaimed. The
district court entered judgment on pleadings in favor of plaintiff, and defendant appealed. The
Supreme Court, held that pleadings presented material issues of fact as to whether note was
due and owing, defense of accord and satisfaction could be asserted, and delivery of property
to plaintiff as security with value in excess of note had been made precluding judgment on the
pleadings.
David Allen, Las Vegas, for Appellant.
James L. Buchanan, Las Vegas, for Respondent.
Pleading.
In action to recover, on promissory note allegedly executed by defendant, pleadings presented material
issues of fact as to whether note was due and owing, defense of accord and satisfaction could be asserted,
and delivery of property to plaintiff as security with value in excess of note had been made precluding
judgment on the pleadings
OPINION
Per Curiam:
In July of 1981, respondent Stroud filed a complaint in district court against appellant
Whetstine seeking to recover on a promissory note allegedly executed by Whetstine.
Whetstine answered the complaint, asserted an affirmative defense, and counterclaimed
against Stroud. Stroud never filed a reply to Whetstine's counterclaim.
On September 14, 1982, the day scheduled for trial, Whetstine's counsel represented to the
court that Whetstine was considering declaring bankruptcy. The district judge continued the
matter for thirty days and scheduled a status check at that time. The district judge also stated
in this order that in the event the defendant does not seek bankruptcy, the court will enter an
order for judgment on the pleadings."
99 Nev. 721, 722 (1983) Whetstine v. Stroud
order for judgment on the pleadings. One month later, at the scheduled status check,
Whetstine's counsel represented that Whetstine was not going to declare bankruptcy. The
district judge then entered judgment on the pleadings in Stroud's favor.
1
Accordingly, Stroud
received a judgment against Whetstine for $100,000, as prayed for in his complaint, together
with interest, attorney fees and costs. Whetstine's appeal followed. For the reason set forth
below, we reverse.
Judgment on the pleadings in this case was inappropriate because Whetstine's answer
raised material issues of fact which remained in dispute. A motion for judgment on the
pleadings, like a motion for summary judgment, should be granted only if there is no issue of
material fact and if the pleadings show that the moving party is entitled to prevail as a matter
of law. Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973). See
also 5 Wright & Miller, Federal Practice and Procedure: Civil 1368 (1973). Not only did
Whetstine's answer deny that the $100,000 promissory note was due and owing, but the
answer asserted the affirmative defense of accord and satisfaction. Furthermore, Whetstine's
counterclaim alleged the delivery of property to Stroud as security with a value in excess of
the $100,000 note. Thus, material issues of fact were presented by the pleadings, precluding a
judgment thereon.
In light of our determination above, we need not decide the remaining procedural issues
raised by the parties.
2
The district court's judgment is reversed, and this matter is remanded
for further proceedings.
____________________

1
There is no explanation in the record on appeal, in the district court clerk's minutes, or in the briefs filed on
appeal, as to why the district court entered, sua sponte, a judgment on the pleadings.

2
We note, however, that the 1 1/2 pages of argument in the respondent's answering brief contain only a
discussion of the procedural issues raised by appellant. There is no response to appellant's contention that
judgment on the pleadings was precluded by the existence of factual issues.
____________
99 Nev. 723, 723 (1983) Massey v. Litton
DONALD H. MASSEY and BERTHA M. MASSEY, His Wife,
Appellants, v. RALPH J. LITTON, M.D., Respondent.
No. 14236
September 27, 1983 669 P.2d 248
Appeal from order granting motion to dismiss, certified pursuant to NRCP 54(b). Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
In malpractice action, doctor moved to dismiss on ground that statute of limitations barred
claim. The district court granted doctor's motion, and patient appealed. The Supreme Court,
Mowbray, J., held that: (1) term injury as used in medical malpractice statute of limitations
means legal injury, i.e., all essential elements of malpractice cause of action; (2) with respect
to medical malpractice statute of limitations, a patient discovers his legal injury when he
knows or, through use of reasonable diligence, should have known all facts that would put a
reasonable person on inquiry notice of his cause of action; and (3) evidence raised substantial
fact issue as to whether patient was, or should have been, aware of her cause of action at a
date so early as to render statute of limitations a bar to her claim, precluding summary
judgment.
Reversed and remanded for further proceedings.
Eric Zubel, Las Vegas, for Appellants.
Galatz, Earl & Catalano, Daniel F. Polsenberg, Las Vegas, for Respondent.
1. Judgment.
When defendant in medical malpractice action moved to dismiss on ground that statute of limitations
barred claim, and defendant requested district court to consider material outside of pleadings, motion
should have been treated as one for summary judgment pursuant to summary judgment rule. NRCP
12(b), 56.
Injury as used in medical malpractice statute of limitations means legal injury, i.e., all essential
elements of malpractice cause of action. NRS 41A.097, subd. 1.
With respect to medical malpractice statute of limitations, a patient discovers his legal injury when he
knows or, through use of reasonable diligence, should have known of facts that would put a reasonable
person on inquiry notice of his cause of action. NRS 41A.097, subd. 1.
4. Judgment.
Evidence in medical malpractice action raised substantial fact issue as to whether patient either was, or
should have been, aware of her cause of action at a date so early as to render statute of limitations a bar to
her claim, precluding summary judgment.
OPINION
[Headnote 1]
Appellant, Bertha Massey, sued respondent, Ralph J. Litton, M.D., for malpractice.
Respondent moved to dismiss on the ground that the statute of limitations barred the claim.
The court granted this motion and certified its order pursuant to NRCP 54(b)
1
. Appellant
appeals arguing that the district court erred in its construction of the statute of limitations. We
agree. We therefore reverse and remand this matter for further proceedings consistent with
this opinion.
THE FACTS
On July 27, 1976, respondent doctor performed a hip replacement operation on appellant.
After surgery, appellant's leg was placed in a traction device. When appellant complained of
pain, attending nurses advised appellant that the device was not to be altered; that the
postoperative pain was not unusual.
On or about August 11, 1976, according to appellant's complaint, appellant first
discovered that she lacked any feeling or sensation in the toes of her left foot, [and] left leg
between the ankle and the knee. [She also] noticed that the toes of her left foot appeared
curled downward and [she] was unable to exercise any motor control in the region of her
lower left leg and foot. [Upon inquiry she] was told that it was not unusual or permanent and
that physical therapy would result in an improvement thereof. If caused by nerve damage,
such a condition is known as dropped foot.
Appellant continued under respondent's care for many months. Respondent never indicated
that the condition would not improve until January 3, 1977, when he expressed his inability to
explain appellant's condition. Respondent ordered an electromyograph (EMG) in February;
on March 15 he wrote that he was at a total loss to explain appellant's condition.
____________________

1
As respondent had requested the district court to consider material outside of the pleadings, the motion
should have been treated as one for summary judgment pursuant to NRCP 12(b) and 56.
On or about May 4, 1977, appellant received the EMG results. A consulting physician
diagnosed palsy with no evidence of reinnervation.
On July 28, 1978, appellants (patient and her husband) filed an initial complaint against
Sunrise Hospital alleging negligent care by it and its employees. Also on that date she filed a
petition with the Nevada Medical-Legal Screening Panel, as a statute then applicable
required. NRS 41A.050-080.2 The petition alleged that Dr. Litton had been negligent in his
care and treatment.
On or about April 12, 1979, the Screening Panel mailed to appellant its decision that she
had failed to establish by sufficiently convincing evidence a reasonable possibility that
respondent had been negligent. Appellants moved to amend their complaint and join Dr.
Litton as a party on August 15, 1979. The district court granted their motion and on
September 11, 1979, they filed the amended complaint. Appellant alleged negligence in
failing to advise her of the risk of the dropped foot and negligence in failing to instruct the
attending nurses in the proper care of her leg when in traction.
Respondent moved to dismiss on the ground that the statute of limitations began to run on
August 11, 1976, the date appellant discovered her dropped foot. Appellants responded by
a second amended complaint alleging the facts of postoperative treatment noted above.
Respondent again moved to dismiss on the same grounds. Respondent argued that the
continuing physician-patient relationship did not extend the time appellant discovered the
numbness and paralysis, and consequently the statute still ran commencing August 11, 1976.
Appellants responded by filing a third complaint amended to add another count against the
hospital. Respondent renewed his motion to dismiss and it was granted on April 16, 1982.
THE MEANING OF INJURY AS USED IN
THE STATUTORY DISCOVERY RULE
We first must decide what injury means as used in the statutory discovery rule for
malpractice, NRS 41A.097(1).
3
Respondent argues that it means physical damage only: a
plaintiff actually or constructively discovers his or her "injury" when the damage becomes
physically manifest.
____________________

2
Repealed by 1981 Nev. Stat. ch. 327, sec. 15, at 599.

3
NRS 41A.097(1) provides in pertinent part:
1. Except as provided in subsection 2, an action for injury or death against a provider of health care
shall not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers
or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:
Respondent argues that it means physical damage only: a plaintiff actually or constructively
discovers his or her injury when the damage becomes physically manifest. Under this
theory, the statute began to run on August 11, 1976. Appellants contend, however, that the
term injury encompasses not only the physical damage but also the negligence causing the
damage. We agree with appellants.
Since our statute uses the term injury we look to decisions construing statutes worded
similarly. In these jurisdictions, the statute generally runs from the date the plaintiff knew or
should have known (i.e., actual or constructive discovery) of his or her injury. See 2 S.
Pegalis & H. Wachsman, American Law of Medical Malpractice sec. 6.8 at 21-38 (1981).
Injury could mean the allegedly negligent act or omission; the physical damage resulting
from the act or omission; or the legal injury, i.e., all essential elements of the malpractice
cause of action. Although two courts have adopted the first meaning, Landgraff v. Wagner,
546 P.2d 26, 33 (Ariz.App.), appeal dismissed, 429 U.S. 806 (1976), Dunn v. St. Francis
Hospital, Inc., 401 A.2d 77, 80 (Del. 1979), we find such an interpretation defeats the purpose
of a discovery rule. See 2 Pegalis & Wachsman, supra, sec. 6.7 at 19-20 (1981).
The physical damage meaning was used in Peralta v. Martinez, 564 P.2d 194, 197
(N.M.App.), cert. denied, 567 P.2d 485 (N.M. 1977). The court held that the injury
occurred for limitations purposes on the date the injury manifested itself in a physically
objective and ascertainable manner. The case involved a sponge left behind during prior
surgery. In such circumstances, discovery of the physical injury is actually simultaneous with
discovery of the only possible cause, and obvious negligence. In contrast, the damage here
was consistent with postoperative recovery, and treatment was continued under the operating
doctor who reassured the patient that there was no permanent damage. We think the physical
damage test fails adequately to account for all relevant factors in this type of a case.
[Headnote 2]
We find that the above meanings would unfairly bar the suit of a patient acting reasonably
in trusting his doctor and relying upon his advice. We hold that injury as used in NRS
41A.097(1) means legal injury. The Utah Supreme Court, arriving at the same conclusion,
stated the underlying rationale:
____________________
(a) Injury to or wrongful death of a person based upon alleged professional negligence of the provider
of health care;
. . . .
(c) Injury to or wrongful death of a person from error or omission in practice by the provider of health
care.
arriving at the same conclusion, stated the underlying rationale:
While the recipient may be aware of a disability or dysfunction, there may be, to the
untutored understanding of the average layman, no apparent connection between the
treatment provided by a physician and the injury suffered. Even if there is, it may be
passed off as an unavoidable side effect or a side effect that will pass with time. . . .
[W]hen injuries are suffered that have been caused by an unknown act of negligence by
an expert, the law ought not to be construed to destroy a right of action before a person
even becomes aware of the existence of that right.
Furthermore, to adopt a construction that encourages a person who experiences an
injury, dysfunction or ailment, and has no knowledge of its cause, to file a lawsuit
against a health care provider to prevent a statute of limitations from running is not
consistent with the unarguably sound proposition that unfounded claims should be
strongly discouraged. . . .
It would also be imprudent to adopt a rule that might tempt some health care providers
to fail to advise patients of mistakes that have been made and even to make efforts to
suppress knowledge of such mistakes in the hope that the running of the statute of
limitations would make a valid cause of action nonactionable.
Foil v. Ballinger, 601 P.2d 144, 147-148 (Utah 1979).
Having decided that injury means legal injury, we now determine when the patient
discovers her legal injury. In Ballinger, the court held that the statute begins to run when
the injured person knows or should know that he has suffered a legal injury. Id. Thus the
discovery may be either actual or presumptive. Our statute similarly provides for actual or
presumptive discovery. NRS 41A.097(1).
This construction is in accord with the majority view in construing statutory and common
law discovery rules. The discovery may be either actual or presumptive, but must be of both
the fact of damage suffered and the realization that the cause was the health care provider's
negligence. See 1 D. Louisell & H. Williams, Medical Malpractice sec. 13.07 at 13-24 n. 54,
13-25 (1983). See also Sanders v. Blunt, 357 S.2d 620, 621 (La.App. 1978); Brown v. Mary
Hitchcock Memorial Hosp., 378 A.2d 1138, 1140 (N.H. 1977); Lopez v. Swyer, 300 A.2d
563, 567 (N.J. 1973); Ohler v. Tacoma General Hosp., 598 P.2d 1358, 1360 (Wash. 1979).
This rule has been clarified to mean that the statute of limitations begins to run when the
patient has before him facts which would put a reasonable person on inquiry notice of his
possible cause of action, whether or not it has occurred to the particular patient to seek
further medical advice.
patient has before him facts which would put a reasonable person on inquiry notice of his
possible cause of action, whether or not it has occurred to the particular patient to seek further
medical advice. See Graham v. Hansen, 180 Cal.Rptr. 604, 609 (Cal.App. 1982); Sanchez v.
South Hoover Hosp., 553 P.2d 1129, 1135 (Cal. 1976). The focus is on the patient's
knowledge of or access to facts rather than on her discovery of legal theories. Graham v.
Hansen, 180 Cal.Rptr. at 609-610. See also Louisell & Williams, supra, at 13-25.
[Headnote 3]
We hold that a patient discovers his legal injury when he knows or, through the use of
reasonable diligence, should have known of facts that would put a reasonable person on
inquiry notice of his cause of action.
[Headnote 4]
Given our holding that injury encompasses discovery of damage as well as negligent
cause, we cannot say that summary judgment was justified on the pleadings and facts
presented. Appellant's discovery of symptoms of dropped foot does not necessarily mean that
she had discovered negligence, or that she had cause to suspect negligence. Her doctor
showed no great concern until several months later. She commended herself to his care and
continuing treatment. [T]he patient is fully entitled to rely upon the physician's professional
skill and judgment while under his care, and has little choice but to do so. It follows,
accordingly, that during the continuance of this professional relationship, which is fiduciary
in nature, the degree of diligence required of a patient in ferreting out and learning of the
negligent causes of his condition is diminished. Sanchez v. South Hoover Hospital, 553 P.2d
at 1135.
On the basis of the facts revealed by this record, it is not clear that appellant either was, or
should have been, aware of her cause of action at a date so early as to render the statute of
limitations a bar to her claim. Accordingly, summary judgment was improper.
Reversed and remanded for proceedings consistent with this opinion.
Manoukian, C.J., and Springer, Steffen, and Gunderson, JJ., concur.
____________
99 Nev. 729, 729 (1983) County of Clark v. Nevada Indus. Comm'n
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Appellant, v. THE
STATE OF NEVADA, NEVADA INDUSTRIAL COMMISSION, Respondent.
No. 14536
September 28, 1983 669 P.2d 730
Appeal from order affirming administrative ruling, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
The district court affirmed a determination of the Industrial Commission that temporary
election workers hired by county to work only on election days were employees of county,
and county appealed. The Supreme Court held that such workers were employed in course of
county's business of providing governmental services and, thus, were employees of county
and subject to industrial insurance laws.
Affirmed.
Robert J. Miller, District Attorney, and Thomas R. Severns, Deputy District Attorney,
Charles J. York, and Dean A. Hardy, Las Vegas, for Respondent.
Workers' Compensation.
Temporary election workers hired by county to work only on election days were employed in course of
county's business of providing governmental services and, thus, were employees of county and subject to
industrial insurance laws. NRS 616.010 et seq., 616.060, subd. 1, 616.120.
OPINION
Per Curiam:
This is an appeal from an order affirming the respondent agency's determination that
temporary election workers hired by appellant county are employees of the county and thus
subject to the industrial insurance laws embodied in NRS Chapter 616. The sole contention
on appeal is that this determination was erroneous. We disagree and therefore affirm.
Under NRS 616.060(1), a person is not an employee if his or her employment is both
casual and not in the course of the trade, business, profession or occupation of the
employer. The specific dispositive issue in this case is whether election workers hired by the
county to work only on election days are employed in the course of the county's
business.1
99 Nev. 729, 730 (1983) County of Clark v. Nevada Indus. Comm'n
election workers hired by the county to work only on election days are employed in the course
of the county's business.
1

Under NRS 616.120, [t]rade, business, profession or occupation of the [the] employer
includes all services tending toward the preservation, maintenance or operation of the
business, business premises, or business property of the employer. The county tacitly
acknowledges that if the language of NRS 616.130 is applied literally, election day workers
are employees under NRS 616.060(1), and thus are subject to the provisions of NRS
Chapter 616. The county argues, however, that literal application of such language, in a case
involving a public entity such as the county, would render meaningless the exclusion
embodied in 616.060(1).
As the county suggests, the trade or business definition in NRS 616.120 is quite broad.
Nevertheless, the employment of election workers is clearly within the scope of the county's
business of providing governmental services. If the statutory definition should be narrowed,
the county's argument is more appropriately made to the legislature rather than to this court.
As the statute now reads, respondent's determination was correct.
Affirmed.
____________________

1
The parties apparently agree that the election workers are casual. See NRS 616.030.
____________
99 Nev. 730, 730 (1983) IAMA Corp. v. Wham
IAMA CORPORATION, WILLIAM C. DIERCKS and VIRGINIA DIERCKS,
Appellants, v. HARRY P. WHAM, Respondent.
No. 13629
October 3, 1983 669 P.2d 1076
Appeal from money judgment, Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
Appeal was taken from judgment of the district court awarding secured party possession of
certain secured collateral, $17,768.17 for damages sustained in maintenance of collateral
during pendency of litigation, and $15,000 in attorney fees. The Supreme Court held that: (1)
leasehold which comprised secured collateral was improperly listed in security agreement and
improperly transferred to secured party's possession; (2) sale by which secured party took
possession of collateral was not conducted in a commercially reasonable manner and
would be set aside; and {3) due to counsel's failure to request express findings that
purported agreement to pay "finder's fee" in real estate transaction in fact existed, but
was unenforceable as a matter of law due to real estate statutes, Supreme Court was
bound to presume that district court found that agreement, existence of which was
denied by one of parties, was not sufficiently established when it ruled that evidence was
insufficient to establish claim of finder's fee setoff against promissory note; thus, even if
Supreme Court was prepared to recognize "finder's exception" to real estate licensing
statutes, it had to be presumed that district court found there was no agreement which
would allow assertion of such defense.
not conducted in a commercially reasonable manner and would be set aside; and (3) due to
counsel's failure to request express findings that purported agreement to pay finder's fee in
real estate transaction in fact existed, but was unenforceable as a matter of law due to real
estate statutes, Supreme Court was bound to presume that district court found that agreement,
existence of which was denied by one of parties, was not sufficiently established when it
ruled that evidence was insufficient to establish claim of finder's fee setoff against promissory
note; thus, even if Supreme Court was prepared to recognize finder's exception to real
estate licensing statutes, it had to be presumed that district court found there was no
agreement which would allow assertion of such defense.
Sacco, Toigo & Burns, Las Vegas, for Appellants.
J. E. Ring Smith, Las Vegas, for Respondent.
Due to counsel's failure to request express findings that purported agreement to pay finder's fee in real
estate transaction in fact existed, but was unenforceable as a matter of law due to real estate statutes,
Supreme Court was bound to presume that district court found that agreement, existence of which was
denied by one of parties, was not sufficiently established when it ruled that evidence was insufficient to
establish claim of finder's fee setoff against promissory note; thus, even if Supreme Court was prepared to
recognize finder's exception to real estate licensing statute, it had to be presumed that district court found
there was no agreement which would allow assertion of such defense.
Where leasehold was not subject to provisions of secured transaction statute even though it was listed in
security agreement, so that leasehold could not be transferred or disposed of under security agreement,
district court erred when it allowed secured creditor to take possession of leasehold by means of security
agreement. NRS 104.901-104.9507, 104.9102, subd. 1(a), 104.9104, subd. 10.
Where secured party at one point had offered to purchase restaurant for $80,000, which presumably
represented his considered judgment of property's market value, but secured party was subsequently able to
acquire property, after purchasing promissory note for which restaurant was collateral, through purchase of
collateral at sale for $20,050, and where secured party's actions while maintaining collateral before sale
vitiated procedural safeguards admittedly adhered to at sale itself, sale by which secured party took
possession of collateral was not conducted in a commercially reasonable manner and would be set aside.
NRS 104.9504, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment awarding respondent Harry P. Wham (Wham)
possession of certain secured collateral, $17,768.17 for damages sustained in the maintenance
of the collateral during the pendency of litigation, and $15,000 in attorney's fees. We
conclude that a major portion of the damages allegedly sustained by Wham in the
maintenance of the collateral arose out of the maintenance of a leasehold improperly listed in
the security agreement and improperly transferred to Wham's possession by the court below.
Further, we find the sale by which Wham took possession of the collateral was not conducted
in a commercially reasonable manner. We therefore set aside the sale of the collateral, and
remand this case with appropriate instructions.
FACTS
In 1972, appellants IAMA Corporation, William C. Diercks and Virginia Diercks
(hereinafter Diercks) purchased the master lease on premises located on Vegas Valley Drive
in Las Vegas for the purpose of operating a restaurant. Several years later, in August, 1975,
Diercks borrowed $11,500 from Anthony Mazzuca (Mazzuca) and signed a promissory note
for $17,000. By its terms, this note was to be paid within two to four weeks, and provided for
the accrual of interest at ten percent per annum. The note was ostensibly secured by Diercks'
leasehold interest in the Vegas Valley Drive property, and all the personalty, furniture and
fixtures located on the premises. Mazzuca subsequently filed the note and a completed
Uniform Commercial Code Article Nine financing statement (see 104.9402) with the county
recorder; the financing statement listed as collateral [a]ll furniture, fixtures, equipment,
appliances and stock-in-trade located at the Vegas Valley Drive premises.
Diercks did not repay Mazzuca within the agreed time. Instead, Diercks allegedly entered
into an oral agreement with Mazzuca, whereby Mazzuca agreed to pay Diercks $25,000 as a
finder's fee if Diercks found a purchaser for commercial property owned by Mazzuca.
Pursuant to this alleged agreement, Diercks apparently conducted a search for a buyer and
approximately one year later allegedly located a buyer for Mazzuca's property. Diercks did
not receive any direct compensation for his efforts; instead, it is Diercks's contention that
Mazzuca agreed to apply the $25,000 finder's fee against the outstanding note.
In 1978, Diercks entered into negotiations with respondent Wham for the sale of the Vegas
Valley Drive property listed as collateral in the 1975 Mazzuca note. Wham offered to
purchase the restaurant for $80,000, and steps were taken to execute a contract of sale.
Shortly before the contract was to be executed, however, Wham apparently learned of the
outstanding 1975 note. Rather than purchase the restaurant, Wham purchased the outstanding
note from Mazzuca for $20,000 and demanded immediate possession of the leasehold
collateral.
Diercks refused to surrender the property, claiming that the Mazzuca note was usurious
and that the underlying obligation had been satisfied by the finder's fee agreement with
Mazzuca. At the time Wham purchased the note he was aware that Diercks was claiming
these defenses; nonetheless, Wham continued to demand immediate possession of the
property. When Diercks continued to refuse to surrender the collateral, Wham brought an
action in district court to obtain possession of the property.
After a pretrial hearing, the district court ordered Diercks to surrender the collateral,
including the leasehold interest in the Vegas Valley Drive restaurant. After taking possession,
Wham leased the premises immediately adjacent to the restaurant and made major alterations
in the building, seating and lighting arrangements in order to operate the two premises as one
establishment. Wham also obtained a liquor license to operate a bar at the combined location,
and ultimately conducted a sale to dispose of the collateral. At this sale Wham purchased the
property for $20,050; this transaction was completed before the district court entered final
judgment in the instant action.
After procedural delays which are not relevant to this appeal, the district court ordered
bifurcation of the trial on Wham's action to gain possession of the collateral. In the first phase
of the trial, the court addressed the issue of whether the Mazzuca note was usurious. At the
conclusion of the presentation of evidence on this issue, the court held that the note was
usurious, that all the interest was therefore void, and that the value of the note was $11,500.
The second phase of the trial addressed only whether the sale of the property was
commercially reasonable, and whether Wham could be a holder in due course of the note if he
took the note with notice of Diercks' claimed defenses of usury and setoff. The court found
that Wham was entitled to holder in due course status despite his knowledge of the possible
defenses, and that the sale of the property was commercially reasonable. The court entered
judgment for Wham, and included in its award of damages expenses incurred by Wham while
maintaining the collateral over the course of the litigation.
FINDER'S EXCEPTION
At the hearing which resulted in the district court granting Wham possession of the
collateral, Diercks argued that Wham was not entitled to holder in due course status because
he took the Mazzuca note with notice of the asserted defenses of usury and setoff. After
hearing evidence on this issue, the court below ruled that the agreement is not enforceable as
Diercks was not a licensed real estate broker or salesman, and further ruled that the evidence
was insufficient to establish the Defendant's claim of setoff. On appeal, Diercks maintains
that the district court erred in failing to recognize his alleged agreement with Mazzuca as a
defense to the note, and urges this court to adopt a finder's exception to the real estate
licensing statutes which would provide Diercks with a defense to the note. See Tryone v.
Kelley, 507 P.2d 65 (Cal. 1973).
We have examined the record, however, and conclude that Diercks has not carried his
burden of demonstrating that the court below erred in failing to recognize the existence of the
alleged agreement. See Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979).
[Headnote 1]
Diercks did not request the district court enter findings which would establish that the
court found the purported agreement with Mazzuca in fact existed, but was unenforceable as
a matter of law due to the real estate statutes. See Beggs v. Lowe, 89 Nev. 547, 516 P.2d 467
(1973); Islandia, Inc. v. Marechek, 82 Nev. 424, 420 P.2d 5 (1966). This court has previously
held that in the absence of express findings, it will imply findings where the evidence clearly
supports the judgment. See Cooper v. Pacific Augo. Ins. Co., 95 Nev. 801, 603 P.2d 281
(1979); Gorden v. Gorden, 93 Nev. 494, 496, 569 P.2d 397 (1977); Richfield Oil Corp. v.
Harbor Ins. Co., 85 Nev. 185, 192, 452 P.2d 462 (1969). In the instant case, due to counsel's
failure to request express findings, this court is bound to presume that the district court found
that the agreement between Mazzuca and Diercks, the existence of which was denied by
Mazzuca, was not sufficiently established.
Thus, even if this court were prepared to recognize a finder's exception to the real estate
licensing statutes, we must presume that the district court found there was no agreement
which would allow Diercks to assert such a defense. We therefore affirm the decision of the
court below on this issue.
SECURITY INTEREST IN A LEASEHOLD
[Headnote 2]
Although we affirm the district court's decision inasmuch as it applies to the asserted
defense based upon the alleged agreement, we find the court below erred when it
allowed Wham to take possession of a leasehold by means of the security agreement.
it applies to the asserted defense based upon the alleged agreement, we find the court below
erred when it allowed Wham to take possession of a leasehold by means of the security
agreement.
Secured transactions of the type underlying the instant case are governed by Nevada's
version of Article Nine of the Uniform Commercial Code, set forth at NRS
104.901-104.9507. NRS 104.9104 enumerates those transactions which are expressly
excluded from coverage under Nevada's version of Article Nine. Of particular significance in
the instant case is the exclusion contained in NRS 104.9104(10), which provides, in pertinent
part, that Article Nine does not apply to the creation or transfer of an interest in or lien on
real estate, including a lease or rents thereunder. . . . (Emphasis added.) Further, NRS
104.9102(1)(a) provides in pertinent part that Article Nine applies to any transaction which
is intended to create a security interest in personal property or fixtures. . . . This unequivocal
language makes it quite clear that a leasehold is not subject to the provisions of Article Nine
even though it might be listed in the security agreement. See Hilst v. Bennett, 485 P.2d 880,
882 (Colo. 1971); see also Ingram v. Ingram, 521 P.2d 254, 260-261 (Kansas 1974).
In the instant case, the note provided it was secured by the leasehold interest in the
Vegas Valley Drive property. On the strength of this note, the district court allowed Wham to
take possession of the leasehold, to remain in possession despite Diercks's efforts to regain
the property, and finally to dispose of the collateral. It is quite clear, however, that the
leasehold could not be transferred or disposed of under an Article Nine security agreement.
1
Thus, Wham should not have been permitted to take possession or dispose of the property,
and the district court's failure to recognize that the leasehold could not be transferred in this
fashion constituted error.
COMMERCIALLY REASONABLE SALE
[Headnote 3]
We also conclude that the district court erred in finding Wham conducted the sale of the
collateral in a commercially reasonable manner.
After default, a secured party may sell, lease or otherwise dispose of any or all collateral.
Every aspect of the disposition, however, including the method, manner, time, place, and
terms of the disposition must be commercially reasonable.
____________________

1
Wham has not suggested, either in the court below or on appeal, that the note might have created an
enforceable interest in the property other than by way of Article Nine. Accordingly, we do not address the issue
of whether the note may have created an interest enforceable by some mechanism other than Article Nine.
terms of the disposition must be commercially reasonable. See NRS 104.9504(3). Further,
this court has noted that a wide discrepancy between the sale price and the value of the
collateral compels close scrutiny into the commercial reasonableness of the sale. See Levers
v. Rio King Land & Inv. Co., 93 Nev. 95, 98-99, 560 P.2d 917 (1977); Jones v. Bank of
Nevada, 91 Nev. 368, 535 P.2d 1279 (1975).
In the instant case, it is undisputed that at one point Wham offered to purchase the
restaurant for $80,000, which presumably represented his considered judgment of the
property's market value. Wham was subsequently able to acquire the property at the sale for
$20,050, or slightly more than one-fourth the price he was prepared to pay before purchasing
the Mazzuca note. We believe such a discrepancy compels close scrutiny into the commercial
reasonableness of the sale.
2

If the sale is closely scrutinized, it becomes apparent that the sale was not conducted in a
commercially reasonable manner. It appears Wham did attempt to conform to the norms
governing such sales; the district court found that Wham gave proper notice of the sale, that
the sale was conducted by the sheriff's department in accordance with normal procedures, and
that bidding at the sale was spirited and competitive.
Unfortunately, Wham's actions while maintaining the collateral before the sale vitiated the
procedural safeguards adhered to at the sale itself. As previously noted, after taking
possession of the collateral Wham leased the premises immediately adjacent and proceeded to
make major alterations in the structure of the building. Wham apparently knocked out walls,
changed the floor configuration, altered the lighting, and made other substantial changes in
the restaurant in order to operate the two leaseholds as one business. By these actions Wham
effectively destroyed the separate identity of the property, co-mingling the collateral with
the premises next door. Finally, Wham obtained a liquor license and operated a bar at the
combined location. After Wham obtained the license, a county ordinance was enacted which
prohibited two liquor licensees from operating within 1500 feet of one another. The inability
to obtain a liquor license for the restaurant would clearly have a substantial impact on the
property's market value, yet at the sale Wham informed one prospective buyer that he
intended to retain the license on the adjacent property, and that as a result any purchaser of
the leasehold would be unable to obtain a liquor license.
____________________

2
We note that any discussion is complicated by the fact that part of the purchase price was undoubtedly
intended to secure the leasehold, which could not be transferred under Article Nine.
These actions clearly had a detrimental effect on the price the property could be expected
to bring at any sale, and indicates that Wham did not sell the collateral in its then condition
or after commercially reasonable preparation or processing. See NRS 104.9504(1). That
Wham was able to acquire the property at a greatly reduced price demonstrates the adverse
result of his activities. Given Wham's actions and the attendant effect on the market value of
the property, we believe that the district court erred in finding the sale of the collateral was
conducted in a commercially reasonable manner. Accordingly, the sale must be set aside.
CONCLUSION
The preceding discussion demonstrates that the district court erred in allowing Wham to
take possession of the leasehold pursuant to an Article Nine security agreement, and further
erred in finding that the sale of the remaining collateral was commercially reasonable.
Further, it is clear that the district court's error fatally infects the damages award. The court
awarded money damages to Wham in the amount of $17,768.70, reaching this figure by
subtracting the $20,050 that Wham bid at sale from the $37,818.70 Wham expended
maintaining the collateral during the pendency of the litigation. The record indicates,
however, that over $20,000 of the $37,818.70 allegedly expended by Wham represented rent
and maintenance costs on the leasehold. As Wham clearly was never entitled to possession of
the leasehold, the district court's computation is erroneous.
We are left with the question of what relief is appropriate in the factual setting of this case.
Initially, we note that the district court found that $11,500 was still owing on the Diercks note
to Mazzuca, which was purchased and held by Wham. As we perceive no error in the district
court ruling that the finder's agreement purportedly entered into between Diercks and
Mazzuca was not sufficiently established, Wham was entitled to this sum.
It is equally clear, however, that Article Nine afforded Wham no right to take possession
or dispose of the leasehold. Accordingly, the leasehold interest in the property must be
returned to Diercks. Further, in that Wham utilized the property for his own purposes during
the pendency of the litigation, Diercks is entitled to recover the reasonable use value of the
property. This use value, however, must be adjusted by taking into account those amounts
which Wham paid as rent to the third party lessor, and by other appropriate adjustments for
any expenditures which Wham was constrained to make to maintain the property, and
which reduced the leasehold's use value.
maintain the property, and which reduced the leasehold's use value.
As to the collateral actually subject to a security interestthe furniture, fixtures,
equipment, appliances and stock-in-trade listed in the security agreementwe note that
Article Nine provides statutory relief for a debtor injured by a creditor's deviation from the
requirements governing sales of collateral. NRS 104.9507(1) provides that the injured debtor
has a right to recover from the secured party any loss caused by a failure to comply with the
provisions governing sales of collateral. Accordingly, on remand the district court should
determine, by appropriate means, the loss to Diercks resulting from Wham's use and
depreciation of the collateral and the commercially unreasonable sale, this amount to be
deducted from the original $11,500 still due and owing on the Mazzuca note. Wham and his
successors are not entitled to credit for expenditures made while Wham has been using this
property in his business enterprise.
The other contentions raised by the parties have been considered and are without merit.
This case is therefore reversed and remanded with instructions that the district court proceed
in a manner consistent with the preceding discussion. Inter alia, of course, the district court
should fully rehear issues relating to attorneys' fees, taking into account the value of counsel's
various services as disclosed by the court's ultimate resolution of this matter.
Manoukian, C. J., Springer, Mowbray, and Gunderson, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
Honorable Thomas L. Steffen, Justice, who was disqualified. Nev. Const., art. 6, 19; SCR 10.
____________
99 Nev. 739, 739 (1983) Bd. of County Comm'rs v. CMC of Nevada
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLARK; DAVID
CANTER, ROBERT BROADBENT, MANUEL CORTEZ, JACK PETITTI, RICHARD
RONZONE, WOODROW WILSON and THALIA DONDERO, as the Members of Said
Board; PLANNING COMMISSION OF THE COUNTY OF CLARK; JACK ROSS,
ROBERT GEORGESON, ARTORO CAMBEIRO, RICHARD DAVIS, DIANE DIXON,
TEX KING and RAY E. WILLIS, as Members of Said Commission; and ROBERT WEBER,
Building Inspector of Clark County, Appellants, v. CMC OF NEVADA, INC., a Nevada
Corporation, and CHARTER MEDICAL CORPORATION, a Delaware Corporation,
Respondents.
No. 13491
October 13, 1983 670 P.2d 102
Appeal from order issuing writ of mandamus. Eighth Judicial District Court, Clark
County; Michael R. Griffin, Judge.
Property owners who sought to construct psychiatric hospital brought action for writ of
mandamus to force county authorities to favorable act upon property owners' application for
architectural supervision and to require county to issue a building permit. The district court
issued the writ, and county appealed. The Supreme Court, Steffen, J., held that: (1)
architectural supervision ordinance validly recognizes authority and discretion in the county
planning commission to require whatever measures are necessary to satisfy concerns which
prompt an imposition of architectural supervision; (2) grant of conditional use permit did not
give property owners a vested right to construct and operate a psychiatric hospital; and (3)
county planning commission acted arbitrarily and abused its discretion in requiring a
vastly-expanded setback of undetermined dimension as opposed to 15-foot setback approved
by the board of county commissioners with the conditional use permit, absent evidence and
cogent reasons to support the expanded setback requirement.
Reversed.
Springer and Gunderson, JJ., dissented.
Robert J. Miller, District Attorney, John F. Whisenhunt, and Stanley W. Parry, Deputy
District Attorneys, Clark County, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Respondents.
Clark County architectural supervision ordinance recognizes authority and discretion in the county
planning commission to require whatever measures are necessary to satisfy the concerns which prompt an
imposition of architectural supervision.
2. Municipal Corporations; Statutes.
Courts must construe statutes and ordinances to give meaning to all of their parts and language.
3. Municipal Corporations; Statutes.
A court should read each sentence, phrase, and word of a statute or ordinance to render it meaningful
within the context of the purpose of the legislation.
4. Statutes.
A reading of legislation which would render any part thereof redundant or meaningless, where that part
may be given a separate substantive interpretation, should be avoided.
In provision of county architectural supervision ordinance that county planning commission shall
endeavor to provide that buildings and other improvements shall be designed and constructed so that they
will not become unsightly, undesirable or obnoxious in appearance, the prepositional phrase in
appearance modifies only the term obnoxious.
6. Statutes.
When a former statute is amended, or a doubtful interpretation is rendered certain by subsequent
legislation, the amendment is persuasive evidence of the purpose and intent of the legislature in passing the
former unamended statute.
Clark County architectural supervision ordinance confers a substantial exercise of discretion upon the
county planning commission for purposes of architectural supervision.
County's issuance of conditional use permit and variance to permit property owners to construct a
hospital did not give property owners a vested right to construct and operate the hospital where the project
was subject to further approval by county planning commission under architectural supervision ordinance.
Although certain inroads are appearing in the general rule that vested rights against changes in zoning
laws exist only after the issuance of a building permit and the commencement of construction, such inroads
do not confer vested rights unless zoning or use approvals are not subject to further governmental
discretionary actions affecting project commencement.
Under Clark County architectural supervision ordinance, when county planning commission imposes
substantive changes on a project given prior approvals by the board of county commissioners and the
planning commission, they must be supported by evidence and cogent reasons.
Clark County planning commission acted arbitrarily and abused its discretion in requiring, as a condition
for architectural supervision approval for construction of psychiatric hospital, a vastly-expanded setback of
undetermined dimension as opposed to 15-foot setback which board of county commissioners had
approved with grant of conditional use permit for hospital construction, absent evidence and cogent reasons
to support the expanded setback requirement, which had effect of killing the hospital project.
OPINION
Appellants seek relief from the district court's order mandating appellants' approval of
respondents' application for architectural supervision and issuance of a building permit. We
conclude that the district court erred in granting mandamus and therefore reverse.
Respondent CMC of Nevada, Inc. (CMC) is the owner of certain real property situated
adjacent to the Desert Springs Hospital in Clark County, Nevada. On April 13, 1979, CMC
applied for a C-P zoning change on the subject property for the purpose of constructing
parking lot facilities. Thereafter, on June 5, 1979, appellant Clark County Board of
Commissioners (Board) approved the requested zone change. Two months later, respondents
applied to the Clark County Planning Commission (Commission) for a conditional use permit
and variance to construct and maintain, within 5 feet of the side property line, an 80 bed
psychiatric hospital on the property which had been previously zoned C-P. On October 2,
1979, the Board followed the recommendation of the Commission and approved the
applications for a conditional use permit and variance. The variance was modified, however,
so as to require a minimum setback of 15 feet from the side property line.
The public notice for the use permit and variance described the proposed facility merely as
a hospital, not a psychiatric hospital.
Prior to obtaining a building permit, CMC applied for architectural supervision.
1
The
application was filed on October 20, 1980, in furtherance of the use permit and variance
previously granted. On November 20, 1980, after public notice, the matter of architectural
supervision came before the Commission in a public hearing.2 The hearing resulted in a
refusal to approve CMC's plans, assertedly due to an inadequate setback or "buffer"
between the proposed project and an adjacent elementary school.3 The Board
unanimously concurred with the action and recommendation of the Commission on
January 20, 19S1.
____________________

1
The parties concede the proposition that architectural supervision is required. In any event, the Commission
or its designated representative may impose an architectural supervision requirement in order to promote the
purposes of the zoning laws. 29.52.010(c).
public hearing.
2
The hearing resulted in a refusal to approve CMC's plans, assertedly due to
an inadequate setback or buffer between the proposed project and an adjacent elementary
school.
3
The Board unanimously concurred with the action and recommendation of the
Commission on January 20, 1981. As a result of the foregoing action, the Clark County
building inspector refused to issue the building permit which was requisite to the
commencement of construction of the psychiatric hospital.
On the assumption that the Board's approval of the conditional use permit and variance
would enable them to proceed, respondents expended in excess of $120,000 and entered into
construction commitments of over $2,000,000 in furtherance of the proposed project.
4

Respondents sought to break the impasse by filing suit and requesting mandamus to force
County authorities to favorably act upon CMC's application for architectural supervision and
to require the County to issue a building permit. The district court held that the Commission's
discretion under the architectural supervision ordinance, Chapter 29.52 (Ordinance), was
limited to considerations which were of an aesthetic or appearance nature and that the
action of the Board and Commission in refusing to approve CMC's plans was arbitrary,
capricious and an abuse of discretion. The district court then ordered that a peremptory writ
of mandate issue requiring the County to grant CMC's application for architectural
supervision and to issue a building permit.
Appellants claim entitlement to relief on the primary contention that the lower court was
unduly restrictive in its construction of the county ordinance respecting architectural
supervision.
____________________

2
The public notice given in connection with this hearing disclosed for the first time the fact that the proposed
facility was a psychiatric hospital. The result was a solid storm of protest from various groups and residents who
opposed construction of the hospital immediately adjacent to an elementary school and residential
neighborhood. Although the County failed to disclose the psychiatric aspect of the facility in its public notice for
a use permit and variance, the parties have concluded that adequacy of public notice is not an issue in this
appeal.

3
Counsel for appellants conceded at oral argument that it may be fairly inferred from the record that the
purpose for imposing an expanded setback on the project was to assure its demise.

4
Actually, the record reflects that CMC contractually reserved the right to rescind the $2,528,000
construction contract in the event it was unable to obtain proper zoning, a building permit or any other necessary
governmental approval. In such event, CMC's obligation to the contractor was not to exceed an amount covering
reimbursement for actual expenses of performance under the contract plus 6 percent of those actual expenses.
We were informed during oral argument that construction has not commenced on the project.
supervision. We are asked to construe the language of the Ordinance to permit the imposition
of non-aesthetic requirements, such as an enlarged buffer zone, thus entitling the Commission
and the Board to impose substantive modifications to plans and specifications which are
approved in the course of granting a zone change, use permit or variance.
The scope and effect of the Ordinance are threshold issues on appeal. If we were to accept
the limited construction of the district court, respondents' right to proceed with the project
would be apparent. It is conceded that the Commission found no problems with the
appearance of the planned facility. Thus, in undertaking architectural supervision, if the
Commission's function under the Ordinance is confined to project aesthetics, CMC should
have received the necessary plan approval.
We do not agree with the district court's conclusion. In our view, the Ordinance was not
enacted to merely provide perfunctory review and endorsement of plans previously submitted
in support of a conditional use permit request. First, we observe that the Commission may
require architectural supervision in any given instance irrespective of the substantial
conformity of the plans to those submitted and approved in connection with the granting of a
conditional use permit. Section 29.52.010(c). This grant of discretion in the Commission is
provided in order to promote the purposes of the zoning title in accordance with Section
29.01.020. The latter section specifies that the purpose of the title is to promote the health,
safety, morals or general welfare of the present and future inhabitants of Clark County. . . . It
further indicates, in part, that the title is designed to ensure that the development of land is
commensurate with the character and the physical limitations of the land, to take into
account . . . the relative suitability of such land for such development and to promote health
and general welfare. Further, the referenced general purpose section of title 29 reflects
consideration in its enactment for encouraging the most appropriate use of land throughout
Clark County.
[Headnote 1]
The Commission could hardly function in effective promotion of the recited purposes of
the zoning title if it were restricted solely to considerations of aesthetics. We must conclude
that subsection (c) of the Ordinance validly recognizes authority and discretion in the
Commission to require whatever measures are necessary to satisfy the concerns which
prompted and imposition of architectural supervision.
Respondents nevertheless contend, and the district court agreed, that the following
language of the Ordinance makes clear its narrow purview: The planning commission shall
consider these drawings, plans and sketches in an endeavor to provide that such
buildings, structures and other improvements shall be designed and constructed so that
they will not become unsightly, undesirable or obnoxious in appearance to the extent that
they will hinder the orderly and harmonious development of the county, limit the
opportunity to attain the optimum use and value of land and improvements, impair the
desirability of living conditions in the same area or adjacent agricultural or residential
areas, or otherwise adversely affect the general prosperity or welfare.
The planning commission shall consider these drawings, plans and sketches in an
endeavor to provide that such buildings, structures and other improvements shall be
designed and constructed so that they will not become unsightly, undesirable or
obnoxious in appearance to the extent that they will hinder the orderly and harmonious
development of the county, limit the opportunity to attain the optimum use and value of
land and improvements, impair the desirability of living conditions in the same area or
adjacent agricultural or residential areas, or otherwise adversely affect the general
prosperity or welfare. (Emphasis supplied.)
It is argued, as held by the lower court, that the words unsightly, undesirable and
obnoxious are all modified or defined by the prepositional phrase in appearance. Such a
construction would supply redundancy to the word unsightly. It would likewise deprive the
term undesirable of meaningful import since it would be merely repetitive of the term
unsightly and thus also redundant. The term obnoxious, however, invited modification
since it may connote in general, an offensive, disgusting, reprehensible, harmful, odious or
objectionable nature which, unless so modified, may potentially cast County action approving
a conditional use permit in a position of obloquy. See Webster's Third New International
Dictionary.
[Headnotes 2-4]
Courts must construe statutes and ordinances to give meaning to all of their parts and
language. State ex rel. List v. AAA Auto Leasing, 93 Nev. 483, 568 P.2d 1230 (1977),
Nevada State Personnel Division v. Hashins, 90 Nev. 425, 529 P.2d 795 (1974). The court
should read each sentence, phrase, and word to render it meaningful within the context of the
purpose of the legislation. See State Gen. Obligation Bond v. Koontz, 84 Nev. 130, 437 P.2d
72 (1968). A reading of legislation which would render any part thereof redundant or
meaningless, where that part may be given a separate substantive interpretation, should be
avoided.
[Headnote 5]
Our review of the Ordinance in question reveals that the district court's construction
unnecessarily renders the word undesirable meaningless, at the expense of a reading which
would render the language significant within the context of the stated policy of promotion of
the public safety, health and welfare. We find such an interpretation unacceptable and hold
that the prepositional phrase "in appearance" modifies only the term "obnoxious".
the prepositional phrase in appearance modifies only the term obnoxious.
The above construction of the Ordinance will subserve the purposes of its enactment,
thereby allowing the Commission to provide meaningful assurance that the public health,
safety and welfare will be promoted, and that land will be accorded its most appropriate use.
Such a construction will also give effect to the unquoted part of the Ordinance quoted above:
To this end the planning Commission shall suggest any changes in the plans of such
proposed buildings, structures and other improvements which it may deem necessary to
accomplish the purposes of this chapter, and may refuse to approve any such plans until
it is satisfied that such purposes will be accomplished thereby.
Our construction of the Ordinance is also supported by the amendment to the Ordinance
enacted subsequent to the action in question.
[Headnote 6]
When a former statute is amended, or a doubtful interpretation is rendered certain by
subsequent legislation, the amendment is persuasive evidence of the purpose and intent of the
legislature in passing the former (unamended) statute. See Woofter v. O'Donnell, 91 Nev.
756, 542 P.2d 1396 (1975); Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975).
Here, the Ordinance was modified to read as follows:
The planning commission shall consider these drawings, plans and sketches in an
endeavor to provide that the design of such buildings, structures and other
improvements shall be adequate to prevent them or the uses for which they are to be
utilized from being unsightly, undesirable or obnoxious to the extent that they will
hinder the orderly and harmonious development of the county, limit the opportunity to
attain the optimum use and value of land and improvements, impair the desirability of
living conditions in the same area or adjacent areas, or otherwise adversely affect the
general prosperity or welfare. To this end, the planning commission may require any
changes in the plans of such proposed buildings, structures and other improvements
which it deems necessary to accomplish the purposes of this chapter, and may refuse to
approve any such plans until it is satisfied that such purposes will be accomplished
thereby. As a prerequisite to approval of any application for architectural supervision,
the planning commission may impose any condition, including but not limited to flood
control, additional setbacks, off-site improvements, landscaping, street dedication,
wall enclosures, noise circulation, that it deems necessary to accomplish the
purposes of this chapter.
limited to flood control, additional setbacks, off-site improvements, landscaping, street
dedication, wall enclosures, noise circulation, that it deems necessary to accomplish
the purposes of this chapter. (Emphasis added.)
The deletion of the words in appearance after the word obnoxious indicates that
architectural supervision is intended to go beyond review of the merely aesthetic aspects of a
project, and extends to evaluation of a project design within the context of public health,
safety, and welfare considerations. That the amended Ordinance details conditions which may
be imposed by the Commission prior to approval of an application for architectural
supervision also supports our construction that the Ordinance provides substantive powers to
the Commission at the architectural supervision stage.
We are equally unpersuaded by respondents' characterization of absurdity to a statutory
scheme which would ostensibly enable the Commission and Board to disapprove under
architectural supervision a project which both bodies approved at the conditional use permit
and variance hearings. First, we do not ascribe to the Ordinance a plenary function regarding
project acceptability. It is one thing to impose conditions necessary to the satisfaction of title
29 purposes; it is quite another to rescind the prior final action of the Commission and Board
granting life to the project.
We are not offended by the possibility of duplicative considerations. Architectural
supervision may act as an added precaution or failsafe system to assure proper deference to
the general welfare purposes of title 29. For example, at the hearings regarding the
conditional use permit and variance, both the Commission and Board failed to focus on the
special public concerns pertaining to the introduction of a psychiatric care facility in the
immediate vicinity of an elementary school and residential neighborhood. The public within
the noticed area of the intended project were apparently unaroused by the public notice
concerning these hearings because it described the project only as a hospital. Since
respondents also own the general care hospital, Desert Springs, situated adjacent to the
proposed project, it is apparent that interested and affected members of the public incorrectly
assumed that the Desert Springs general care hospital was simply being enlarged. When the
project was fully described as a psychiatric hospital in the public notice pertaining to
architectural supervision, many organizations and individuals appeared to voice their
concerns. As a result, the Commission, sitting in its capacity under the Ordinance, was able to
focus in substantial detail on matters pertaining to the purposes of title 29 and the
Ordinance in relation to the pending project.
purposes of title 29 and the Ordinance in relation to the pending project. The Commission,
armed with further enlightenment and insight, was then in a position and indeed, under a
duty, to exercise its discretion to assure that the project conformed, at least to the highest
possible extent, with the purposes of title 29 and the Ordinance.
[Headnotes 7-9]
In view of our construction of the Ordinance, it is clear that the Commission's function
thereunder contemplates a substantial exercise of discretion. This, in turn, is dispositive of
respondents' attempt to sustain the district court's conclusion of law that respondents enjoyed
a vested right to construct and operate a psychiatric hospital. Although certain inroads are
appearing in the general rule that vested rights against changes in the zoning laws exist only
after the issuance of a building permit and the commencement of construction, such inroads
do not confer vested rights unless zoning or use approvals are not subject to further
governmental discretionary actions affecting project commencement. See Tosh v. California
Coastal Commission, 99 Cal.App.3d 388, 160 Cal.Rptr. 170 (1979); South Central, etc. v.
Charles A. Pratt Const., 128 Cal.App.3d 830, 180 Cal. Rptr. 555 (1982). See also Town of
Paradise Valley v. Gulf Leisure Corporation, 557 P.2d 532 (Ariz. 1976); Gosselin v. City of
Nashua, 321 A.2d 593 (N.H. 1974).
Since the Ordinance contemplates the exercise of substantial discretion by the
Commission in the execution of its functions, it is apparent, and we so hold, that respondents
do not have vested rights under any of the case authorities.
5

Finally, the district court determined that county authorities acted arbitrarily, capriciously
and in abuse of their discretion in refusing to approve respondents' plans during the hearings
on architectural supervision. On the record before us, we must agree.
The project plans submitted by respondents for approval during the hearing on
architectural supervision were substantially identical to those approved when the
conditional use permit was granted.
____________________

5
Although the vested rights doctrine is basically an application of equitable estoppel, it is commonly invoked
as a means of avoiding changes in the zoning laws occurring after final approvals are granted or permits issued
by a governmental body. Here, the district court concluded as a matter of law that respondents enjoyed a vested
right to construct and operate the psychiatric hospital. The lower court's conclusion was not applicable to a
change in any of the zoning laws since no such changes were then asserted as a basis for requiring substantive
modifications in the project. We are, nonetheless, approaching the issue of vested rights as if it were raised in the
traditional sense. In any event, for the reasons stated, we have concluded that respondents do not have a vested
rights status.
during the hearing on architectural supervision were substantially identical to those approved
when the conditional use permit was granted. Therefore, substantive modifications or changes
imposed as a condition to project approval at the architectural supervision stage must have
been supported by evidence and cogent reasons consonant with the purposes of the ordinance.
It appears from the record that the requisite support is lacking.
[Headnote 10]
The record suggests, as did counsel for appellants during oral argument, that the expanded
setback requirement was arbitrarily imposed in order to kill the project. If so, such an
imposition constituted a clear abuse of discretion by county authorities. As indicated
previously, the Ordinance contemplates a governmental function beyond mere aesthetics but
short of the ultimate authority to rescind prior approvals by the Commission and Board. An
attempt to frustrate a project by imposing unsupported changes of a magnitude which would
assure such a result is tantamount to a rescission of prior project approvals. We are not
suggesting, however, that substantive changes may not be required at the architectural
supervision stage. When such changes are imposed, they must be supported by evidence and
cogent reasons.
[Headnote 11]
Since evidence and cogent reasons were substantially absent in requiring a vastly
expanded setback of undetermined dimension as opposed to the 15-foot setback approved
with the conditional use permit, we have concluded that such a requirement was arbitrary and
constituted an abuse of discretion.
Upon remand, if CMC desires to resubmit its application for architectural supervision, we
will assume that the county will perform its function within the letter and spirit of the laws
under which it must operate. This means that any substantive changes imposed by the county
during the architectural supervision stage of CMC's project must be supported as indicated
above.
The district court issued a writ of mandamus essentially compelling the county to forego
meaningful architectural supervision and to issue a building permit allowing CMC to proceed
with the construction of the project under its present plans and specifications. This was error.
Since respondents' rights are not vested, and in view of the substantive purpose of the
Ordinance, it is essential that county authorities be permitted to pursue their expected
functions under the Ordinance.
Under the circumstances of this case, mandamus is not appropriate, and the writ must be
vacated.
appropriate, and the writ must be vacated. See State ex rel. Lawton v. Public Service
Commission, 44 Nev. 102, 190 P. 284 (1920). We remand the matter to the appropriate
county authorities who, upon resubmission of an application for architectural supervision by
respondents, are expected to entertain such application in accordance with this opinion.
6

Other issues raised on appeal have been considered and deemed to be without merit in
light of our disposition of this appeal.
The district court order granting the writ of mandamus is hereby reversed and the case
remanded for proceedings consistent with this opinion.
Manoukian, C. J., and Mowbray J., concur.
Springer, J., with whom Gunderson, J., joins, dissenting:
The question in this case is whether or not a requirement of architectural approval in the
Clark County building ordinance can be invoked to frustrate an approved building project on
other than aesthetic grounds. I agree with the trial court that it cannot and would affirm the
trial court's judgment. I therefore dissent.
Respondent, CMC, desired to construct and operate a psychiatric hospital on certain real
property located adjacent to a general care hospital, the Desert Springs Hospital, in Clark
County, Nevada. Both the Desert Springs Hospital and the real property upon which the
psychiatric hospital was to be built are owned by CMC and located within the vicinity of a
residential neighborhood and elementary school.
On April 13, 1979, CMC applied for a C-P zoning change on the subject property for the
purpose of constructing parking lot facilities.
1
The Clark County Board of Commissioners
(Board) approved the requested change on June 5, 1979. On August 3, 1979 CMC applied to
the Clark County Planning Commission (Commission) for a conditional use permit and
variance in order to construct and maintain an 80-bed psychiatric hospital on the property
which had previously been rezoned C-P. The hospital was to be located within five feet of the
side property lines.
Public notice for the use permit and zoning variance described the proposed facility merely
as a hospital, not a psychiatric hospital.2 On October 2, 1979 the Board followed the
recommendation of the Commission and approved the conditional use permit, as well as
the zoning variance.
____________________

6
We do not intend, by this opinion, to convey any attitude or inference regarding the ultimate disposition of
respondents' project.

1
The C-P district is zoned primarily for office and professional uses. Clark County Code 29.25.
psychiatric hospital.
2
On October 2, 1979 the Board followed the recommendation of the
Commission and approved the conditional use permit, as well as the zoning variance. In
doing so, the Board modified the variance so as to require a minimum setback of 15 feet from
the side line property. Thereafter, CMC spent $120,000.00 on the project and made financial
commitments in excess of $2,000,000.00.
On November 20, 1980, CMC came before the county planning commission seeking
architectural approval
3
of the building plans as a condition of issuance of its building permit.
The planning commission denied CMC's application for architectural supervision because
there is not the proper buffer between this zone and the zones adjacent to it.
4
On January
20, 1981, the Board, following the recommendation of the Commission, denied the
application for architectural supervision by a unanimous vote. As a result of this denial the
Clark County building inspector refused to issue CMC a building permit.
CMC filed the present action on February 13, 1981, requesting a writ of mandamus
commanding the county to grant CMC's application for architectural supervision and a
building permit.
____________________

2
Although the application for a conditional use permit before the Clark County Planning Commission merely
referred to the proposed project as a hospital, the application for a variance, submitted to the Commission at
the same time, referred to the proposed facility as a psychiatric hospital.

3

Clark County Code, Chapter 29.52 requires that the planning commission approve architectural plans in
certain cases before a permit for construction is issued. In reviewing the plans from an architectural standpoint
the planning commission is required to
endeavor to provide that such buildings . . . shall be designed and constructed so that they will not
become unsightly, undesirable or obnoxious in appearance to the extent that they will hinder the orderly
and harmonious development of the county, limit the opportunity to attain the optimum use and value of
land and improvements, impair the desirability of living conditions in the same area or adjacent
agricultural or residential areas, or otherwise adversely affect the general prosperity or welfare.
(Emphasis added.)

4
It is quite apparent from the record that denial of architectural approval because there was no proper
buffer was an ill-disguised attempt to frustrate a previously approved construction project. Thirty-nine persons
appeared at the hearing to oppose the application, and the vice-chairman of the board remarked at the time that it
should not have been approved in the first place and that there was no sense in rehashing fault. The board was
later advised by its counsel that it was tenuous indeed to argue . . . that imposition of a buffer area is warranted
on the basis of [the language in the architectural approval section], yet was unwarranted when the variance
application was granted. It was also advised by counsel that imposition of a buffer at this time would not only
appear to be inconsistent with prior action but would also support an argument of reliance on prior action of the
County on the part of CMC. At oral argument counsel for appellants conceded that it may be fairly inferred
from the record that the purpose for imposing an expanded setback on the project was to assure its ultimate
demise.
ing a writ of mandamus commanding the county to grant CMC's application for architectural
supervision and a building permit.
On June 25, 1981, the district court ruled that CMC's application for architectural
supervision had been improperly denied. The court below found that
the record of the hearings before the County Commissions contained no substantial
evidence that the buildings, structures and other improvements shown in and
contemplated by the plans, data and information submitted to the county with said
application for architectural supervision, will be or become unsightly, undesirable or
obnoxious in appearance, as those terms are used in the context of said Chapter 29.52,
or be or become incompatible with the surrounding neighborhood.
On July 2, 1981, a writ of mandamus was issued together with the district court's Findings
of Fact and Conclusions of Law.
The heart of this controversy centers around the construction that is to be given to Chapter
29.52 of the Clark County Code in determining the factors upon which the planning
commission may consider in granting or denying architectural supervision. In its
interpretation of the ordinance the court must look to the entire sentence and construe each
clause in light of the purpose of the whole. State General Obligation Bond v. Koontz, 84 Nev.
130, 437 P.2d 72 (1968). The purpose of a statute is to be gathered from the whole act.
Alexander v. Cosden Pipe Line Co., 290 U.S. 484 (1933). Resort may be had, not only to the
context, but to the structure and scheme of the act. United States v. Cooper Corp., 312 U.S.
600 (1941).
It is apparent when viewing Chapter 29 of the Clark County Code that the criteria
established for architectural supervision under 29.52 are limited to aesthetic and appearance
considerations and are distinct from those factors which relate to the use of a proposed
development or how a proposed use will affect the surrounding vicinity.
If a landowner seeks to obtain a conditional use permit or zoning variance pursuant to
Chapter 29.66, that landowner must submit with his application certain plans which describe
in detail his intended use and development of the property.
5
These plans and specifications
are virtually identical to those required for submission with an application for
architectural supervision.
____________________

5
Chapter 29.66.010(a) provides in pertinent part:
The application for a conditional use permit or variance permit as provided herein . . . shall be
accompanied by the following data and information.
. . . .
(1) Site development plan, drawn to scale to include building
These plans and specifications are virtually identical to those required for submission with an
application for architectural supervision. Considerations such as flood control, noise control,
traffic congestion, public safety and the like are factors which inevitably are taken into
account when determining whether a proposed project should be approved in light of the
surrounding neighborhood scheme. When an application is submitted for a zoning variance or
conditional use permit, the Board may qualify the approval with whatever safeguards the
Commission may deem necessary to protect neighboring properties. Under Chapter
29.66.010(g):
The board of county commissioners in granting the permits may establish conditions
under which the lot or parcel of land may be used, or a building or structure is
constructed or altered, or make requirements as to architecture, height of a building or
structure, open spaces, parking areas or vehicle storage and conditions of operation of
any enterprise, or may make any other condition, requirements or safeguards that the
commission may consider necessary to prevent damages or prejudice to adjacent
properties or detriment to the county and to secure substantially the objectives of the
regulation or provision to which conditional use permit, variance or adjustment is
requested and will provide adequately for the maintenance of the integrity and character
of the district in which located. When deemed necessary, the board of county
commissioners may require guarantees in such form as it may deem proper under the
circumstances, to insure that the conditions designated in connection therewith are
being or will be complied with. (Emphasis supplied.)
In the present controversy, CMC submitted virtually identical plans, data, and information
with its application for architectural supervision as it did with its applications for a
conditional use permit and zoning variance.
By modifying such plans and specifications only in respect to the 15-foot minimum
setback, the Board necessarily approved the development of the subject property for use
as a psychiatric hospital.
____________________
dimensions of existing and proposed structures; setback dimensions; yards and open space dimensions;
parking space dimensions; location of signs; location of landscaping; and such other information as may
be necessary;
(2) Floor plan, drawn to scale to indicate size of buildings and total square footage of buildings;
(3) Rendered elevation to indicate the architectural appearance of proposed buildings;
. . . .
(Emphasis added.)
the 15-foot minimum setback, the Board necessarily approved the development of the subject
property for use as a psychiatric hospital. Accordingly, by granting the variance in 1979, the
county must have implicitly made a finding to the effect that a hospital built with a 15-foot
setback would not materially or adversely affect the health and safety of persons in the
community, injure the property of the surrounding neighborhood, or detrimentally affect the
public welfare. Such an approval is final as to the intended use. Clark County Code, Chapter
29.66.010(h).
Despite the prior approval, the Board denied CMC's application for architectural
supervision for lack of a proper buffer zone around the hospital. Imposition of the buffer
zone made it impossible to proceed with construction under the approval granted on October
7, 1979. The question is whether denial of architectural approval can be used to frustrate a
previously approved project. The answer is that the architectural approval chapter is intended
only to place a limitation on aesthetic qualities of the planned construction when there is a
finding that the architectural design will be unsightly, undesirable, or obnoxious to such a
degree as to limit the optimum value of the land, impair the desirability of living conditions
or otherwise affect the general prosperity or welfare. No such finding was made nor could be
made by the planning commission.
In summation, it would appear that Chapters 29.66 and 29.52 of the ordinance relate to
different aspects of the zoning and planning procedures. Under Chapter 29.66 the county may
grant a right to make special use of the property and it may require setback conditions, as was
done in this instance. Under Chapter 29.52 the county must grant an application for
architectural supervision based upon the appearance of the structure provided the plans are
in substantial conformity with those previously approved and the proposed architectural
design is not unsightly, undesirable, or obnoxious in appearance.
That a previously approved project cannot be invalidated by a subsequent denial of
architectural approval on non-aesthetic grounds is made clear by reading of the ordinance.
The judgment of the trial court should be affirmed.
____________
99 Nev. 754, 754 (1983) Longoria v. State
RICHARD ARNOLD LONGORIA, Appellant, v. THE
No. 12951
October 19, 1983 670 P.2d 939
Appeal from judgment of conviction; Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court held that the trial court committed reversible error in permitting prosecution,
on cross-examination, to question defendant, who had admitted stabbing victim, on whether
defendant had previously stabbed another man in an unrelated incident, for purpose of
showing that defendant killed victim willfully, and with premeditation and deliberation,
notwithstanding fact that defendant had testified on the issue of whether he intended to kill
victim.
[Rehearing pending]
David Parraguirre, Public Defender, and Jane McKenna, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward
B. Horn, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
In prosecution for first degree murder, trial court, by permitting prosecution, on cross-examination of
defendant who had admitted that he stabbed victim, to ask defendant whether defendant had stabbed a man
in an unrelated incident approximately one month before the crime, for the purpose of showing that
defendant killed victim willfully, and with premeditation and deliberation, committed error, despite fact
that defendant had testified on issue of whether he intended to kill victim; since other evidence against
defendant was not overwhelming and jury may have reached different conclusion if error had not occurred,
error warranted reversal. NRS 48.045, subd. 2, 200.030, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for first degree murder. Appellant
Longoria argues that the district court committed reversible error by permitting the
prosecution to cross-examine him about his alleged commission of attempted murder in a
prior incident.
1
We agree, and we therefore reverse and remand.
____________________

1
Longoria was charged with this offense, but the charge ultimately was dismissed.
In the early morning of January 1, 1980, in downtown Reno, Longoria was approached by
one James Jimenez. The two men bought a bottle of tequila, and then went to Longoria's hotel
room to drink and play cards. After a while, Longoria went to bed, telling Jimenez that he
could sleep on the floor.
Longoria was awakened some time later when Jimenez began to pull him from his bed and
hit him. The two men struggled. Longoria than grabbed a knife and stabbed Jimenez
repeatedly in the chest and throat, killing him. No one else was in the hotel room during the
incident.
Later that day, Longoria was arrested by the police. The state charged him with first degree
murder. Longoria pleaded not guilty to this charge, and the case proceeded to trial.
Longoria testified at his trial. On direct examination, he stated that he was scared when
Jimenez began to hit him, and that he thought Jimenez was trying to kill him.
On cross-examination, the prosecutor asked Longoria whether he had stabbed a man in the
chest approximately one month before the subject incident, in the vicinity of a certain Reno
drugstore. Counsel objected to the question and advised Longoria to refuse to answer under
the Fifth Amendment. With the court's permission, the prosecutor continued to question
Longoria about the alleged prior bad act, but Longoria refused to answer.
At the conclusion of the trial, the jury found Longoria guilty of first degree murder. This
appeal followed.
The provision specifically governing the admissibility of evidence of prior bad acts is
NRS 48.045(2). It provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
It has been held that the principle embodied in this provision applies to mere questioning
regarding prior bad acts. Gooden v. State, 617 P.2d 248 (Okla.Crim.App. 1980) (great
latitude should be allowed attorneys in cross-examining witnesses, but their questions should
not contain insinuations that defendant is guilty of some other crime). We believe that this
principle is particularly applicable here, since the questioning regarding the prior incident was
both specific and repeated.
The prosecution sought to prove that Longoria committed first degree murder. Thus, under
the circumstances of this case, a critical issue was whether Longoria acted willfully, and with
premeditation and deliberation in killing Jimenez. See NRS 200.030{1).
200.030(1). Longoria admitted that he stabbed Jimenez. The state therefore does not argue
that questioning about the prior incident was permissible under NRS 48.045 to show, for
example, the identity of Jimenez' assailant, or that Longoria had the opportunity to kill
Jimenez. The state instead argues that questioning about the prior incident was permissible on
the issue of whether Longoria killed Jimenez willfully, and with premeditation and
deliberation.
We reject the state's contention. It has been stated that three types of evidence bear on the
elements of premeditation and deliberationdefendant's planning activity, his prior
relationship with the victim, and the manner of killing as it bears upon a pre-existing
reflection to take the victim's life in a particular way. People v. Anderson, 447 P.2d 942 (Cal.
1968). The facts surrounding the alleged prior bad act clearly do not fall into any of the
categories specified in Anderson. In the prior incident, Longoria was arrested for attempting
to kill someone other than Jimenez, and under circumstances entirely different and separate
from those in the case at hand. Thus, the principal relevance of the questioning about the
alleged prior bad act was to show only Longoria's bad character, and his predisposition to
commit violent crimes. Consequently, under NRS 48.045(2), the questioning about the
alleged prior bad act was not permissible. See McMichael v. State, 98 Nev.1, 638 P.2d 402
(1982); see also Michelson v. United States, 335 U.S. 469 (1948).
The state argues, however, that in testifying that he feared for his life when Jimenez
attacked him, Longoria opened himself to cross-examination regarding the prior incident.
This contention is arguably supported by United States v. Beechum, 582 F.2d 898, 909 (5th
Cir. 1978), cert. denied, 440 U.S. 920 (1979) where the court stated:
. . . the defendant who chooses to testify waives his fifth amendment privilege with
respect to relevant cross-examination. This is not to say that merely by taking the stand
a defendant opens himself to the introduction of evidence that is relevant solely to his
propensity to commit bad acts or crimes. But where the defendant testifies to controvert
an element of the Government's case, such as intent, to which the extrinsic offense is
highly relevant, the integrity of the judicial process commands that the defendant be
faced with that offense.
As we have suggested, however, in the case before us, evidence of the alleged prior bad act
was far from being highly relevant to the critical elements of willfullness, premeditation
and deliberation.
and deliberation. See People v. Anderson, supra. We therefore conclude that Longoria did not
open himself to questioning about the prior incident.
The court erroneously permitted the prosecution to question Longoria about the alleged
prior bad act. This error cannot be characterized as harmless, because the other evidence was
not overwhelming, and the jury may have reached a different conclusion if the error had not
occurred. See Chapman v. California, 386 U.S. 18 (1967) (constitutional error prejudicial if
reviewing court unable to conclude that error is harmless beyond reasonable doubt) Manning
v. Warden, 99 Nev. 82, 659 P.2d 847 (1983) (reference to past criminal history reversible
error with respect to conviction for forcible rape). Accordingly, the conviction for first degree
murder is reversed and this case is remanded for a new trial.
____________
99 Nev. 757, 757 (1983) Thomas v. State
ANDREW THOMAS, Appellant, v. THE STATE
No. 13941
October 19, 1983 670 P.2d 111
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Defendant was convicted in the Clark county court of burglary and grand larceny, and he
appealed. The Supreme Court held that: (1) the district court abused its discretion when in
determining sentence it relied on the fact that defendant refused to admit guilt, and (2)
evidence was sufficient to sustain conviction.
Morgan D. Harris, Public Defender, and E. Lee Thomson, Deputy Public Defender, Clark
1. Criminal Law.
The district court abused its discretion when in determining defendant's sentence it relied on the fact that
defendant refused to admit guilt.
99 Nev. 757, 758 (1983) Thomas v. State
2. Burglary; Larceny.
Evidence was sufficient to sustain conviction for burglary and grand larceny.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for burglary and grand larceny. Appellant
Thomas contends that the evidence was insufficient to support his conviction, and that the
district court abused its discretion in determining his sentence. We disagree with the first
contention, but agree with the second. We therefore affirm Thomas' conviction, but reverse
and remand as to the sentence.
[Headnote 1]
After Thomas was convicted, the Department of Parole and Probation recommended that
the district court place him on probation. Relying on the fact that Thomas continued to
maintain his innocence, however, the court rejected this recommendation and instead
sentenced Thomas to concurrent four year terms. The court stated:
I am a little surprised at the recommendation of the [Probation] Department. This
man still stands before this Court claiming his innocence. He was seen by neighbors at
the scene of the crime. Furniture was removed from the house and left on the front
lawn. He still tells us, however, that he just happened to be there with these other
persons who were having a bad influence upon him.
If he were man enough to admit his guilt, that might be one thing, but he was given a
fair trial. . . .
Thomas contends, and we agree, that in relying on the fact that Thomas refused to admit
guilt, the district court abused its discretion in determining a sentence. See Bushnell v. State,
97 Nev. 591, 637 P.2d 529 (1981). The sentence therefore cannot stand.
[Headnote 2]
We have also considered Thomas' contentions concerning the sufficiency of the evidence,
and we conclude that they are without merit. See Merryman v. State, 95 Nev. 648, 601 P.2d
53 (1979); People v. Zallar, 553 P.2d 756 (Colo. 1976). Accordingly, we affirm his
conviction.
We affirm that part of the judgment finding Thomas guilty of burglary and grand larceny.
We reverse that part of the judgment sentencing Thomas to concurrent four-year terms, and
we remand this case for resentencing.
____________
99 Nev. 759, 759 (1983) Calbert v. State
CHARLES CALBERT, Appellant, v. THE STATE
No. 14171
October 19, 1983 670 P.2d 576
Appeal from judgment of conviction of one count of grand larceny. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of one count of grand larceny, and defendant
appealed. The Supreme Court held that price tags, which indicated that goods taken had fair
market value of more than $100, were competent evidence of value of stolen goods for
purposes of establishing grand larceny.
Affirmed.
Morgan D. Harris, Public Defender, and Douglas P. DeJulio, Deputy Public Defender,
Larceny.
Price tags, which indicated goods taken had fair market value of more than $100, were competent
evidence of value of stolen goods for purposes of establishing grand larceny. NRS 205.220.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of one count of grand larceny in violation
of NRS 205.220.
1
The charge was based on the theft of goods from a retail department store.
Appellant contends that the evidence presented at trial concerning the value of the stolen
goods was not sufficient to sustain his conviction. We disagree.
The state primarily relied on evidence of price tags attached to the goods at the time of the
theft. The price tags, which indicated that the goods had a fair market value of more than
$100, were competent evidence of the value of the stolen goods for purposes of establishing
grand larceny.
____________________

1
NRS 205.220 provides in part that:
Every person who feloniously steals, takes and carries away . . . the personal goods or property of
another of the value of $100 or more . . . is guilty of grand larceny. . . .
99 Nev. 759, 760 (1983) Calbert v. State
for purposes of establishing grand larceny. See Lauder v. State, 195 A.2d 610 (Md. 1963);
City of Albuquerque v. Martinez, 604 P.2d 842 (N.M.Ct.App. 1979); Norris v. State, 475
S.W.2d 553 (Tenn.Crim.App. 1971). See generally Mercado v. Sheriff, 94 Nev. 771, 587
P.2d 1327 (1978).
Appellant's other contention has been considered and is without merit.
Affirmed.
____________
99 Nev. 760, 760 (1983) White v. State
LARRY L. WHITE, Appellant, v. THE STATE
No. 14277
October 19, 1983 670 P.2d 576
Appeal from order dismissing petition for post-conviction relief, Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
Defendant who had pled nolo contendere to charge of attempted robbery subsequently
petitioned for post-conviction relief. The district court dismissed petition, and defendant
appealed. The Supreme Court held that: (1) as defendant's challenge to his plea raised
constitutional questions, Supreme Court could address challenge even though raised for first
time on appeal, and (2) defendant's nolo contendere plea was not knowingly and voluntarily
entered, and thus was properly set aside.
Thomas E. Perkins, State Public Defender, and Powell and Lambrose, Special Deputy
Public Defenders, Carson City, and Norman Y. Herring, Special Deputy Public Defender,
Incline Village, for Appellant.
1. Criminal Law.
Post-conviction petitioner's claim that his plea of nolo contendere was not knowingly and voluntarily
entered raised constitutional questions which Supreme Court could address even though raised for first
time on appeal.
99 Nev. 760, 761 (1983) White v. State
2. Criminal Law.
Where trial court merely asked defendant if he understood nature of charge against him, but neither
canvassed defendant to determine if he understood range of possible punishments that could flow from his
plea of nolo contendere nor informed defendant of elements of crime with which we was charged, the
record was utterly devoid of any indication that defendant understood consequences of his plea or made
factual statements which would constitute admission to crime, plea was not knowingly and voluntarily
entered, and was properly set aside. NRS 174.035, subd. 1.
OPINION
Per Curiam:
Pursuant to plea negotiations, appellant Larry White entered a plea of nolo contendere to
attempted robbery. White later petitioned the district court for post-conviction relief. The
state opposed White's petition by filing a motion to dismiss. The motion to dismiss alleged
that White's claims were waived except the claim that the plea was involuntarily entered.
The district court granted the state's motion, dismissed the petition, and this appeal followed.
[Headnote 1]
White contends that his nolo contendere plea must be set aside because the record does not
affirmatively show it was knowingly and voluntarily entered. Specifically, White argues that
the record does not affirmatively show that he understood: (1) the consequences of the plea,
including the range of possible punishments; and (2) the elements of the crime of attempted
robbery. The state argues that White's specific contentions were not raised in the petition
below, and that the contentions cannot be raised on appeal. The petition was vague, at best, as
to the specific contentions raised.
1
Nevertheless, White's challenge to the plea raises
constitutional questions which this court has the power to address even if raised for the first
time on appeal. Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979). As discussed later in this
opinion, the record reveals that the plea canvass was clearly inadequate. We have therefore
decided to consider White's contentions.
[Headnote 2]
At the time of the plea the court did not canvass White to determine whether he
understood the range of possible punishments that could flow from his plea of nolo
contendere, and the record is utterly devoid of any indication that appellant understood the
consequences of his plea.2 Further, the district court did not inform White of the elements
of the crime of attempted robbery, and White made no factual statements which would
constitute an admission to the crime.
____________________

1
The petition was not filed by present appellate counsel.
99 Nev. 760, 762 (1983) White v. State
record is utterly devoid of any indication that appellant understood the consequences of his
plea.
2
Further, the district court did not inform White of the elements of the crime of
attempted robbery, and White made no factual statements which would constitute an
admission to the crime. The district court merely asked White if he understood the nature of
the charge against him. Therefore, the record does not affirmatively show the plea was
knowingly and voluntarily entered, and consequently, the plea must be set aside. See Standen
v. State, 99 Nev. 76, 657 P.2d 1159 (1983); Hanley v. State, 97 Nev. 130, 624 P.2d 1387
(1981); see also NRS 174.035(1).
We reverse the order of the district court. White's plea of nolo contendere is set aside, and
the matter is remanded to the district court for further proceedings.
____________________

2
Although White indicated his attorney advised him of the consequences of his plea, there is no affirmative
showing in the present record as to what, if anything, was explained to White, or what, if anything, White
understood. Cf. Ball v. Warden, 99 Nev. 400, 663 P.2d 698 (1983) (defendant's guilty plea upheld where
prosecutor's explanation to defendant of the elements of the crime appeared on the record).
____________
99 Nev. 762, 762 (1983) Fisher v. Fisher
CHARLIE LEE FISHER, Appellant, v. JANE LEE
FISHER, Respondent.
No. 15069
October 19, 1983 670 P.2d 572
Appeal from order dismissing petition for appointment of guardian and restoring custody
to respondent, First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Stepfather, after divorce from child's mother, filed a petition for appointment of himself as
guardian of his stepdaughter. The district court summarily dismissed his petition and sua
sponte restored custody to mother. The Supreme Court held that district court erred in
refusing to admit evidence, offered by stepfather, to show that mother had voluntarily
relinquished custody, that she had not contacted the daughter during the ten months between
divorce and hearing, and that the daughter's best interest would be served by leaving her in
stepfather's household.
Robert A. Grayson, Carson City, for Appellant.
Jaquette & Kilpatrick, Carson City, for Respondent.
1. Guardian and Ward.
Ex-stepparent has standing to seek guardianship as concerned person. NRS 159.044, subd. 1.
2. Guardian and Ward.
In proceedings on stepfather's petition for appointment of himself as child's guardian, trial court erred in
refusing to admit evidence that mother had voluntarily relinquished custody, that she had not contacted
daughter during ten months between her divorce from stepfather and hearing, and that daughter's best
interest would be served by leaving her in stepfather's household, before summarily dismissing petition and
sua sponte ordering that custody of daughter be restored to mother.
3. Infants.
Custody disputes should be resolved by careful attention to facts of each particular dispute and primary
emphasis upon best interest of child.
4. Parent and Child.
While legislature has clearly inserted a parental preference into guardianship determinations, welfare of
child is superior to claim of parent, so that right of natural parent must yield where it clearly appears that
child's welfare requires that custody be granted to another. NRS 159.061.
5. Infants.
Scope of district court's inquiry in custody disputes must necessarily be determined by facts of each case.
OPINION
Per Curiam:
This is an appeal from an order dismissing a petition for the appointment of a guardian.
Appellant contends that the district court erred by summarily dismissing the petition. We
agree and therefore reverse and remand.
Respondent (Jane) was married to appellant (Charlie) in 1973, some thirteen months after
a daughter was born to Jane and her former husband. That child is the subject of this appeal.
Jane and Charlie were married some eight and one-half years, during the first year of which
they had a son.
Charlie, Jane and the children lived together outside of Nevada until October, 1981, when
Charlie moved to this state. The children joined him here on December 26, 1981, and have
resided with him in Nevada continuously since that time.
On December 31, 1981, Charlie filed an action for divorce and a petition for custody of the
daughter. Jane, meanwhile, had filed for divorce in Montana. The Nevada actions were
dismissed, and a decree of divorce was entered in Montana in April, 1982. Custody of the son
was awarded to Charlie. The daughter's status was apparently unlitigated in those
proceedings.
The daughter had lived with both parties during the eight years of marriage, but has now
resided with Charlie to the exclusion of Jane for almost two years.
years of marriage, but has now resided with Charlie to the exclusion of Jane for almost two
years.
Charlie filed a petition for appointment of himself as guardian for the daughter on July 7,
1983. Jane filed a motion to dismiss, and a hearing was held on the motion on August 10,
1983. The district court summarily dismissed Charlie's petition and sua sponte restored
custody of the daughter to Jane. It appears, however, that the legal and physical custody of the
daughter has never been adjudicated. This appeal followed.
[Headnote 1]
We note at the outset that an ex-stepparent has standing to seek guardianship as a
concerned person. See NRS 159.044(1). Furthermore, a guardian, except as otherwise
ordered by the court, has the care, custody and control of the person of the ward, and has the
authority and . . . shall perform the duties necessary for the proper care, maintenance,
education and support of the ward. . . . NRS 159.079(1). It is obvious that Charlie sought to
obtain legal recognition of his relationship with the daughter so that he might properly
execute the duties that his physical custody of the daughter required.
1
See NRS 159.079.
[Headnote 2]
At the hearing below, Charlie offered to prove that Jane had voluntarily relinquished
custody, that she had not contacted the daughter during the ten months between the divorce
and the hearing, and that the daughter's best interest would be served by leaving her in
Charlie's household. The district court, however, did not admit any evidence before
summarily dismissing the petition and sua sponte ordering that custody of the daughter be
restored to Jane. This was error.
We note that there have been many recent cases in other jurisdictions addressing custody
disputes between parents and non-parents, and that these cases have involved disparate
approaches and have resulted in varied conclusions. See, e.g., Turner v. Pannick, 540 P.2d
1051 (Alaska 1975); Clifford v. Woodford, 320 P.2d 452 (Ariz. 1957); Root v. Allen, 377
P.2d 117 (Colo. 1962); Pierce v. Pierce, 645 P.2d 1353 (Mont. 1982); Doe v. Doe, 399
N.Y.S.2d 977 (N.Y.Sup.Ct. 1977); Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982). See
also Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) (visitation rights); Gribble v. Gribble,
583 P.2d 64 (Utah 1978) (visitation rights).
____________________

1
The parties dispute at some length whether Charlie could have or should have sought custody during the
divorce proceedings. That question is not before this court, and we express no opinion regarding the propriety of
other proceedings through which a stepparent or ex-stepparent might seek custody.
[Headnote 3]
The common theme of all of the above cases is a careful attention to the facts of each
particular dispute and a primary emphasis upon the best interest of the child. These concerns
are accorded no less consideration in Nevada. See, e.g., McGlone v. McGlone, 86 Nev. 14,
464 P.2d 27 (1970); Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968).
[Headnotes 4, 5]
The guardianship statutes provide some direction to the inquiry of the district court. The
legislature has clearly inserted a parental preference into guardianship determinations. See
NRS 159.061. We agree, however, with the court in Doe v. Doe, supra, which held that the
welfare of the child is superior to the claim of the parent so that the right of the natural parent
must yield where it clearly appears that the child's welfare requires that custody be granted to
another. Doe v. Doe, 399 N.Y.S.2d at 982. The scope of the district court's inquiry must
necessarily be determined by the facts of each case.
Accordingly, we reverse the order of the district court dismissing the guardianship petition
and restoring custody of the daughter to Jane, and remand this matter to the district for an
evidentiary hearing for the purpose of adjudicating the guardianship petition, including the
legal and physical custody of the daughter.
2
See NRS 159.079(1). In accordance with the
request of appellant's counsel, and in light of the prior history of this appeal, we direct that
upon remand the case be heard by a different judge so as to avoid any appearance of
impropriety. Additionally, respondent has expressed some concern that the petition was
defective in that it did not state a summary of the reasons why a guardian is needed as
required by NRS 159.044(2)(f). If, upon remand, the district court should determine that the
petition is defective, the court shall permit appellant to amend the petition so that it conforms
to statutory requirements. See Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397 (1960).
We have considered Jane's other contentions, including her res judicata argument, and find
them to be meritless.
____________________

2
It appears that in filing the guardianship petition, Charlie may not have intended to litigate the matter of
physical custody, since the daughter was already living with him. The question of proper physical custody has
clearly been raised in these proceedings, however, and the district court is directed to address both legal and
physical custody.
____________
99 Nev. 766, 766 (1983) Ranson v. State
WESLEY EARL RANSON, Appellant, v. THE STATE
No. 13363
October 19, 1983 670 P.2d 574
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of robbery with the use of a deadly weapon,
burglary, and open or gross lewdness and he appealed. The Supreme Court held that: (1) it
was sufficient that defendant committed the lewd acts in an open fashion, even though the
crime was not committed in a public place, and (2) evidence was sufficient to show that
defendant took victim's gun with the intent to permanently deprive her of its possession.
Affirmed.
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Statutes.
When an offense has not been defined by the legislature, court normally looks to the provisions of the
common law relating to the definition of that offense.
2. Lewdness.
At common law, it was necessary to prove that the offense of lewdness was committed in a public place.
3. Lewdness.
When legislature uses the term open to modify the term lewdness, it intends to broaden the
common-law definition to include acts which are committed in a private place, but which are nevertheless
committed in an open, as opposed to a secret, manner.
4. Lewdness.
Defendant who forced victim at gunpoint to partially undress and who fondled her breasts and buttocks
and, at one point, bit her buttocks committed the lewd acts in an open fashion, even though it occurred in
the victim's home, and clearly intended that his acts be offensive to the victim and thus could be convicted
of open or gross lewdness. NRS 201.210.
5. Robbery.
Evidence that defendant entered home with a long blade knife, that he took gun from the victim, and that
he then left the home, taking the gun with him, was sufficient to sustain his conviction for robbery of the
gun despite his contention that it did not show that he took the gun with intent to permanently deprive the
victim of possession of the gun.
OPINION
Per Curiam:
A jury convicted appellant of one count each of robbery with the use of a deadly weapon,
burglary and open or gross lewdness. At trial, the victim testified that appellant entered her
home without her permission, armed with a long-blade knife. Upon entering the home,
appellant took a gun from the victim, and then forced her to partially undress at gunpoint.
Appellant then began fondling the victim's breasts and buttocks, and at one point bit the
victim's buttocks. Shortly thereafter, appellant left the home, taking with him the victim's gun.
Appellant contends that the crime of open or gross lewdness as set forth in NRS 201.210
requires that the crime be committed in a public place. He asserts first that the indictment
with which he was charged was therefore defective since it did not allege that the crime was
committed in a public place, and secondly, that the evidence presented at trial was insufficient
to sustain his conviction of open or gross lewdness since the evidence clearly established that
the offense was not committed in a public place.
[Headnotes 1, 2]
The crime of open or gross lewdness as set forth in NRS 201.210 has not been defined
by the Nevada Legislature. As appellant correctly points out, when an offense has not been
defined by the legislature, we normally look to the provisions of the common law relating to
the definition of that offense. See NRS 193.050(3). At common law, it was necessary to prove
that the offense of lewdness was committed in a public place. See, e.g., State v. Dorsey,
316 A.2d 689 (N.J. 1974); State in Interest of L.G.W., 641 P.2d 127 (Utah 1982); see
generally 3 Wharton's Criminal Law, 315 (14th Ed. 1980).
[Headnotes 3, 4]
It is generally accepted, however, that when a legislature uses the term open to modify
the term lewdness, as the Nevada Legislature has done, it intends to broaden the common
law definition to include acts which are committed in a private place, but which are
nevertheless committed in an open as opposed to a secret manner. See Commonwealth v.
Wardell, 128 Mass. 52, 35 Am.Rep. 357 (1880); State v. Baldino, 78 A.2d 95
(N.J.Super.Ct.App.Div. 1951); see generally 50 Am.Jur.2d, Lewdness, Indecency, Etc., 1
(1970). Contra Everett v. Commonwealth, 200 S.E.2d 564 (Va. 1973) (crime of open and
gross lewdness must be committed in a public place).
We therefore conclude that it was sufficient that appellant committed the present lewd acts in
an open fashion, clearly intending that his acts be offensive to his victim. See
Commonwealth v. Wardell, supra. Accordingly, appellant was properly charged and
convicted of the offense of open or gross lewdness.
[Headnote 5]
Appellant's other contention on appeal has been considered and is without merit.
The judgment of conviction is therefore affirmed.
____________
99 Nev. 768, 768 (1983) Dieleman v. Sendlein
ROGER DIELEMAN, Appellant, v. STEVE
SENDLEIN, Respondent.
No. 14460
October 20, 1983 670 P.2d 578
Appeal from judgment for partition in property dispute; Seventh Judicial District Court,
Lincoln County; Merlyn H. Hoyt, Judge.
Upon complaint to quiet title to real property, the district court found that plaintiff and
defendant were partners holding property as tenants in common, thus partitioning property
pursuant to defendant's counterclaim, and plaintiff appealed. The Supreme Court held that:
(1) evidence supported finding that plaintiff and defendant were partners, and (2) trial court
did not err in partitioning property without appointment of three masters.
Affirmed.
[Rehearing denied January 24, 1984]
Cromer, Barker, Michaelson, Gillock & Rawlings, Las Vegas, for Appellant.
Gang and Berkley, Las Vegas, for Respondent.
1. Partnership.
Whether oral partnership has been entered is question of fact.
2. Partnership.
In action to quiet title to real property wherein defendant counterclaimed for partition, evidence that
parties had referred to each other as partners and to land as partnership property supported finding that
parties were partners who had held property as tenants in common.
3. Partition.
Purpose of statute providing for appointment of three masters to make partition of real property is for
protection of litigants, and trial court cannot dispense with that protection absent express or implied
consent of parties. NRS 39.120.
4. Partition.
Where parties undertook to litigate issue of partition of real property pursuant to agreed procedure, trial
court disposed of matter accordingly, and objection to procedure was raised only on appeal, trial court did
not err in partitioning property without appointment of three masters. NRS 39.120.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court ordering the partition of a 120-acre
parcel of real estate located in Lincoln County. The appellant seeks reversal on the grounds
(1) that there is insufficient evidence in the record to support the district judge's ruling and (2)
that the court erred in not referring the matter to three masters as prescribed in NRS 39.120.
1
We reject appellant's contentions and affirm the judgment of partition.
SUBSTANTIAL EVIDENCE
Appellant Dieleman filed a complaint to quiet title to the property, the subject of this
action. Respondent Sendlein answered the complaint and counterclaimed, seeking partition of
the property, predicated upon an oral partnership between the parties. The trial judge found
that the parties were partners and that they held the property as tenants in common. The judge
then, after receiving testimony of the value of the property, partitioned it without objection,
between the litigants.
[Headnote 1]
Appellant's principal contention is that there was insufficient evidence to support the trial
court's finding that the parties had entered into a partnership. We laid down the rule in 1950:
[T]here is no one exclusive test, . . . no single arbitrary test is conclusive, . . . the relationship
depends upon the intention of the parties and . . . every case must stand upon its own merits.
Las Vegas Machine & Engineering Works v. Roemisch, 67 Nev. 1, 9, 213 P.2d 319, 323
(1950). Whether an oral partnership has been entered is a question of fact. Las Vegas
Machine, 67 Nev. at 12, 213 P.2d at 324; Botsford v.
____________________

1
[U]pon the requisite proofs being made, it [the court] shall order a partition according to the respective
rights of the parties, as ascertained by the court, and appoint three masters therefor; . . . .
Vegas Machine, 67 Nev. at 12, 213 P.2d at 324; Botsford v. Van Riper, 33 Nev. 156, 197,
110 P. 705, 713 (1910).
[Headnote 2]
The trial judge heard undisputed evidence that the parties each paid half the purchase price
of the 120-acre parcel. Each party contributed money and services to securing and developing
the land. Several persons testified that the parties referred to each other as partners, and to the
land as partnership property. Although this testimony was not uncontradicted, it was for the
trier of fact to resolve conflicts in the evidence and judge the credibility of witnesses. NRCP
52(a); Sherman Gardens Co. v. Longley, 87 Nev. 558, 562, 491 P.2d 48, 51 (1971). We find
that the record contains substantial evidence to support the judge's finding that a partnership
did exist.
THE THREE MASTERS
Appellant has raised this objection for the first time in his reply brief. He suggests that a
failure to appoint three masters to make the partition requires reversal. NRS 39.120 (see
footnote 1 supra). We disagree.
[Headnotes 3, 4]
We view the purpose of the statute as protection for the litigants. The court cannot
dispense with that protection absent the express or implied consent of the parties. Cf. Godfrey
v. Gilsdorf, 86 Nev. 714, 719, 476 P.2d 3, 6-7 (1970) (error in statutorily required form of
replevin judgment, see NRS 17.120, waived through implied consent of parties). But when
the parties undertake to litigate the matter pursuant to an agreed procedure, as in the instant
case, and the court disposes of it accordingly, the court does not violate the statute.
2

Judgment affirmed.
____________________

2
Appellant made no objection to the judge's partition until his reply brief. In Re Benson's Estate, 62 Nev.
376, 381, 151 P.2d 762, 764 (1944); see also Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981,
983-984 (1981).
____________
99 Nev. 771, 771 (1983) New Hampshire Ins. Co. v. Gruhn
THE NEW HAMPSHIRE INSURANCE COMPANY, Appellant, v. JAMES M. GRUHN
and CONSTANCE G. GRUHN, Husband and Wife, Respondents.
No. 14662
October 28, 1983 670 P.2d 941
Appeal from a money judgment for nominal and punitive damages in a fraud case; Second
Judicial District, Washoe County; Grant L. Bowen, Judge.
Husband and wife brought action against mortgage company's surety. The district court
found that the mortgage company was guilty of fraudulent misrepresentation, ordered the
insurance company to pay punitive damages, and the insurance company appealed. The
Supreme Court held that the insurance company's liability under bond issued to mortgage
company did not include an obligation to indemnify against punitive damages.
Reversed and order vacated.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Ken Bick, Reno, for Appellant.
Wm. Patterson Cashill, Reno, for Respondents.
Liability under bond required of mortgage company as requisite for obtaining license to transact business
did not include obligation to indemnify against punitive damages. NRS 645B.030.
To determine scope of coverage of bond, court must look to language and purpose of bond, and in doing
so, to that of statute under which bond was issued. NRS 645B.030.
Scope of bond which obligated surety to pay all damages suffered by any person by reason of mortgage
company's fraud, dishonesty, misrepresentation, or concealment of material facts did not include punitive
damages which were awarded against mortgage company, since one does not suffer punitive damages.
NRS 645B.030.
4. Damages.
Policy behind punitive damages is to punish wrongdoer for his conduct and to deter others from acting in
similar fashion, not to compensate plaintiff for harm incurred.
5. Banks and Banking.
Mortgage company was required to obtain bond in order to provide minimum source of funds for those
suffering compensable losses. NRS 645B.030.
Where claims against bond are asserted by more than one party, and that bond is insufficient to
satisfy all claims in full, each claimant is entitled to pro rata share of bond proceeds.
and that bond is insufficient to satisfy all claims in full, each claimant is entitled to pro rata share of bond
proceeds.
7. Damages.
It is incumbent upon party whose conduct was so outrageous as to merit punishment by means of punitive
damages to bear burden of paying award, and goal of punishment and deterrence would be thwarted if
tort-feasor was able to skirt award by passing liability on to surety.
8. Banks and Banking.
Purpose of statute requiring mortgage company to obtain bond as requisite for obtaining license to
transact business is to protect public and not to protect mortgage company. NRS 645B.030.
OPINION
Per Curiam:
Appellant New Hampshire Insurance Company issued a surety bond to The Realatorium, a
mortgage company, in which it undertook to pay all damages suffered by any person . . . by
reason of any fraud, dishonesty, misrepresentation or concealment of material facts.
1
In this
law suit, the trial court found that The Realatorium was guilty of fraudulent
misrepresentation. The trial court awarded the plaintiffs $5,000 in punitive damages and
ordered the insurance company to pay the punitive damage award forthwith.
[Headnote 1]
The company contends that its liability under the bond does not include an obligation to
indemnify against punitive damages. The contention is correct, and we reverse, vacating the
order requiring the insurance company to pay the $5,000 punitive sum.
[Headnotes 2-4]
To determine the scope of the coverage, we look to the language and purpose of the bond,
and in doing so, to that of the statute. NRS 645B.030(2) provides that the surety is obligated
to pay all damages suffered.
2
The language of the bond was identical to that of the
statute.
____________________

1
The bond was required of the Realatorium under NRS 645B.030 as a requisite for obtaining a license to
transact business as a mortgage company.

2
The provisions of NRS 645B.030 were revised in 1981. The language of the statute, in pertinent part, as it
appeared when the bond was issued, read:
1. At the time of filing an application for a mortgage company's license, the applicant shall deposit
with the commissioner a corporate surety bond payable to the State of Nevada, in an amount, to be
identical to that of the statute. The trial judge held that all damages included punitive
damages which were awarded against the mortgage company. It does not. One does not
suffer punitive damages. See Harper v. Home Insurance Co., 533 P.2d 559 (Ariz.Ct.App.
1973); Butler v. United Pacific Insurance Co., 509 P.2d 1184 (Or. 1973); Carter v.
Agricultural Insurance Company, 72 Cal.Rptr. 462 (Ct.App. 1968). The policy behind
punitive damages is to punish the wrongdoer for his conduct and to deter others from acting
in a similar fashion. Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980); Northern Nev. Mobile
Home v. Penrod, 96 Nev. 394, 610 P.2d 724 (1980); Allen v. Anderson, 93 Nev. 204, 562
P.2d 487 (1977); Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974); Nevada
Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973); Miller v. Schnitzer, 78 Nev. 301,
371 P.2d 824 (1962). For this reason punitive damages are not awarded to compensate the
plaintiff for harm incurred. Bader v. Cerri, above; Allen v. Anderson, above.
[Headnotes 5-8]
Apart from the wording of the statute, a bond is required in order to provide a minimum
source of funds for those who have suffered compensable losses. We have already noted that
where claims against a bond are asserted by more than one party, and that bond is insufficient
to satisfy all claims in full, each claimant is entitled to a pro rata share of the bond proceeds.
See Transamerica v. C. B. Concrete, 99 Nev. 677, 669 P.2d 246 (1983); Homewood
Investment Company, Inc. v. Moses, 96 Nev. 326, 608 P.2d 503 (1980). It is doubtful that the
legislature intended for this pool to be diluted with awards for punitive damages at the
expense of reducing the pro rata share of those claimants who have suffered pecuniary loss.
Moreover, it is encumbent upon the party whose conduct was so outrageous as to merit
punishment by means of punitive damages to bear the burden of paying the award. Only then
will the goal of punishment and deterrence be effectuated.
____________________
determined by the commissioner, no less than $25,000, and executed by a corporate surety satisfactory to
the commissioner.
2. The bond must be in substantially the following form:
. . . .
Now, therefore, if the principal, his agents and employees, strictly, honestly and faithfully comply with the
provisions of chapter 645B of NRS and pay all damages, suffered by any person by reason of the violation of
any of the provisions of chapter 645B of NRS, or by reason of fraud, dishonesty, misrepresentation or
concealment of material facts growing out of any transaction governed by the provisions of chapter 645B of
NRS, then this obligation shall be void; otherwise to remain in full force and effect.
goal of punishment and deterrence be effectuated. This policy would be thwarted if the
tortfeasor is able to skirt the award by passing the liability on to a surety. It cannot be said that
the legislature intended to provide a means whereby a tortfeasor could avoid the penalty of
paying punitive damages by allowing satisfaction to be sought from a surety. The purpose of
NRS 645B.030 is to protect the public and not to protect the mortgage company.
Since the plaintiff does not suffer punitive damages within the meaning of NRS
645B.030(2), the order requiring New Hampshire Insurance Company to pay the $5,000
punitive sum to the Gruhns is reversed and vacated.
____________
99 Nev. 774, 774 (1983) State Industrial Insurance System v. Kelly
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the STATE
OF NEVADA, Appellant, v. DONALD E. KELLY, Respondent.
No. 14367
November 3, 1983 671 P.2d 29
Appeal from district court order reversing administrative determination. Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
The district court reversed administrative determination of ineligibility for state industrial
insurance benefits, and State Industrial Insurance System appealed. The Supreme Court held
that: (1) claimant met burden of showing that claimed disability or condition was in fact
caused or triggered or contributed to by industrial injury and not merely result of natural
progression of preexisting disease or condition, and (2) mere fact that claimant had
preexisting congenital defect did not preclude his coverage.
Affirmed.
Dean A. Hardy, Las Vegas, for Appellant.
J. Michael Nave, Las Vegas, for Respondent.
In case of industrial aggravation of congenital defect which rendered asymptomatic condition
symptomatic, claimant has burden of showing that claimed disability or condition was in fact caused or
triggered or contributed to by industrial injury and not merely result of natural progression of preexisting
disease or condition.
Workers' compensation claimant who claimed that as result of industrial injury, his previously
asymptomatic umbilical hernia was rendered symptomatic and required compensable surgery, met his
burden of showing that claimed disability or condition was in fact caused or triggered or contributed to by
industrial injury and not merely result of natural progression of preexisting disease or condition,
notwithstanding fact that industrial aggravation may have been but one of several causes producing
symptomatic condition.
Mere fact that workers' compensation claimant had preexisting congenital defect did not preclude
industrial insurance benefits coverage for industrial injury which rendered his previously asymptomatic
condition symptomatic.
OPINION
Per Curiam:
This is an appeal from a district court order reversing an administrative determination of
ineligibility for state industrial insurance benefits. Appellant State Industrial Insurance
System (SIIS) contends that the evidence was insufficient to support respondent Kelly's claim
that, as the result of an industrial injury, he suffers a symptomatic condition requiring surgery
which is compensable by SIIS. We disagree.
Since birth, Kelly has had an umbilical hernia or hole in his abdominal wall. Until his
industrial accident, however, Kelly's hernia had been asymptomatic or non-protrusive. While
lifting a heavy sliding glass door at work, Kelly felt a sharp pain in his abdomen; and a bulge
protruded from his belly, rendering his previously asymptomatic condition symptomatic.
Although emergency room treatment (paid for by SIIS) reduced the bulge momentarily, the
hernia reappeared soon thereafter and still protrudes at present. We therefore find SIIS's
contention that compensated treatment returned Kelly to his pre-injury condition to be
meritless.
[Headnote 1]
Whether industrial aggravation of a congenital defect which rendered an asymptomatic
condition symptomatic is compensable is a question of first impression in Nevada. We have,
however, recognized the principle that preexisting illness normally will not bar a claim if the
employment aggravates, accelerates or combines with the disease process to trigger disability
or death. Spencer v. Harrah's, Inc., 98 Nev. 99, 101, 641 P.2d 481, 482 (1982). We
consequently adopt the rule of law enunciated by our sister state Arizona regarding this issue.
The claimant has the burden of showing that the claimed disability or condition was in fact
caused or triggered or contributed to by the industrial injury and not merely the result of
the natural progression of the preexisting disease or condition.
or condition was in fact caused or triggered or contributed to by the industrial injury and not
merely the result of the natural progression of the preexisting disease or condition. Arellano
v. Industrial Commission, 545 P.2d 446, 452 (Ariz. 1976). See also, Geentry v. Hyster, Inc.,
541 P.2d 486 (Ore. 1975); Hawkins v. Green Associated, 559 P.2d 118 (Alaska 1977).
[Headnotes 2, 3]
We have determined that Kelly has met that burden in the instant case. The fact that
industrial aggravation may have been but one of several causes producing the symptomatic
condition is of no moment. An industrial related accident does not have to be the cause of
the injury or death, but merely a cause. If the job is said to precipitate or accelerate the
condition, a causal connection with the work can be found. Harbor Insurance Company v.
Industrial Commission, 545 P.2d 458, 461 (Ariz. 1976). The mere fact that Kelly had a
preexisting congenital defect, moreover, does not preclude his coverage. [I]n the field of
Workmen's Compensation, the employer takes his employee as he is. In legal contemplation,
if an injury, operating on an existing bodily condition or predisposition, produces a further
injurious result, that result is caused by the injury. Murray v. Industrial Commission, 349
P.2d 627, 633 (Ariz. 1960). SIIS, as a consequence, must compensate Kelly for the surgical
repair of his protruding hernia, even though the operation necessarily requires repair of a
congenital defect. The district court order was correct.
Affirmed.
____________
99 Nev. 776, 776 (1983) Waters of Horse Springs v. State Engineer
In the Matter of the Determination of the Relative Rights in and to the Waters of Horse
Springs, W. DALTON LA RUE, Sr., and JUANITA S. LA RUE, dba WINNEMUCCA
RANCH, Appellants, v. STATE ENGINEER, STATE OF NEVADA, ROBERT W.
MARSHALL and NANETTE MARSHALL, ROBERT DICKENSON and DOROTHY
DICKENSON, dba INTERMOUNTAIN LAND CO., Respondents.
No. 14112
November 10, 1983 671 P.2d 1131
Appeal from a judgment upholding an administrative agency determination. Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Ranch owners appealed from a decision of the district court affirming State Engineer's
order of determination giving ranch owners and adjacent property owners each a vested
annual stock watering right with respect to springs on ranch property.
affirming State Engineer's order of determination giving ranch owners and adjacent property
owners each a vested annual stock watering right with respect to springs on ranch property.
The Supreme Court held that: (1) adjacent property owners had a vested right to share in
water from the springs, and (2) ranch owners were not bound by unrecorded agreement
between their predecessors and predecessors of adjacent property owners governing sharing
of water from springs, and therefore adjacent owners were not entitled to restoration of fence
and water works to former condition and location under unrecorded agreement, but were
entitled only to access to the springs in accordance with their vested rights.
Johnson & Adams, Reno, for Appellants.
Brian McKay, Attorney General, George Campbell and Linda Bailey, Deputy Attorney
Generals, Carson City; Vargas & Bartlett, Reno, for Respondents.
1. Waters and Water Courses.
Vested right, in the context of water law, means water rights which came into being by diversion and
beneficial use prior to enactment of any statutory water law, relative to appropriation.
2. Water and Water Courses.
It is not always essential that water actually be diverted to constitute an appropriation, where water could
be put to a beneficial use without such diversion, and where there was a practice of appropriating the
waters of the streams to a beneficial use without such diversion.
Utilization of water by grazing livestock constitutes sufficient appropriation to establish vested water
right.
In dispute over water rights between ranch owners and adjacent property owners, substantial evidence
showed that historically cattle from both properties continuously shared spring located on ranch, and
therefore district court did not err in upholding State Engineer's order declaring adjacent property owners'
vested right to share in water from the springs.
In dispute between ranch owners and owners of adjacent property over water rights, ranch owners were
not on inquiry notice regarding unrecorded agreement between predecessors of each party regarding
sharing of spring rights, and were not bound by that agreement, and therefore adjacent property owners
who had vested rights were not entitled to restoration of fence line, which restricted ranch owners' access to
deeded property, and of water works to former condition, but were only entitled to access to springs in
accordance with their vested rights.
OPINION
Per Curiam:
Thirty miles north of Reno gurgles Horse Springs, which rises and dies on property known
as Winnemucca Ranch, owned by appellants. Horse Springs is the only water source high up
on the northwest face of Tule Mountain, which essentially divides appellants' ranch from the
property owned by Marshall and Dickenson (respondents). Respondents' predecessors
requested that the state engineer determine the relative rights of claimants to Horse Springs.
The state engineer's Order of Determination, issued pursuant to NRS 533.090, gave each
party a vested annual stock watering right for fifty head of cattle for the period March 15 to
December 15. The Second Judicial District Court, among other things, affirmed that order,
thereby prompting the instant appeal.
[Headnotes 1-4]
A vested right in the context of water law applicable to this case means water rights
which came into being by diversion and beneficial use prior to the enactment of any statutory
water law, relative to appropriation. Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535,
537 (1949). It is not always essential, however, that the water actually be diverted to
constitute an appropriation . . . where it could be put to a beneficial use without such
diversion, where there was a practice of appropriating the waters of the streams to a beneficial
use without such diversion, . . . Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 173, 295 P.
772, 775 (1931). The utilization of water by grazing livestock, therefore, constitutes sufficient
appropriation to establish a vested water right. See id. at 173-76; Hunter v. United States, 388
F.2d 148 (9th Cir. 1967). Our review of the record reveals substantial evidence reflecting the
fact that historically cattle from the ranches now owned by the parties have continuously
shared the springs.
1
We therefore conclude that the district court did not err in upholding the
state engineer's Order declaring respondents' vested right to share in the water of Horse
Springs.
Because there were no fences separating the area's ranches in earlier times, predecessors'
cattle often intergrazed near Horse Springs. In 1957 Elmor Hill (appellants' predecessor) and
the Matley brothers (respondents' predecessors) sought to remedy the intergrazing problem
and all past range controversies by a written, though unrecorded, agreement to build a
range division fence and divide the water from Horse Springs.
____________________

1
Both parties concede that Horse Springs flows sufficiently for each party to water fifty head of cattle.
written, though unrecorded, agreement to build a range division fence and divide the water
from Horse Springs. The fence was built across Hill's deeded property along a line flagged by
Hill himself. The springs were piped into a three-barrel trough on Hill's side of the fence, then
the overflow was piped to 4 1/2- and six-barrel troughs on Matleys' side. A year or two after
appellants purchased the Winnemucca Ranch, they visited Horse Springs, which is not easily
accessible. Upon discovering the fence and divided springs, appellants dismantled the water
division works, plugged the pipe, and removed the fence to the eastern boundary of their
deeded property line.
[Headnote 5]
The district court, with manifest uncertainty, decided that appellants were on inquiry
notice regarding the unrecorded Matley-Hill Agreement and, therefore, bound by that
contract. Citing Snow v. Pioneer Title Ins. Co., 84 Nev. 480, 444 P.2d 125 (1968), the lower
court observed that when La Rue went on the premises he must have been well aware of the
water works at Horse Springs. Under those circumstances, is he not put on notice? Snow,
however, had actual knowledge of improvements which should have led him to inquire about
the prior unrecorded instrument. The record in the instant case, contrarily, indicates that
appellants had no express actual knowledge of the fence and water works at Horse Springs
until long after they had purchased the ranch. Snow therefore is inapposite.
2
In this respect
the district court's decision must be reversed. The respondents' vested rights, in any event,
remain intact.
Believing that appellants were bound by the Matley-Hill Agreement, the lower court
ordered them to restore the fence and water works to their former condition and location. The
former fence line, however, unfairly restricts appellants' access to their deeded property when
they are not bound to the former agreement. Because respondents only prayed for access to
Horse Springs in accordance with their vested rights and the issue of access was, as the
district court admitted, "not discussed by the principles [sic]," the order requiring
restoration of the fence amounts to a taking of property without compensation, prior
notice or hearing.
____________________

2
Even if we were to determine that appellants had implied notice of the fence and troughs, thus giving rise to
a duty to inquire, such notice and inquiry more rationally would have revealed the possible existence of an
adverse use or claim of right to the use of the overflow water from Horse Springs as opposed to an unrecorded
agreement between two former owners of the involved properties. To our knowledge, there has never been an
asserted right to that area of appellants' land which became accessible only to respondents' cattle by reason of the
fence. Indeed, respondents' counsel conceded in oral argument that respondents had no right or entitlement to the
fenced-off portion of appellants' land.
issue of access was, as the district court admitted, not discussed by the principles [sic], the
order requiring restoration of the fence amounts to a taking of property without
compensation, prior notice or hearing. Lonkey v. Keyes Silver Mining Co., 21 Nev. 312, 321,
31 P. 57, 60 (1892). Respondents admit that access can be achieved without depriving
appellants of the use of their property.
3
The district court's order that the fencing be restored
to its former line is, therefore, reversed. We remand this case to the lower court, however, to
determine whether a diversion works and pipeline will allow respondents to utilize their
water rights. If this is possible, then respondents' access to appellants' property will be limited
to that access necessary to construct and maintain the diversion works and pipeline.
____________________

3
Respondents claim that a 300- to 400-foot pipe (the cost of which respondents have agreed to bear) could
carry water, by gravity feed, from Horse Springs to the boundary of appellants' deeded property. If troughs of
former sizes are employed, respondents will be restored to their former position with respect to water use.
____________
99 Nev. 780, 780 (1983) Koenig v. State
RAYMOND WILLIAM KOENIG, Appellant, v. THE
No. 14124
CHESTER EDWIN PACHECO, Appellant, v. THE
No. 14202
November 10, 1983 672 P.2d 37
Consolidated appeals from judgments of conviction of driving under the influence of
intoxicating liquors with two or more prior convictions. Koenig: Ninth Judicial District
Court, Douglas County; Norman C. Robison, Judge. Pacheco: Sixth Judicial District Court,
Humboldt County; Richard J. Legarza, Judge.
Defendants were convicted of driving under influence of intoxicating liquors with two or
more prior convictions. Defendants' appeals were consolidated. The Supreme Court, Steffen,
J., held that: (1) statute relating to felony driving under influence of intoxicating liquors with
two or more prior convictions provides for enhancement of penalty for subsequent
convictions of same or similar offense and does not set forth separate offense specifying prior
convictions as separate elements; (2) error in referring to prior convictions in jury instruction
was harmless, given overwhelming evidence of guilt; {3) prior convictions for misdemeanor
of driving under influence of intoxicating liquors could be used to enhance penalty under
felony statute; and {4) court records of prior misdemeanor convictions were
constitutionally adequate and could be used to enhance penalty, reflecting that
defendants either had assistance of counsel during prosecutions which resulted in
convictions so used, or that right to counsel was waived.
guilt; (3) prior convictions for misdemeanor of driving under influence of intoxicating liquors
could be used to enhance penalty under felony statute; and (4) court records of prior
misdemeanor convictions were constitutionally adequate and could be used to enhance
penalty, reflecting that defendants either had assistance of counsel during prosecutions which
resulted in convictions so used, or that right to counsel was waived.
Affirmed.
Thomas E. Perkins, State Public Defender, William G. Rogers, Robert A. Bork, and Laura
FitzSimmons, Deputy Public Defenders, Carson City, for Appellants.
Brian McKay, Attorney General, Carson City, Brent T. Kolvet, District Attorney, and
Michael P. Gibbons, Deputy District Attorney, Douglas County; Virginia R. Shane, District
Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Statute relating to felony driving under influence of intoxicating liquors with two or more prior
convictions within five years provides for penalty enhancement for subsequent convictions of same or
similar offense and does not set forth separate offense specifying prior convictions as separate elements;
hence, trial court properly precluded jury from considering evidence of prior convictions in its
deliberations. NRS 484.379, subd. 5.
2. Automobiles; Criminal Law.
Though trial court erred in referring in jury instruction to defendant's prior convictions, in that instruction
indicated that defendant was being tried for crime of driving under influence of intoxicating liquor with two
or more prior convictions, error was harmless, in light of overwhelming evidence of guilt in form of
arresting officer's testimony, results of defendant's breathalyzer test, and admissions of defendant himself
during trial. NRS 484.379, 484.379, subd. 5.
3. Criminal Law.
Prior misdemeanor convictions for driving under influence of intoxicating liquors may be used to
enhance penalty under statute relating to driving under influence of intoxicating liquor or controlled
substances when death or substantial bodily harm results. NRS 484.379, 484.379, subd. 5, 484.3795.
4. Criminal Law.
Generally, motion to determine admissibility of evidence prior to trial should be made within context of
pretrial motion to suppress evidence; however, where issues of constitutional dimension were presented,
pretrial petitions for writ of habeas corpus and motions to suppress evidence and dismiss complaint would
be deemed adequate to preserve issue for appellate consideration.
5. Criminal Law.
Prior misdemeanor convictions were properly used to enhance penalties for convictions of driving under
influence of intoxicating liquors with two or more prior convictions, where record clearly
indicated that defendants either had assistance of counsel during prosecutions
resulting in convictions so used, or that right to counsel was waived.
liquors with two or more prior convictions, where record clearly indicated that defendants either had
assistance of counsel during prosecutions resulting in convictions so used, or that right to counsel was
waived. NRS 484.379, 484.379, subd. 5; U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Stringent standard for guilty pleas to be constitutionally tendered in felony cases does not apply to guilty
pleas in misdemeanor cases, and so long as court records relating to prior misdemeanor convictions reflect
that spirit of constitutional principles is respected, convenience of parties and the court should be given
considerable weight, and court record should be deemed constitutionally adequate, for purposes of using
prior convictions for penalty enhancement.
OPINION
These are consolidated appeals
1
from judgments of conviction of driving under the
influence of intoxicating liquors with two or more prior convictions. For the reasons set forth
hereinafter, we affirm both convictions.
The facts of each case are as follows:
Koenig: On February 18, 1982, Koenig was arrested after having been stopped and
subjected to field sobriety tests. It was later determined that Koenig had previously been
convicted of driving under the influence of intoxicating liquors; he therefore was charged
with driving under the influence of intoxicating liquors with two or more prior convictions
within five years, in violation of NRS 484.379(5).
Prior to trial, Koenig petitioned for a writ of habeas corpus on the basis that there was
insufficient evidence to bind him over for trial. Koenig also filed motions to determine the
admissibility of evidence prior to trial, and to dismiss the criminal information against him,
based on alleged inadequacy of the court records regarding the prior convictions. The habeas
petition and the motions were denied.
At trial, the district court ruled that Koenig's prior misdemeanor convictions would not be
considered as an element of the offense charged and would not be submitted to the jury. Over
Koenig's objection, the convictions were admitted into evidence before the trial judge only,
for purposes of penalty enhancement. Five prior convictions were put into evidence. Of those
five convictions, the record indicated that Koenig had been represented by counsel in four
instances.
____________________

1
The Court has determined that consolidation of these appeals will assist in their disposition. NRAP 3(b).
been represented by counsel in four instances. The record further indicated that in all five
cases Koenig had been advised of his constitutional rights in entering guilty pleas.
Koenig was convicted, and this appeal ensued.
Pacheco: On February 10, 1982, Pacheco was arrested and subjected to a field sobriety
test after a high speed automobile chase. It was later determined that Pacheco had been
convicted of driving under the influence twice before, and a felony information was filed
charging Pacheco with driving under the influence of intoxicating liquors with two or more
prior convictions within five years, in violation of NRS 484.379(5).
Pacheco filed a petition for a writ of habeas corpus which alleged that the court record of
the prior misdemeanor convictions was constitutionally inadequate. The petition was
ultimately denied.
2
Pacheco also made a motion to dismiss the criminal complaint upon the
basis that the prior convictions were constitutionally infirm due to an inadequate court record
with regard to those guilty pleas. This motion was also denied.
At trial, counsel stipulated to the admission of the prior convictions, which had been
received in the preliminary hearing without objection. After admission of the convictions,
defense counsel, over objection, attempted to establish that the convictions had been
unconstitutionally obtained. The trial court found Pacheco guilty, and this appeal followed.
[Headnote 1]
We first turn to the characterization of the statute under which appellants were convicted,
NRS 484.379(5). Appellant Koenig argues that the statute sets forth a separate offense of
felony driving under the influence with two or more prior convictions which requires proof
of the prior convictions as separate elements of the crime. Koenig contends that the statute,
thus construed, mandates a reversal of his conviction because the trial court disallowed
consideration of the prior convictions by the jury in reaching its verdict. We disagree.
Our review of the legislative history of NRS 484.379 convinces us that the statute provides
for enhancement of penalty for subsequent convictions of the same or a similar offense and
does not set forth a separate offense specifying prior convictions as separate elements. The
title of the act which introduced the provisions of NRS 484.379(5) as it read at the time of the
appellants' convictions states, in part, as follows: An act relating to traffic violations;
increasing the penalties for driving under or refusing a test for the influence of
intoxicants; . . .
____________________

2
Pacheco's petition for a writ of habeas corpus was granted, but prior to the effective date of the writ, the
court rescinded its order allowing the writ to issue. The propriety of the court's action in this regard has not been
addressed by the parties on appeal.
An act relating to traffic violations; increasing the penalties for driving under or
refusing a test for the influence of intoxicants; . . .
1981 Stats. Nev. 1922 (emphasis added). Furthermore, the provision which NRS 484.379(3),
(4) and (5) replaced appears clearly to have been a penalty enhancement statute:
Upon a subsequent conviction within 3 years, the person so convicted shall be
punished by confinement in the county or municipal jail for not less than 10 days, nor
more than 6 months or by a fine of not more than $500 or by both such fine and
imprisonment.
No judge or justice of the peace in imposing sentences provided for in this section
shall suspend the same or any part thereof.
1981 Stats. Nev. at 1925.
In enacting the statute as it read at the time of appellants' convictions, the legislature
clearly intended that it provide for penalty enhancement for subsequent convictions of the
same or a similar offense.
3
Thus, the trial court in Koenig's case correctly precluded the jury
from considering evidence of his prior convictions in its deliberations.
[Headnote 2]
Koenig argues that if NRS 484.379(5) is, as we now hold, a penalty enhancement statute,
the trial court committed reversible error in allowing any reference to his prior convictions to
come before the jury. Jury Instruction No. 2 stated that Koenig was being tried for the crime
of [d]riving under the influence of intoxicating liquor with two or more prior convictions.
Unquestionably, it was error to admit any reference to Koenig's prior convictions. The error
was harmless, however, in light of the overwhelming evidence of guilt in the form of the
arresting officer's testimony, the results of Koenig's breathalyzer test and the admissions of
Koenig himself during trial.
4

____________________

3
We note that the statute in question has been supplanted by new legislation. See (1983) Stats. Nev. 1065,
1070-1072. This new legislation is specific in its provisions that prior convictions are to be used for
enhancement of penalty. We find these new provisions additional persuasive evidence that the legislature
intended that the statute in question here provide for penalty enhancement. See Woofter v. O'Donnell, 91 Nev.
756, 542 P.2d 1396 (1975); Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975).
The trial court also admonished the jury with the following instruction:
You are instructed that you are not to consider the issue of prior convictions in determining innocence
or guilt. You are not permitted to draw any inference of guilt from the fact that a reference to prior
See Revuelta v. State, 86 Nev. 587, 472 P.2d 343 (1970); Jacobs v. State, 91 Nev. 155, 532
P.2d 1034 (1975); NRS 178.598.
[Headnote 3]
Appellants next argue that under the terms of NRS 484.379(5), as it read at the time of
their convictions, the statute may only apply where a prior conviction has been obtained
under NRS 484.3795 or a law that prohibits the same conductdriving under the influence of
intoxicating liquor or controlled substances when death or substantial bodily harm results.
Thus, they conclude, it is improper for the trial court to consider prior misdemeanor
convictions for driving under the influence of alcohol or controlled substances in considering
sentencing under the statute. This argument is without merit.
At the time of appellants' convictions NRS 484.379 read, in pertinent part, as follows:
1. It is unlawful for any person who is under the influence of intoxicating liquor to
drive or be in actual physical control of a vehicle within this state.
2. It is unlawful for any person who is an habitual user of or under the influence of
any 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
chemical, poison or organic solvent, to a degree which renders him incapable of safely
driving or exercising actual physical control of a vehicle to drive or be in actual
physical control of a vehicle within this state. The fact that any person charged with a
violation of this subsection is or has been entitled to use that drug under the laws of this
state is not a defense against any charge of violating this subsection.
3. Any person who violates the provisions of subsection 1 or 2, and who has not
been convicted of a violation of one of those subsections or any law which prohibits the
same conduct in any jurisdiction within 5 years before the violation took place, is guilty
of a misdemeanor. Except as provided in subsection 6, the court shall order him to pay
tuition for and attend courses on the use and abuse of alcohol and controlled substances
approved by the department, shall fine him not less than $100 nor more than the
maximum fine permitted for a misdemeanor, and may sentence him to imprisonment in
the county jail for not more than 6 months. The court may order the department of
motor vehicles to suspend his driver's license for a definite period of not less than
30 days nor more than 1 year and not to allow him any limited driving privileges
unless his inability to drive to and from work or in the course of his work would
cause extreme hardship or prevent his earning a living.
____________________
convictions has been made in the Information. This issue of prior convictions is one of law to be
determined solely by the Court and must not influence you in any way in arriving at a verdict in this case.
motor vehicles to suspend his driver's license for a definite period of not less than 30
days nor more than 1 year and not to allow him any limited driving privileges unless his
inability to drive to and from work or in the course of his work would cause extreme
hardship or prevent his earning a living.
4. Any person who violates the provisions of subsection 1 or 2 within 5 years after
having once been convicted in any jurisdiction of a violation of subsection 1 or 2, NRS
484.3795 or a law which prohibits the same conduct is guilty of a misdemeanor. Except
as provided in subsection 6, the court shall sentence him to imprisonment for not less
than 10 days nor more than 6 months in the county jail, fine him not less than $500 and
direct the department of motor vehicles to suspend his driver's license for a period
specified in the order which must be not less than 6 months and not allow him any
limited driving privileges unless his inability to drive to and from work or in the course
of his work would cause extreme hardship or prevent his earning a living.
5. Except as provided in subsection 6, any person who violates the provisions of
subsection 1 or 2 within 5 years after having been convicted more than once in any
jurisdiction of a violation of subsection 1 or 2, NRS 484.3795 or a law which prohibits
the same conduct, shall be punished by imprisonment in the state prison for not less
than 1 year nor more than 6 years and must be further punished by a fine of not less
than $2,000 nor more than $5,000. . . .
It is clear, by reference to subsections 3 and 4 of the statute in question, that when the
legislature referred to violation of subsection 1 or 2, NRS 484.3795 or a law which prohibits
the same conduct, it intended that subsection 1 or 2 designate the subsections of NRS
484.379, and not NRS 484.3795, which is mentioned separately.
As discussed supra, NRS 484.379 provides different penalties for subsequent violations of
subsections 1 and 2 of that statute. Viewed in light of the legislative intent that the statute
enhance the penalty for subsequent convictions under either of those two subsections or NRS
484.3795, the reference in subsection 5 to subsection 1 or 2, NRS 484.3795 or a law which
prohibits the same conduct becomes clear. Subsection 3 of NRS 484.379 provides that if a
person has not been previously convicted of a subsection 1 or 2 offense, he is guilty of a
misdemeanor. This must be read in conjunction with subsections 4 and 5 of the statute which
differentiate between an offender under subsection 1 or 2 with one prior conviction under
the same subsections, NRS 4S4.3795 or a law which prohibits the same conduct and such
an offender with two or more such prior convictions.
subsection 1 or 2 with one prior conviction under the same subsections, NRS 484.3795 or a
law which prohibits the same conduct and such an offender with two or more such prior
convictions. The former commits a misdemeanor; the latter a felony. Read together, it is
apparent that the prior convictions referred to in the three subsections in every case include a
conviction of subsection 1 or 2 of NRS 484.379, or NRS 484.3795, and not NRS 484.3795
exclusively.
Had the legislature intended only to refer to convictions under NRS 484.3795, of which
there are only two subsections, there would be no need to refer to subsections at all. The
legislature would have referred only to the statute. By referring to subsections, it is obvious
that the legislature was referring to a statute other than NRS 484.3795.
Furthermore, appellants' reading of subsection 5 makes no sense in light of the fact that
subsection 2 of NRS 484.3795, which circumscribes the right of a prosecuting attorney to
dismiss a charge of violating subsection 1 of that statute, describes no crime and prescribes
no penalty. There could be no conviction under subsection 2 of NRS 484.3795 to which
reference could be made in a prosecution under subsection 4 or 5 of NRS 484.379.
In light of the above, we must reject appellants' construction of the language of NRS
484.379(5). It is clear that prior misdemeanor convictions for driving under the influence of
intoxicating liquors may be used to enhance the penalty under the statute in question.
[Headnote 4]
Appellants also challenge their convictions on the contention that the court records of the
prior misdemeanor convictions were constitutionally infirm and thus could not be used to
enhance penalty.
5
For the reasons set forth below, we conclude this contention is meritless.
____________________

5
We note that neither of the appellants filed pretrial motions to suppress evidence. Rather, in Koenig's case, a
petition for a writ of habeas corpus, a pretrial motion to determine the admissibility of evidence, and a motion to
dismiss the criminal information against him were filed. The petition and the motions were based on the
contention urged herethat the court records regarding the prior misdemeanor convictions were constitutionally
inadequate as a basis for an enhanced penalty.
Pacheco also petitioned for a pretrial writ of habeas corpus, and moved to dismiss the criminal complaint on
the basis that the court records of the prior misdemeanor convictions were constitutionally infirm as a basis to
enhance penalty. At Pacheco's trial, the court records were introduced without objection.
Generally, motions to determine the admissibility of evidence prior to trial should be made within the context
of a pretrial motion to suppress
[Headnote 5]
Appellants base their challenge to the use of the prior misdemeanor convictions on the
U.S. Supreme Court case of Baldasar v. Illinois, 446 U.S. 222 (1980), reh'g denied, 447 U.S.
930 (1980). In that case, it was held that an enhanced penalty could not be based upon a prior
misdemeanor conviction where the defendant in the prior misdemeanor prosecution was not
represented by counsel and the right to counsel was not formally waived. Appellants appear
to infer from Baldasar the proposition that a misdemeanor defendant must be afforded a
broad panoply of procedural rights in order to constitutionally validate a subsequent enhanced
penalty based in part on those misdemeanor convictions.
We do not read Baldasar so broadly. The decision in Baldasar dealt only with a prior
unrepresented misdemeanor conviction where a right to counsel had not been formally
waived. It did not extend constitutional requirements beyond the proscription of the use of
misdemeanor convictions obtained under such circumstances for enhancement of penalty in a
subsequent prosecution. Here, the requirements of Baldasar were met in both cases. The
record in Koenig's case clearly indicates that Koenig had the assistance of counsel during four
of the five misdemeanor prosecutions which resulted in convictions used to enhance penalty.
The record in Pacheco's case showed that he had waived any right to counsel in his prior
misdemeanor proceedings. Neither appellant was given an enhanced penalty as a result of
prior misdemeanor convictions where the right to counsel or a waiver of that right was
withheld.
In any case, the records of the prior misdemeanor convictions used to enhance the penalty
in appellants' cases were constitutionally adequate.
[Headnote 6]
This Court, following the lead of the U.S. Supreme Court, has set forth requirements for a
guilty plea to be constitutionally tendered. In Scott v. State, 97 Nev. 318, 630 P.2d 257
(1981), Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980), and Anglin v. State, 86 Nev.
70, 464 P.2d 504 (1970), we held that in felony cases, an official court record must exist
showing that the defendant was apprised of his constitutional rights, understood and waived
them, that there were no threats or promises that induced the guilty plea, that the defendant
understood the consequences of the plea in terms of the range of punishment and
understood the elements of the offense or made factual admissions evincing commission
of the offense.
____________________
evidence. See Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). In this case, however, where issues of
constitutional dimension are presented, we deem appellants' pretrial petitions and motions as adequate in
preserving the issue presented for our consideration. See McCullough v. State, 99 Nev. 72, 657 P.2d 1157
(1983); Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979).
understood the consequences of the plea in terms of the range of punishment and understood
the elements of the offense or made factual admissions evincing commission of the offense.
See also Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); NRS 174.035.
The same stringent standard does not apply to guilty pleas in misdemeanor cases. In
evaluating the procedures used and the court record made in municipal and justice court
prosecutions for misdemeanors, the realities of the typical environment of such prosecutions
in these courts of limited jurisdiction cannot be ignored. So long as the court records from
such courts reflect that the spirit of constitutional principles is respected, the convenience of
the parties and the court should be given considerable weight, and the court record should be
deemed constitutionally adequate. See Mills v. Municipal Court, 515 P.2d 273 (Cal. 1973); In
re Johnson, 398 P.2d 420 (Cal. 1965).
The record in the instant case reflects that in both appellants' cases, the court records
regarding the prior misdemeanor convictions comported with the standard enunciated above.
6
Because the spirit of constitutional principles was respected in appellants' prior
misdemeanor convictions, there was no violation of constitutional rights in using those
convictions to enhance appellants' penalties in the cases at bar.
____________________

6
The record in Pacheco's case indicates that in two separate prior misdemeanor prosecutions in the Sparks
Municipal Court, Pacheco signed a form waiver which stated:
I, Chester Pacheco, being first sworn, deposes and says:
1. THAT he understands that he has the following rights:
(a) The right to retain counsel.
(b) The right to a public defender if he qualifies as an indigent person.
(c) A reasonable bail.
(d) A reasonable time to enter his plea.
(e) The right against self-incrimination.
(f) The court process.
(g) The right to face his accusers in a fair, speedy and impartial trial.
2. THAT he, after due deliberation, KNOWING THE CONSEQUENCES, FREELY and
INTELLIGENTLY desires to WAIVE the above-recited rights.
In Koenig's case, the record contained court records from five prior misdemeanor convictions of driving
under the influence of intoxicating liquors. Of these, only one, from the Justice Court of East Fork Township,
Douglas County, Nevada, was obtained without defense counsel. In that case, Koenig signed a form waiver
similar to that noted above. Of the other four prior misdemeanor convictions used to enhance Koenig's sentence,
in two cases a form waiver signed by Koenig was accompanied by a form signed by Koenig's counsel, containing
language to the effect that the defendant's attorney had explained to the defendant each of his rights relating to
his plea, and was satisfied that the defendant understood those rights. Records from the other two misdemeanor
convictions, signed by the court clerk of Calaveras County, California, indicate that Koenig was represented by
counsel, understood his rights and the consequences of his guilty plea, and waived his right to trial.
Because the spirit of constitutional principles was respected in appellants' prior misdemeanor
convictions, there was no violation of constitutional rights in using those convictions to
enhance appellants' penalties in the cases at bar.
For the foregoing reasons, we affirm the convictions of both appellants. As the issues
considered herein are dispositive of these appeals, we decline to consider other issues raised
by the parties.
The judgments of conviction are affirmed.
Manoukian, C. J., and Springer, Mowbray, and Gunderson, JJ., concur.
____________
99 Nev. 790, 790 (1983) State v. Boueri
THE STATE OF NEVADA, Appellant, v.
PIERRE BOUERI, Respondent.
No. 14282
November 10, 1983 672 P.2d 33
Appeal from order granting motion to dismiss a grand jury indictment alleging twelve
counts of embezzlement. Eighth Judicial District Court, Clark County; Robert G. Legakes,
Judge.
State appealed from an order of the district court granting a defense motion to dismiss a
grand jury indictment alleging 12 counts of embezzlement. The Supreme Court, held that: (1)
an employee who embezzles property which comes into his hands by virtue of his
employment cannot escape liability for embezzlement by plea that legal title to the property is
not in his employer; (2) trial court erred in determining that State's copy of grand jury
attendance records was inadmissible to ascertain whether only 11 grand jury members
attended the sessions where evidence was presented against defendant, and subsequent
dismissal of indictment based on asserted lack of concurrence of 12 or more grand jurors was
also erroneous; (3) sufficient evidence was before grand jury to find probable cause that an
indictment should issue against defendant on 12 counts of embezzlement; and (4) indictment
charging 12 counts of embezzlement was proper, where counts were connected together and
constituted parts of common scheme or plan.
Reversed.
Brian McKay, Attorney General, Carson City, Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Appellant.
Carelli & Miller, Las Vegas, for Respondent.
Evidence was sufficient in grand jury proceeding to show probable cause and thus validate embezzlement
charges against employee in connection with refund of airline tickets, notwithstanding fact that airline
tickets for which employee obtained refunds were not property of employer, since employer did entrust
employee with power and authority in connection with airline tickets through which he could generate and
possess his employer's funds and thus employee qualified as a bailee, agent, and person with whom
any money, property or effects shall have been deposited or entrusted, within meaning of embezzlement
statute. NRS 205.300.
2. Gifts.
Where there was no unconditional delivery of airline tickets as gifts from hotel to guests of hotel, guests
were not owners of the tickets and recipients of a gift from hotel.
3. Embezzlement.
An employee who embezzles property which comes into his hands by virtue of his employment cannot
escape liability for embezzlement by plea that legal title to the property is not in his employer.
A grand jury indictment must be based upon concurrence of 12 or more grand jurors who have
considered all the evidence. NRS 172.255.
5. Grand Jury.
Statute requiring court filing of minutes recording individual votes of grand jurors seeks to preserve
confidential nature of voting process to void public criticism of individual grand jurors. NRS 172.075.
Trial court erred in deciding that State's copy of grand jury attendance records kept by grand jury
secretary was inadmissible on question of whether only 11 grand jurors attended both sessions where
evidence was presented against defendant, and thus subsequent dismissal of indictment based on asserted
lack of concurrence of 12 or more jurors was also erroneous. NRS 172.075, 172.255.
At a grand jury proceeding, State is required to produce evidence establishing probable cause to hold
an accused for trial. NRS 172.155, subd. 1.
Finding of probable cause to indict may be based on slight, even marginal, evidence; State need only
present enough evidence to create a reasonable inference that the accused committed the offense with
which he or she is charged. NRS 172.155, subd. 1.
Evidence in grand jury proceeding, including fact that employee improperly received money from airline
ticket refunds from travel agent to employer, was sufficient for grand jury to find probable
cause that an indictment for embezzlement should issue against employee,
notwithstanding claim that because employer never demanded the money, it
somehow implicitly approved of employee's activities.
agent to employer, was sufficient for grand jury to find probable cause that an indictment for embezzlement
should issue against employee, notwithstanding claim that because employer never demanded the money, it
somehow implicitly approved of employee's activities.
10. Criminal Law.
Where evidence corroborating testimony of accomplice is necessary to convict an accused, it is sufficient
if it tends in itself to connect defendant with the commission of the offense, absent consideration of any
evidence which requires corroboration.
Corroborative evidence sufficient to find probable cause to issue a grand jury indictment need not be of
the same weight or substance as that supporting a conviction.
Indictment for 12 separate offenses of embezzlement was proper, where counts of the indictment were
connected together and constituted part of a common scheme or plan. NRS 173.115, 205.300.
OPINION
Per Curiam:
This is an appeal by the state from an order granting a defense motion to dismiss a grand
jury indictment alleging twelve counts of embezzlement. We conclude that the district court
erred in granting the motion to dismiss and therefore reverse.
The facts adduced at the grand jury hearing revealed that respondent was vice-president of
Caesar's Palace in charge of hosting affluent guests at Caesar's. As part of his duties, Boueri
would arrange complimentary air fare and other services designed to induce such persons to
visit Caesar's. Boueri would arrange the air fare through a local travel agent, Ghanem Travel,
in the name of the customers. Unused tickets were returned to Ghanem by Boueri for refunds.
When such refunds were sought, the agency would issue checks to the order of cash and
usually deliver them to Boueri. At times Boueri would purchase tickets for customers and
deliver them to associates of the customers, who could redeem the tickets as commissions
for encouraging the guests to return to Caesar's. Boueri also obtained refunds for tickets
issued in his own name.
Caesar's policy regarding refunds for unused tickets required the travel agent to either
credit the refund against future invoices or pay the refund by check made out to Caesar's.
Boueri was not authorized to receive a cash refund for his or customers' unused tickets.
At the grand jury hearing, evidence was presented that Boueri had authorized tickets for
several persons who received neither tickets nor money from Caesar's. Refunds for these
tickets were given to Boueri by the travel agency in the form of checks made out to the
order of cash.
tickets were given to Boueri by the travel agency in the form of checks made out to the order
of cash. Boueri also received refunds for tickets issued in his own name.
The grand jury returned an indictment against Boueri listing twelve counts of
embezzlement totalling $41,328.80. Boueri made a motion to dismiss the indictment, which
the district court granted. This appeal followed.
[Headnote 1]
The district court's first ground for dismissing the indictment was that the airline tickets
for which the defendant obtained refunds were not the property of Caesar's Palace, thus
making embezzlement
1
impossible. We disagree.
Although Caesar's did not furnish Boueri with a cash box from which he could embezzle
funds, Caesar's did entrust Boueri with power and authority through which he could generate
and possess his employer's funds. We therefore find persuasive the state's initial argument
that Boueri qualified as a bailee, agent, and person with whom any money, property or
effects shall have been deposited or entrusted, as those words are used in NRS 205.300.
This, coupled with the fact that Boueri admitted he knowingly gave tickets to associates of
Caesar's customers in violation of Caesar's policy, is sufficient evidence of embezzlement to
show probable cause and thus validate the charges against Boueri.
____________________

1
NRS 205.300, which defines embezzlement, reads as follows:
1. Any bailee of any money, goods or property, who shall convert the same to his own use, with the
intent to steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any
person, corporation, association or partnership, or any person with whom any money, property or effect
shall have been deposited or entrusted, who shall use or appropriate such money, property or effects or
any part thereof in any manner or for any other purpose than that for which the same was deposited or
entrusted, shall be guilty of embezzlement, and shall be punished in the manner prescribed by law for the
stealing or larceny of property or effects so taken, converted, stolen, used or appropriated.
2. Any use of the money, goods or property by any bailee thereof, other than that for which the same
was borrowed, hired, deposited, carried, received or collected, shall be prima facie evidence of
conversion and of intent to steal the same and defraud the owner or owners thereof.
3. The term bailee, as used in this section, shall be construed to include and mean all persons with
whom any money, goods or property has been deposited, and all persons to whom any goods or property
has been loaned or hired, and all persons to whom any goods or property shall be delivered, for any
purpose whatsoever, and all persons who shall, either as agent, collector or servant, be empowered,
authorized or entrusted to carry, collect or receive any money, goods or property of another.
[Headnotes 2, 3]
Boueri also contends that the guests of Caesar's, and not the hotel, were the owners of the
tickets as recipients of a gift from Caesar's. This contention is meritless for lack of
unconditional delivery of the gift to the donee or his agent. See Simpson v. Harris, 21 Nev.
353, 362, 31 P.1009, 1011 (1893). Here, the donees were unaware of the tickets issued in
their names, and the record reveals no evidence of payment to the alleged donees. An
employee who embezzles property which comes into his hands by virtue of his employment
cannot escape liability for embezzlement by a plea that the legal title to the property is not in
the employer. State v. DeBois, 98 P.2d 354 (Utah 1940). See also Herrera v. State, 256
S.W.2d 851 (Tex. 1953); State v. Bengston, 367 P.2d 362 (Ore. 1961). In any event, Boueri's
theory has no application to the three counts for tickets made out in his own name. Boueri's
assertion that he was being reimbursed for tickets he paid for himself is not supported by any
direct evidence.
The district court's second ground for dismissing the indictment was that only eleven grand
jury members attended both sessions where evidence was presented against Boueri. The court
decided that the state's copy of attendance records kept by the grand jury secretary was
inadmissible. We again disagree.
[Headnote 4]
The grand jury indictment must be based upon the concurrence of twelve or more grand
jurors who have considered all the evidence. See NRS 172.255; Constancio v. Sheriff, 94
Nev. 71, 574 P.2d 1012 (1978). The attendance records kept by the grand jury secretary
indicate that the indictment was issued after the same twelve grand jurors considered all the
evidence. Boueri counters by citing NRS 172.075, which states, in pertinent part: The
secretary shall keep a record of the number of jurors concurring in the finding of every
presentment or indictment and shall file the record with the clerk of the court, but the record
shall not be made public except on order of the court. . . . Boueri contends that the minutes
of the grand jury attendance were neither filed nor authenticated as required by the statute,
and are thus inadmissible under the statute.
[Headnotes 5, 6]
NRS 172.075, however, does not preclude consideration of the state's exhibit. The statute
only requires the court filing of minutes recording the individual votes of grand jurors, not
minutes of attendance. Even if the revelation of attendance could, under certain conditions,
necessarily reveal the voting input of the individual grand jurors, such a result would not
preclude use of the attendance records.
preclude use of the attendance records. Although the statute seeks to preserve the confidential
nature of the voting process to avoid public criticism of individual grand jurors, this statutory
purpose was not designed to be used as a basis for frustrating valid indictments. In the instant
case, the district court was empowered by the statute to enlighten itself on the issue of the
validity of the indictment by merely admitting the minutes of attendance as evidence on the
subject. The failure to do so was error, as was the dismissal of the indictment based on the
asserted lack of concurrence of twelve or more grand jurors.
Boueri next contends that the evidence presented to the grand jury failed to establish the
commission of a crime. This contention is also without merit.
[Headnotes 7-9]
At a grand jury proceeding, the state is required to produce evidence establishing
probable cause to hold an accused for trial. NRS 172.155(1). It is firmly established,
nevertheless, that the finding of probable cause may be based on slight, even marginal,
evidence. Sheriff v. Badillo, 95 Nev. 593, 600 P.2d 221 (1979); Perkins v. Sheriff, 92 Nev.
180, 547 P.2d 312 (1976). The state need only present enough evidence to create a reasonable
inference that the accused committed the offense with which he or she is charged. LaPena v.
Sheriff, 91 Nev. 692, 541 P.2d 907 (1975). Here, there was sufficient evidence before the
grand jury to find probable cause that an indictment should issue against Boueri. Ghanem
stated that refunds for the tickets were usually given to Boueri. The guests testified that they
received neither tickets nor refunds. The logical inference, sufficient for a probable cause
finding, is that Boueri received the money.
Boueri secondarily claims that because Caesar's never demanded the money, it somehow
implicitly approved of Boueri's activities. Boueri's activities were outside the scope of his
authority and he was aware of that fact. NRS 205.300 requires only that the bailee, trustee or
agent of the employer appropriate the employer's property in any manner or for any other
purpose than that for which the same was deposited or entrusted. . . . This claim therefore is
also baseless.
[Headnotes 10, 11]
Boueri further contends that the evidence fails to support the indictment because Ghanem's
testimony required corroboration. This contention is also meritless. Ghanem has not been
charged as an accomplice, and the record does not support any such charge. Even assuming
that it could be shown that Ghanem was an accomplice, the evidence at the indictment stage
presents sufficient independent corroboration to find probable cause to issue an indictment.
cause to issue an indictment. Where corroborative evidence is necessary to convict an
accused, it is sufficient if it tends in itself to connect the defendant with the commission of
the offense, absent consideration of any evidence which requires corroboration. Austin v.
State, 87 Nev. 578, 491 P.2d 724 (1971). Corroborative evidence sufficient to find probable
cause to issue a grand jury indictment, moreover, need not be of the same weight or substance
as that supporting a conviction. See LaPena v. State, 96 Nev. 43, 604 P.2d 811 (1980);
LaPena v. Sheriff, 91 Nev. 692, 541 P.2d 907 (1975).
[Headnote 12]
Finally, Boueri urges that the dismissal of the indictment was proper because the evidence
before the grand jury established, if at all, one, not twelve separate offenses. Alternatively,
Boueri argues that the offenses were improperly joined in the indictment, thereby requiring
dismissal. Boueri asserts that the twelve separate counts of the indictment relate to only one
offense on the authority of State v. Mandich, 24 Nev. 336, 54 P. 516 (1898) and NRS
173.115. In Mandich, the defendant had taken small quantities of gold and silver cyanide
from a mining company over a period of months. When and how such material was taken
were unknown. This court held that the many takings could be treated as one continuing
transaction so the state could prosecute for grand larceny rather than for several petit
larcenies. The court did not hold that in all cases involving multiple thefts only one charge
must be brought in a grand jury indictment.
Boueri's alternative argument, that an indictment charging several offenses must be
dismissed, is directly contravened by NRS 173.115.
2
Clearly, the several counts of the
indictment are connected together and constitute parts of a common scheme or plan.
Thus, there appears to be no statutory reason for dismissal of the indictment because it
contained twelve counts. To the extent, therefore, that the district court's dismissal of the
indictment was based on this final argument, the dismissal was erroneous.
The district court's order dismissing the grand jury indictment is hereby reversed and the
case remanded for reinstatement of the indictment and further proceedings consistent with
this opinion.
____________________

2
NRS 173.115 reads as follows:
Two or more offenses may be charged in the same indictment or information in a separate count for
each offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.
____________
RONALD E. WILLIAMS, Appellant, v. THE STATE
No. 14336
November 10, 1983 671 P.2d 635
Appeal from judgment of conviction of attempted murder, Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
Defendant was convicted in the district court of two counts of attempted murder and his
sentence on each count was enhanced for use of a deadly weapon in the commission of the
offenses, and he appealed. The Supreme Court held that: (1) district court's failure to give an
alibi instruction sua sponte was not error, and (2) since use of a deadly weapon is not a
necessary element of murder or attempted murder, enhancements of defendant's sentences
for his use of deadly weapon in commission of attempted murders was proper.
Affirmed.
Robert W. Lueck, Las Vegas, for Appellant.
1. Criminal Law.
In prosecution for attempted murder, district court did not err in failing to give alibi instruction sua
sponte, since absence of specific alibi instruction is not patently prejudicial.
2. Criminal Law.
Alibi is not a separate affirmative defense to crime, but is simply a complete and direct denial of state's
case.
3. Homicide.
Since both murder and attempted murder can be committed without use of deadly weapon, use of deadly
weapon is not necessary element of murder or attempted murder, and thus enhancements of sentences for
attempted murders for use of deadly weapon in their commission was not precluded. NRS 193.165,
subd. 3.
OPINION
Per Curiam:
Appellant was convicted of two counts of attempted murder. His sentence on each count
was enhanced pursuant to NRS 193.165 for his use of a deadly weapon in the commission of
the offenses. On appeal, he raises numerous assignments of error, only two of which merit
discussion.
error, only two of which merit discussion. Finding no error, we affirm the judgment.
[Headnotes 1, 2]
Appellant, whose sole defense was alibi, contends that the district court committed
reversible error by failing to give an alibi instruction sua sponte. We disagree. An instruction
in a criminal case need only be given sua sponte when its absence would be patently
prejudicial to the defendant. Globensky v. State, 96 Nev. 113, 117, 605 P.2d 215, 218
(1980); Gebert v. State, 85 Nev. 331, 454 P.2d 897 (1969). Alibi is not a separate, affirmative
defense, but is simply a complete and direct denial of the state's case. Alibi evidence is of
obvious import to the jury, and needs no further explanation such as that embodied in a
typical alibi instruction. We therefore conclude that the absence of a specific alibi instruction
is not patently prejudicial, and that a trial court has no duty to deliver an alibi instruction
sua sponte. Polito v. State, 71 Nev. 135, 142, 282 P.2d 801, 804 (1955). See People v.
Freeman, 584, P.2d 533 (Cal. 1978).
[Headnote 3]
Appellant also presents various challenges to the enhancements of his sentence for his use
of a deadly weapon. He argues, as he did below, that the use of a deadly weapon is a
necessary element of attempted murder, so that the enhancements are accordingly
precluded under NRS 193.165(3).
1
Appellant seems to base this argument on the factual
premise that the vast majority of murders and attempted murders are committed with the use
of deadly weapons. Assuming arguendo the truth of this premise, it does not lead to the legal
conclusion that deadly weapon use is a necessary element of murder or attempted murder.
Both offenses can be committed without the use of a deadly weapon. See LaFave & Scott,
Handbook on Criminal Law 68, at 538 (1972). Consequently, the use of a deadly weapon is
not a necessary element of murder or attempted murder within the meaning of NRS
193.165(3).
We have considered appellant's remaining challenges to the enhancements, and his
remaining assignments of error, and have found them to be without merit. Accordingly, we
affirm the judgment of conviction.
____________________

1
NRS 193.165(3) precludes a weapon enhancement when the use of a firearm, other deadly weapon or tear
gas is a necessary element of the crime charged.
____________
99 Nev. 799, 799 (1983) David v. Warden
IRIS MARIE DAVID, Appellant, v. WARDEN,
No. 14862
November 10, 1983 671 P.2d 634
Appeal from order modifying sentence in habeas corpus proceeding, First Judicial District
On defendant's appeal from order of the district court which, in habeas corpus proceeding,
reduced defendant's sentence to that which she understood was maximum potential sentence
at time she pleaded guilty, the Supreme Court held that reduction of the sentence cured any
misunderstanding of consequences of the plea and, therefore, the plea was voluntarily
entered.
Affirmed.
Thomas E. Perkins, State Public Defender, Carson City, and Norman Y. Herring, Special
Deputy Public Defender, Incline Village, for Appellant.
Brian McKay, Attorney General, and Brian Randall Hutchins, Deputy Attorney General,
Carson City, for Respondent.
1. Criminal Law.
A guilty plea must be made voluntarily with an understanding of nature of the charge and consequences
of the plea; where a defendant does not understand consequences of a plea, the plea is not knowingly and
voluntarily entered.
2. Criminal Law.
Order which reduced defendant's sentence to that which she understood was maximum potential sentence
at time she pleaded guilty cured any misunderstanding of consequences of her plea and, therefore, the plea
was voluntarily entered.
OPINION
Per Curiam:
This is an appeal from an order of the district court which reduced appellant's sentence to
that which appellant understood was the maximum potential sentence at the time she pleaded
guilty. Appellant, Iris David, contends that her guilty plea was involuntary and therefore the
lower court was required to vacate her conviction. We disagree.
David was charged with sale of a controlled substance and conspiracy to sell a controlled
substance, violations of NRS 453.321, NRS 453.1911 and NRS 453.401.
conspiracy to sell a controlled substance, violations of NRS 453.321, NRS 453.191
1
and
NRS 453.401. On March 23, 1981, David appeared before a judge of the Eighth Judicial
District Court to enter a guilty plea. The court informed David that the maximum sentences
which could be imposed for the crimes were ten years on the sale charge and six years on the
conspiracy charge. David stated that she understood this and subsequently pleaded guilty.
On June 22, 1981, David appeared before the court for entry of judgment and imposition
of sentence. The court sentenced David to life imprisonment on the sale conviction and six
years on the conspiracy conviction. The court suspended the sentences and granted probation
for an indeterminate period not to exceed five years. David subsequently violated her
probation and the court ordered her to serve the six-year sentence on the conspiracy
conviction.
On October 4, 1982, David filed a petition for a writ of habeas corpus in the First Judicial
District Court. She asserted that her incarceration was illegal because she made the plea
without an understanding of its consequences. The lower court initially vacated the judgment
of conviction. After a motion for reconsideration, however, and after the issuance of this
court's opinion in Douglas v. State, 99 Nev. 22, 656 P.2d 853 (1983), the court amended its
previous order to reduce the life sentence to ten years.
David has appealed from the amended order. She contends that her convictions must be
reversed where her guilty plea was involuntary.
[Headnote 1]
A guilty plea must be made voluntarily with an understanding of the nature of the charge
and the consequences of the plea. Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); NRS
174.035(1). Where a defendant does not understand the consequences of a plea, the plea is
not knowingly and voluntarily entered. See Ramey v. State, 99 Nev. 264, 661 P.2d 292
(1983).
[Headnote 2]
In the present case the court misinformed David that ten years was the maximum statutory
sentence the court could impose for sale of a controlled substance. See NRS 453.321. The
canvass of David reveals that she did not have an understanding of the consequences of her
plea under the statute. Because of the reduction of the sentence to ten years, however, the
actual consequence of her plea was limited to that sentence which she believed could be
imposed.
____________________

1
NRS 453.191 was repealed in 1981. See 1981 Nev. Stat. 750.
which she believed could be imposed. Accordingly, any misunderstanding of the
consequences of her plea was cured. Douglas v. State, supra.
2
Therefore, her plea was
voluntarily entered. Id.
Other issues raised are without merit or need not be addressed. Accordingly, the order of
the district court is affirmed.
____________________

2
To the extent that Taylor v. Warden, 96 Nev. 272, 607 P.2d 587 (1980), may be inconsistent, it is overruled.
____________
99 Nev. 801, 801 (1983) Picon v. Ryon
CYNTHIA PICON, Appellant, v. EDWIN E.
RYON, Respondent.
No. 14516
November 14, 1983 671 P.2d 1133
Appeal from judgment of dismissal, Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
Appeal was taken from judgment of the district court dismissing plaintiff's complaint as
discovery sanction. The Supreme Court held that plaintiff's unexplained and unwarranted
failure to provide discovery information was sufficiently willful so as to warrant sanction of
dismissal of complaint.
Affirmed.
1

Robert C. Bell, Reno, for Appellant.
C. Frederick Pinkerton, Reno, for Respondent.
Pretrial Procedure.
Plaintiff's unexplained and unwarranted failure to provide discovery information was sufficiently willful
so as to warrant sanction of dismissal of complaint.
OPINION
Per Curiam:
This is an appeal from a judgment dismissing appellant's complaint as a discovery
sanction. Appellant contends that the sanction of dismissal is available only where a party
willfully fails to comply with discovery orders. Consequently, appellant contends that the
lower court erred in dismissing her complaint where the lower court made no finding that
appellant's failure to provide discovery was willful.
____________________

1
Appellant's counsel on appeal did not represent the appellant during most of the proceedings which led to
the dismissal of her complaint.
99 Nev. 801, 802 (1983) Picon v. Ryon
where the lower court made no finding that appellant's failure to provide discovery was
willful.
The lower court found that appellant's failure to provide discovery information was
unexplained and unwarranted. Appellant's unresponsive conduct halted the normal
adversarial process. Appellant did not establish that her failure to provide discovery was
accidental or involuntary. In such circumstances appellant's conduct was sufficiently willful
so as to warrant the sanction of dismissal. See Skeen v. Valley Bank of Nevada, 89 Nev. 301,
511 P.2d 1053 (1973); U.S. Merchandise Mart, Inc. v. D & H Dist. Co. 279 A.2d 511 (D.C.
1971).
Affirmed.
____________
99 Nev. 802, 802 (1983) Stone v. Mission Bay Mortgage Co.
VERONICA M. STONE, Appellant, v. MISSION BAY MORTGAGE
COMPANY and RICHARD WOOD aka RICH WOOD, Respondents.
No. 13123
December 1, 1983 672 P.2d 629
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Robert G.
Legakes, Judge.
Appeal was taken from a summary judgment of the district court in favor of defendants in
action alleging breach of employment contract and fraudulent inducement into employment
contract. The Supreme Court held that: (1) material issues of fact precluded summary
judgment, and (2) oral employment contract was not rendered unenforceable by statute of
frauds.
Reid and Alverson, and Eric Taylor, Las Vegas, for Appellant.
Dennis M. Sabbath, and Dennis A. Kist, Las Vegas, for Respondents.
1. Judgment.
A litigant has a right to trial, and summary judgment should be denied, where there is the slightest doubt
as to the facts.
Phrase probationary employee does not necessarily mean that employee may be terminated without
cause at any time during probationary period; conditions of probationary period, like any other part of an
employment contract, may be set by agreement between the parties.
3. Judgment.
Material issues of fact as to whether parties intended application for employment, which defined terms of
probationary period as allowing employer to terminate employee at any time without cause, to constitute
their contract, and as to existence and terms of agreement regarding employee's probationary period
precluded summary judgment in action for breach of employment contract and fraudulent inducement into
employment contract.
4. Frauds, Statute of.
Statute of frauds did not render unenforceable oral employment contract for not less than one year, as
contract could have been terminated within one year because of alleged probationary period, and
termination would have been pursuant to provisions of alleged contract and without a violation of its terms.
NRS 111.220(1).
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of the respondents, Mission Bay
Mortgage Company (Mission Bay) and Richard Wood.
Appellant Veronica Stone filed a complaint in district court alleging that an oral contract
of employment for not less than one year was made between herself and Mission Bay prior
to her beginning work for Mission Bay in January, 1980, and that Mission Bay terminated
Stone two weeks after she started work. She later admitted that her employment was subject
to a 30-day probationary period, but she contended that the reason given for her termination
after only two weeks with Mission Bay was that business had slowed down, which was
contrary to her understanding that she would only be terminated if her work was found to be
unsatisfactory. After beginning work with Mission Bay, and before she was given her notice
of termination, she filled out and signed an Application for Employment. Above her
signature the application stated in small print that she agreed that her employment was for no
definite period and that she might be terminated at any time without any previous notice.
In her complaint, Stone asserted two causes of action, namely, a breach of contract action
on the alleged one-year oral contract, and a tort cause of action asserting that she had been
fraudulently induced into the contract of employment by misrepresentations made by Richard
Wood of Mission Bay.
In the summary judgment proceedings below, and on appeal, respondents have made the
following arguments: (1) Stone was a probationary employee when terminated, and thus
could be terminated at any time without cause during the probationary period regardless of
the existence of a one-year contract; {2) any oral contract for "at least one year" is
unenforceable under the statute of frauds, NRS 111.220{1); and {3) Stone's tort cause of
action is also barred by the statute of frauds.
contract; (2) any oral contract for at least one year is unenforceable under the statute of
frauds, NRS 111.220(1); and (3) Stone's tort cause of action is also barred by the statute of
frauds. The district court granted summary judgment without stating its reasons. We reverse,
finding no basis for a summary judgment on any of the above three arguments.
[Headnote 1]
In reviewing the propriety of a summary judgment under NRCP 56, we must accept as true
all evidence favorable to the party against whom the judgment was rendered. Bowyer v.
Davidson, 95 Nev. 718, 720, 584 P.2d 686, 687 (1978); Potter v. Mutual Benefit Life Ins.
Co., 93 Nev. 90, 560 P.2d 914 (1977). A litigant has a right to trial where there is the slightest
doubt as to the facts. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). In view
of this standard, we hold that the trial court erred in granting summary judgment because
genuine issues of material fact are present in this case.
[Headnote 2]
The phrase probationary employee does not necessarily mean that the employee may be
terminated without cause at any time during the probationary period. The conditions of a
probationary period, like any other part of an employment contract, may be set by agreement
between the parties. See, e.g., Willis v. Asbury Transportation Co., 386 P.2d 934 (Wyo.
1963). Stone should be allowed to prove at trial the existence and terms of the agreement
regarding her probationary period, since these facts are in dispute.
[Headnote 3]
Respondents argue, however, that the small print above Stone's signature on the
application for employment constituted an agreement between the parties that defined the
terms of the probationary period as allowing the employer to terminate the employee at any
time without cause.
1
The evidence in the record, however, did not demonstrate that, as a
matter of law, the application was intended to be the contract between the parties. Indeed, the
inferences from Stone's deposition testimony indicate that the application was completed and
signed by her for informational purposes only. Thus, genuine issues of material fact remain
with regard to the significance of the application for employment, i.e., whether both parties
intended the application form to constitute their contract. See Smith v. Recrion Corp.,
____________________

1

The application form contains the following statement in small print immediately above appellant's
signature: I understand and agree that my employment is for no definite period and may, regardless of the date
of payment of my wages and salary, be terminated at any time, without any previous notice.
Smith v. Recrion Corp., 91 Nev. 666, 541 P.2d 663 (1975) (a showing of contratual intent
necessary to prove a contract).
[Headnote 4]
Respondents' argument concerning the statute of frauds is also without merit. They argue
that the oral employment contract for not less than one year was not intended by the parties
to be performed within one year, and therefore is unenforceable under the statute of frauds.
2
Because of the alleged probationary period, however, the contract could have been terminated
within one year. The termination would have been pursuant to the provisions of the alleged
contract and without a violation of its terms. Therefore, the alleged employment contract does
not fall within the statute of frauds.
3
See Girton v. Daniels, 35 Nev. 438, 129 P. 555 (1913)
(oral lease of mine for two years, which required lessee to perform a certain amount of work,
not within the statute of frauds because it could have been terminated by the lessor within a
year if the lessee did not perform enough work); White Lighting Company v. Wolfson, 438
P.2d 345 (Cal. 1968); Thompson v. Industrial Lumber Co., 599 P.2d 468 (Or.Ct.App. 1979);
McRae v. Lindale Independent School District, 450 S.W.2d 118 (Tex.Civ.App. 1970).
In light of our conclusion above that the statute of frauds does not render the oral contract
in this case unenforceable, it is not necessary to discuss respondents' argument that the tort
cause of action for misrepresentation was also barred by the statute of frauds. In conclusion,
respondents failed to prove as a matter of law that there is no genuine issue as to a material
fact, and the district court should not have granted summary judgment. We therefore reverse
the summary judgment and remand for further proceedings.
____________________

2
In the following cases every agreement shall be void, unless such agreement, or some note or
memorandum thereof expressing the consideration, be in writing, and subscribed by the party charged
therewith:
1. Every agreement that, by the terms, is not to be performed within 1 year from the making
thereof. . . .

3
We need not decide whether the employment contract in this case would have otherwise been barred by the
statute of frauds had its terms not contained the probationary period.
____________
99 Nev. 806, 806 (1983) State v. Smith
THE STATE OF NEVADA, Appellant, v. SAMUEL
ELMER SMITH, Respondent.
No. 14428
December 1, 1983 672 P.2d 631
Appeal from order granting writ of mandamus, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
State appealed from an order of the district court which granted a writ of mandamus
compelling a justice's court to grant defendant a jury trial in a pending prosecution for driving
under the influence. The Supreme Court, Gunderson, J., held that: (1) statute providing that in
a justice's court, a case shall be tried by a jury only if the defendant so demands does not
create an absolute right to trial by jury upon timely demand, as statute may be more accurately
read as granting a right to a jury trial upon timely demand in cases where a jury trial is
otherwise required or appropriate; (2) where the maximum possible penalty is six months'
imprisonment or less, the offense is petty and the right to trial by jury does not attach; and
(3) since driving under the influence statute provides a penalty of up to six months'
imprisonment for a first-time driving under the influence offense, there is no constitutional
right to a trial by jury in such a case.
Reversed.
Tufteland and L. J. O'Neale, Deputy District Attorneys, Clark County, for Appellant.
Graves & Potter, Las Vegas, for Respondent.
1. Jury.
Statute providing that in a justice's court, a case shall be tried by a jury only if the defendant so demands
does not create an absolute right to a trial by jury upon timely demand, as statute may be more accurately
read as granting a right to a jury trial upon timely demand in cases where a jury trial is otherwise required
or appropriate. NRS 175.011, subd. 2; U.S.C.A.Const. Amend. 6.
2. Jury.
Statute providing that in a justice's court, a case shall be tried by a jury only if the defendant so demands
is intended to have only a procedural impact, since if legislature intended to grant a substantive right to a
jury trial in every such case, it would have said so in plain, explicit language, and Supreme Court would
decline to read such a right into the statute.
99 Nev. 806, 807 (1983) State v. Smith
a right into the statute. NRS 175.011, subd. 2; U.S.C.A.Const. Amend. 6.
3. Jury.
Persons are guaranteed the right to a jury trial by both the Nevada Constitution and the Sixth Amendment
of the United States Constitution. Const. Art. 1, 3; U.S.C.A.Const. Amend. 6.
4. Jury.
There is no constitutional right to trial by jury for petty offenses. Const. Art. 1, 3; U.S.C.A.Const.
Amend. 6.
5. Jury.
Whether there is a constitutional right to a trial by jury turns upon whether the offense charged is
characterized as serious or petty, and principal criterion used in characterizing an offense as petty or
serious is the severity of the maximum authorized penalty. Const. Art. 1, 3; U.S.C.A.Const. Amend.
6.
6. Jury.
Where the maximum possible penalty is six months' imprisonment or less, the offense is petty and the
right to trial by jury does not attach. Const. Art. 1, 3; U.S.C.A.Const. Amend. 6.
7. Jury.
Since driving under the influence statute provides a penalty of up to six months' imprisonment for a
first-time driving under the influence offense, there is no constitutional right to a trial by jury in such a
case. Const. Art. 1, 3; U.S.C.A.Const. Amend. 6; NRS 484.379.
OPINION
This case presents an appeal from a district court order, which granted a writ of mandamus
compelling the justice's court to grant respondent a jury trial in a pending prosecution for
driving under the influence (DUI). Because we conclude that respondent has neither a
statutory nor a constitutional right to a trial by jury in a DUI prosecution, we reverse.
Given the issues presented in this appeal, few facts need be mentioned. Respondent Smith
was charged with driving under the influence of intoxicating liquor, in violation of NRS
484.379. Smith sought a trial by jury in the justice's court. The State successfully opposed
Smith's demand, and Smith sought a writ of mandamus in the district court to compel the
justice's court to grant a jury trial. The district court granted Smith the requested extraordinary
relief, apparently under the belief that a Nevada statute, NRS 175.011(2), afforded all
defendants a right to jury trial upon timely demand. The State now appeals from the district
court's order granting the writ of mandamus.
99 Nev. 806, 808 (1983) State v. Smith
STATUTORY GROUNDS FOR RIGHT
TO JURY TRIAL
[Headnotes 1, 2]
The initial question to be resolved in this appeal is whether the district court erred in
holding that NRS 175.011(2) created a statutory right to trial by jury. The statute in question
then provided:
In a justice's court, a case shall be tried by jury only if the defendant so demands in
writing not less than 5 days prior to trial. Where a case is tried by jury, a reporter must
be present who is an official reporter for a district court of this state, and shall report the
trial.
1967 Nev. Stats. 1424 (emphasis added). Given this statutory language, we must determine
whether the phrase a case shall be tried by jury only if the defendant so demands creates an
absolute right to a trial by jury upon timely demand. We do not believe that it does. The
language in question is at best equivocal, and we conclude that NRS 175.011(2) may be more
accurately read as granting a right to a jury trial upon timely demand in cases where a jury
trial is otherwise required or appropriate. In Goldman v. Kautz, 531 P.2d 1138 (Ariz. 1975),
the Arizona Supreme Court addressed a claim of a right to trial by jury founded on a statute
very similar to NRS 175.011(2). The Arizona statute in question, A.R.S. 22-320, provided:
A trial by jury shall be had if demanded by either the state or defendant. Unless the demand
is made before commencement of the trial, a trial by jury shall be deemed waived. 531 P.2d
at 1139. Although this statute contained language which apparently unambiguously granted
an absolute right to trial by jury on demand, the Arizona Supreme Court held:
We do not think the quoted section grants a substantive right, but, rather, was intended
to be procedural and must be read as meaning that a trial by jury shall be had if
demanded in cases where a jury trial is appropriate. If the Legislature intended to grant
a jury trial in every case, it would have no doubt said so in plain, explicit language.
Id. at 1139 (emphasis in original).
Although Goldman involved a statute which apparently granted an absolute right to a jury
trial on demand, we believe the Arizona Supreme Court's analysis was correct. In the same
manner, we believe that NRS 175.011(2) is intended to have only a procedural impact, and
that if the Legislature intended to grant a substantive right to jury trial in every case, it would
have said so in plain, explicit language. As the Legislature has not clearly expressed an
intention in NRS 175.011{2) to grant a statutory right to jury trial, we decline to read
such a right into the statute.
99 Nev. 806, 809 (1983) State v. Smith
not clearly expressed an intention in NRS 175.011(2) to grant a statutory right to jury trial, we
decline to read such a right into the statute.
Accordingly, the district court erred when it determined that NRS 175.011(2) created a
statutory right to jury trial in all cases.
1

CONSTITUTIONAL GROUNDS FOR RIGHT
TO JURY TRIAL
Apparently anticipating that this court would not accept the district court's interpretation
of NRS 175.011(2), respondent additionally argues that the district court did not err in
granting his petition for extraordinary relief because he has a constitutional right to a trial by
jury in a DUI prosecution. We disagree.
[Headnotes 3-5]
Persons are guaranteed the right to a jury trial by both art. I, section 3 of the Nevada
Constitution, and the sixth amendment to the United States Constitution. Despite apparently
significant differences in the language of these constitutional provisions, both provisions have
been interpreted to guarantee the right to a jury trial in a criminal matter only as it existed at
common law. Thus, there is no constitutional right to trial by jury for petty offenses. See
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968); State v. Ruhe, 24 Nev. 251, 52 P.
274 (1898). Whether there is a constitutional right to a trial by jury therefore turns upon
whether the offense charged is characterized as serious or petty. See Duncan v.
Louisiana, 391 U.S. at 159. In turn, the principal criterion used in characterizing an offense as
petty or serious is the severity of the maximum authorized penalty. See Baldwin v. New
York, 399 U.S. 66, 68, 90 S.Ct. 1886 (1969); Bloom v. Illinois, 391 U.S. 194, 211, 88 S.Ct.
1477 (1968).
In recent decisions, the United States Supreme Court has increasingly relied upon the
objective criterion of the maximum possible penalty in deciding whether to characterize an
offense as petty or serious. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697 (1974);
Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687 (1974). Using this criterion, the
Court has held that where the maximum possible penalty is six months imprisonment or
less, the offense is "petty," and the right to trial by jury does not attach.
___________________

1
Of course, for particular types of misdemeanors, the Legislature may see fit to declare explicitly that a jury
trial is appropriate. See, e.g., NRS 201.235(1), which establishes a legislative expectation of jury trials in certain
cases wherein a determination of obscenity is required. In such cases, NRS 175.011(2) provides the procedure to
be followed in demanding the right.
99 Nev. 806, 810 (1983) State v. Smith
where the maximum possible penalty is six months imprisonment or less, the offense is
petty, and the right to trial by jury does not attach. See Codispoti v. Pennsylvania, 418 U.S.
at 512.
At the time of the alleged offense, the maximum punishment for a first-time DUI
conviction in Nevada under NRS 484.379 was six months imprisonment or a fine of up to
$1,000.00. As the potential maximum term of imprisonment is six months, it would appear
that respondent Smith's offense was petty within the Supreme Court's definition, and that
there is thus no constitutional right to trial by jury in his DUI prosecution.
As respondent mentions, in United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977), the
Ninth Circuit Court of Appeals has held that a defendant charged with an offense punishable
by a possible $1,000.00 fine or up to six months imprisonment was constitutionally entitled to
a jury trial. See also United States v. Craner, 652 F.2d 23 (1981). The Ninth Circuit's decision
in Hamdan, however, was based on the court's conclusion that the definition of petty
offense contained in 18 U.S.C. section 1(3) should serve as the determinant of an
individual's constitutional right to a jury trial. Because 18 U.S.C. 1(3) provides, in pertinent
part, that a petty offense is one the penalty for which does not exceed imprisonment for a
period of six months or a fine of not more than $500.00, or both, the Ninth Circuit
concluded that, until the Supreme Court spoke further, a jury trial would be required in cases
where the fine was more than $500.00.
With all respect to the court, we decline to follow the Ninth Circuit's holding. We note that
the Supreme Court has looked to 18 U.S.C. section 1(3) in establishing whether an offense
was petty. Still, the Court stressed that the definition contained in 18 U.S.C. 1(3), especially
with respect to the amount of the possible fine, should not be accorded talismanic
significance. Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178 (1975).
[Headnotes 6, 7]
Accordingly, we look to the criterion expressly established by the United States Supreme
Court: where the maximum possible penalty is six months imprisonment or less, the offense
is petty and the right to trial by jury does not attach. As NRS 484.379 provides a penalty of
up to six months imprisonment for a first-time DUI offense, there is no constitutional right to
a trial by jury. The district court thus erred in granting the writ of mandamus to compel the
justice's court to grant respondent a jury trial in his pending DUI prosecution.
The other issues raised by the parties have been considered and are without merit.
99 Nev. 806, 811 (1983) State v. Smith
and are without merit. Accordingly, we reverse the decision of the district court.
2

Manoukian, C. J., and Springer, Mowbray, and Steffen, JJ., concur.
___________________

2
Because we have grounded our decision on the determination that the law currently establishes no right to a
jury trial in a DUI case, it is unnecessary to decide whether mandamus would lie to enforce such a right if it
existed.
____________
99 Nev. 811, 811 (1983) Republic Entertainment v. Clark County
REPUBLIC ENTERTAINMENT, INC., dba Oui Girls; Nevada Forms, Inc., dba Vegas Girl
Photograph International; Susan Knott, dba Playgirl Escorts; Morton Rushfield, dba Playmate
Photo-Escorts; Para-L., Inc., dba Paragon Enterprises; Ronald J. Kielnhofer, dba Classic
Escorts; and Desert Sun, Inc., dba Desert Sun Escorts, Appellants, v. CLARK COUNTY
LIQUOR AND GAMING LICENSING BOARD and Its Members, to-wit: David Canter,
Chairman; Jack Petitti; Woodrow Wilson, Thalia Dondero; Bruce Woodbury; Richard
Ronzone; and Manuel Cortez, All Named in Their Capacity as Members of Said Board and
Not Individually; and John McCarthy, in His Capacity as Sheriff of Clark County, Nevada,
Respondents.
No. 14168
December 1, 1983 672 P.2d 634
Appeal from order denying motion for preliminary injunction and dissolving temporary
restraining order, Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Escort service brought action to enjoin the county liquor and gaming licensing board from
requiring it to obtain a license to operate and from prohibiting unlicensed services from
advertising. The district court dissolved the temporary restraining order which was in effect,
and denied the motion for preliminary injunction, and the escort service appealed. The
Supreme Court held that: (1) county regulation requiring licensing of escort services was
validly enacted regulation; (2) restraint on advertising of escort services imposed by
regulation did not violate the First Amendment; and (3) language of regulation was neither
unconstitutionally overbroad nor unconstitutionally vague.
Affirmed.
Alan B. Andrews, Las Vegas, for Appellants.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, and S.
Mahlon Edwards, Deputy District Attorney, Clark County, for Respondents.
1. Licenses.
Police power of state to license businesses is exclusively legislative, but the legislature may delegate to
board or commission the power to administer required licensing and to promulgate rules and regulations in
accordance with statute.
2. Criminal Law.
Administrative regulations may be enforced by criminal proceedings as long as statute creates offense
and imposes punishment.
3. Licenses.
Regulation promulgated by county liquor and gaming licensing board requiring escort services to be
licensed and providing that only service-oriented escorts and escort bureaus may obtain license was validly
enacted regulation, since there is statutory authority both for promulgation of regulations relating to
licensing and for their criminal enforcement. NRS 244.345, subds. 3(c), 7.
Advertising which does no more than propose commercial transaction is considered commercial
speech. U.S.C.A.Const. Amend. 1.
While commercial speech enjoys some First Amendment protection, it triggers lower level of judicial
scrutiny and may be regulated in ways that would be impermissible if noncommercial expression were
involved. U.S.C.A.Const. Amend. 1.
Advertising which solicits clients for escort services may be legitimately regulated, since it is primarily
business transaction. U.S.C.A.Const. Amend. 1.
Greater degree of regulation is permissible when advertising relates to activities which state may not only
legitimately regulate but also prohibit, such as prostitution. U.S.C.A.Const. Amend. 1.
Restraints imposed on advertising of escort services did not violate First Amendment, since prohibitions
of regulation were directed at advertising of prostitution in the guise of escort services. U.S.C.A.Const.
Amend. 1.
Regulation promulgated by county liquor and gaming licensing board placing restraints on advertisement
of sexually oriented escort services is not constitutionally overbroad, since language does not lend itself to
interpretation which reaches constitutionally protected conduct; furthermore, it is irrelevant whether
restrictions on advertising could encompass nonsexually oriented advertising because overbreadth doctrine
does not apply to commercial speech. U.S.C.A.Const. Amend. 1.
Law that does not reach constitutionally protected speech may nevertheless be challenged as vague; to
succeed, however, challenges must demonstrate that law is impermissibly vague in all of its
applications.
must demonstrate that law is impermissibly vague in all of its applications. U.S.C.A.Const. Amend. 14.
Law which fails to give persons of ordinary intelligence fair notice of whether their contemplated conduct
is permitted or forbidden must be declared to be void for vagueness, and to deny due process of law.
Laws subject to criminal enforcement must be strictly construed under void for vagueness challenge.
13. Licenses.
County liquor and gaming licensing board's regulation providing criminal penalties for operating as
escort or escort bureau without license, and restricting advertising of sexually oriented escort services, is
not impermissibly vague and provides adequate standards for its application in that criminal penalties are
provided only for operating without license, which determination is well within power of enforcing officer
to make, and distinctions between sexually oriented and service-oriented escorts and escort bureaus are
relevant only to issuance of licenses. U.S.C.A.Const. Amend. 14.
14. Injunction.
Escort service was not entitled to preliminary injunction restraining city from requiring it to be licensed,
since service failed to demonstrate reasonable probability of prevailing on merits, in that it did not show
that county regulation requiring such licensing was overly broad, void for vagueness, or a restriction of
service's First Amendment rights. U.S.C.A.Const. Amend. 1, 14.
OPINION
Per Curiam:
This appeal presents a challenge to the validity and constitutionality of Title 8, Chapter
8.32, which was enacted by the Clark County Liquor and Gaming Licensing Board as the
latest of Clark County's attempts to control sexually oriented escort services. The district
court dissolved a temporary restraining order and denied appellants' motion for a preliminary
injunction. We affirm.
Chapter 8.32, as amended by Regulation No. G-66-83,
1
provides in part:
8.32.050 Unlawful to work as an escortExceptions. It is unlawful for any person
to work or perform services as an escort in the county unless employed by a licensed
escort bureau or licensed as an escort bureau.
___________________

1
While this appeal was pending, the Liquor and Gaming Licensing Board enacted Regulation No. G-66-83,
which substantially amended the provisions relating to advertising and license issuance. This opinion deals with
the Chapter as amended.
8.32.060 Definitions. (A) An escort is a person who for monetary consideration
in the form of a fee, commission, salary, or tip, dates, socializes, visits, consorts with,
or accompanies or offers to date, consort, socialize, visit, or accompany, another or
others to or about social affairs, entertainments or places of amusement or within any
place of public resort or within any private quarters of a place of public resort.
. . .
(2) A sexually oriented escort is an escort which:
(a) Employs or uses an escort bureau runner; or
(b) Works for, is associated with, or has contracted with a sexually oriented escort
bureau; or
(c) Advertises, either directly or by implication that sexual stimulation or sexual
gratification will be provided, or works for, or is associated with, or has contracted with
an escort bureau which so advertises; or
(d) Provides sexual stimulation or sexual gratification to an escort patron.
. . .
8.32.120 AdvertisingImplying services other than service oriented escorts. (A)
Any publication, dissemination or display whether by hire, contract or otherwise by an
escort, escort bureau or owner, manager or employee of an escort bureau within the
scope of this chapter directly or indirectly in any newspaper, magazine or other
publication, by any radio, television, telephone or pictorial display, publication or other
advertising media which contains any statement which is known or through the exercise
of reasonable care would suggest to a reasonable, prudent person that sexual
stimulation or sexual gratification is offered or provided, is prohibited.
The Chapter also provides that only service oriented escorts and escort bureaus may obtain
a license and that all advertising by unlicensed escorts and escort bureaus is prohibited.
Chapter 8.32 purports to be a regulation. Appellants contend that Chapter 8.32 is more
accurately characterized as an ordinance, and since it is undisputed that the Clark County
Liquor and Gaming Licensing Board does not have the power to enact ordinances, the
Chapter is invalid. Appellants allege that the power of licensing can only be exercised by
ordinance and point out that the Chapter is subject to criminal enforcement. While the
Chapter does not itself establish criminal penalties, Section 1.08.020 of the Clark County
Code renders every violation of the Code a misdemeanor.
[Headnotes 1, 2]
The police power of the State to license businesses is exclusively legislative. Galloway v.
Truesdell, 83 Nev. 13, 22, 422 P.2d 237 (1967). The Legislature, however, may delegate to a
board or commission the power to administer the required licensing and to promulgate rules
and regulations in accordance with the statute. 53 C.J.S. Licenses 9 (1948). It is also well
settled that administrative regulations may be enforced by criminal proceedings as long as a
statute creates the offense and imposes the punishment. See United States v. Hark, 320 U.S.
531, 536 (1944); State v. Allen, 423 P.2d 867, 868 (N.M. 1967).
[Headnote 3]
The Legislature has given the Clark County Liquor and Gaming Licensing Board exclusive
power to regulate escort services within the unincorporated areas of Clark County. NRS
244.335(2).
2
In addition, NRS 244.345(1)(a)
3
mandates that every person wishing to
operate an escort service must apply to the county license board for a license. The application
must be in a form prescribed by regulations of the license board. See also NRS 244.345(3)(c).
4
NRS 244.345(7)
5
provides that failure to obtain a license shall be punishable as a
misdemeanor. Since there is statutory authority both for the promulgation of regulations
relating to licensing and for their criminal enforcement, we conclude that Chapter 8.32 is a
validly enacted regulation.
Appellants contend that Chapter 8.32 is unconstitutional as a prior restraint on First
Amendment rights.
___________________

2
NRS 244.335(2) provides, in pertinent part:
2. The county license boards have the exclusive power in their respective counties to regulate the
business of conducting a[n] . . . escort service, . . . outside of an incorporated city. . . .

3
NRS 244.345(1)(a) provides, in pertinent part:
1. Every natural person, firm, association of persons or corporation wishing to engage in the business
of conducting a[n] . . . escort service, . . . outside of an incorporated city, must:
(a) Make application to the license board of the county in which the business is to be engaged in, for a
county license of the kind desired. The application must be in a form prescribed by the regulations of the
license board.

4
NRS 244.345(3)(c) provides, in pertinent part:
3. The license board may, . . .
(c) Adopt, amend and repeal regulations relating to licenses and licensees.

5
NRS 244.345(7) provides, in pertinent part:
7. Any natural person, firm, association of persons or corporation who engages in any of the
businesses mentioned in this section without first having obtained the license and paid the license fee as
provided in this section is guilty of a misdemeanor.
a prior restraint on First Amendment rights. Appellants' challenge addresses the provisions
prohibiting sexually oriented escort bureaus from advertising their services.
[Headnotes 4-6]
Advertising which does no more than propose a commercial transaction is considered
commercial speech. Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376, 385 (1973).
While commercial speech enjoys some First Amendment protection, it triggers a lower level
of judicial scrutiny and may be regulated in ways that would be impermissible if
noncommercial expression were involved. Ohralik v. Ohio State Bar Assn., 436 U.S. 447,
456-457 (1978). Applying this standard, the Supreme Court held in Ohralik that client
solicitation by a lawyer was primarily a business transaction and could be legitimately
regulated. Advertising which solicits clients for escort services should enjoy no higher level
of protection.
[Headnotes 7, 8]
Furthermore, a greater degree of regulation is permissible when the advertising relates to
activities which the state may not only legitimately regulate but also prohibit, such as
prostitution. Pittsburgh Press Co., 413 U.S. at 388; Princess Sea Industries v. State, 97 Nev.
534, 537, 635 P.2d 281 (1981). Since the prohibitions of Chapter 8.32 are directed at
advertising of prostitution in the guise of an escort service, the restraints imposed do not
violate the First Amendment.
[Headnote 9]
Appellants further contend that Chapter 8.32 is unconstitutionally overbroad. We do not
find that the language of Chapter 8.32 lends itself to an interpretation which reaches
constitutionally protected conduct. Furthermore, it is irrelevant whether the restrictions on
advertising could encompass nonsexually oriented advertising by others than appellants,
because the overbreadth doctrine does not apply to commercial speech. Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982).
[Headnotes 10-13]
A law that does not reach constitutionally protected speech may nevertheless be
challenged as vague; to succeed, however, appellants must demonstrate that the law is
impermissibly vague in all of its applications. Id. A law which fails to give persons of
ordinary intelligence fair notice whether their contemplated conduct is permitted or forbidden
must be declared to be void for vagueness, and to deny due process of law.
United States v. Harriss, 347 U.S. 612, 617 (1954); Eaves v. Board of Clark County
Comm'rs, 96 Nev. 921, 923, 620 P.2d 1248 (1980). In Eaves we held Ordinance No. 595, the
predecessor of Chapter 8.32, to be void for vagueness. Since Ordinance No. 595 carried
criminal penalties, it was subject to strict scrutiny; similarly, Chapter 8.32 is subject to
criminal enforcement and must be strictly construed. Applying such a standard, we do not
find any impermissible vagueness in the provisions of Chapter 8.32.
A vague law permits, and even encourages, arbitrary and discriminatory enforcement.
Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). Having found no vagueness
in the provisions of Chapter 8.32, we conclude that it provides adequate standards for its
application. We note that criminal penalties are provided only for operating as an escort or
escort bureau without a licensea determination that is well within the power of the
enforcing officer to makeand that the distinctions between sexually oriented and service
oriented escorts and escort bureaus are relevant only to issuance of licenses.
[Headnote 14]
We have considered appellants' other contentions and have concluded that they are without
merit. Since appellants have not demonstrated a reasonable probability of prevailing on the
merits, we hold that the denial of a preliminary injunction was proper. Number One
Rent-A-Car v. Ramada Inns, 94 Nev. 779, 587 P.2d 1329 (1978).
Affirmed.
____________
99 Nev. 817, 817 (1983) Sheriff v. Myles
SHERIFF, WASHOE COUNTY, NEVADA, Appellant,
v. JAMES EDDIE MYLES, Respondent.
No. 14312
December 1, 1983 672 P.2d 639
Appeal from order granting pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Sheriff appealed from order of the district court granting pretrial petition for writ of habeas
corpus. The Supreme Court held that even if petitioner had been illegally detained as result of
improper continuance of preliminary hearing, any illegality in detention was moot upon
finding of probable cause and bind over at preliminary hearing; illegality in detention
having ceased, habeas could not lie.
over at preliminary hearing; illegality in detention having ceased, habeas could not lie.
Reversed.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Michael
Dinning, Deputy District Attorney, Washoe County, for Appellant.
Martin H. Wiener, Reno, for Respondent.
Habeas Corpus.
Even if habeas corpus petitioner had been illegally detained as result of improper continuance of
preliminary hearing, any illegality in detention was moot upon finding of probable cause and bind over at
preliminary hearing when it was eventually held; illegality in detention having ceased, habeas could not lie.
OPINION
Per Curiam:
Respondent Myles was charged by information with one count of robbery and one count of
conspiracy. He filed a petition for writ of habeas corpus contending that he was denied his
Sixth Amendment right to effective assistance of counsel at his preliminary hearing as a result
of his counsel's failure to object to an allegedly erroneous continuance of that hearing. The
trial court granted the petition and the sheriff has appealed. We reverse.
A criminal complaint was filed against Myles on November 10, 1981. On November 23,
1981, the date scheduled for the preliminary hearing, the state moved for and was granted a
continuance of the hearing until December 9, 1981. On December 7, 1981, an ex parte
motion for continuance of the December 9th hearing was filed and granted. Finally, the
preliminary hearing was held on February 8 and 9, 1982. Probable cause was found and
Myles was held to answer on the above-described charges. Myles filed a petition for writ of
habeas corpus on May 28, 1982; a supplement to the petition was filed on August 19, 1982,
and the matter was heard on August 19 and 20, 1982. The court found that respondent was
being illegally detained and granted the petition. It is from that order that the sheriff appeals.
The sheriff contended below that even had Myles been illegally detained as a result of an
improper continuance, any illegality in the detention was moot upon the finding of probable
cause and bind-over at the preliminary hearing. We agree. [W]hile a writ of habeas corpus
would be available during a period of illegal detention it will not issue once the detention
becomes legal."
period of illegal detention it will not issue once the detention becomes legal. Victoria v.
Young, 80 Nev. 279, 283, 392 P.2d 509, 511 (1964), disapproved on other, unrelated
grounds, Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966); Robertson v. State, 84
Nev. 559, 445 P.2d 352 (1968); see McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970)
(refiling of charge after grant of habeas corpus permitted, with exceptions, because illegality
of detention cured).
Here, the petition for a writ of habeas corpus was brought after the alleged illegality of the
detention had ceased. The preliminary hearing and subsequent bind-over cured any illegality
in the detention in this case, and habeas could not lie.
1
We express no opinion as to the
propriety of habeas relief on the grounds asserted had the petition been brought during a
period of alleged illegal detention.
In light of our decision above, the sheriff's motion for oral argument is denied. The order
issuing the writ of habeas corpus is reversed and the information is reinstated.
___________________

1
Although Myles challenged the adequacy of the information in his supplemental petition, this issue was
never reached by the trial court and has not, therefore, been reviewed by this court.
____________
99 Nev. 819, 819 (1983) Hampton v. Washoe County
JEREMY HAMPTON, Appellant, v. WASHOE COUNTY, a Political
Subdivision of the State of Nevada, Respondent.
No. 14307
December 1, 1983 672 P.2d 640
Appeal from grant of summary judgment, Second Judicial District Court, Washoe County;
Former county employee brought action against county alleging that he was unlawfully
demoted, transferred and discharged from his employment. The district court granted county's
motion for summary judgment, and plaintiff appealed. The Supreme Court held that
substantial fact issue existed as to whether issues litigated in a prior suit between the parties
were identical to the issues in the subsequent action, precluding summary judgment.
Hall & Haveson, Reno, for Appellant.
Mills B. Lane, District Attorney, Washoe County, for Respondent.
Appeal from summary judgment entered against a former county employee in his suit challenging his
discharge would not be dismissed due to former employee's failure to serve a statement of issues, because
county did not complain that it was misled or prejudiced by the failure to file a statement of issues and
county did not allege that it had insufficient time within which to supplement an otherwise incomplete
record on appeal. NRAP 10(d).
If record is insufficient to allow review of a lower court's decision, appellate court will presume the lower
court acted correctly.
3. Judgment.
Summary judgment is appropriate only where pleadings and papers on file show there is no genuine issue
of fact, and that moving party is entitled to judgment as a matter of law.
In evaluating the propriety of a summary judgment, evidence will be reviewed in light most favorable to
party against whom summary judgment was rendered.
5. Judgment.
In absence of a clearly established defense, summary judgment must be denied.
6. Judgment.
In order to uphold a plea of res judicata, it is necessary to establish that the issue decided in the prior
adjudication is identical to the issue in the present litigation, that there was a final judgment on the merits
in the previous litigation, and that party against whom the plea is asserted was a party to the previous case
or was in privity with the party.
7. Judgment.
In action brought by a former county employee against county to recover damages based upon the alleged
wrongful discharge of employee, substantial fact issue existed as to whether issues litigated in a prior suit
between the parties were identical to the issues in the subsequent action, precluding summary judgment.
OPINION
Per Curiam:
Appellant filed a complaint in district court alleging that he had been unlawfully demoted,
transferred and discharged from his employment with respondent Washoe County.
Respondent answered the complaint and later filed a motion for summary judgement. The
motion was based on the argument that under the doctrine of res judicata, prior litigation
between the parties precluded appellant from bringing the second lawsuit. The district court
granted summary judgment and this appeal followed.
[Headnote 1]
Respondent initially contends that this case is unreviewable and, presumably, should
therefore be dismissed because appellant failed to serve a statement of the issues upon which
he intended to rely on appeal after designating only a portion of the record on appeal.
Under NRAP 10(d) if an appellant does not designate the complete record as the record on
appeal he is required to serve a statement of the issues on which he intends to rely. As we
stated in Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 620 668 P.2d 1075, 1078
(1983):
The purpose of the statement of points is to inform the respondent of the points in
issue on appeal, so that the respondent may determine whether the material designated
for inclusion in the record is sufficient for him to answer the appellant's contentions and
present a fair and complete picture of the issues. Noncompliance with the rule is not
ground for dismissal of the appeal unless the respondent has shown that he was misled
or prejudiced by the appellant's noncompliance, and has had insufficient time to
supplement an otherwise incomplete record. See Basic Refractories v. Bright, 71 Nev.
248, 256, 286 P.2d 747, 751 (1955); Christensen v. Pryor, 255 P.2d 195, 197 (Ariz.
1953). See also Island Creek Coal Co. v. Local 1827, UMW, 568 F.2d 7 (6th Cir.
1977).
[Headnote 2]
Respondent has not complained that it was misled or prejudiced by appellant's failure to
file a statement of issues; nor has respondent alleged that it had insufficient time within
which to supplement an otherwise incomplete record on appeal. Consequently we reject this
contention.
1

Appellant contends that the lower court erred in granting summary judgment because a
material issue of fact exists regarding the issues litigated in the previous case. We agree.
[Headnotes 3-5]
Summary judgment is appropriate only where the pleadings and papers on file show there
is no genuine issue of fact, and that the moving party is entitled to judgment as a matter of
law. Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 {19S2).
___________________

1
If the record is insufficient to allow review of a lower court's decision, we will presume the lower court
acted correctly. See Stover v. Las Vegas Int'l Country Club, 95 Nev. 66, 589 P.2d 671 (1979). In the present
case there is no indication that any of the documentary evidence in support of the motion for summary judgment
has been left out of the record on appeal.
533 (1982). In evaluating the propriety of a summary judgment, the evidence will be
reviewed in the light most favorable to the party against whom summary judgment was
rendered. Servaites v. Lowden, 99 Nev. 240, 660 P.2d 1008 (1983). Further, in the absence of
a clearly established defense, summary judgment must be denied. Hicks v. BHY Trucking,
Inc., 99 Nev. 519, 665 P.2d 253 (1983).
[Headnote 6]
In order to uphold a plea of res judicata it is necessary to establish that the issue decided in
the prior adjudication is identical to the issue in the present litigation, that there was a final
judgment on the merits in the previous litigation, and that the party against whom the plea is
asserted was a party to the previous case or was in privity with a party. York v. York, 99 Nev.
491, 664 P.2d 967 (1983); Horvath v. Gladstone, 97 Nev. 594, 637 P.2d 531 (1981).
[Headnote 7]
In the present case the only evidentiary material which accompanied the motion for
summary judgment and which referred to the previous litigation was an uncertified and
unsworn copy of the summary judgment filed in the previous case.
2
Furthermore, there is no
indication in the record that the district court took judicial notice of its records in the prior
case. See Occhiuto v. Occhiuto, 97 Nev. 143, 625 P.2d 568 (1981). The summary judgment
entered in the prior case neither explains why it was granted, nor what issues it resolved.
Although there are numerous factual assertions in the points and authorities in support of the
motion which relate to the prior adjudication, such assertions do not refer to any evidentiary
material, and are not themselves evidence. See A Minor v. State, 85 Nev. 323, 454 P.2d 895
(1969). It was therefore not possible for the district court to determine whether the issues
previously litigated are identical to the issues which were presented to the lower court.
___________________

2
NRCP 56(e) states in part:
(e) Form of Affidavits; Further Testimony, Defense Required. Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be admissible evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. . . .
Accordingly, the summary judgment against Jeremy Hampton is reversed and the case is
remanded for further proceedings.
3

____________________

3
Appellant attached two documents to his reply brief which were not considered by the lower court; nor were
they included in the record on appeal. Such documents cannot be considered by this court. See Carson Ready
Mix v. First Nat'l Bk., 97 Nev. 474, 635 P.2d 276 (1981).
____________
99 Nev. 823, 823 (1983) Copeland v. Desert Inn Hotel
HARRIET COPELAND, Appellant, v. DESERT INN HOTEL and SUMMA
CORPORATION and HUGHES (AVIATION) AIR CORPORATION, Respondents.
No. 13133
December 19, 1983 673 P.2d 490
Appeal from order dismissing complaint with prejudice, Eighth Judicial District Court,
Clark County; James A. Brennan, Judge.
Suit was brought alleging violations of federal and state statutes pertaining to
discrimination against handicapped individuals. The district court entered an order dismissing
the complaint with prejudice, and plaintiff appealed. The Supreme Court held that: (1)
doctrine of equitable tolling is applicable in the context of Nevada's antidiscrimination
statutes; (2) given the Court's recognition of the doctrine of equitable tolling, it appeared that,
in regard to complaint's first cause of action alleging a violation of statute making it an
unlawful employment practice for an employer to discharge any person because of a physical
handicap, genuine issues of material fact remained before the District Court, precluding entry
of summary judgment; and (3) no private cause of action exists under provision of the Federal
Rehabilitation Act pertaining to the requirement that employers on federal contracts take
affirmative action to employ qualified handicapped individuals.
[Rehearing denied February 23, 1984]
Terry & Winter, Carson City, for Appellant.
Lionel, Sawyer & Collins, and Malani L. Kotcha, and Andrew S. Brignone, Las Vegas, for
Respondents.
1. Civil Rights.
Nevada antidiscrimination statutes have laudable goals and will be broadly construed.
Doctrine of equitable tolling is applicable in the context of Nevada's antidiscrimination statutes.
3. Civil Rights.
Procedural technicalities that would bar claims of discrimination will be looked upon with disfavor.
Factors to be considered in determining whether the doctrine of equitable tolling should apply in a given
case include: diligence of claimant; claimant's knowledge of relevant facts; claimant's reliance on
authoritative statements by administrative agency that misled claimant about nature of claimant's rights; any
deception or false assurances on part of employer against whom claim is made; prejudice to employer that
would actually result from delay during time that limitations period is tolled; and any other equitable
considerations appropriate in the particular case.
5. Judgment.
Given the Nevada Supreme Court's recognition of the doctrine of equitable tolling in the context of
Nevada's antidiscrimination statutes, it appeared that, in regard to complaint's first cause of action alleging
a violation of statute making it an unlawful employment practice for an employer to discharge any person
because of a physical handicap, genuine issues of material fact remained before the District Court,
precluding entry of summary judgment. NRS 613.330, subd. 1.
6. Civil Rights.
No private cause of action exists under provision of the Federal Rehabilitation Act pertaining to the
requirement that employers on federal contracts take affirmative action to employ qualified handicapped
individuals. Rehabilitation Act of 1973, 503, as amended, 29 U.S.C.A. 793.
OPINION
Per Curiam:
This is an appeal from a district court order dismissing appellant's complaint with
prejudice. We reverse the order dismissing the complaint, in part, and remand for further
proceedings.
Appellant brought a complaint in district court on July 15, 1980, and filed an amended
complaint on August 21, 1980. The first cause of action in the amended complaint alleged a
violation of NRS 613.330(1).
1
The second cause of action alleged violations of sections
503-505 of the Rehabilitation Act of 1973, 29 U.S.C. 793-794a. (Supp. V 1981).
____________________

1
NRS 613.330(1) provides that it is an unlawful employment practice for an employer to discharge any
person because of a physical handicap.
The district court dismissed the amended complaint with prejudice on November 26, 1980.
Matters outside the pleadings were presented to and not excluded by the district court. The
motion was therefore treated as one for summary judgment. See NRCP 12(b), 56.
Appellant's affidavit, submitted in opposition to the motion to dismiss, stated that
appellant was hired by respondents on March 16, 1979, and was terminated on April 3, 1979.
The affidavit also indicated that appellant visited the offices of the Nevada Equal Rights
Commission (NERC) for the purpose of filing a complaint of discrimination within the
applicable statutory period. The affidavit further indicated that a NERC representative was
told the relevant facts, whereupon he informed appellant that he would get back to her.
Additionally, appellant stated that she was never informed that she was required to complete
any forms or sign any statements in order to file a complaint. The affidavit detailed
appellant's other efforts to obtain relief, including the pursuit of a complaint to the United
States Department of Labor. Finally, the affidavit indicated that appellant later returned to the
NERC and was told that there was nothing the [NERC] could do for her.
The district court did not include findings of fact and conclusions of law with its order, but
the record indicates that the dismissal of the first cause of action was based upon appellant's
purported noncompliance with the applicable limitations period.
NRS 613.420 grants to any person injured by an unfair employment practice within the
scope of NRS 613.310 to 613,400, inclusive, the right to apply to the district court for an
order restoring any rights to which the person is entitled under those provisions. NRS
613.430 prohibits the bringing of such actions after 180 days from the date of the act
complained of, but tolls the running of that period during the pendency of any complaint
made to the NERC.
Appellant contends that the district court erred in dismissing her complaint because the
allegations contained in her affidavit raised genuine issues of material fact. We agree.
This court has repeatedly held that trial courts should exercise great care in granting
summary judgment. See, e.g., Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533
(1982). Pleadings and documentary evidence must be construed most favorably to the party
against whom the motion is made. Id. Summary judgment is only appropriate when the
pleadings and papers on file show that there is no genuine issue of fact, and that the moving
party is entitled to judgment as a matter of law. Hicks v. BHY Trucking, Inc., 99 Nev. 519,
665 P.2d 253 (1983).
The federal courts have considered questions similar to those presented in this appeal
while dealing with complaints to the United States Equal Employment Opportunity
Commission (EEOC). Recently, the United States Supreme Court has ruled that filing a
timely claim with the EEOC is not a jurisdictional prerequisite to a federal suit, but a
requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable
tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (footnote omitted).
The holding in Zipes is consistent with earlier federal cases that recognized the doctrine of
equitable tolling of limitations periods. See, e.g., Chappell v. EMCO Mach. Works Co., 601
F.2d 1295 (5th Cir. 1979). Federal courts, looking to the remedial and humanitarian
underpinnings of Title VII, have been reluctant to allow procedural technicalities to bar
discrimination claims. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-64 (5th Cir.
1970). See also Love v. Pullman Co., 404 U.S. 522 (1972); Heiniger v. City of Phoenix, 625
F.2d 842 (9th Cir. 1980); Truvillion v. King's Daughters Hospital, 614 F.2d 520 (5th Cir.
1980); B. Schlei & P. Grossman, Employment Discrimination Law 1013-16 (2d ed. 1983);
Empl. Prac. Guide (CCH) 1939 [1982].
[Headnotes 1-3]
We approve of the general reasoning of the above authorities. Like their federal
counterparts, the Nevada anti-discrimination statutes have laudable goals and will be broadly
construed. We therefore adopt the doctrine of equitable tolling in this context; procedural
technicalities that would bar claims of discrimination will be looked upon with disfavor.
[Headnote 4]
Without limiting or restricting the application of the doctrine of equitable tolling, we note
that there are several factors which have been mentioned by the above authorities in
determining whether the doctrine should apply in a given case. Those factors include: the
diligence of the claimant; the claimant's knowledge of the relevant facts; the claimant's
reliance on authoritative statements by the administrative agency that misled the claimant
about the nature of the claimant's rights; any deception or false assurances on the part of the
employer against whom the claim is made; the prejudice to the employer that would actually
result from delay during the time that the limitations period is tolled; and any other equitable
considerations appropriate in the particular case.
[Headnote 5]
Given this court's recognition of the doctrine of equitable tolling, it appears that genuine
issues of material fact remained before the district court and that summary judgment was
therefore inappropriate. See Hicks v. BHY Trucking, Inc., supra (summary judgment
improper regarding timeliness of shipping claim); Casarotto v. Mortensen, 99 Nev. 392, 663
P.2d 352 (1983) (dispute as to intent precludes summary judgment).
[Headnote 6]
With regard to appellant's second cause of action, counsel for appellant virtually conceded
at oral argument that there is no private cause of action under section 503 of the
Rehabilitation Act of 1973. Appellant invoked other statutes in her second cause of action,
but we are not persuaded that the district court erred in dismissing it.
Accordingly, the order of the district court dismissing the complaint is reversed as to
appellant's first cause of action, and affirmed as to appellant's second cause of action. We
note that the NERC has never adjudicated appellant's claim on its merits. Accordingly, we
remand to the district court for an evidentiary hearing to determine whether the doctrine of
equitable tolling applies in this instance. Should the district court determine that the doctrine
is applicable, it shall enter an appropriate order requiring the NERC to adjudicate appellant's
claim of discrimination.
Affirmed in part; reversed in part and remanded; costs awarded to appellant.
____________
99 Nev. 827, 827 (1983) Sheriff v. Blackmore
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. MICKIE
S. BLACKMORE, aka EDWARD FRED GRUWELL, Respondent.
No. 14074
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. JULIAN CAESAR
SEPULVEDA and WILLIAM EUGENE JOHNSON, Respondents.
No. 14343
December 19, 1983 673 P.2d 137
Consolidated appeals from orders granting pretrial writs of habeas corpus; Eighth Judicial
District Court, Clark County; James Brennan, Judge {No.
James Brennan, Judge (No. 14074), Paul S. Goldman, Judge (No. 14343).
Consolidated appeals were taken from orders of the district court granting pretrial writs of
habeas corpus. The Supreme Court, Springer, J., held that: (1) district court was justified in
finding that magistrate acted properly and within his powers in dismissing criminal
prosecution where prosecutor had called off certain witnesses and was not prepared to
proceed; however, district court could not grant writ of habeas corpus and dismiss subsequent
indictment absent a finding that prosecution was guilty of willful failure of prosecution or
conscious indifference to rights of petitioner, and (2) district court erred in granting habeas
corpus relief because of a claimed abuse of discretion in magistrate's granting of a
continuance of preliminary examination.
Blackmore (No. 14074), remanded for additional findings; Sepulveda and Johnson
(No. 14343), writs of habeas corpus orders vacated.
Robert J. Miller, District Attorney, James N. Tufteland, Deputy District Attorney, Clark
Morgan D. Harris, Public Defender, Robert B. Amundson, Deputy Public Defender, Clark
County, for Respondent Mickie S. Blackmore.
Morgan D. Harris, Public Defender, Scott L. Bindrup, Deputy Public Defender, Clark
County, Monte J. Morris, Las Vegas, for Respondents Sepulveda and Johnson.
1. Criminal Law.
Where magistrate properly dismisses the criminal proceeding at the preliminary examination, and the
prosecution has acted in a willful or consciously indifferent manner, further prosecution is barred; in such
cases petitioner must show two elements: proper magisterial dismissal and prosecutorial abuse.
2. Habeas Corpus.
District court was justified in finding that magistrate acted properly and within his powers in dismissing
criminal prosecution where prosecutor had called off certain witnesses and was not prepared to proceed;
however, district court could not grant writ of habeas corpus and dismiss subsequent indictment absent a
finding that prosecution was guilty of willful failure of prosecution or conscious indifference to rights of
petitioner.
3. Habeas Corpus.
District court erred in granting habeas corpus relief because of a claimed abuse of discretion in
magistrate's granting of a continuance of preliminary examination.
4. Habeas Corpus.
District court does not have jurisdiction to review collaterally discretionary rulings of a magistrate at
preliminary examination stage of a prosecution.
OPINION
These two appeals arise from orders granting writs of habeas corpus and dismissing
prosecutions because the state was not ready with its witnesses at the times set for preliminary
examination.
Sheriff v. Blackmore, Appeal No. 14074
In Blackmore the magistrate denied the state's motion for continuance and dismissed the
criminal complaint. Blackmore was then indicted for the same offense. The district court
granted habeas corpus and dismissed the indictment.
[Headnote 1]
Under our cases where the magistrate properly dismisses the criminal proceeding at the
preliminary examination, and the prosecution has acted in a willful or consciously indifferent
manner, further prosecution is barred. See, e.g., McNair v. Sheriff, 89 Nev. 434, 514 P.2d
1175 (1973); State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971); Maes v. Sheriff, 86 Nev. 317,
468 P.2d 332 (1970).
[Headnote 2]
In such cases petitioner must show two elements: (1) proper magisterial dismissal and (2)
prosecutorial abuse. The record must support the propriety of the magistrate's dismissal of the
complaint. In Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971), we stated that a
prosecutor should be prepared to present his case to the magistrate or show good cause for
his inability to do so. In the case before us the defense agreed to stipulate to the testimony to
be given by an unavailable witness. The magistrate was inclined to go forward on this basis
but was advised that the prosecutor had called off all of his other witnesses and was not
prepared to proceed. Under such circumstances the district court was justified in finding that
the magistrate acted properly and within his powers in dismissing the action.
A showing of the second element, that the prosecutor was guilty of willful failure of
prosecution or conscious indifference to the rights of the petitioner, does not appear in this
record.
record. There is no finding of prosecutorial misconduct; and this is a matter which must be
determined, one way or another, by the district court before a decision can be made in a
habeas corpus proceeding of this nature. Because of this defect we remand for findings and
determinations relative to this issue.
Sheriff v. Sepulveda and Johnson, Appeal No. 14343
[Headnotes 3, 4]
A different kind of situation exists in this case. The district court granted habeas corpus
because of a claimed abuse of discretion in the magistrate's granting of a continuance of
preliminary examination. This was error. The district court does not have jurisdiction to
review collaterally discretionary rulings of a magistrate at the preliminary examination stage
of a prosecution. The reason for this is that mere discretionary rulings on such matters as the
granting of a continuance do not constitute unlawful detention. To permit every ruling of a
magistrate at a preliminary examination to be subject to habeas corpus review would be
contrary to judicial economy and an abuse of the habeas corpus process.
There are, of course, circumstances at the preliminary examination stage that can give rise
to an unlawful detention. For example, in Clark v. Sheriff, 94 Nev. 364, 580 P.2d 472 (1978),
we ordered the district court to issue a writ of habeas corpus where the magistrate had acted
beyond his authority in granting a continuance in violation of the jurisdictional procedural
requirements of Hill
1
and Bustos.
Another example would be in the case where, at any stage of the proceedings, it could be
established that the accused had been denied the right to a speedy trial or had been denied
some other fundamental constitutional right. In such a case an unlawful detention would
exist, and habeas corpus would lie. No unlawful detention exists in the case of Sepulveda and
Johnson. These writs must, accordingly, be quashed.
The orders granting the writs of habeas corpus in the case of Sepulveda and Johnson are
reversed and the writs ordered vacated; Blackmore is remanded to the district court for
findings on the issue of willfulness or conscious indifference on the part of the prosecution
and for a decision consistent with such findings.
2

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

1
Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969).

2
This opinion shall constitute the final disposition of this appeal. If the determination required by this opinion
results in an appealable order, a new appeal may be taken.
____________
99 Nev. 831, 831 (1983) McCharles v. State, Dep't of Mtr. Vehicles
PETER H. McCHARLES, Appellant, v. STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES, Respondent.
No. 14431
December 19, 1983 673 P.2d 488
Appeal from an order affirming the suspension of driving privileges by the Nevada
Department of Motor Vehicles; Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Appeal was taken from an order of the district court affirming the suspension of an
individual's driving privileges by the Department of Motor Vehicles. The Supreme Court held
that: (1) an individual arrested for driving under the influence of alcohol does not have the
right to speak to an attorney prior to submitting to a chemical sobriety test required by the
implied consent law and, if he refuses to submit to the tests unless provided with an
opportunity to consult with an attorney, his driving privileges may be suspended for refusal to
submit to the test, and (2) an individual's rights under the Fifth and Sixth Amendments will
not be impaired if he is required to submit to a chemical sobriety test upon being arrested for
driving under the influence of alcohol before he is allowed to consult an attorney.
Affirmed.
Richard W. Young, Reno, for Appellant.
Brian McKay, Attorney General, Larry Bernard, Deputy Attorney General, Steven F.
Stucker, Deputy Attorney General, Carson City, for Respondent.
1. Automobiles.
The privilege of operating a motor vehicle in Nevada is conditioned upon the driver's consent to submit
to a chemical sobriety test. NRS 484.383, subd. 1, 484.385.
2. Automobiles.
A driver's consent to submit to a chemical sobriety test is absolute and may not be revoked or conditioned
upon consultation with an attorney once the driver finds himself or herself confronted by the police. NRS
484.383, subd. 1, 484.385.
3. Automobiles.
The nature of the chemical sobriety test demands that it should be administered as soon as possible after a
driver has been stopped on the road and placed under arrest. NRS 484.383, subd. 1, 484.385.
4. Automobiles.
An individual arrested for driving under the influence of alcohol does not have the right to speak to an
attorney prior to submitting to a chemical sobriety test required by the implied consent law
and, if he refuses to submit to the test unless provided with an opportunity to consult
with an attorney, his driving privileges may be suspended for refusal to submit to the
test.
chemical sobriety test required by the implied consent law and, if he refuses to submit to the test unless
provided with an opportunity to consult with an attorney, his driving privileges may be suspended for
refusal to submit to the test. NRS 484.383, subd. 1, 484.385.
An individual's rights under the Fifth and Sixth Amendments will not be impaired if he is required to
submit to a chemical sobriety test upon being arrested for driving under the influence of alcohol before he
is allowed to consult with an attorney. NRS 484.383, subd. 1, 484.385; U.S.C.A.Const. Amends. 5, 6.
A chemical sobriety test is not a critical stage in a criminal proceeding under the Sixth Amendment
and, hence, is not a stage in which the absence of an individual's counsel will affect the individual's right to
a fair trial. NRS 484.383, subd. 1, 484.385; U.S.C.A.Const. Amend. 6.
7. Automobiles.
The accuracy of chemical sobriety tests may be established after the tests have been given and the driver
has been allowed to contact his attorney. NRS 484.383, subd. 1, 484.385.
8. Automobiles.
Since the driver has already impliedly consented to submit to a chemical sobriety test by driving in
Nevada, an attorney cannot properly advise the driver that he has the right to refuse. NRS 484.383,
subd. 1, 484.385.
9. Criminal Law.
The decision in Miranda was not intended to act as a constitutional panacea for all who have been
arrested, it only becomes applicable only when statements are obtained by the police during a custodial
interrogation. U.S.C.A.Const. Amend. 5.
A chemical sobriety test, although incriminating, is not a testimonial communication within the meaning
of the Fifth Amendment and, hence, is not a proceeding in which the individual's attorney must be present.
U.S.C.A. Const. Amend. 5.
OPINION
Per Curiam:
The appellant, Peter H. McCharles, was arrested for driving under the influence of alcohol
after an officer of the Spark's Police Department observed him driving erratically through the
streets of a predominantly industrial area at four o'clock in the morning. After McCharles
failed a field sobriety test, he was placed under arrest, and Nevada's implied consent law was
explained to him. McCharles demanded to speak to an attorney. The officer explained that the
law did not provide for the right to consult an attorney at this time and, once more, began
explaining in detail Nevada's implied consent law.
After McCharles was transported to the Spark's City Jail, the arresting officer made at
least two more attempts to explain the law to him.
the arresting officer made at least two more attempts to explain the law to him. Nevertheless,
McCharles maintained his combative attitude, requesting to consult with an attorney before
submitting to any of the chemical sobriety tests required by the implied consent law.
The Department of Motor Vehicles suspended McCharles' driving privileges based on a
finding that he refused to submit to a chemical test. See NRS 484.385. The district court
affirmed the suspension, and McCharles has appealed from the district court's ruling.
The issue presented in this case is whether an individual arrested for driving under the
influence of alcohol has the right to speak to an attorney prior to submitting to chemical tests
required by Nevada's implied consent law. The answer is an unequivocal No.
The legislature has made it clear that the drunk driver is not wanted on the roads and
highways in the State of Nevada. Driving in this state is a privilege which is not granted as a
matter of course to all who have the physical ability to climb behind the wheel of a car, but is
extended only to those who are qualified to operate a motor vehicle safely.
[Headnotes 1-4]
Under Nevada's implied consent law, the privilege of operating a vehicle in Nevada is
conditioned upon the driver's consent to submit to a chemical sobriety test. Under NRS
484.383(1), an individual who drives a vehicle upon a highway in this state shall be deemed
to have given his consent to a chemical test of his blood, urine, breath, or other bodily
substance for the purpose of determining the alcoholic content of his blood or the presence of
a controlled substance. . . . The driver's consent to submit to a chemical test is absolute and
may not be revoked or conditioned upon consultation with an attorney once the driver finds
himself or herself confronted by the police. Since the physical effects of alcohol diminish
with the passage of time, it is apparent that the nature of a chemical sobriety test demands that
it should be administered as soon as possible after the individual has been stopped on the road
and placed under arrest.
[Headnotes 5-8]
We are not convinced that McCharles' constitutional rights will be impaired if he were
required to submit to a chemical test before he is allowed to consult with an attorney. Such
tests are not critical stages within the meaning of the sixth amendment of the United States
Constitution since the absence of McCharles' counsel during the test will not affect his right
to a fair trial.
fair trial. See United States v. Wade, 388 U.S. 218 (1967). The accuracy of the tests may be
established after the test has been given and the driver allowed to contact his attorney.
Moreover, since the driver has already impliedly consented to submit to the test by driving in
Nevada, an attorney could not properly have advised the driver that he has the right to refuse.
[Headnotes 9, 10]
Neither are McCharles' fifth amendment rights impaired. The decision in Miranda v.
Arizona, 384 U.S. 438 (1966), was not intended to act as a constitutional panacea for all who
have been arrested. Miranda only becomes applicable when statements are obtained by the
police during a custodial interrogation. The chemical sobriety tests, although incriminating,
are not testimonial communications within the meaning of the fifth amendment. Schmerber v.
California, 384 U.S. 757 (1966).
From the facts it appears that McCharles was repeatedly informed that he was not entitled
to consult with his attorney. Despite these explanations, he conditioned his consent to take the
test by requesting to speak to an attorney beforehand. In light of these explanations,
McCharles' conditional consent amounts to a refusal to submit to the chemical test. The
judgment of the district court is therefore affirmed.
____________
99 Nev. 834, 834 (1983) Szilagyi v. Testa
HOWARD SZILAGYI, JIM MAYS, VICTOR HECKER and JOYCE HECKER, Appellants
and Cross-Respondents, v. ANDREW TESTA, Respondent and Cross-Appellant.
No. 14315
December 20, 1983 673 P.2d 495
Appeal from order dismissing counterclaim and denying leave to file supplemental
counterclaim and third-party complaint; cross-appeal from order dismissing complaint.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
An action was brought for specific performance of an agreement relating to the purchase
of real property. Defendants answered the complaint and counterclaimed for slander of title.
During this time, plaintiff became the owner of a preexisting note secured by a deed of trust
covering the subject property and, when the note became delinquent, foreclosure proceedings
were commenced.
proceedings were commenced. Defendants appealed from an order of the district court
dismissing their counterclaim and denying them leave to file a supplemental counterclaim and
third-party complaint. They also sought reversal of an earlier order denying their motion for
summary judgment. Plaintiff cross-appealed from an order dismissing his complaint. The
Supreme Court held that: (1) plaintiff had the requisite interest required of a real party in
interest; (2) under the record presented, it was error to dismiss the complaint; (3) dismissal of
counterclaim on the ground that, by granting defendants' motion to dismiss plaintiff's claim,
the court had in fact ratified the foreclosure sale was error; and (4) as the district court
stated no grounds for denying motion for leave to file supplemental counterclaim and
third-party complaint other than ratification of the foreclosure sale by dismissal of plaintiff's
complaint, but as the Supreme Court rejected those grounds in reversing the order dismissing
counterclaim, the order denying defendants' motion to file a supplemental counterclaim and
third-party complaint had to be reversed.
Affirmed in part; reversed and remanded for further proceedings.
Harding & Dawson, Las Vegas, for Appellants and Cross-Respondents.
Keefer, O'Reilly & Haight, Las Vegas, for Respondent and Cross-Appellant.
1. Parties.
A real party in interest is one who possesses the right to enforce the claim and has a significant interest
in the litigation. NRCP 17(a).
2. Action.
Question of standing, which is similar to the question of who is a real party in interest, focuses on the
party seeking adjudication rather than on the issues sought to be adjudicated.
3. Judgment; Specific Performance.
Plaintiff, seeking specific performance of an agreement relating to the purchase of real property, had the
requisite interest required of a real party in interest, and the district court thus did not err in denying
defendants' motion for summary judgment, since plaintiff signed both escrow and note in his individual
capacity, and since, though he signed escrow instructions as general partner for an investment group which
had not yet been formed, he remained personally liable.
Court may dismiss a complaint for failure to prosecute or for violation of a court order.
5. Mortgages.
District court had the power to order postponement of plaintiff's scheduled foreclosure sale in one of two
ways; the moving party could have complied with the rules for an injunction, or secured the stipulation of
other party. NRCP 65.
6. Stipulations.
A stipulation requires assent to its terms in order to be valid and will be enforced if it is entered in the
minutes of the court in the form of an order or is in writing and subscribed by the party against whom the
stipulation is alleged. District Court Rule 16; Eighth District Court Rule 7.50.
Dismissal of plaintiff's complaint on the ground that he had ignored court minute order continuing
foreclosure sale until January 1982 was error, in that there was no valid stipulation in regard to the minute
order. District Court Rule 16.
Dismissal of defendants' slander of title counterclaim, which alleged that plaintiff maliciously and
wrongfully recorded notice of lis pendens and contacted defendants' lenders concerning the lis pendens in
order to prevent defendants from obtaining further financing, solely on the ground that by granting
defendants' motion to dismiss plaintiff's claim, the court had in effect ratified the foreclosure sale was
error.
As the district court stated no grounds for denying defendants' motion for leave to file a supplemental
counterclaim and third-party complaint other than the ratification of foreclosure sale by dismissal of
plaintiff's complaint, but as the Supreme Court rejected those grounds in reversing the district court's order
dismissing the counterclaim, the order denying defendants' motion to file a supplemental counterclaim and
third-party complaint had to be reversed.
10. Pleading.
Rule pertaining to supplemental pleadings is intended to promote as complete an adjudication as possible
by allowing the addition of claims that arise after the initial pleadings have been filed. NRCP 15(d).
OPINION
Per Curiam:
This is an appeal from an order dismissing appellants' counterclaim and denying appellants
leave to file a supplemental counterclaim and a third-party complaint. Appellants also seek
reversal from an earlier order denying appellants' motion for summary judgment. Respondent
has cross-appealed from an order dismissing his complaint which was the initial predicate for
this action. We reverse the dismissals of respondent's complaint and of appellants'
counterclaim; we affirm the order denying appellants' motion for summary judgment.
THE FACTS
This litigation is centered on the attempted acquisition of a parcel of real property in Clark
County owned by the appellants. Respondent Andrew Testa decided to purchase the property
and an escrow was opened for that purpose. Testa signed, as part of the purchase price, a note
which was due at the close of escrow. Before the close of escrow, and without appellants'
knowledge, Testa extended the note's due date. Upon learning of the extended date,
appellants cancelled the escrow. Testa commenced this instant action, seeking specific
performance and by filing a lis pendens on the property. Appellants answered Testa's
complaint and counterclaimed for slander of title. During this time Testa became the owner of
a pre-existing note secured by a deed of trust covering the subject property. The note became
delinquent and foreclosure proceedings were commenced.
Appellants moved for summary judgment on the ground that Testa lacked standing to sue.
The court denied the motion for summary judgment.
At a calendar call, an order was entered in the court minutes. It set the case for a jury trial,
as appellants had requested, and recited the following: Foreclosure sale to be continued until
January 1982. The minute order was allegedly based upon a stipulation of counsel; although
Testa's then-counsel denies that he so stipulated.
Testa foreclosed on the property, two weeks after entry of the minute order, allegedly
without notice to appellants. Testa purchased the property and sold it to a third party.
Appellants moved to dismiss Testa's complaint on the ground that Testa had ignored the court
minute order. The court granted the motion to dismiss Testa's complaint and he has
cross-appealed from that order of dismissal.
Testa then moved to dismiss appellant's counterclaim and appellants moved for leave to
file a supplemental counterclaim and a third-party complaint.
The district court granted Testa's motion to dismiss appellants' counterclaim and the
third-party complaint on the ground that the court had, by its order dismissing respondent's
complaint, ratified the foreclosure sale of the property. Appellants appeal this order of
dismissal, as well as the earlier denial of their motion for summary judgment.
STANDING
Appellants suggest that the court erred in denying their motion for summary judgment.
They claim that Testa is not a real party in interest and that he lacks standing, either as a
representative of the partnership, or in his individual capacity to bring the suit.
real party in interest and that he lacks standing, either as a representative of the partnership, or
in his individual capacity to bring the suit. We disagree.
[Headnote 1, 2]
A real party in interest under NRCP 17(a)
1
is one who possess the right to enforce the
claim and has a significant interest in the litigation. Painter v. Anderson, 96 Nev. 941, 620
P.2d 1254 (1980). The question of standing is similar; it also focuses on the party seeking
adjudication rather than on the issues sought to be adjudicated. Harman v. City and County of
San Francisco, 496 P.2d 1248, 1254 (Cal. 1972).
In the case at bar, Testa signed both the escrow and the note in his individual capacity.
Although he signed the escrow instructions as General Partner for CCN Investment Group
[which was not yet formed], he remained personally liable.
[Headnote 3]
We find that Testa had the requisite interest required of a real party in interest. The court
did not err in denying appellants' motion for summary judgment.
DISMISSAL OF COMPLAINT
[Headnotes 4, 5]
The court may dismiss a complaint for failure to prosecute or for violation of a court order.
Moore v. Cherry, 90 Nev. 390, 393, 528 P.2d 1018, 1020 (1974). The district court had the
power to order postponement of Testa's scheduled foreclosure sale in one of two ways. The
moving party could have complied with the rules for an injunction, or secured the stipulation
of the other party. As there was no effort to comply with the notice and motion requirements
for an injunction, see NRCP 65, we must consider whether a valid stipulation existed.
[Headnote 6]
A stipulation requires assent to its terms in order to be valid. Palmer v. City of Long
Beach, 199 P.2d 952, 957 (Cal. 1948) and will be enforced if it is entered in the minutes of
the court in the form of an order or is in writing and subscribed by the party against whom the
stipulation is alleged. Casentini v. Hines, 97 Nev. 1S6
____________________

1
NRCP 17(a) provides in relevant part as follows:
Every action shall be prosecuted in the name of the real party in interest. . . . [A] party with whom or in
whose name a contract has been made for the benefit of another . . . may sue in his own name without
joining with him the party for whose benefit the action is brought. . . .
Hines, 97 Nev. 186, 625 P.2d 1174 (1981). See DCR 16;
2
EDCR 7.50.
[Headnote 7]
The requirements of DCR 16 were not met in the instant case. The stipulation was not
entered in the minutes. A notation that the sale is continued, not the stipulation itself, appears
in the minutes. The affidavits of counsel regarding what occurred at the calendar call
conference sharply conflict on material points. Compliance with DCR 16 avoids such
difficulties. Under the record presented, it was error to dismiss the complaint.
DISMISSAL OF COUNTERCLAIM
[Headnote 8]
Appellants alleged in their slander of title counterclaim that respondent maliciously and
wrongfully recorded the notice of lis pendens, and had contacted appellants' lenders
concerning the lis pendens in order to prevent appellants from obtaining further financing.
Testa moved for dismissal of appellants' counterclaim solely on the ground that by
granting appellants' motion to dismiss respondent's claim the court had in effect ratified the
foreclosure sale. The district court agreed. This was error.
SUPPLEMENTAL COUNTERCLAIM AND
THIRD-PARTY COMPLAINT
[Headnote 9]
The district court stated no grounds for denying the motion for leave to file a supplemental
counterclaim and third-party complaint other than the ratification of the foreclosure sale by
dismissal of Testa's complaint. As we have rejected those grounds in reversing the court's
order dismissing the appellant's counterclaim, the order denying their motion to file a
supplemental counterclaim and third-party complaint must be reversed.
[Headnote 10]
Further, NRCP 15(d) is intended to promote as complete an adjudication as possible by
allowing the addition of claims that arise after the initial pleadings have been filed.
____________________

2
District Court Rule 16 provides:
No agreement or stipulation between the parties in a cause or their attorneys, in respect to proceedings
therein, will be regarded unless the same shall, by consent, be entered in the minutes in the form of an
order, or unless the same shall be in writing subscribed by the party against whom the same shall be
alleged, or by his attorney.
arise after the initial pleadings have been filed. William Inglis & Sons Baking Co. v. ITT
Continental Baking Co., 668 F.2d 1014, 1057 (9th Cir.), cert. denied, 103 S.Ct. 57 (1982).
The order denying summary judgment is affirmed. The remaining orders appealed from
are reversed. The case is remanded for a trial on the merits.
3

____________________

3
Q. [By a member of the Court]: This seems fair, does it not counsel, just to resurrect the entire proceedings
so that they (the parties) can have their day in court.
A. [By counsel for respondent]: Yes. I believe this is fair, your Honor. I am here to present my client's
interest. . . . I know that we are willing to accept the decisions that have gone before the District Judge, but if
that is not to be, we can have the whole case resurrected.
____________
99 Nev. 840, 840 (1983) Stevens v. McGimsey
LEO A. STEVENS, Appellant, v. JOHN
S. McGIMSEY, Respondent.
No. 14593
December 20, 1983 673 P.2d 499
Appeal from summary judgment, Seventh Judicial District Court, Lincoln County;
William P. Beko, Judge.
Plaintiff appealed from an order of the district court which granted summary judgment in
favor of defendant prosecutor in action based primarily upon malicious prosecution. The
Supreme Court held that genuine issue of material fact existed as to whether prosecutor knew
that charges against plaintiff were baseless and was motivated by personal interest in filing
those charges such that his acts were not within scope of prosecutorial immunity.
Ordowski & Eads, Las Vegas, for Appellant.
Gerald W. Hardcastle, Las Vegas, for Respondent.
1. Judgment.
Where matters outside pleadings were presented to and not excluded by court, motion to dismiss was
correctly treated as one for summary judgment. NRCP 12(b), (c), 56.
2. Judgment.
Genuine issue of material fact existed as to whether prosecutor knew that charges against plaintiff were
baseless and was motivated by personal interest in filing those charges such that his acts were not within
scope of prosecutorial immunity, precluding summary judgment in favor or prosecutor in action
based primarily upon malicious prosecution.
ment in favor or prosecutor in action based primarily upon malicious prosecution.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment in favor of respondent John S.
McGimsey, defendant in an action for damages brought by appellant. We reverse and remand
for a full hearing on the merits.
[Headnote 1]
McGimsey, District Attorney for Lincoln County, Nevada, drafted and filed two criminal
complaints against appellant, charging forgery of an instrument, obtaining a signature by false
pretense and recording a false instrument. These charges were eventually dismissed.
Appellant then filed this action based primarily upon malicious prosecution. McGimsey filed
a motion to dismiss under NRCP 12(b)(5) for failure to state a claim upon which relief can be
granted. Because matters outside the pleadings were presented to and not excluded by the
court, the motion was correctly treated as one for summary judgment and disposed of under
NRCP 56. See NRCP 12(b), (c).
[Headnote 2]
The court below granted summary judgment for respondent McGimsey on the ground that
there was no genuine issue of material fact. The court based its determination on the rule that
prosecutors acting within the scope of their quasi-judicial duties are protected by absolute
immunity from claims arising from those acts. See Imbler v. Pachtman, 424 U.S. 409 (1976).
Finding that the claim against McGimsey was based on the preparation and filing of charges
against appellant, the district court assumed that such acts were within the scope of
prosecutorial authority, and disposed of the claim accordingly.
Appellant contends that we should recognize an exception to the general rule of absolute
prosecutorial immunity where a plaintiff alleges that a prosecutor has both an actual conflict
of interest and knowledge that the charges filed are baseless. See Beard v. Udall, 648 F.2d
1264 (9th Cir. 1981); Jennings v. Shuman, 567 F.2d 1213, 1221-22 (3d Cir. 1977). We agree.
In Beard v. Udall, supra, the defendant was a prosecutor who maintained a private practice
of law. The prosecutor was alleged to have filed criminal charges against the plaintiff for the
purpose of furthering a civil suit which the prosecutor had filed for one of his private clients.
It was also alleged that the prosecutor knew that the charges were baseless.
prosecutor knew that the charges were baseless. The Ninth Circuit held that where a
prosecutor faces an actual conflict of interest, and files charges he or she knows to be
baseless, the prosecutor is acting outside the scope of his or her authority and lacks immunity.
We are persuaded by the reasoning of the court in Beard, and we hereby recognize the
limited exception to prosecutorial immunity established in that case. See also Jennings v.
Shuman, supra.
In the present case appellant alleged that the charges against him were known to be
baseless and that respondent was motivated by personal interest in filing these charges. From
a review of the evidence presented to the district court on the motion for summary judgment,
it is apparent that there are genuine issues of material fact which remain to be resolved as to
the defense of prosecutorial immunity. Even the district court's order recognizes the existence
of disputed facts. Accordingly, we order the summary judgment reversed and the cause
remanded for further proceedings.
____________
99 Nev. 842, 842 (1983) Manning v. Nev. St. Bd., Accountancy
JAMES B. MANNING, Appellant, v. NEVADA STATE
BOARD OF ACCOUNTANCY, Respondent.
No. 14622
December 20, 1983 673 P.2d 494
Appeal from judgment enjoining use of word accountant by unlicensed individual. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
State Board of Accountancy filed complaint seeking an injunction to restrain individual
from use of word accountant in his business. The district court entered injunction, and
appeal was taken. The Supreme Court held that Board was estopped from barring individual
from use of word accountant in his business
Reversed.
[Rehearing denied January 24, 1984]
Crowell, Crowell, Crowell, Baker & Susich, Ltd., Carson City, for Appellant.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd., Carson City, for
Respondent.
1. Estoppel.
It is generally true that an estoppel may not be raised against the government when it is acting in its
sovereign capacity to assert title to land; however, even in this situation, estoppel may lie when justice
dictates that it apply.
2. Accountants.
State Board of Accountancy was estopped to bar individual from use of word accountant in his
business, where there was no evidence suggesting that his accounting services had not been satisfactory,
Board had actual knowledge for many years of his use of word accountant in his practice, and Board did
not promptly enforce its right to enjoin the practice, but waited 15 years while he worked diligently to build
a practice that enabled him to make a tolerable living. NRS 628.570.
OPINION
Per Curiam:
Respondent Nevada State Board of Accountancy filed a complaint in district court against
appellant James B. Manning seeking an injunction to restrain Manning from the use of the
word accountant in his business. NRS 628.540(1).
1
The district judge issued the
injunction. NRS 628.570.
2
Manning appeals.
THE FACTS
Manning began his accounting career 29 years ago in Pennsylvania. He moved to
California where he practiced accounting from 1955 to 1967. In 1967 Manning moved to
Carson City, Nevada, where he has continued his accounting practice under the name J. B.
Manning, Accountant.
In 1972 Manning twice applied to the State Board to take the licensing examination. The
applications were rejected. In the second rejection the Board requested Manning to remove
the word "accountant" from his sign.3 Four years later, in 1977, the Board's attorney
wrote Manning asking Manning to remove the sign.
____________________

1
NRS 628.540(1) provides in pertinent part:
[A] person, partnership or corporation shall not engage in the practice of public accounting or hold
himself or itself out to the public as an accountant or auditor by use of either or both of those words,
or by use of the word accounting, or any sign, card, letterhead or in any advertisement or director
unless, if a natural person, he holds a live permit, or if a partnership or corporation, it is registered
pursuant to NRS 628.340 or 628.360. (Emphasis added.)

2
Whenever in the judgment of the board any person has engaged, or is about to engage, in any acts or
practices which constitute, or will constitute, a violation of NRS 628.450 to 628.550, inclusive, the board
may make application to an appropriate court for an order enjoining such acts or practices, and upon a
showing by the board that such person has engaged, or is about to engage, in any such acts or practices,
an injunction, restraining order or such order as may be appropriate shall be granted by such court
without bond.
second rejection the Board requested Manning to remove the word accountant from his
sign.
3
Four years later, in 1977, the Board's attorney wrote Manning asking Manning to
remove the sign. In 1982, five years later, the instant suit was commenced seeking an
injunction prohibiting Manning from using the word accountant on the sign.
EQUITABLE ESTOPPEL
Respondent does not contest that an estoppel is adequately shown upon the facts
presented. But, respondent argues that estoppel may not be raised because it is a
governmental agency. We do not agree.
[Headnote 1]
It is generally true that an estoppel may not be raised against the government when it is
acting in its sovereign capacity to assert title to land. Thus we have held that the government
may not be estopped to assert rights in the beds of navigable waters simply because it failed
to object to an encroachment. State v. Bunkowski, 88 Nev. 623, 634, 503 P.2d 1231 (1972).
Yet even in this situation the courts have recognized that estoppel may lie when justice
dictates that it apply. City of Long Beach v. Mansell, 476 P.2d 423, 441-451 (Cal. 1970)
(government estopped to assert title to tidelands).
We have always adhered to the overriding goal of equity to achieve justice and prevent
the unconscientious and inequitable assertion or enforcement of claims or rights. Mansell,
476 P.2d at 442 n. 22 quoting 3 Pomeroy, Equity Jurisprudence (5th ed. 1941) sec. 802, p.
180; see Nevada Pub. Emp. Ret. Bd. v. Byrne, 96 Nev. 276, 280, 607 P.2d 1351 (1980).
[Headnote 2]
There is not a scintilla of evidence suggesting that Manning's accounting services had not
been satisfactory. The Board had actual knowledge for many years of Manning's use of the
word accountant in his practice. The Board did not promptly enforce its right to enjoin the
practices. See NRS 628.570. It waited fifteen years while Manning worked diligently to build
a practice that has enabled him to make a tolerable living. To now bar Manning from that
practice would be unfair and unjust. We reverse the order granting the injunction.
____________________

3
The State initiated registration of accountants in 1960. 1960 Nev. Stats. ch. 131, p. 160. A grandfather
clause permitted a person of good moral character over age twenty then residing, practicing and holding himself
out as an accountant within the state to be registered and continue practice as a public accountant. Id. at Sec.
36, p. 168-169. They were qualified to take the test, but not required to do so to practice as public accountants.
Id. at Sec. 22, pp. 165-166.
____________
99 Nev. 845, 845 (1983) A Minor v. State
REUBEN C., A Minor, Appellant, v. THE
No. 15088
December 20, 1983 673 P.2d 493
Appeal from order certifying appellant to stand trial as an adult, Second Judicial District
Court, Washoe County; Robert L. Schouweiler, Judge.
Appeal was taken from order entered by the district court certifying juvenile to stand trial
as an adult on charges of armed robbery, conspiracy, grand larceny, burglary, and assault. The
Supreme Court held that challenge to order was precluded by entry of plea of guilty to
charges.
Appeal dismissed.
David G. Parraguirre, Public Defender, and Bert V. George, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and Gary
H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Infants.
Challenge to order certifying juvenile to stand trial as an adult on felony charges was precluded by entry
of plea of guilty to those charges.
OPINION
Per Curiam:
This is an appeal from an order certifying appellant, a juvenile, to stand trial as an adult on
charges of armed robbery, conspiracy, grand larceny, burglary and assault. The opening brief
has been filed. Appellant contends, in this appeal, that no evidence was presented to the
juvenile court which would support a determination that the charges had prosecutive merit.
Kent v. United States, 383 U.S. 541 (1966); In the Matter of Seven Minors, 99 Nev. 427, 664
P.2d 947 (1983).
We are unable to reach the merits of appellant's contention, however, as appellant has
waived his right to raise the issue on appeal. Appellant concedes that he has pleaded guilty
and has been sentenced on the charges which are the subject of this appeal.
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of
the offense with which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."
99 Nev. 845, 846 (1983) A Minor v. State
prior to the entry of the guilty plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973); Cline v.
State, 90 Nev. 17, 518 P.2d 159 (1974). In Tollett, the United States Supreme Court found
that a challenge to the composition of the grand jury which issued the indictment was
precluded by the entry of a plea to the charge. Here, we hold that a challenge to the juvenile
proceedings which resulted in the filing of felony charges against appellant is precluded by
the entry of a plea of guilty to those charges.
Accordingly, respondent's motion to dismiss is granted.
Appeal dismissed.
____________

Nevada Reports 1983 (99 Nev.) PDF

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