Nevada Reports 1989 (105 Nev.) PDF

105 Nev.
1, 1 (1989)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 105
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105 Nev. 1, 1 (1989) Hager v. Nevada Medical Legal Screening Panel
ROBERT HAGER AND CARMALETTA M. TERRY, Appellants, v. THE NEVADA
MEDICAL LEGAL SCREENING PANEL; and DAVID GATES as Insurance
Commissioner, Respondents.
No. 18918
January 31, 1989 767 P.2d 1346
Appeal from district court order dismissing appellants' complaint for declaratory relief.
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Medical malpractice claimants filed declaratory relief action seeking determination of
proper fee for filing claim with the Medical Legal Screening Panel, and a $250.00 refund.
Complaint was dismissed by the district court and claimants appealed. The Supreme Court
held that statute intended that single $250.00 filing fee accompany each complaint, regardless
of the number of claimants joined therein.
Reversed.
Paul D. Elcano, Jr., Reno, for Appellants.
Brian McKay, Attorney General, and James C. Smith, Deputy Attorney General, Carson
City, for Respondents.
1. Physicians and Surgeons.
Legislative intent with respect to filing fee for claim submitted to the Medical Legal Screening Panel was that a single $250.00 fee
accompany the complaint, regardless of the number of claimants joined therein, and thus regulation promulgated by the Insurance
Commissioner was invalid to the extent that it required a separate $250.00 filing fee for each claimant joining in a single complaint.
NRS 41A.016, subd. 1, 41A.039, 41A.039, subd. 1.
Implicit in regulation's prohibition of refund of fee filed in connection with claim submitted to the Medical Legal Screening Panel
was assumption that fees are lawfully exacted, and where an additional $250.00 fee in connection with a single complaint was not
lawfully charged and collected, refund was mandated. NRS 41A.039, subd. 1.
OPINION
Per Curiam:
Peter Oronos died on April 27, 1985. Following his death, his wife, Carmaletta M. Terry,
and his surviving child retained attorney Robert Hager to present a wrongful death/medical
malpractice claim to the Nevada Medical Legal Screening Panel. Hager in turn contacted the
panel to determine the filing fee requirement for a single complaint involving one claim and
two claimants. He was informed that a $250.00 per claimant fee was required. As a result,
Hager filed a complaint and a $500.00 filing fee.
Appellants thereafter filed a declaratory relief action in district court seeking to determine
the proper interpretation of the relevant fee requirement statute, NRS 41A.039(1), and a
$250.00 refund. Specifically, appellants argued that NRS 41A.039(1) required a single
$250.00 filing fee per complaint, irrespective of the number of complainants joining therein.
Respondents answered with a motion to dismiss claiming that NRS 41A.039 and a regulation
interpreting it required separate individual fees per complainant. The district court agreed
with respondents and dismissed appellants' complaint.
[Headnote 1]
On appeal we are asked to determine whether the district court erred in dismissing
appellants' complaint and in concluding that NRS 41A.039 requires each complaining party
within a single complaint to pay a separate $250.00 fee. After construing NRS 41A.039 in
light of pertinent standards and prior precedent we conclude that the district court erred.
In Nevada, no medical malpractice cause of action may be filed in district court until the
claim has been submitted to the Nevada Medical Legal Screening Panel and a determination
has been made.
Medical Legal Screening Panel and a determination has been made. NRS 41A.016(1). NRS
41A.039 outlines the procedure for submitting such claims.
1
Subsection 1 states that [a]
fee of $250 must accompany the complaint. NAC 41A.080,
2
as promulgated by the
Insurance Commissioner, requires that each claimant pay a separate $250.00 fee and that fees
are not refundable.
In construing both NRS 41A.039(1) and NAC 41A.080, we reemphasize our position in
Roberts v. State, 104 Nev. 33, 752 P.2d 221, 223 (1988), that [a]dministrative regulations
cannot contradict or conflict with the statute they are intended to implement. It follows, then,
that NAC 41A.080 may not require separate filing fees unless in so doing it conforms to the
original legislative intent behind NRS 41A.039(1). See Roberts, 104 Nev. at 33, 752 P.2d at
223. Moreover, Roberts declares that legislative intent is to be determined from the specific
statutory language if it is clear and unambiguous on its face. See id. The language is
ambiguous if it is capable of being understood in two or more senses by reasonably informed
persons. See McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986).
The critical clause in this case, [a] fee of $250 must accompany the complaint, is clear
and unambiguous on its face. Thus, the provision at issue reflects a legislative intent that a
single $250.00 filing fee accompany the complaint, regardless of the number of claimants
joined therein. Given this interpretation, we further conclude that inasmuch as NAC 41A.080
requires separate filing fees based upon complainants rather than the complaint, it conflicts
with NRS 41A.039(1). As a result, to the extent NAC 41A.080 requires more than one fee per
complaint, it is invalid.
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1
NRS 41A.039 provides:
1. A claim of medical malpractice is properly presented to a screening panel by filing a complaint
with the division. A fee of $250 must accompany the complaint. A copy of the complaint must be
delivered by certified or registered mail to the person against whom the complaint is made.
2. The complaint must contain a clear and concise statement of the facts of the case, showing the
persons involved and the dates and circumstances, so far as they are known, of the alleged medical
malpractice.
3. The person against whom a complaint is made must, within 30 days after receipt of the complaint,
file an answer with the division, accompanied by a fee of $250.

2
NAC 41A.080 states: All fees must be paid by check, made payable to the division. In cases with multiple
claimants or respondents, each person must pay a separate fee. The fees will not be refunded.
[Headnote 2]
Finally, consistent with our analysis and conclusion, we reverse the trial court and remand
with instructions to enter judgment in appellants' favor and to order the Insurance Division to
pay the requested refund.
3

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105 Nev. 4, 4 (1989) State, Private Inves. Lic. Bd. v. Taketa
STATE OF NEVADA, PRIVATE INVESTIGATOR'S LICENSING BOARD; BRIAN
McKAY, ATTORNEY GENERAL, AS CHAIRMAN OF PRIVATE
INVESTIGATOR'S LICENSING BOARD; ROBERT RODEFER, INVESTIGATOR
FOR THE ATTORNEY GENERAL'S OFFICE, AND THE PRIVATE
INVESTIGATOR'S LICENSING BOARD, Appellants, v. DAVID TAKETA and
THOMAS O'BRIEN, Respondents.
No. 19176
January 31, 1989 767 P.2d 875
Appeal from district court's judgment that NRS 648.1405(4) is unconstitutional and
granting permanent injunctive relief. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Persons who were employed as private investigators and who had been convicted on
federal felony charges of interception of wire communications and conspiracy challenged
constitutionality of statute precluding employment as private investigators of nonlicensed
persons who have been convicted of a felony. The district court held that the statute violated
equal protection, and the Private Investigator's Licensing Board appealed. The Supreme Court
held that the statute has a rational relationship to the State's legitimate interest in maintaining
the integrity and lawfulness of private investigations.
Reversed.
Brian McKay, Attorney General, Robert A. Kirkman, Deputy Attorney General, Scott
Doyle, Deputy Attorney General, Carson City, for Appellants.
Goodman, Stein & Chesnoff and Eckley M. Keach, Las Vegas, for Respondents.
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3
We recognize that NAC 41A.080 does not permit fees to be refunded. However, implicit in this prohibition
is the assumption that fees are lawfully exacted. In the instant case, because the additional $250.00 fee was not
lawfully charged and collected, a refund is mandated.
Rex Bell, District Attorney, Mary-Anne Miller, Deputy District Attorney, Clark County, for
Amicus Curiae.
1. Constitutional Law.
The constitutionality of a statute regulating occupational licensing is properly determined, as against an equal protection challenge,
under a rational basis test, pursuant to which a classification must be upheld if it rationally furthers a legitimate state purpose or
interest, regardless of whether it reflects perfect logical consistency. U.S.C.A.Const. Amend. 14.
2. Constitutional Law; Detectives.
Statute prohibiting employment as a private investigator of a nonlicensed person who has been convicted of a felony has a rational
relationship to the State's legitimate interest in maintaining the integrity and lawfulness of private investigations, and thus does not
deny equal protection. NRS 648.005 et seq., 648.1405, subd. 4; U.S.C.A.Const. Amend. 14.
An overbreadth analysis of a statutory classification is not applicable to a statute which pertains to social welfare and does not
disrupt first amendment rights. U.S.C.A.Const. Amends. 1, 14.
OPINION
Per Curiam:
Appellant, State of Nevada, Private Investigator's Licensing Board, appeals the district
court's orders ruling that NRS 648.1405(4) is unconstitutional and granting permanent
injunctive relief from enforcement of that statute against respondents David Taketa and
Thomas O'Brien. We hold that NRS 648.1405(4) does not offend the guarantees of the
Constitution of this state or the United States, and accordingly, we reverse the judgment of
the district court.
Taketa and O'Brien were both convicted in federal court on felony charges of interception
of wire communications and conspiracy. These convictions stemmed from Taketa's and
O'Brien's criminal misconduct in the course of their employment as government law
enforcement agents. At the time that their convictions were entered, Taketa and O'Brien were
employed as private investigators by Griffin Investigations, Inc., a corporation licensed by
appellant State of Nevada, Private Investigator's Board.
NRS Chapter 648 governs the licensing of private investigators, private patrolpersons and
related occupations. The contested statute, NRS 648.1405(4), states that: A person licensed
pursuant to this chapter may employ only another licensee or a nonlicensed person who . . . 4.
Has not been convicted of a felony or a crime involving moral turpitude or the illegal use or
possession of a dangerous weapon."
of a dangerous weapon. After Taketa and O'Brien were convicted on felony counts, they
became ineligible for employment by Griffin Investigations, Inc. pursuant to NRS
648.1405(4), and consequently challenged the constitutionality of the statute.
The trial court ruled that NRS 648.1405(4) is unconstitutional under the equal protection
clause because there is no rational relationship between the commission of a particular
felony and the inability of an individual to perform adequately in an employment capacity
with a State licensed private investigative agency. Accordingly, the trial court found the
statute to be overbroad. We disagree with the trial court's analysis and conclusion.
[Headnote 1]
The constitutionality of a statute regulating occupational licensing is properly determined
under a rational basis test. Schware v. Bd. of Examiners, 353 U.S. 232, 239 (1957). Under the
rational basis test, a statutory classification must be upheld if it rationally furthers a legitimate
state purpose or interest. It need not reflect perfect logical consistency. See Massachusetts Bd.
of Retirement v. Murgia, 427 U.S. 307 (1976).
[Headnote 2]
The State has a legitimate interest in maintaining the integrity of private investigation
work. Such investigations, if improperly conducted, run the risk of invading upon other
citizens' constitutionally protected rights. The public trust may well be undermined by
assigning security and investigative tasks to ex-felons. See Schanuel v. Anderson, 708 F.2d
316, 319 (7th Cir. 1983). We find this to be especially true where, as in the cases of Taketa
and O'Brien, the felony conviction stems from misconduct associated with the duties related
to activities that a private investigator might be expected to engage in. We hold that the trial
judge erred in finding that there is no rational relationship between the statute's prohibition
against entrusting to ex-felons duties the execution of which requires the utmost respect for
the law and the State's legitimate interest in maintaining the integrity and lawfulness of
private investigations.
[Headnote 3]
The trial judge also erred by applying an overbreadth analysis to find the statute
unconstitutional. An overbreadth analysis is not applicable to a statute such as the one at
issue, which pertains to social welfare and which does not disrupt first amendment rights. See
Dandridge v. Williams, 397 U.S. 471 (1970).
In the area of economics and social welfare, a State does not violate the Equal
Protection Clause merely because the classifications made by its laws are imperfect. If
the classification has some reasonable basis, it does not offend the Constitution
simply because the classification "is not made with mathematical nicety or because
in practice it results in some inequality."
Constitution simply because the classification is not made with mathematical nicety or
because in practice it results in some inequality.
Id. at 485 (citations omitted).
Because the provisions of NRS 648.1405(4) are rationally related to the State's legitimate
interest in assuring that private investigations are conducted in a lawful manner, we hold that
the trial judge erred in ruling the statute to be unconstitutional. Accordingly, we rule in favor
of the licensing board, and we reverse the lower court's judgment declaring NRS 648.1405(4)
unconstitutional, restraining the licensing board from seeking the termination of Taketa and
O'Brien from employment with Griffin Investigations, Inc., and restraining the private
licensing board from forcing Griffin Investigations, Inc. to terminate Taketa and O'Brien's
employment.
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105 Nev. 7, 7 (1989) State v. Hall
THE STATE OF NEVADA, Appellant, v. LEON HALL, Respondent.
No. 15241
February 13, 1989 768 P.2d 349
Appeal from an order of the district court dismissing a criminal information. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant charged with driving under influence of intoxicating liquor causing substantial
bodily injury moved to dismiss information on ground that he had been unduly prejudiced by
state's loss of blood sample on which gas chromatograph test had been conducted. The district
court dismissed information, and state appealed. The Supreme Court held that defendant did
not show that loss of sample violated his due process rights.
Reversed and remanded.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and Paul E.
Wommer and Ronald C. Bloxham, Deputy District Attorneys, Clark County, for Appellant.
Frank Cook, Las Vegas, for Respondent.
In order to establish due process violation resulting from state's loss or destruction of evidence, defendant must demonstrate either
that state lost or destroyed evidence in bad faith, or that loss unduly prejudiced defendant's case and evidence possessed
exculpatory value that was apparent before evidence was destroyed.
105 Nev. 7, 8 (1989) State v. Hall
defendant's case and evidence possessed exculpatory value that was apparent before evidence was destroyed. U.S.C.A.Const. Amends.
5, 14.
2. Constitutional Law; Criminal Law.
Defendant charged with driving under influence of intoxicating liquor causing substantial bodily injury did not show that
destruction of blood sample on which gas chromatograph test had previously been conducted violated his due process rights; state was
not acting in bad faith when it disposed of sample, as police chemist had saved it for approximately one year and then disposed of it in
accordance with his routine practice to make room in laboratory for newly arriving samples, and defendant failed to establish any
prejudice arising from loss of blood sample. U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Following a preliminary hearing, a criminal information was filed against respondent Leon
Hall charging him with one count of driving under the influence of intoxicating liquor
causing substantial bodily injury, in violation of NRS 484.3795. Hall subsequently moved to
dismiss the information on the ground that he had been unduly prejudiced by the state's loss
of certain evidence. The district court granted the motion and the state appealed. For the
reasons set forth below, we reverse the district court's order and remand the matter to that
court for further proceedings.
The evidence presented at the preliminary hearing established that when Hall was first
arrested, the police obtained both a urine and blood sample from his person. A police chemist
testified that he conducted a gas chromatograph blood-alcohol test of Hall's blood sample,
and that the test results indicated Hall had a blood-alcohol level of .272% by weight at the
time the sample was taken. The chemist testified that he stored the blood sample in his
laboratory for approximately one year, but eventually disposed of it along with approximately
one hundred other samples. The chemist further indicated that he had not received anyone's
specific permission to throw out the samples, but that he routinely disposed of such samples
after storing them for a year to make room in the laboratory for newly arriving samples.
In his motion to dismiss, Hall argued that his due process rights were violated and his case
unduly prejudiced by the state's loss of the blood sample.
1
Specifically, Hall contended that
the loss of this evidence deprived him of the ability to retest the sample to determine the
accuracy of the initial test results.
__________

1
The record does not indicate whether a blood-alcohol test was ever conducted on the urine sample taken
from respondent. Further, the parties' briefs focus almost entirely on the loss of the blood sample. Accordingly,
we decline to address the question of whether the alleged loss of the urine sample deprived Hall of due process.
105 Nev. 7, 9 (1989) State v. Hall
loss of this evidence deprived him of the ability to retest the sample to determine the accuracy
of the initial test results. The district court agreed that Hall's due process rights had been
violated and granted his motion to dismiss.
[Headnote 1]
In order to establish a due process violation resulting from the state's loss or destruction of
evidence, a defendant must demonstrate either (1) that the state lost or destroyed the evidence
in bad faith, or (2) that the loss unduly prejudiced the defendant's case and the evidence
possessed an exculpatory value that was apparent before the evidence was destroyed. See
California v. Trombetta, 467 U.S. 479 (1984); City of Las Vegas v. O'Donnell, 100 Nev. 491,
686 P.2d 228 (1984); Boggs v. State, 95 Nev. 911, 604 P.2d 107 (1979); see also Arizona v.
Youngblood, 488 U.S. 51, 109 S.Ct. 333, 337 (1988) (unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law).
[Headnote 2]
In the present case, there is nothing in the record to indicate that the state acted in bad faith
when it disposed of the blood sample. The chemist who disposed of the sample had saved it
for a reasonable period of time and then disposed of it in accordance with his routine practice
and for a legitimate purpose. Accordingly, we conclude that the state was not acting in bad
faith when it disposed of the sample. See City of Las Vegas v. O'Donnell, 100 Nev. 491, 494,
686 P.2d 228, 230 (1984).
Our review of this matter also reveals that Hall has failed to establish any prejudice
resulting from the loss of the blood sample. Both the United States Supreme Court and this
court have previously held that the state's failure to preserve breath samples will not unduly
prejudice a defendant's case because (1) intoxilyzer testing is considered to be generally
reliable, (2) statutory regulations exist to ensure that intoxilyzer machines are properly
maintained, and (3) alternative means are available to impeach the reliability of intoxilyzer
test results in addition to retesting the sample itself. See California v. Trombetta, 467 U.S.
479 (1984); City of Las Vegas v. O'Donnell, 100 Nev. 491, 686 P.2d 228 (1984).
We believe that the holdings in Trombetta and O'Donnell are equally applicable to the
facts of the present case. First, the gas chromatograph blood testing method used in this case
is considered to be one of the most reliable methods of blood-alcohol testing. See Richard E.
Erwin, Defense of Drunk Driving Cases, 17.05 (3d ed. 1985) (relying on J. Solon, J.
Watkins, and L. Mikkelsen, Automated Analysis of Alcohols in Blood, J. Forensic Sciences,
17{3), at 447-52 {1972)).
105 Nev. 7, 10 (1989) State v. Hall
Sciences, 17(3), at 447-52 (1972)). Further, Hall has not presented any evidence to indicate
that the state's method of conducting gas chromatograph blood tests is in any way faulty or
likely to lead to inaccurate results. In fact, Nevada has enacted statutory regulations to protect
a defendant from the admission of inaccurate test results. Specifically, a defendant is entitled
to receive full information regarding the machine used to test his blood samples and is
entitled to inspect the machine. See NRS 484.389(3). If a defendant can establish that the
machine was improperly maintained, he can move to have the test results suppressed for that
reason. See NRS 484.389(4). A defendant can also seek to have the test results suppressed if
he can establish that an unqualified person withdrew the blood used in the test.
2
See NRS
484.393.
Finally, we note that, as in Trombetta and O'Donnell, alternative means exist to impeach
the accuracy of the blood-alcohol test used in this case. For example, Hall can attempt to
impeach the test results by introducing evidence to establish ways in which a gas
chromatograph machine might malfunction or otherwise produce inaccurate results, and by
cross-examining the test administrator to determine whether any operator error might have
occurred. See State v. Disch, 351 N.W.2d 492 (Wis. 1984). Hall can also use the data to
which he is entitled under NRS 484.389(3) to attack the accuracy or reliability of the test
results.
In light of the above considerations, we conclude that Hall has failed to establish that his
due process rights were violated by the loss of the blood sample. Accordingly, we reverse the
order of the district court dismissing the criminal charge against Hall, and we remand this
matter to the district court for further proceedings consistent with this opinion.
Young, C. J., Steffen, Springer, and Mowbray, JJ., and Zenoff, Sr. J.,
3
concur.
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2
We note that in 1983, after the blood test in this case was conducted, the legislature enacted additional
statutory regulations to further ensure the accuracy of blood-alcohol testing results. See NRS 484.388; 484.3882;
484.3886.

3
The Governor designated The Honorable David Zenoff, Senior Justice, to participate in the decision of this
matter pursuant to Nev. Const. art. 6, 4. The Honorable Robert E. Rose, Justice, did not participate in the
decision of this appeal.
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105 Nev. 11, 11 (1989) G.R.I.D. v. M.G.S.D.
GARDNERVILLE RANCHOS GENERAL IMPROVEMENT DISTRICT; JERRY J. BING,
VICTOR HYDEN, AL WAGNER, ROBERT GRIFFIN, BEVERLY PAGE,
RICHARD GLAVE and BRUCE NYSTROM, Trustees of the Gardnerville Ranchos
General Improvement District, Appellants and Cross-Respondents, v.
MINDEN-GARDNERVILLE SANITATION DISTRICT, Respondent and
Cross-Appellant.
No. 18338
February 22, 1989 769 P.2d 71
Appeal and cross-appeal from a declaratory judgment of the district court. Ninth Judicial
District Court, Douglas County; Norman C. Robison, Judge.
Improvement district sought declaratory judgment granting it right to purchase additional
capacity in expanded sewage treatment plant. The district court entered declaratory judgment
and appeal and cross-appeals were taken. The Supreme Court held that district was entitled to
additional capacity at same price that was paid for initial capacity as adjusted by arbitration
award pursuant to option contract.
Affirmed as modified.
[Rehearing denied May 3, 1989]
Michael Smiley Rowe, Minden, and Allison, MacKenzie, Hartman, Soumbeniotis &
Russell, Ltd. and Karen A. Peterson, Carson City, for Appellants and Cross-Respondents.
Woodburn, Wedge & Jeppson and Steven C. Malvey and William E. Peterson, Reno, for
Respondent and Cross-Appellant.
Municipal Corporations.
Pursuant to contract in which improvement district was entitled to option for additional capacity in expanded sewage treatment
plant, amount to be paid for additional capacity was to be same amount that was paid for initial capacity as adjusted by arbitration
award.
OPINION
Per Curiam:
This case arose when Gardnerville Ranchos General Improvement District's (GRID),
appellants and cross-respondents, counterclaim against Minden-Gardnerville Sanitation
District, (MGSD), respondent and cross-appellant, was severed from another lawsuit. The
dispute centers around the parties' 1974 agreement, whereby GRID purchased capacity in
MGSD's sewage treatment plant and became a joint owner in a 1,500,000 gallon per day
expansion plant in which GRID had an option to purchase additional capacity at an
adjusted rate.
105 Nev. 11, 12 (1989) G.R.I.D. v. M.G.S.D.
agreement, whereby GRID purchased capacity in MGSD's sewage treatment plant and
became a joint owner in a 1,500,000 gallon per day expansion plant in which GRID had an
option to purchase additional capacity at an adjusted rate. The district court entered a
declaratory judgment granting GRID the right to purchase additional capacity in the new
plant. Both parties appealed. For the reasons stated herein we affirm the decision of the
district court as modified.
On February 1, 1984, GRID entered into a written agreement with MGSD. The agreement,
which was drafted by MGSD, provided that GRID would pay $300,000 or $0.75 per gallon
per day for an initial capacity of 400,000 gallons per day (gpd), joint ownership in a
1,500,000 gpd expansion plant, and an option to purchase additional capacity at the $0.75 per
gallon per day rate subject to an adjustment for increased costs of construction, engineering,
legal, fiscal, administrative and other costs.
The expansion plant was built and MGSD demanded an additional $237,200 from GRID
to pay for increased costs. GRID disputed the amount and the parties submitted the matter to
arbitration. Through the arbitration it was determined that GRID's share of the increased
expansion costs was $79,067. Thus, GRID paid a total of $379,067 for the initial 400,000 gpd
capacity, joint ownership in the expansion and the option. This adjustment raised the initial
capacity purchase price from $0.75 to $0.947 per gallon per day.
In 1978, 1982 and 1984, GRID requested additional capacity under the option. MGSD
refused GRID's requests stating that no capacity was available. Subsequently, in another
lawsuit, GRID asserted a counterclaim against MGSD seeking a declaratory judgment to
determine the amounts of sewer capacity available for purchase by GRID pursuant to the
option and the price to be paid for that capacity. That counterclaim was severed and tried
separately to the district court.
The district court determined, among other things, that the amount of sewer capacity
available for purchase by GRID pursuant to the option was 113,571 gpd and the price of that
capacity was to be $6.50 per gallon. Both parties appealed alleging that the district court had
committed numerous errors in interpreting the parties' agreement. After hearing the oral
arguments of the parties, reviewing their briefs and the record on appeal, we conclude that the
district court committed only one error in resolving this dispute. That error was the district
court's determination that $6.50 per gallon was the cost GRID had to pay for the additional
capacity.
The language of the agreement is clear and unambiguous. The option rights granted to
GRID were for additional capacity in the expanded plant. The cost for additional capacity in
the expanded plant under the option provision was to be the same amount that was paid
for initial capacity, as the same might be adjusted in the future to reflect the increased
costs of construction, engineering, legal, fiscal, administrative and other related costs.
105 Nev. 11, 13 (1989) G.R.I.D. v. M.G.S.D.
plant under the option provision was to be the same amount that was paid for initial capacity,
as the same might be adjusted in the future to reflect the increased costs of construction,
engineering, legal, fiscal, administrative and other related costs. The initial price per gallon
for capacity was adjusted by the Arbitration Award. It was increased from $0.75 per gallon to
$0.947 per gallon.
For purposes of GRID's option to acquire additional capacity, this is the price that is
controlling upon the parties. This is the price that the parties agreed to and negotiated. Any
other reading would render the option meaningless. Where a contract fixes the price, one
party cannot avoid its terms. Sutro Tunnel Co. v. Segregated Bellcher Mining, 19 Nev. 121, 7
P. 271 (1885); Wells Cargo, Inc. v. Dodge Construction Inc., 77 Nev. 425, 366 P.2d 90
(1961). Therefore, the district court erred in determining that the additional capacity must be
purchased for the price of $6.50 per gallon.
Accordingly, we modify that portion of the district court's order and affirm it in all other
respects.
1

____________
105 Nev. 13, 13 (1989) Freeman v. Davidson
MARION FREEMAN, Individually, P. KEKAULIKE ROSEHILL, Special Administrator of
the Estate of KENNETH FREEMAN, Deceased, and KERIN K. FITZGERALD,
Executrix of the Estate of EDMONDA FREEMAN, Deceased, Appellants, v. JOEL
DAVIDSON, M.D., Respondent.
No. 18347
February 22, 1989 768 P.2d 885
Appeal from judgment of the district court entered upon a jury verdict for respondent.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from judgment of the district court entered in medical malpractice
action. The Supreme Court held that: (1) fact that expert offered on the issue of malpractice
was not licensed to practice medicine until after the date of the alleged malpractice did not
preclude her from testifying, and (2) economist should have been permitted to testify on the
issue of loss of probable support if he otherwise met his requirements of an expert witness.
Reversed and Remanded.
__________

1
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.
Kevin M. Kelly, Las Vegas, for Appellants.
Miles, Pico & Mitchell and Chris B. Escobar, Las Vegas, for Respondent.
1. Evidence.
Expert witness need not be licensed to testify as an expert, as long as he or she possesses special knowledge, training and
education, or knowledge of the standard of care. NRS 50.275.
2. Evidence.
In medical malpractice cases, expert testimony may be provided by nonphysicians.
3. Evidence.
Expert's knowledge need not be acquired contemporaneously or before the alleged negligence.
4. Appeal and Error; Evidence.
Competency of expert witnesses is a matter generally left to the sound discretion of trial court, which will not be disturbed on
appeal in the absence of abuse of discretion.
5. Evidence.
Per se rule of disqualification of expert based on the date of licensure is an abuse of discretion.
6. Appeal and Error.
Exclusion of testimony of expert witness in medical malpractice action was not harmless on theory that it would only have been
cumulative where the case involved sharp factual contradictions and complex medical testimony. NRCP 61.
7. Evidence.
If witness demonstrated her knowledge of the applicable standard of care and otherwise met the requirements of an expert witness,
she should be permitted to testify as expert in medical malpractice action even though she was not licensed to practice medicine until
after the date of the alleged malpractice. NRS 50.275.
8. Death.
Damages of the heirs, based on decedent's lost earning capacity, may include present as well as future loss of support. NRS
41.085.
9. Evidence.
If he otherwise met the requirements of an expert witness, economist should be permitted to testify on issue of loss of probable
support. NRS 41.085.
OPINION
Per Curiam:
Edmonda Freeman died in July, 1980, following surgery for gastric stapling and a partial
cecectomy. Appellants, Ms. Freeman's estate and her heirs, filed a civil suit against
respondent, Joel Davidson, M.D., alleging malpractice.
Appellants planned to present the testimony of three expert witnesses at trial. The trial
court excluded the testimony of two, Patricia Bowling, M.D., and Dr.
Patricia Bowling, M.D., and Dr. William White, an economist. Appellants claim this was
reversible error. We agree.
[Headnotes 1-3]
The trial court excluded Dr. Bowling's testimony because Dr. Bowling was not licensed to
practice medicine until after the date of the alleged malpractice. An expert witness need not
be licensed to testify as an expert, as long as he or she possesses special knowledge, training
and education, or in this case, knowledge of the standard of care. NRS 50.275; Wright v. Las
Vegas Hacienda, 102 Nev. 261, 720 P.2d 696 (1986). In medical malpractice cases expert
testimony may be provided by nonphysicians. Harris v. Robert C. Groth, M.D., Inc. P.S., 99
Wash.2d 438, 663 P.2d 113 (1983). The expert's knowledge need not be acquired
contemporaneously or before the alleged negligence. Brown v. Colm, 114 Cal.Rptr. 128, 522
P.2d 688 (1974); Casey v. Phillips Pipeline Company, 199 Kan. 538, 431 P.2d 518 (1967).
[Headnotes 4, 5]
The competency of expert witnesses is a matter generally left to the sound discretion of the
trial court. The trial court's decision will not be disturbed on appeal in absence of abuse of
discretion. Cheyenne Const., Inc. v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986); Provence v.
Cunningham, 95 Nev. 4, 588 P.2d 1020 (1979). However, this court will not hesitate to
intervene if that discretion is manifestly abused. Wright v. Las Vegas Hacienda, 102 Nev.
261, 262, 720 P.2d 696, 697 (1986). A per se rule of disqualification based on the date of
licensure is an abuse of discretion.
[Headnotes 6, 7]
Respondent claims that Dr. Bowling's testimony would have been cumulative, thus the
exclusion was harmless error. NRCP 61; see Tarkanian v. Nat'l Collegiate Athletic Ass'n, 103
Nev. 331, 741 P.2d 1345 (1987), cert. granted in part, 108 S.Ct. 1011 (1988). This was a
case involving sharp factual contradictions and complex medical testimony. When the
evidence is split and the case is close, it is likely that the result would be sensitive to the
excluded testimony. In this setting the rule of harmless error is inoperative. Robt. Pierce Co.
v. Sherman Gardens, 82 Nev. 395, 399-400, 419 P.2d 781, 784 (1966). When the evidence is
sharply contradicted the error is treated as being more significant. . . . Boyd v. Pernicano,
79 Nev. 356, 358, 385 P.2d 342, 343 (1963). If, on retrial, Dr. Bowling demonstrates her
knowledge of the applicable standard of care, and otherwise meets the requirements of an
expert witness, she should be allowed to testify.
[Headnotes 8, 9]
The district court excluded Dr. William White's testimony on the basis that it was too
speculative and prejudicial. NRS 41.085, enacted in 1979, allows heirs to prove damages for
loss of probable support. The legislature carefully chose the words probable support. The
legislature's intent should be given full effect. Heirs' damages, based on the decedent's lost
earning capacity, may include present as well as future loss of support. Wells, Inc. v.
Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). Damages are, of necessity, tinged with a certain
degree of speculation. See Amerco Marketing Co. of Memphis, Inc. v. Myers, 494 F.2d 904
(6th Cir. 1974). This court has recently approved the use of an economist to assist in the
determination of damages. See K Mart Corporation v. Ponsock, 103 Nev. 39, 732 P.2d 1364
(1987). Dr. White should be allowed to testify on retrial, if he otherwise meets the
requirements of an expert witness.
In light of the above conclusions, we reverse and remand this matter for retrial. We
emphasize that the competency of an expert witness is a matter within the trial court's
discretion. However, date of licensure is not a consideration, and the testimony of an
economist is an accepted means of proving loss of probable support. Accordingly, we reverse
and remand.
1

____________
105 Nev. 16, 16 (1989) Integrity Ins. Co. v. Martin
INTEGRITY INSURANCE COMPANY, Appellant, v. FRANK MARTIN, dba
MARTIN-HARRIS CONSTRUCTION COMPANY, Respondent.
No. 18907
February 22, 1989 769 P.2d 69
Appeal from an order granting summary judgment, and from an order refusing to vacate
summary judgment or to strike all pleadings and attorney's fees awarded to respondent.
Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Beneficiary of performance bond brought action against bond issuer to recover amount of
arbitration award. The district court granted beneficiary's motion for summary judgment
based on bond issuer's failure to respond and later refused to vacate order. Appeal was taken.
The Supreme Court held that summary judgment should have been vacated inasmuch as
out-of-state court had enjoined all further proceedings against insurer in accordance with
Uniform Insurers Liquidation Act.
__________

1
The Honorable Robert E. Rose did not participate in the decision of this appeal.
enjoined all further proceedings against insurer in accordance with Uniform Insurers
Liquidation Act.
Reversed.
Vallette & Bassin and Kelly R. Chase, Tonopah, for Appellant.
Keith E. Galliher, Las Vegas, for Respondent.
1. Insurance.
Uniform Insurers Liquidation Act authorizes court in which delinquency proceeding is instituted to enjoin all claims against
insurer, including claims existing prior to order of liquidation. NRS 696B.030-696B.180, 696B.280, 696B.290-696B.340.
2. Insurance.
Absent appointment of ancillary receiver, Uniform Insurers Liquidation Act requires that claimant prove his claim in domiciliary
state. NRS 696B.320.
3. Insurance.
Although insurer failed to seek stay in action against it after out-of-state court issued order of liquidation pursuant to Uniform
Insurers Liquidation Act, insurer was nonetheless entitled to have summary judgment entered against it set aside; liquidation order
enjoined further prosecution of any action, including pending action, and no ancillary receiver had been appointed in state. NRS
696B.320.
4. Costs.
District court's failure to state basis for award of attorney fees was arbitrary and capricious action.
OPINION
Per Curiam:
Appellant, Integrity Insurance Company (Integrity), is a stock property and casualty
insurance company incorporated in New Jersey. Integrity's principal place of business is also
New Jersey. Integrity was issued a Certificate of Authority to do business in Nevada on July
6, 1973.
Respondent, Frank Martin, dba Martin-Harris Construction Company (Martin), entered
into a contract with the U.S. Department of Energy to perform work on the Mead Substation
Modification project. Martin subcontracted with Eagle Electric to perform electrical work on
the project.
On February 2, 1981, Integrity issued a performance bond on behalf of Eagle Electric for
the benefit of Martin. Subsequently, Eagle Electric failed to perform and Martin obtained a
contractor to complete the work. Martin notified Integrity of the default and sought an
arbitration award pursuant to the subcontract. On March 3, 1982, Martin obtained a favorable
arbitration award and demanded payment from Integrity. Integrity refused to honor the claim.
the claim. On November 2, 1983, the Eighth Judicial District Court confirmed the arbitration
award and Martin instituted this action against Integrity to recover the amount of the
arbitration award.
While the case was still pending before the district court, the Superior Court of Bergen
County, New Jersey issued an order liquidating Integrity pursuant to the Uniform Insurers
Liquidation Act (UILA). NJSA 17B:32-1 et seq. and NJSA 17:30C-1 et seq. The order of
liquidation permanently enjoined and restrained [all claimants] . . . from bringing,
maintaining or further prosecuting any action at law, suit in equity, special or other
proceeding against Integrity or its estate. . . .
Subsequently, the district court granted Integrity's counsel's motion to withdraw, and
Martin served Integrity with Requests for Admissions. Integrity did not respond. Martin then
filed a Motion for Summary Judgment based on Integrity's failure to respond. The district
court granted Martin summary judgment. Integrity then moved the district court to vacate the
order and strike all pleadings filed after March 24, 1987 and grant Integrity attorney's fees.
After a hearing the district court denied Integrity's motion and awarded Martin attorney's fees.
This appeal followed.
Integrity contends that the district court erred by refusing to vacate its order granting
summary judgment. Specifically, Integrity contends that once the order of liquidation was
issued Martin's action was stayed and his exclusive remedy was to file a claim in the
domiciliary state because no ancillary receiver had been appointed in Nevada.
[Headnotes 1, 2]
Nevada has adopted the UILA. See NRS 696B.280, 696B.030 through 696B.180 and
696B.290 through 696B.340. The UILA authorizes the court in which a delinquency
proceeding was instituted to enjoin all claims against the insurer, including claims existing
prior to an order of liquidation. See Joplin Corp. v. State ex rel. Grimes, 570 P.2d 1161 (Okla.
1977). Emons Industries, Inc. v. Liberty Mutual Fire Insurance Co., 545 F.Supp. 185, 191
(S.D.N.Y. 1982); Dean Construction Co. v. Agricultural Insurance Co., 254 N.Y.Supp.2d
196, 198 (N.Y.App.Div. 1964). Furthermore, absent the appointment of an ancillary receiver
the UILA requires that the claimant prove his claim in the domiciliary state. See NRS
696B.320; G.C. Murphy Co. v. Reserve Insurance Co., 429 N.E.2d 111, 115 (N.Y.Ct.App.
1981).
[Headnote 3]
Although Integrity failed to file for a stay, it was entitled to have the district court's order
granting summary judgment vacated and the proceeding stayed.
vacated and the proceeding stayed. Martin's claim against Integrity was properly enjoined by
the New Jersey court's order of liquidation even though the claim existed prior to the order of
liquidation.
1
Furthermore, because no ancillary receiver had been appointed in Nevada,
Martin was required to prove his claim in New Jersey. See NRS 696B.320. Any other
interpretation of the UILA would frustrate its purpose to make uniform the laws of those
states which enact it. See NRS 696B.280(3). Therefore, we conclude that the district court
erred in not vacating its order granting summary judgment.
[Headnote 4]
Integrity also contends that the district court abused its discretion by awarding Martin
attorney's fees in its order denying Integrity's motion to vacate summary judgment. The
district court provided no reasons for awarding Martin attorney's fees. This court may review
discretionary acts of the district courts and reverse them if this court finds that they are
arbitrary and capricious. Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985). The
failure of the district court to state a basis for the award of attorney's fees is an arbitrary and
capricious action. Without a stated basis for the award this court cannot determine whether
the district court's award was proper. Therefore, the district court's order of attorney's fees is
reversed.
We have reviewed Integrity's remaining contention and determined that it is without merit.
Accordingly, we reverse the district court's grant of summary judgment and its award of
attorney's fees to Martin in its order denying Integrity's motion to vacate summary judgment.
____________
105 Nev. 19, 19 (1989) Hall v. Farmers Ins. Exchange
SUZANNE HALL and MICHAEL HALL, the Natural Parents and Guardians of RUBY
HALL, a Minor, Appellants, v. FARMERS INSURANCE EXCHANGE, Respondent.
No. 19079
February 22, 1989 768 P.2d 884
Appeal from a judgment. Eighth Judicial District Court, Clark County; Robert E. Rose,
Judge.
Insured who was injured in accident involving uninsured motorist and underinsured
motorist sought to recover $30,000 under automobile policy which provided uninsured
motorist coverage of $15,000 per person, up to a maximum of $30,000 per occurrence.
__________

1
Injunctions barring all actions against an insolvent insurer under the UILA are entitled to full faith and credit
in order to ensure that the assets of insolvent insurers are divided fairly. See Janak v. Allstate Ins. Co., 319
F.Supp. 215 (W.D.Wis. 1970).
motorist and underinsured motorist sought to recover $30,000 under automobile policy which
provided uninsured motorist coverage of $15,000 per person, up to a maximum of $30,000
per occurrence. After insurer paid only $15,000, insured sought declaration that she was
entitled to both $15,000 underinsured motorist coverage and $15,000 uninsured motorist
coverage. The district court granted insurer's motion to dismiss, and appeal was taken. The
Supreme Court held that statutes requiring insurer to make coverage against both uninsured
and underinsured motorists available did not create requirement that separate coverages be
provided, but only that uninsured motorist coverage include underinsured motorist coverage.
Affirmed.
Crockett & Myers, and James V. Lavelle, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Respondent.
Insurance.
Statutes requiring insurer to make available coverage against both uninsured and underinsured motorists did not create
requirement that insurer provide separate coverages, but only that insurer make uninsured motorist coverage available and that such
coverage include underinsured motorist coverage; thus, underinsured motorist coverage was merely component of uninsured motorist
coverage and did not allow insured who was injured in accident involving both uninsured motorist and underinsured motorist to collect
both uninsured motorist coverage and underinsured motorist coverage. NRS 687B.145, subd. 2, 690B.020.
OPINION
Per Curiam:
1

Ruby Hall, a pedestrian, was injured in an accident between an uninsured motorist and an
underinsured motorist. Ruby was insured as a family member on her father's automobile
insurance policy which provided uninsured motorist coverage of $15,000 per person, up to a
maximum of $30,000 per occurrence. The policy itself defined this coverage to include
protection against both uninsured and underinsured motorists. Appellants therefore claimed
they were entitled to collect a total of $30,000 for Ruby's injuries due to the involvement in
the accident of both an uninsured and an underinsured motorist. Respondent paid only
$15,000 to appellants, however, claiming the payment satisfied the limit of the policy.
__________

1
The Honorable Robert E. Rose, Justice, was disqualified from participating in the decision of this appeal.
$15,000 to appellants, however, claiming the payment satisfied the limit of the policy.
Appellants sought declaratory relief in the district court. The district court granted
respondent's motion to dismiss the complaint, and this appeal followed.
Appellants contend that the statutes requiring insurers to make available coverage against
both uninsured and underinsured motorists evince a legislative intent to protect insureds from
damages resulting from both kinds of tortfeasors. See NRS 690B.020 (requiring insurers to
make available coverage against uninsured motorists) and NRS 687B.145(2) ([u]ninsured
motorist coverage must include a provision which enables the insured to recover up to the
limits of his own coverage any amount of damages for bodily injury from his insurer which
he is legally entitled to recover from the owner or operator of the other vehicle to the extent
that those damages exceed the limits of the bodily injury coverage carried by that owner or
operator) (emphasis added). We conclude, however, that these statutes do not create a
requirement that insurers provide separate coverages against uninsured and underinsured
motorists; rather, insurers are required to make uninsured motorist coverage available, and
that coverage must include coverage against underinsured motorists. Thus, underinsured
motorist coverage is merely a component of uninsured motorist coverage and does not exist
separately.
Finally, we reject appellants' arguments that this result is unfair or contrary to public
policy. Respondent did not fail to offer Mr. Hall uninsured motorist coverage in an amount up
to the limits of his liability coverage; rather, the policy limits of coverage against uninsured
and underinsured motorists were inadequate because Mr. Hall chose to purchase coverage in
only a minimal amount. Cf. Ippolito v. Liberty Mutual, 101 Nev. 376, 379, 705 P.2d 134, 136
(1985) (where policy limited coverage available in contravention of statute, the statutorily
increased protections would be implied). Mr. Hall purchased one coverage for which he
paid one premium; it is not, therefore, unfair to interpret that coverage as providing only one
recovery. See Cooke v. Safeco Ins. Co., 94 Nev. 745, 587 P.2d 1324 (1978).
The judgment of the district court is affirmed.
____________
105 Nev. 22, 22 (1989) Kame v. Employment Security Dep't
KATHRYN KAME, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT and
SILVER SLIPPER, Respondents.
No. 18637
February 22, 1989 769 P.2d 66
Appeal from an order of the district court dismissing a petition for judicial review for lack
of subject matter jurisdiction. First Judicial District Court, Carson City; Michael R. Griffin,
Judge.
Discharged employee sought review of decision of Employment Security Department
denying her claim for unemployment benefits. The district court dismissed, and appeal
followed. The Supreme Court held that employee's in proper person attempt to file appeal in
district court, which was rejected by court clerk for failure to tender filing fee and because it
was not in proper format, did not toll applicable statute of limitations for taking such appeal
until employee was able to properly file appeal some nine months later.
Affirmed.
Richard Segerblom, Las Vegas, for Appellant.
Crowell, Susich, Owen & Tackes, Carson City, for Respondents.
1. Administrative Law and Procedure; Social Security and Public Welfare.
Ten day time limit placed on appeals from adverse decisions of Employment Security Department is jurisdictional and mandatory.
NRS 612.530.
When party seeks judicial review of administrative decision, strict compliance with statutory requirements for such review is
precondition to jurisdiction by court and judicial review, and noncompliance with requirements is grounds for dismissal of appeal.
NRS 612.530.
Discharged employee's in proper person attempt to file appeal in district court from dismissal of her claim by Employment
Security Department for unemployment benefits did not toll applicable statute of limitations until she was able to properly file appeal
some nine months later; in proper person appeal was rejected by court clerk because it was not accompanied by filing fee and was not
in proper format. NRS 612.530.
OPINION
Per Curiam:
On March 16, 1986, appellant Kathryn Kame was fired from her job as a waitress at the
respondent Silver Slipper Casino in Las Vegas. Respondent Employment Security
Department (Employment Security) rejected Kame's claim for unemployment benefits
because her employer discharged her for misconduct.
Kame appealed the decision to Employment Security's office of appeals, and on June 26,
1986, the appeals referee affirmed Employment Security's decision. Ms. Kame appealed to
the board of review via letter on July 17, 1986. On October 17, 1986, the board dismissed
Kame's appeal. The board of review's decision contained a notice providing that Kame could
secure judicial review of the board's decision if she filed an appeal in the district court by
November 6, 1986. Since Kame resided in California, she had to file her judicial appeal in the
district court located in Carson City.
Kame attempted to file her in proper person appeal with the First Judicial District Court
by mail on November 8, 1986.
1
The court clerk refused to file the document because it was
not accompanied by a filing fee, and was not in a proper format according to District Court
Rule 12.
2

Apparently, in December 1986, and March 1987, Ms. Kame again attempted to file her in
proper person appeal, and again the district court clerk refused to file her petition. Finally, on
August 12, 1987, nearly ten months after the board of review dismissed her claim, Ms. Kame
secured counsel and successfully filed her appeal at the district court in Carson City.
On September 16, 1987, respondents Employment Security and the Silver Slipper jointly
filed a motion to dismiss Kame's petition for judicial review. They asserted that Kame's
appeal to the district court was not timely filed, and therefore the district court lacked subject
matter jurisdiction over the dispute. On October 19, 1987, the district court granted
respondents' motion to dismiss. Kame appeals from the district court's decision.
__________

1
Kame asserts that she timely tried to file her appeal, although the district court clerk received it beyond the
November 6, 1986 deadline. Under NRCP Rule 6(e), parties have an additional three days in which to file when
the decision appealed from was received through the mail. Thus, Kame had until November 9, 1986, to timely
file her appeal.

2
District Court Rule 12 provides in part:
6. The clerk shall not accept for filing any pleadings or documents which are not properly signed or
do not comply with this rule, but for good cause shown, the court may permit the filing of noncomplying
pleadings and documents.
Kame argues that her November 8, 1986 in proper person attempt to file an appeal in the
district court to the board of review's dismissal of her claim tolled the applicable statute of
limitations until she was able to properly file in August 1987. Within ten days after the
decision of the board of review becomes final, an aggrieved party may secure judicial review
thereof by commencing an action in the district court. NRS 612.530(1).
3

Kame cites Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983), as support
for her contention. In Copeland, we adopted the doctrine of equitable tolling of statutes of
limitations in the context of claims for relief due to violations of Nevada's anti-discrimination
statutes. 99 Nev. at 826, 673 P.2d at 492.
However, Copeland is distinguishable from the instant case. Pursuant to NRS 613.330, the
petitioner in Copeland filed a complaint against her employer after the employer discharged
her because of her physical handicap. 99 Nev. at 824, 673 P.2d at 491. After officials from
the Nevada Equal Rights Commission misled petitioner regarding her rights under Nevada's
anti-discrimination statutes, petitioner failed to file suit in the district court within the 180 day
statute of limitations imposed by NRS 613.430. 99 Nev. at 825, 673 P.2d at 491.
In the case at hand, Kame does not assert that the pertinent administrative agency,
Employment Security, misled her regarding her appeal rights. On the contrary, all the notices
received by Kame specifically directed her to file all appeals by a certain deadline.
Furthermore, Copeland involved an interpretation of NRS 613.430, which prohibits the
bringing of causes of action based on discriminatory employment practices 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 Nevada Equal Rights Commission. Unlike NRS
613.430, the pertinent statute in this case, NRS 612.530(1), contains no provision allowing
for tolling of the ten day period of limitation. Therefore, Copeland is inapposite to the instant
case.
Respondents Employment Security and Silver Slipper argue that the ten day time limit
prescribed by NRS 612.530 is jurisdictional and mandatory. We agree.
__________

3
NRS 612.530(1) provides:
Within 10 days after the decision of the board of review has become final, any party aggrieved
thereby or the executive director may secure judicial review thereof by commencing an action in the
district court of the county wherein the appealed claim or claims were filed against the executive director
for the review of such decisions, in which action any other party to the proceedings before the board of
review shall be made a defendant.
[Headnotes 1-3]
When a party seeks judicial review of an administrative decision, strict compliance with
the statutory requirements for such review is a precondition to jurisdiction by the court of
judicial review. Teepe v. Review Board of Indiana Emp. Sec. Div., 200 N.E.2d 538, 539
(Ind.App. 1964). Noncompliance with the requirements is grounds for dismissal of the
appeal. Id. Thus, the time period for filing a petition for judicial review of an administrative
decision is mandatory and jurisdictional. Navarro Independent School Dist. v. Brockette, 566
S.W.2d 699, 700 (Tex.Civ.App. 1978).
In the past, this court has upheld the dismissal of appeals for failure to timely commence
them. League to Save Lake Tahoe v. Tahoe R.P.A., 93 Nev. 270, 275, 563 P.2d 582, 585
(1977). In SIIS v. Partlow-Hursh, 101 Nev. 122, 125, 696 P.2d 462, 464 (1985), we held that
the thirty day time limit imposed for filing an appeal of a decision concerning a worker's
compensation claim is jurisdictional and mandatory. NRS 616.5422(1).
4
Moreover, when a
statute is silent, the time period for perfecting an appeal is generally considered mandatory,
not procedural. Partlow-Hursh, 101 Nev. at 124-125, 696 P.2d 463-464.
Other courts hold that the notice requirements of statutes similar to NRS 612.530(1) are
jurisdictional. In Korens v. Arizona Dept. of Economic Sec., 631 P.2d 581 (Ariz.Ct.App.
1981), petitioner filed a notice of appeal from a decision of the unemployment insurance
appeals board after the thirty day statute of limitations expired. Id. at 583. The appellate court
noted that since timely filing of a notice of appeal is jurisdictional, the district court lacked
subject matter jurisdiction over the case. Id.
Although Kame tried to file her in proper person petition for judicial review before the
November 9, 1986 deadline, the district court clerk properly refused to file her appeal. Court
clerks do not possess judicial discretion to pass upon the validity of a tendered document.
Bowman v. District Court, 102 Nev. 474, 478, 728 P.2d 433, 435 (1986). However, clerks
have authority to determine whether a document complies with a court's rules pertaining to
form. Id., 728 P.2d at 435. Therefore, the court clerk was within her rights when, pursuant to
District Court Rule 12, she refused to file Kame's appeal.
__________

4
Any party aggrieved by a decision of the hearing officer relating to a claim for compensation may
appeal from the decision by filing a notice of appeal with an appeals officer within 60 days after the date
of the decision.
The legislature revised subsection (1) in 1985, and extended the time limit for bringing an appeal to the appeals
officer from thirty to sixty days.
It's true that dismissal of Ms. Kame's appeal may cause her some hardship. However, the
legislature is the parent of unemployment benefits. Scott v. Nev. Employ. Sec., 70 Nev. 555,
557, 278 P.2d 602, 603 (1954). These benefits are not inherent rights of Nevada citizens. Id.,
278 P.2d at 603. Therefore, the legislature may enact any reasonable and nondiscriminatory
conditions regarding eligibility and procedure. Id. at 557-558, 278 P.2d at 603.
Although the mandate of NRS 612.530(1) may occasionally cause hardship, it is not the
function of this court to substitute its judgment for that of the legislature. Caruso v. Nev.
Emp. Sec. Dep't, 103 Nev. 75, 76, 734 P.2d 224, 225 (1987). Therefore, the district court
properly dismissed Ms. Kame's appeal for lack of subject matter jurisdiction.
____________
105 Nev. 26, 26 (1989) Niergarth v. Warden
THOMAS LEO NIERGARTH, Appellant, v. THE STATE OF NEVADA, WARDEN,
NEVADA STATE PRISON, GEORGE DEEDS, Respondent.
No. 19167
February 22, 1989 768 P.2d 882
Appeal from an order denying post-conviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Defendant who was convicted of robbery with use of deadly weapon filed writ of habeas
corpus. The district court denied petition, and appeal followed. The Supreme Court held that
Department of Prison's refusal to sever defendant's sentence for primary offense of robbery
and enhancement sentence for use of weapon in commission of primary offense was not
improper.
Dismissed.
Thomas L. Niergarth, in Proper Person, Appellant.
Brian McKay, Attorney General, Carson City, and Rex Bell, District Attorney, Clark
County, for Respondent.
Because prisoner has no due process right to clemency, change in method of determining how statutory grant of clemency will be
administered does not implicate constitutionally protected interest.
2. Pardon and Parole; Prisons.
Department of Prison's refusal to sever defendant's sentence for primary offense of robbery with use of deadly weapon and
enhancement sentence for use of weapon in commission of primary offense in wake of state Supreme Court
decision invalidating treatment of primary and secondary offenses as a single sentence for purpose of
computing good time credits and parole eligibility was not improper, as severance of defendant's sentences
would not have been to his benefit, and refusal to sever sentences did not deprive defendant of hearing
before Parole Board.
sentence for use of weapon in commission of primary offense in wake of state Supreme Court decision invalidating treatment of
primary and secondary offenses as a single sentence for purpose of computing good time credits and parole eligibility was not
improper, as severance of defendant's sentences would not have been to his benefit, and refusal to sever sentences did not deprive
defendant of hearing before Parole Board.
OPINION
1

Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus.
On January 4, 1985, appellant was convicted, pursuant to a guilty plea, of one count of
robbery with the use of a deadly weapon. Appellant was sentenced to serve two consecutive
six-year terms in the Nevada State Prison. On April 4, 1988, appellant filed the instant
petition for a writ of habeas corpus in the district court. The district court denied the petition,
and this appeal followed.
In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979), and Director, Prisons v. Biffath,
97 Nev. 18, 621 P.2d 1113 (1981), this court held that a sentence for a primary offense and
the enhancement sentence for the use of a weapon in the commission of the primary offense
should be treated as a single sentence for purposes of computing good time credits and parole
eligibility. In Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697 (1987), this court
overruled the two Biffath decisions, and held that the primary and enhancement sentences
must be treated as separate sentences for all purposes. Further, we directed that our opinion in
Bowen be applied retroactively to the extent possible, but because our opinion was not
foreseeable, we stated that in no case shall this opinion be applied to the detriment of any
prisoner sentenced before the date hereof. 103 Nev. at 481 n.4, 745 P.2d at 700.
In compliance with our opinion in Bowen, the Department of Prisons informed appellant
on January 12, 1988, that the prison would continue to treat his two sentences as one under
the Biffath decisions because appellant had already appeared before the Parole Board on the
combined sentences, and was eligible for an immediate parole to the street. If, however,
appellant's sentences were separated and he were granted an institutional parole on the first
sentence, he would have to serve one-third of the second sentence before he would be
eligible for a parole to the street.
__________

1
This appeal was previously dismissed in an unpublished order of this court. Upon further consideration, we
have determined that our decision should be issued in a published opinion. Accordingly, we issue this opinion in
place of our order dismissing this appeal filed December 29, 1988.
first sentence, he would have to serve one-third of the second sentence before he would be
eligible for a parole to the street. Clearly, this would not be in appellant's best interest.
[Headnotes 1, 2]
In his petition below, appellant contended that the Department of Prisons had denied him
an opportunity for a parole hearing to determine whether he is eligible for a retroactive
institutional parole pursuant to Bowen. Specifically, appellant insisted that this court's opinion
in Bowen rendered the sentence he is presently serving illegal and that this court ordered the
prison authorities to rectify the error. Appellant argued that the Parole Board has
jurisdiction to grant an institutional parole retroactive to the date that appellant might have
been eligible for such a parole had his sentences not been aggregated. Appellant concluded
that the prison's failure to separate his sentences as required by Bowen denied him an
opportunity to appear before the Parole Board to seek a retroactive institutional parole from
his first sentence to his second sentence. Finally, appellant suggested that the Department of
Prison's failure to follow the mandate of Bowen has rendered it impossible to afford appellant
complete relief at this time. Therefore, appellant asserts that he should be immediately
released from prison.
In Bowen, we did not declare the sentences appellant is serving to be illegal. Instead, we
merely instructed the Department of Prisons to calculate the sentences differently for
purposes of determining good time credits, when a prisoner is eligible for parole, and when a
sentence is expired. Because a prisoner has no due process right to clemency, a change in the
method of determining how a statutory grant of clemency will be administered does not
implicate a constitutionally protected interest. See Severance v. Armstrong, 96 Nev. 836, 620
P.2d 369 (1980) (a prisoner has no protectible expectation of release before he has completed
his sentence). Also, we did not instruct the Department of Prisons to sever all sentences
previously aggregated. Instead, we directed the Department of Prisons to sever aggregated
sentences to the extent that such could be done without prejudicing any prisoner. The
severance of appellant's sentences would not be to appellant's benefit. Therefore, the
Department of Prison's refusal to sever appellant's sentences is in compliance with Bowen.
Appellant's contention that he should be released because the Department of Prisons has
refused to comply with this court's mandate in Bowen lacks merit.
Further, the Department of Prisons does not have the power to grant or deny a hearing
before the Parole Board. Instead, only the Parole Board has authority to consider applications
for parole. See NRS 213.130; NRS 213.133. More importantly, the record reveals that
appellant has not been denied a hearing before the Parole Board.
reveals that appellant has not been denied a hearing before the Parole Board. Indeed,
appellant has already had a hearing before the Parole Board on his combined sentences, and
the Parole Board denied his request for an early release from prison. Pursuant to NRS
213.142, the Parole Board has scheduled an additional hearing on June 1, 1989, for the
purpose of considering whether to grant appellant parole. Because appellant is presently
eligible for a parole to the street, nothing would prevent the Parole Board from granting
appellant an immediate hearing if it were so inclined. Contrary to appellant's belief, the
severance of his sentences at this time would not entitle him to an earlier appearance before
the Parole Board. We conclude, therefore, that the refusal of the Department of Prisons to
sever appellant's sentences has not deprived appellant of a hearing before the Parole Board.
Finally, we are unaware of any statutory of case-law authority for the proposition that the
Parole Board has authority to grant a retroactive parole. Assuming, however, that the Parole
Board has such authority, there appears to be no reason why the Parole Board cannot take any
appropriate action within its powers at the hearing presently scheduled for June 1, 1989.
Further, in light of the Parole Board's refusal to grant appellant a parole to the street, appellant
cannot demonstrate that his belief that the Parole Board might grant him a retroactive parole
is anything more than speculation.
Having reviewed the record on appeal and the proper person opening brief submitted by
appellant, and for the reasons set forth above, we conclude that appellant cannot demonstrate
error in this appeal, and that further briefing and oral argument are unwarranted. See Luckett
v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976).
2

__________

2
____________
105 Nev. 30, 30 (1989) Silver v. Telerent Leasing
FRANK SILVER and SILVER STATE DEVELOPMENT AND MANAGEMENT
CORPORATION, Appellants, v. TELERENT LEASING CORPORATION, Respondent.
LUTHER KUTCHER, Individually and LUTHER KUTCHER, as Trustee of the
LUTHER D. KUTCHER TRUST, Appellants, v. FRANK SILVER, Respondent.
LUTHER KUTCHER, Individually and LUTHER KUTCHER, as Trustee of the LUTHER D.
KUTCHER TRUST, Appellant and Cross-Respondent, v. SILVER STATE
DEVELOPMENT AND MANAGEMENT CORPORATION, Respondent and
Cross-Appellant.
No. 17303
February 22, 1989 768 P.2d 879
Appeal and cross-appeal from judgment after bench trial. Eighth Judicial District Court,
Clark County; Thomas A. Foley, Judge.
Lessor of television sets brought action against lessee for breach of lease, and lessee
brought third-party action against corporation which purchased lessee's motel and its
president for violation of agreement to make lease payments. The district court held lessee
liable for future rental payments, and imposed liability on corporation and its president for
use of television sets, and lessee appealed and corporation cross-appealed. The Supreme
Court held that: (1) lessee remained liable to lessor, as lessee assigned lease in violation of
lease provisions; (2) lessee was liable for all damages resulting from breach; (3) lessee had
right to full indemnity against corporation and its president; and (4) lessor was not entitled to
award against corporation and its president for unjust enrichment.
Affirmed in part; reversed and remanded in part.
Niels Pearson, Las Vegas, for Appellant/Cross-Respondent Luther Kutcher.
Respondent Telerent Leasing Corporation.
Leon Bernstein, Las Vegas, for Respondent Frank Silver and Silver State Development
and Management Corporation.
1. Bailment.
Lessee of television sets remained liable on lease, even though lessee entered into contract with third-party whereby third-party
took responsibility for lease, where lease prohibited assignment without lessor's prior consent, and lessee
did not obtain such consent.
responsibility for lease, where lease prohibited assignment without lessor's prior consent, and lessee did not obtain such consent.
2. Bailment.
Contractual obligation of third-party to honor lease for television sets was not nullified by lessee's failure to obtain prior consent
from lessor, as required by lease, before assigning lease to third-party.
3. Corporations.
Both corporation and its president were liable for breach of escrow instructions, where instructions listed president and/or nominee
as purchaser, president did not clearly indicate on whose behalf he signed, and testimony at trial confirmed that corporation was
president's nominee.
4. Appearance; Attorney and Client.
Defendant could not claim that trial court lacked in personam jurisdiction; defendant's attorney entered general appearance by
moving to dismiss, and attorney's later denial that he had authority to represent defendant was belied by his conduct at trial and on
appeal.
5. Indemnity.
When one party is subjected to liability which, as between that party and another, others should bear, first party is entitled to
indemnity.
6. Bailment.
Trial court improperly apportioned damages between lessee and lessee's assignees for breach of television sets lease, where lease
prohibited assignment, and thus all damages resulting from breach should have been assessed against lessee, and not against assignees
on a quasi-contract theory.
7. Indemnity.
Lessee of television sets, who had previously owned motel, was entitled to full indemnity from motel purchasers who failed to
uphold their agreement to make lease payments on sets.
8. Indemnity.
Liability of indemnitor extends to expenses incurred in seeking indemnity.
9. Damages.
Lessee of television sets was entitled to award of costs against purchaser of lessee's motel which had agreed to abide by lease, but
which subsequently failed to make payments on lease, thereby exposing lessee to liability to lessor.
OPINION
Per Curiam:
In mid-1981, appellant Luther Kutcher leased several televisions sets for his motel from
respondent Telerent Leasing Corporation (Telerent). The lease prohibited assignment without
Telerent's prior consent. Kutcher thereafter sold the motel but did not obtain consent to
assignment of the television lease. The escrow instructions (the only sale agreement of
record) listed the buyer as FRANK P. SILVER, and/or nominee; Frank Silver signed the
agreement, appending to his signature the single notation Pres [sic]. No other entity was
named in the agreement as a nominee, but Silver's wholly-owned corporation, Silver State
Development and Management Corporation {Silver State), began operating the motel; the
testimony at trial confirmed that Silver State was Silver's nominee.
Development and Management Corporation (Silver State), began operating the motel; the
testimony at trial confirmed that Silver State was Silver's nominee.
The escrow instructions also provided that any undisclosed bills or contracts outstanding
shall be the sole responsibility of the Seller. All witnesses who discussed this provision
agreed that, under it, the buyers assumed all contracts actually disclosed by Kutcher.
1
Further, there was extensive testimony that Kutcher disclosed the television lease; the court
credited this testimony over Silver State's and Silver's contrary assertions.
Kutcher brought the lease payments current up to the time of the sale, but neither Silver
State nor Silver made payments thereafter. After approximately eight months, Telerent
reclaimed its television sets and sued for damages. The trial court held Kutcher liable for
future rental payments, and imposed liability on Silver and Silver State for their use of the
leased property.
[Headnotes 1-4]
At the outset, we note that the trial court was correct in concluding it could impose
liability on all three parties. Since Kutcher did not obtain consent to his assignment of the
lease, Telerent could continue to look to him for payment. This did not, however, nullify the
obligation of the buyers to honor the lease, pursuant to the terms of the escrow instructions.
Johnson v. Landucci, 130 P.2d 405 (Cal. 1942). Since the escrow instructions named Silver
and/or his nominee as purchaser, and since Silver did not clearly indicate on whose behalf
he signed, it was appropriate for the court to conclude that liability attached both to Silver and
to Silver State.
2

[Headnotes 5-7]
The court erred, however, in its apportionment of the damages among those who were
exposed to liability. Telerent's contract was with Kutcher; the court should have assessed
against Kutcher all damages resulting from the breach.
__________

1
Silver State and Silver dispute the admissibility and propriety of testimony to that effect by their agent,
Leonard Millman. However, there was no objection below. This precludes review, NRS 47.040(1)(a).

2
Silver's claim that the trial court lacked in personam jurisdiction is meritless; Silver's attorney entered a
general appearance by moving to dismiss. Consolidated Casinos v. L. A. Caunter & Co., 89 Nev. 501, 515 P.2d
1025 (1973). The attorney later denied he had authority to represent Silver, but his conduct at trial (and on
appeal) belied that assertion; with conflicting evidence, the trial court's rejection of counsel's assertion must
stand. Deros v. Stern, 87 Nev. 148, 150, 483 P.2d 648, 649 (1971). The court erred in imposing direct, rather
than derivative liability on Silver, since Silver was merely a third-party defendant and there had been no attempt
to amend the pleadings. Reid v. Royal Ins. Co., 80 Nev. 137, 390 P.2d 45 (1964). However, that error will be
cured on remand; as shall be shown, primary liability will fall on Kutcher, while Silver's liability will be by way
of indemnity.
was with Kutcher; the court should have assessed against Kutcher all damages resulting from
the breach. But Silver and Silver State had agreed to bear the burden of the lease; that
assumption was enforceable in favor of Kutcher. Further, it was the buyers, not Kutcher, who
actually failed to make payments. When one party is subjected to liability which, as between
that party and another, the other should bear, the first party is entitled to indemnity. See Reid
v. Royal Ins. Co., supra; Piedmont Equip. Co. v. Eberhard Mfg., 99 Nev. 523, 665 P.2d 256
(1983); accord 41 Am.Jur.2d Indemnity 1 (1968). It follows that Kutcher is entitled to full
indemnity.
Further proceedings are necessary, for two reasons. First, the award of damages against
Kutcher must be adjusted to reallocate the award erroneously assessed against Silver and
Silver State. The amount of that adjustment is not immediately apparent; the incorrect award
apparently was based on a theory of unjust enrichment, while all liability in this case actually
derives from express agreements.
3
Since the measure of damages in quasi-contract differs
from that in contract, a reevaluation is required.
4

[Headnotes 8, 9]
Second, the liability of an indemnitor extends to expenses incurred in seeking indemnity.
Piedmont Equip. Co., supra, 99 Nev. at 528-29, 665 P.2d at 259-60. Some such expenses
undoubtedly were incurred at trial and on this appeal; Kutcher is entitled to a judicial
determination of their extent.
The judgment is affirmed in part and reversed in part as reflected in this opinion, and the
cause is remanded for further proceedings.
5

__________

3
Thus, we need not reach the question whether Telerent's delay in reclaiming its property barred a claim for
unjust enrichment.

4
Telerent and Kutcher have reached a settlement as to the original award against Kutcher. The parties have
not addressed, and we express no opinion as to the effect of their agreement on this reallocation. The primary
purpose of the adjustment, however, is to clarify the extent of Silver's and Silver State's eventual liability as
indemnitors. We also reject the assertion that these parties' settlement raises an estoppel against a claim for
indemnity. 41 Am.Jur.2d Indemnity 33 (1968).

5
The Honorable Thomas L. Steffen, Justice, voluntarily disqualified himself from participation in the
hearing and decision of this appeal.
____________
105 Nev. 34, 34 (1989) Adkins v. Oppio
CATHERINE UCCELLI ADKINS, and VICTORIA UCCELLI, Through Her Guardian
ROBERT LEWIS UCCELLI, Appellants/Cross-Respondents, v. OLGA OPPIO,
Respondent/Cross-Appellant.
No. 18604
February 22, 1989 769 P.2d 62
Appeal and cross-appeal from district court order admitting will to probate. Second
Judicial District Court, Washoe County; Thomas A. Foley, Judge.
Appeal was taken from decision of the district court which had refused to find that joint
will executed by husband and wife was irrevocable. The Supreme Court, Steffen, J., held that
will executed by husband and wife was joint, mutual and contractual and therefore
irrevocable.
Affirmed in part; reversed in part.
Springer, J., dissented.
White Law Chartered, and Barbara K. Finley, Reno, for Appellants/Cross-Respondents.
Murray Dolan, Sparks, for Respondent/Cross-Appellant.
1. Wills.
It is primary aim of court in construing terms of testamentary document to give effect, to extent consistent with law and policy, to
intentions of testator.
2. Wills.
Supreme Court is in as good a position to determine intent of testator from testamentary document as is trial court.
3. Wills.
A joint will, while testamentary rather than contractual in nature, may by its language evidence irrevocable agreement between
parties; however, any testamentary expression of or reference to irrevocable agreement must be definite, clear and unequivocal.
4. Wills.
Joint will of husband and wife evidenced definite, clear and unequivocal intention to establish binding, irrevocable agreement
between parties; will expressly stated that it was intention of parties that the will shall be and remain binding and in effect until and
during administration of estate of survivor, and use of plural pronouns we, our and us throughout will evidenced mutual
intention and agreement.
5. Wills.
Husband who inherited all joint property after wife's death pursuant to joint will that was found to be contractual, binding and
irrevocable was subject to restrictions contained in joint will regarding disposition of that property.
OPINION
By the Court, Steffen, J.:
This is an appeal and cross-appeal from a will contest wherein the district court admitted
the disputed will to probate despite contentions that a prior will was joint, mutual and
contractual and therefore irrevocable. For reasons hereinafter specified, we affirm in part and
reverse in part.
Alfredo and Angela Chiesa, husband and wife, had two children, Victoria Chiesa Uccelli
and Olga Chiesa Oppio. Victoria in turn had two children, Catherine Uccelli Adkins and
Robert Lewis Uccelli. In 1975, Alfredo and Angela executed a will, which provides, in
pertinent part:
JOINT LAST WILL OF ALFREDO CHIESA AND ANGELA CHIESA KNOW ALL
MEN BY THESE PRESENTS:
That We, ALFREDO CHIESA and ANGELA CHIESA, husband and wife, of Reno,
Nevada, both being of sound and disposing mind and memory and not acting under
duress, menace, fraud or undue influence, do hereby make, publish and declare this to
be our Joint Last Will, hereby revoking any and all Last Wills or Codicils to our Last
Will by either of us made, to-wit:
1. We hereby declare that we have Two children born as our Issue, to-wit: OLGA
OPPIO and VICTORIA UCCELLI:
2. We further declare that it is our intention that this Will shall be and remain
binding and in effect until and during the Administration of the Estate of the survivor of
us;
3. We hereby give, devise and bequeath the whole of our Estates of whatever
location or description, including Real, personal and Mixed property of which we, or
either of us die possessed, or over which we, or either of us have power of
Testamentary disposition, EACH UNTO THE OTHER of us who survives, absolutely
and in fee simple, meaning hereby that the Survivor of us shall be the absolute owner of
all Estate that each or both of us possesses, including our Joint, Community, Separate
and after-acquired property;
. . .
6. It is our intention that only those persons who are herein specifically named shall
share in our Estates, and in the event that any person who is lawfully entitled to do so
shall contest this Will, or the Probate thereof, including any named Beneficiary, to such
person or persons so contesting we give the sum of $1.00, and no more.
Angela died on May 28, 1983. In 1984, Alfredo moved in with Olga and her family. On
April 8, 1986, Alfredo executed a new will which ostensibly revoked the 1975 Will and
essentially devised his entire estate to Olga. Alfredo died a month after executing the new
will. Four days later, Olga filed a petition to probate the new will. Catherine, and Victoria,
through her guardian, responded by offering the 1975 Will for probate. Catherine and
Victoria argued that the 1975 Will was joint, mutual and contractual and was therefore
irrevocable.
After reviewing the two wills and listening to the parties' arguments, the district court
admitted Alfredo's 1986 Will to probate. The lower court determined, as a matter of law, that
the 1975 Will was not contractual in nature and was therefore revocable. Critical to the
court's determination was the judge's opinion that the 1975 Will did not demonstrate in clear,
definite and unequivocal language that the will was binding upon the survivor.
[Headnotes 1, 2]
On appeal we are asked to determine whether the trial court erred in failing to find that the
Chiesas intended a binding irrevocable joint will. At the outset we note that this court's scope
of review is not limited to determining whether the district court's findings and conclusions
are supported by the evidence. See Matter of Estate of Ciochon, 609 P.2d 177, 181 (Kan.App.
1980). Specifically, it is the long accepted position of this court that the primary aim in
construing the terms of a testamentary document must be to give effect, to the extent
consistent with law and policy, to the intentions of the testator. Zirovcic v. Kordic, 101 Nev.
740, 741, 709 P.2d 1022, 1023 (1985) (quoting Concannon v. Winship, 94 Nev. 432, 434,
581 P.2d 11, 13 (1978)). Accordingly, this court is in as good a position to determine intent
from a testamentary document as is the trial court. See Ciochon, 609 P.2d at 181.
[Headnote 3]
Turning to the merits, a joint will, while testamentary rather than contractual in nature,
may by its language evidence an irrevocable agreement between the parties. First National
Bank of Nevada v. Friednash, 72 Nev. 237, 241, 302 P.2d 281, 283 (1956). However, any
testamentary expression of or reference to an irrevocable agreement must be definite, clear
and unequivocal.
1
Id. at 240, 302 P.2d at 282. Specifically, because every testamentary
expression is impliedly subject to a reservation of right to change as circumstances
dictate or as affection may from time to time direct, plain intention surrendering this
reservation is essential.
__________

1
For example, in Waters v. Harper, 69 Nev. 315, 250 P.2d 915 (1952), this court determined that the
following testamentary language evidenced an irrevocable contract:
In order to deprive either of us of the right to revoke this our joint and mutual will, we hereby declare that
this will is executed in pursuance of an agreement and a contract between us, and that each promise and
testamentary expression is impliedly subject to a reservation of right to change as
circumstances dictate or as affection may from time to time direct, plain intention
surrendering this reservation is essential. See id. at 242, 302 P.2d at 283.
[Headnote 4]
Applying the foregoing standard to the instant case, we conclude that the 1975 Will
evidences a definite, clear and unequivocal intention to establish a binding, irrevocable
agreement between Alfredo and Angela Chiesa. First, the Will provides more than a wish or a
desire; in the second and sixth clauses we have the plain language it is our intention. It is
difficult to conceive of a better choice of words to express one's resolve or objective. Second,
the phrase, shall be and remain binding, is strong language indicative of an intent to be
bound. See Ciochon, 609 P.2d at 180-181. The word shall is a term of command; it is
imperative or mandatory, not permissive or directory. Hence, the obvious conclusion is that
the testators intended that the Will be binding and irrevocable during the survivor's lifetime
and beyond. Third, the use of the plural pronouns we, our and us throughout the Will
evidences mutual intention and agreement. See Glass v. Battista, 374 N.E.2d 116, 118 (N.Y.
1978). Thus, given the foregoing factors, we conclude that definite, clear and unequivocal
testamentary language exists evidencing an intention to make the 1975 Will contractual,
binding and irrevocable. If follows then that the trial court erred in admitting Alfredo's 1986
Will to probate.
[Headnote 5]
Moreover, we are unpersuaded by Olga's alternative argument. Specifically, Olga
maintains that even assuming the 1975 Will is found to be contractual, binding and
irrevocable, Alfredo took all real property by operation of law as a surviving joint tenant. As a
result, he became the fee absolute owner not subject to the restrictions of the 1975 Will.
Once again we focus on the testator's intent as derived from the will language. In this case,
the 1975 Will states in the third clause, [w]e hereby give, devise and bequeath the whole of
our Estates . . . EACH UNTO THE OTHER of us who survives, absolutely and in fee simple,
meaning hereby that the Survivor of us shall be the absolute owner of all Estate that each or
both of us possesses, including our Joint, Community, Separate and after-acquired property."
__________
agreement of each of us is a consideration for each promise and agreement of each of us to the other; and
it is the agreement and contract between each of us that this will is and shall be irrevocable.
Although this clause was determined to be acceptable evidence of irrevocability, it is by no means the only
method of achieving that status.
acquired property. The second clause declares that the 1975 Will shall be and remain
binding and in effect until and during the Administration of the Estate of the survivor of us.
From these clauses, it is apparent that the testators intended that real property held by the
testators as joint tenants would become part of the survivor's estate and that the survivor's
estate would be subject to the 1975 Will. Thus, given the 1975 Will language we conclude
that all real property originally held in joint tenancy is subject to the 1975 Will. Indeed,
Angela went to the grave having abided by the 1975 Will and with the reasonable expectation
that Alfredo would do likewise.
Finally, Olga cross-appeals for attorney's fees denied below. However, because there is no
evidence that the district court abused its discretion in disallowing the fees, its ruling will not
be disturbed on appeal. See National Tow and Rd. Serv., Inc. v. Inequity Ins. Co., 102 Nev.
189, 717 P.2d 581 (1986). In addition, we perceive no reason to disturb the conclusion
reached below that the balance of a joint savings account passed to Olga upon Alfredo's
death.
In light of the foregoing analysis, we reverse the district court's decision to admit the 1986
Will to probate and instruct the lower court to admit the 1975 Joint Will in its place. Further,
we affirm the court's denial of attorney's fees and the order determining that the savings
account passed to Olga upon Alfredo's death.
2

Young, C. J., and Mowbray, J., concur.
Springer, J., dissenting:
In my opinion, this court should affirm the judgment of the trial court. I dissent for two
reasons: first, because I can find no valid contract within the 1975 will which renders the
otherwise revocable will irrevocable, and second, because by the very terms of the will the
property was transferred to the survivor in fee simple absolute, thereby giving the
unconditional title to the survivor, who may dispose of the property without restriction.
To make the will irrevocable there must be a contract between the testators making it so.
There is certainly no contract here. All the parties did was to declare that it [was their]
intention that the will should remain in effect until such time as the survivor's estate was
administered. This declaration of intention, however clear and unambiguous it might be, does
not rise to the dignity of being a contract between the parties. The mere expression of
intention or wish that a certain consequence come about does not destroy the essentially
ambulatory character of a testamentary document.
__________

2
destroy the essentially ambulatory character of a testamentary document. As this court has
previously stated:
Essential to every will is its revocable quality. Implicit in every testamentary expression
is a reservation of right to change as circumstances involving status or responsibility
may alter or as affection may from time to time direct. That the common testamentary
wish of two people is jointly expressed does not in reason or common sense destroy its
ambulatory character in this regard.
First National Bank of Nevada v. Friednash, 72 Nev. 237, 242, 302 P.2d 281, 283 (1966)
(emphasis added). As I understand Friednash, it stands for the proposition that, without a
valid, binding contract to the contrary, a will must be treated as freely revocable. Because I
find no language in the will or elsewhere which expresses the Chiesas's promise to be forever
bound by the provisions of the 1975 will, I consider the will to be revocable.
Secondly, the survivor's eventual taking of the property, as stated in the will, absolutely
and in fee simple, meaning hereby that the Survivor of us shall be the absolute owner of all
Estate that each or both of us possesses, is completely inconsistent with there being any
restriction on the survivor's use or disposition of the property. Because an absolute grant is
inimical to the divestiture of testamentary power [of the grantee], Matter of Zeh, 24 A.D.2d
983, 265 N.Y.S.2d 257, aff'd, 18 N.Y.2d 900, 276 N.Y.S.2d 635, 223 N.E.2d 43 (1966), the
language in the will is contradictory to appellants' assertion, and the majority's holding, that
the will binds the survivor to dispose of his or her estate in fee simple in a particular manner.
____________
105 Nev. 39, 39 (1989) Dredge v. State ex rel. Dep't Prisons
JAMES R. DREDGE, Appellant, v. THE STATE OF NEVADA, ex rel., ITS
DEPARTMENT OF PRISONS, Respondent.
No. 18465
February 22, 1989 769 P.2d 56
Appeal from order of the district court reversing a determination of a Nevada State
Personnel Hearing Officer. First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
The district court reversed determination of hearing officer that correctional officer was
improperly dismissed for DUI and associating with ex-inmate. Correctional officer appealed.
The Supreme Court, Steffen, J., held that: {1) hearing officer erred in excluding from
consideration substantial evidence of unauthorized association which was not included
within specification of charges, and {2) administrative record supported officer's
termination for unauthorized association with ex-inmate.
Supreme Court, Steffen, J., held that: (1) hearing officer erred in excluding from
consideration substantial evidence of unauthorized association which was not included within
specification of charges, and (2) administrative record supported officer's termination for
unauthorized association with ex-inmate.
Affirmed.
Norah Ann McCoy, State of Nevada Employees Association, Carson City, for Appellant.
Brian McKay, Attorney General, Debra Winne Jeppson, Deputy Attorney General, Carson
City, for Respondent.
1. Prisons.
In reviewing termination of correctional officer, it was task of hearing officer to decide whether decision to terminate officer was
based upon evidence which would enable prison department to conclude that good of public service would be served by his dismissal.
2. Prisons.
Critical need to maintain high level of security within prison system entitled prison department's decision to terminate correctional
officer to deference upon review by hearing officer.
3. Administrative Law and Procedure.
Both district court and Supreme Court are constrained to review administrative record as it existed before administrative agency to
determine whether agency abused its discretion by acting arbitrarily or capriciously. NRS 233B.010 et seq., 233B.140, subd. 5.
Courts are empowered to reverse or modify agency's decision if aggrieved party has been prejudiced by administrative findings,
inferences, conclusions or decisions that are affected by error of law, clear error in view of reliable, probative and substantial evidence
of record or abuse or clearly unwarranted exercise of discretion. NRS 233B.140, subd. 5(d)(e) and (f).
5. Administrative Law and Procedure; Prisons.
Details in support of charge that correctional officer engaged in unauthorized association with an ex-inmate, that were presented at
hearing but not included within specification of charges against officer, were improperly excluded from consideration on
administrative review of his termination, and thus hearing officer erroneously failed to consider substantial evidence in reaching
decision to order reinstatement of officer.
6. Prisons.
Evidence against correctional officer who was arrested for DUI while drinking with ex-inmate and who placed second deed of trust
on his home to facilitate ex-inmate's release from jail supported dismissal of correctional officer for unauthorized association with
ex-inmate; hearing officer's decision to reverse determination was clear error in view of reliable, probative and substantial evidence of
association.
OPINION
James R. Dredge, a correctional sergeant employed by the Nevada Department of Prisons
(NDOP), was terminated for misconduct involving off-duty driving under the influence of
alcohol and associating with an ex-inmate. The former conduct resulted in Dredge's arrest.
Although Dredge was reinstated after a hearing conducted by a Nevada Personnel
Commission hearing officer, the district court reversed the hearing officer's decision, thus
prompting this appeal. We affirm.
The Facts
Prior to his discharge on July 21, 1986, Dredge had been employed at the Northern Nevada
Correctional Center (NNCC) for approximately six years. His employment history was that of
a valued employee whose last two evaluations before his termination reflected an above
average rating.
On May 31, 1986, Dredge was off duty and drinking at a bar when he saw and greeted
John Paul Ellis, an ex-inmate from NNCC. The two men engaged in sporadic conversation
before Ellis prevailed upon Dredge to give him a ride to a girlfriend's house. Enroute to the
intended destination, Dredge tailgated another vehicle, thus provoking the driver to record
Dredge's license plate number and contact a Nevada highway patrolman.
Officer Benzler was directed to the Dredge vehicle by the concerned citizen. The officer,
smelling a strong odor of intoxicating beverages on Dredge, directed him to take a field
sobriety test. Based upon Dredge's driving, odor of alcohol, failure to pass the sobriety test,
and loud and boisterous behavior, Officer Benzler arrested him.
After arresting Dredge, and while taking a statement from the percipient witness, the
officer was forced to arrest Ellis for attempting to interfere in the officer's duties. Later, at the
sheriff's office, Dredge twice refused to submit to a breath or chemical test as required by
Nevada's implied consent law. According to Officer Benzler, Dredge refused to take either
test without having an attorney present. Dredge's recalcitrance was consistent with the advice
given him by Ellis. Ultimately, Dredge agreed to a breath test after being informed that his
refusal to cooperate would result in the loss of his driver's permit for a year, during which he
would be unable to work because NDOP's regulations required that prison employees be
qualified to drive. Dredge's breath tests revealed alcohol levels of .20 percent and .19 percent.
Dredge later supplied bail for both himself and Ellis by placing a second mortgage on his
house and co-signing Ellis' bail agreement. Upon their release, the bail bondsman, Larry
Ogden, drove the two men to Dredge's truck, where he left them.
On June 20, 1986, Dredge pleaded guilty to driving under the influence and served one day
in jail. His driver's license initially was revoked for ninety days and later reduced to a total of
forty-seven days. As previously observed, Dredge was discharged on July 21, 1986. In
general, his termination from state service resulted from disgraceful conduct related to the
DUI and his behavior associated therewith, and having an ex-inmate in his company contrary
to regulations, thereby compromising his position as a peace officer.
The hearing officer viewed the evidence in a more benevolent light than George Sumner,
the Director of the Nevada Department of Prisons, who made the decision to terminate
Dredge. In addition, the hearing officer incorrectly applied our holding in Schall v. State, 94
Nev. 660, 587 P.2d 1311 (1978), to exclude from his decision evidence surrounding the
extent of Dredge's association with Ellis during the overall period of behavior considered by
the Director in his decision to terminate. The district court granted relief under NDOP's
petition for judicial review. The court held that the hearing officer, erroneously interpreting
Schall, labored under an error of law in refusing to consider evidence that, although admitted,
was not included in the specificity of charges. The district court concluded that the evidence
thus excluded from the decisional process was substantial because it supported the State's
position that Dredge associated with an ex-inmate without authorization. We agree with the
district court.
Discussion
[Headnotes 1, 2]
It was the task of the hearing officer to determine whether NDOP's decision to terminate
Dredge was based upon evidence that would enable NDOP to conclude that the good of the
public service would be served by Dredge's dismissal. See NRS 284.385(1)(a); 284.390(5);
Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960). Moreover, the critical need to maintain a
high level of security within the prison system entitles the appointing authority's decision to
deference by the hearing officer whenever security concerns are implicated in an employee's
termination. See NAC 284.650(3).
1
[Headnotes 3, 4]
__________

1
NAC 284.650(3) provides as follows:
284.650 Causes for disciplinary action. Appropriate disciplinary or corrective action may be taken
for any of the following causes:
[Headnotes 3, 4]
The standard of review by which we evaluate the hearing officer's decision is governed by
the Administrative Procedure Act, NRS 233B. Specifically, under NRS 233B.140(5), the
courts are enjoined from substituting their judgment for that of the agency concerning the
weight of the evidence on questions of fact. Stated otherwise, both the district court and this
court are constrained to review the record as it existed before the administrative agency to
determine whether the agency abused its discretion by acting arbitrarily or capriciously.
Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980). Courts
are empowered to reverse or modify an agency's decision if the aggrieved party has been
prejudiced by administrative findings, inferences, conclusions or decisions that are, inter alia,
affected by error of law, clear error in view of the reliable, probative, and substantial evidence
of record or an abuse or clearly unwarranted exercise of discretion. NRS 233B.140(5)(d)(e)
and (f).
[Headnote 5]
As noted previously, the district court concluded that the hearing officer excluded
substantial evidence from the decisional process because of an erroneous interpretation of this
court's decision in Schall. We reversed the district court in Schall because the judge,
perceiving no evidential support for the finding upon which the hearing officer sustained the
termination of Dr. Schall, nevertheless affirmed the decision on a ground that had never been
charged against Schall. Such is not the case here. Dredge was specifically charged with
unauthorized association with an ex-inmate. Details in support of the charge that were
presented at the hearing but not included within the specification of charges were not properly
excluded under Schall. We therefore agree with the district court that the hearing officer
erroneously failed to consider substantive evidence in reaching his decision.
2
Moreover,
rather than extending deference to the appointing authority's determination to terminate
Dredge for reasons involving prison security, the hearing officer engaged in an
unwarranted exercise in semantics concerning the meaning of the term "association."
__________
. . . .
3. The employee of any institution administering a security program, in the considered judgment of
the appointing authority, violates or endangers the security of the institution.

2
The record, excluding the findings of fact, conclusions of law and decision, is equivocal on whether the
hearing officer considered the evidence referred to in the text as being excluded from his decision. At one point,
the hearing officer said if the evidence was not specified in the NPD-41 (the charging document), it's not
charged and it's not going to be considered. Later, however, he said I'll take it into my consideration, yes, but
it's not properly set forth in the NPD-41. The uncertainty was ultimately resolved, however, by the formal
findings issued by the hearing officer. Citing Schall, the hearing officer found that these allegations [the
additional evidence concerning the unauthorized association charge] cannot be considered as a basis for the
discipline.
Moreover, rather than extending deference to the appointing authority's determination to
terminate Dredge for reasons involving prison security, the hearing officer engaged in an
unwarranted exercise in semantics concerning the meaning of the term association.
Resorting to dictionary definitions, the hearing officer concluded that an isolated, limited
contact with an ex-inmate does not fall within the ambit of association.'
[Headnote 6]
Whatever connotation is placed on the word association, it is clear from the evidence
that Director Sumner had ample basis for concluding that Dredge's experience with the
ex-inmate exceeded rational parameters of incidental contact to such an extent that a
determination of unauthorized association was reasonably warranted. After Dredge
recognized and greeted Ellis at a bar, their intermittent conversations expanded to the point
where Dredge gave Ellis a ride that culminated in the arrest of both men. Thereafter, the
record reflects a relationship characterized by Dredge placing a second trust deed on his
house and co-signing the bail agreement to facilitate the ex-inmate's release from jail. These
and other activities not described here, constitute a compelling basis for the conclusion that
Dredge had engaged in an unauthorized association with an ex-inmate. Understandably, the
Director felt that Dredge's behavior compromised the security of the prison system and set an
unacceptable and deleterious standard of conduct for prison supervisory personnel.
In a further attempt to buttress his conclusion that Dredge did not meaningfully associate
with an ex-inmate, the hearing officer speculated that Dredge was grossly inebriated and in
a drunken stupor, thereby rendering himself incapable of the requisite mens rea to intend
to associate with the ex-inmate. Even if we were to accept, arguendo, the dubious premise
that a guilty mind is a requisite to the right to terminate for unauthorized association with an
ex-inmate, the record belies the hearing officer's finding. Indeed, the hearing officer
concluded somewhat anomalously, that there was not credible evidence that Dredge was
following anyone's dictates other than his own mind when he refused to submit to the
breathalyzer test. Dredge himself explained that he heard discussion concerning the effect of
a thunderstorm on the accuracy of the breathalyzer machine. Moreover, Dredge had presence
of mind to complete necessary documentation to secure his release and that of the ex-inmate.
He also indicated that he would not have considered himself drunk at the time of his
release. In short, we are satisfied that the appointing authority attached a practical and
reasonable meaning to the term association and supplied abundant evidence to support the
decision to terminate Dredge.
the decision to terminate Dredge. The hearing officer therefore either abused his discretion or,
at a minimum, exercised a clearly unwarranted discretion.
In view of the foregoing, it is unnecessary to address the issue arising from the hearing
officer's conclusion that the appointing authority's determination that Dredge had engaged in
disgraceful conduct is unproved. We observe in passing, however, that we again find ample
evidence in the record to support the Director's position.
Finally, based upon the foregoing, and our thorough review of the record, we reiterate that
we are satisfied that the hearing officer erroneously interpreted Schall, thereby excluding
from his decision substantial evidence of unauthorized association, and secondly, the record
reflects that the hearing officer's decision to reverse Dredge's termination by the appointing
authority was clear error in view of the reliable, probative, and substantial evidence of record.
The judgment of the district court is affirmed.
3

I dissent because this case represents an excellent example of when the judicial branch of
government should keep its nose out of administrative affairs. In compliance with the
statutory scheme a Nevada Personnel Hearing Officer, after a full-day hearing, involving ten
witnesses and the introduction of numerous exhibits, ruled that Dredge's actions did not
warrant his permanent dismissal from state civil service. Now, for reasons far from
satisfactory, this court intrudes into the prescribed scheme of things and destroys this man's
career. I disapprove.
The first excuse employed by the majority for disrupting the administrative machinery is
that the hearing officer excluded substantial evidence from the decisional process. It is true
that at first the hearing officer was reluctant to hear the rather ridiculous charge that Dredge
was a security risk because it's not charged; but, still, as admitted in the majority opinion,
the hearing officer later said that he would take it into consideration. What more do they
want? The majority opinion states that the hearing officer's ruling is equivocal. Even if it
were, the supposed equivocation should be resolved in favor of the hearing officer, who, after
all, said that he considered these matters in making a decision.
Had the hearing officer actually refused to consider certain evidence of Dredge's supposed
association with Ellis, we might be inclined to agree with the district court's conclusion.
__________

3
be inclined to agree with the district court's conclusion. This is not the case, however. Not
only is it undisputed that testimony relating to the contact was admitted into evidence, the
transcript of the hearing clearly indicates that the hearing officer considered this matter.
Expressing his concern that Dredge had not received adequate notice of the evidence to be
presented against him, the hearing officer stated, I said it's been in and we've beat it to death
ad nauseam. I'll take it into my consideration, yes, but it's not properly set forth in the
NPD-41. (Emphasis supplied.) As no other cognizable error of law manifests itself in the
record, the district court lacked authority to set aside the hearing officer's decision on the
basis of its being unfounded as a matter of law.
On this question of Dredge's supposed breach of prison security by association with
ex-convicts, it appears to me that the charge was an afterthought and a hook on which to
base additional, previously unthought-of charges. No one seriously contends that Dredge
fraternizes with former prisoners or is in any way a threat to prison security. This was a very
isolated event; Dredge was drinking and did strike up a conversation with a former convict
with whom he had become acquainted at the prison. The rest followed from Dredge's
unfortunate willingness to do a favor for the man.
Expressing concern that the NDOP's association' regulations are ambiguous and
incomplete as to what is incidental contact' and impermissible association,' the hearing
officer noted that Webster's Dictionary defines association as the act of joining in the
company of another and [connotes] that the joining be as a partner, companion or similar
intimate, on-going relationship. Based on this definition, the hearing officer concluded that
[c]ertainly, an isolated, limited contact with an ex-inmate does not fall within the ambit of
association.' Cf. Arcinieaga v. Freeman, 404 U.S. 4 (1971); State v. Morales, 668 P.2d 910
(Ariz.App. 1983). Given the substantial evidence of the unplanned and incidental nature of
the particular contact in question, and the complete lack of any evidence of an ongoing
relationship of any kind between the two men, I believe that the hearing officer's decision is
entirely consistent with the record.
1
Also arguing strongly against the conclusion that
Dredge's contact with Ellis compromised Dredge's effectiveness as an employee at NNCC is
the undisputed evidence that Dredge worked for eight months without incident following his
reinstatement.
__________

1
Much is made of the fact that Dredge paid Ellis's bail, but this act is easy to understand. Dredge thought (at
the time) that Ellis had loyally taken his side in the matter and felt obligated to get Ellis out of jail. It is difficult
to imagine how such a one-sided and spontaneous act of ordinary humanity is in any sense an association
prohibited by prison regulations.
The majority says that it is unnecessary to address the issue arising from the hearing
officer's conclusion that the appointing authority's determination that Dredge had engaged in
disgraceful conduct is unproved. They then go on to consider the issue. If they really mean
that they did not consider this part of the charge, then the opinion has absolutely no
substance, because a permanent employee with a good record like Dredge's obviously should
not be permanently terminated on the association charge alonea single afternoon's
encounter with an ex-convict. On the other hand, if they did consider the drunken driving
episode, which I suspect they did, then I too must consider it.
The hearing officer did not believe that Dredge's alleged uncooperative conduct at the time
of his arrest was sufficiently disgraceful to justify the complete termination of Dredge's
civil service appointment. While Dredge arguably exercised bad judgment in pleading with
the arresting officer and initially refusing to take a blood-alcohol test, such behavior is easily
understandable: Dredge feared that his driving privileges would be revoked and that he would
be suspended without pay for the duration of the revocation. As stated earlier, whether
Dredge refused to take the blood-alcohol test on Ellis's advice is unclear from the record. The
arresting officer testified that he believed Dredge was following Ellis's advice in refusing to
take the test; however, Dredge testified that he refused to take the test because he had
overheard other police officers discussing the fact that the breathalyzer had been giving
inaccurate readings all day. The arresting officer confirmed that the breathalyzer appeared
to malfunction after tests were begun on Dredge. Finally, I would point out that the arresting
officer testified that Dredge at one point attempted to restrain Ellis from interfering with the
course of Dredge's arrest. Such conduct can hardly be described as disgraceful. The hearing
officer's favorable conclusion with respect to the charge of uncooperativeness was not
clearly erroneous.
The state concedes that it is the prison's position that none of these charges alone would
support Dredge's permanent termination. This being the case, the majority's basing its opinion
on the so-called association charge alone is contrary to the NDOP's concession that one
charge alone does not warrant dismissal.
The hearing officer took into consideration the aggregate of charges and held that the
proofs did not justify permanent termination of an employee with Dredge's good record. I
believe the hearing officer's decision should stand.
The reason for Nevada's administrative personnel structure, which allows charged
employees to have a hearing before an impartial hearing officer instead of before some agent
of his state employer, is to give some insulation and objectivity to the contested hearing
process. The majority opinion is an intrusion into the procedures which effectuate this
sound personnel policy.
the procedures which effectuate this sound personnel policy. The majority appears to object
to the hearing officer's view[ing] the evidence in a more benevolent light than George
Sumner, the Director of the Nevada Department of prisons, who made the decision to
terminate Dredge. Taking a new and impartial view of the evidence is exactly what
personnel hearing officers are supposed to do. I see this court as siding with the appointing
authority and setting aside a clearly justifiable decision of an administrative officer. There is
no reason that I can discern for this kind of unwarranted intrusion into the administrative
process by either the district court or by this court; so I dissent.
____________
105 Nev. 48, 48 (1989) Del Piero v. Phillips
GREG DEL PIERO, Appellant, v. DALE ANTHONY PHILLIPS, Respondent.
No. 18648
February 22, 1989 769 P.2d 53
Appeal from a judgment upon a jury verdict against the plaintiff in a personal injury action
and from an order of the district court denying appellant's motion for a judgment
notwithstanding the verdict or for a new trial. Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
Man who was hit by automobile while pushing bicycle across intersection brought
personal injury action against driver. The district court entered judgment in favor of driver,
and appeal was taken. The Supreme Court, Springer, J., held that: (1) man pushing bicycle
was pedestrian, and (2) pedestrian was entitled to negligence per se instruction given fact
that he had right-of-way at intersection where collision occurred.
Edward B. Horn and Paul Elcano, for Appellant.
Perry, Hebert & Spann and Kelly G. Watson, for Respondent.
1. Automobiles.
Man pushing bicycle across street at time he was struck by car was pedestrian, despite fact that he was straddling bicycle rather
than pushing it at his side; man pushing bicycle elected to proceed as pedestrian, following pedestrian paths and procedures designed
to protect pedestrians.
2. Automobiles.
Pedestrian pushing bicycle who was hit by automobile while crossing at unmarked crossing area was entitled to jury instruction on
issue of negligence per se in personal injury action against driver of automobile; pedestrian was properly
within cross-walk and also had right-of-way as there was "yield" sign controlling driver's entry into
intersection.
negligence per se in personal injury action against driver of automobile; pedestrian was properly within cross-walk and also had
right-of-way as there was yield sign controlling driver's entry into intersection.
OPINION
By the Court, Springer, J.:
The jury in this case gave judgment to the defendant, respondent Phillips. We reverse
because it was error for the trial court to refuse to give appellant's instructions on negligence
per se. A negligence per se instruction would have served to shift the burden of proof to
respondents to show excuse or justification, thereby relieving appellant of the burden of
establishing actual negligence. Barnes v. Delta Lines, Inc., 99 Nev. 688, 690-91, 669 P.2d
709, 711 (1983). As such, there is no question that the jury may have reached a different
result if it had been properly instructed on the law of negligence per se. 99 Nev. at 691, 669
P.2d at 711 (1983); see Meyer v. Swain, 104 Nev. 595, 763 P.2d 337 (1988). There is ample
evidence which would have supported a jury finding that respondent Phillips was guilty of
several violations of statutory rules of the road. The trial judge should, therefore, have given
negligence per se instructions, and his refusal to give these instructions constitutes reversible
error.
Appellant Del Piero was struck by a vehicle being driven by respondent Phillips as Del
Piero was attempting to cross the right-turn lane which channels east-bound Mill Street traffic
into Rock Boulevard. Prior to entering the unmarked crosswalk where Phillips ran into him,
Del Piero had been riding his bicycle in a northerly direction on Rock Boulevard. When Del
Piero approached the busy intersection of Rock Boulevard and Mill Street, he decided to
proceed northerly across Mill Street as a pedestrian rather than as a bicyclist. To do this he
crossed to the west side of Rock Boulevard, lifted his bicycle over the west curb of Rock
Street and walked northward pushing his bicycle along an unpaved pedestrian walkway that
runs alongside the curb line on the west side of Rock Boulevard. The walkway ends at the
curb line of the channelized right-turn lane,
1
that channels right-turning traffic from the
right, east-bound traffic lane of Mill Street into the right, south-bound traffic lane of Rock
Boulevard.
__________

1
The term channelized right-turn lane is taken from the Manual on Uniform Traffic Control Devices, U.S.
Department of Transportation, Federal Highway Admin. (1971), excerpts of which were provided in the
Addendum to Respondent's Answering Brief. The manual, approved for application in this state by NRS
487.781, provides useful nomenclature in describing the Rock-Mill intersection.
Del Piero walked northerly along the unpaved sidewalk of Rock Boulevard until he
reached the curb separating the sidewalk from the mentioned right-turn lane. At this point he
looked to his left to see if there was any oncoming traffic about to enter the turn lane. Seeing
none, he lifted his bicycle over the curb and proceeded to cross the turn lane in the direction
of a triangular pedestrian refuge island
2
which separates the turn lane from the main
thoroughfares of Mill Street and Rock Boulevard. As he made the crossing, Del Piero walked
straddling his bicycle instead of walking with the bicycle at his side.
Del Piero was struck by Phillip's car when Del Piero was about one third to one-half of the
way across the right-turn lane. He was walking in a path which approximated the extension of
the unpaved walkway that he had been walking on before entering the paved right-turn lane.
3

[Headnote 1]
Although it was contested at trial, Del Piero was at the time of the collision a pedestrian.
The trial court held as a matter of law that Del Piero was a pedestrian, and we see no reason
to disagree with this holding. Pedestrian' means any person afoot. Reno Municipal Code
(RMC) sec. 6.04.430; NRS 484.111. Bicyclist Del Piero elected to proceed as a pedestrian,
following along pedestrian paths and following procedures designed to protect pedestrians.
The fact that at the time of impact he was straddling the bicycle rather than pushing it at his
side does not transform Del Piero from a pedestrian into a bicyclist. If Del Piero had been
struck on the sidewalk while straddling a bicycle, no one could reasonably have claimed that
he was a cyclist rather than a pedestrian. The same applies to this straddle-walk across the
right-turn lane. We agree with the trial court that Del Piero was a pedestrian at the time he
was struck. We now consider the case in this light and examine the right-of-way enjoyed by
pedestrians and motorists involved in this kind of mishap.
At the time of impact Del Piero appears to have had the right-of-way for two reasons: first,
because Del Piero was a pedestrian traveling within an unmarked crosswalk at the time he
was struck and, second, because Phillip's vehicular progress through the intersection was
controlled by a "Yield" sign.
__________

2
The specific function of a refuge island is to provide a place of safety for pedestrians who cannot cross the
entire roadway width at one time in safety because of changing traffic signals or on-coming traffic. Manual on
Uniform Traffic Control Devices, sec. 5A-4. The island in this case was provided with a push-button control that
extended the time of green-light passage for pedestrians crossing the traffic light-controlled portion of the
intersection.

3
Del Piero's testimony has him walking along the extended west curb line of Rock; Phillip's saw Del Piero as
being a few feet to the east of the extended west curb line but still within the area of the turn lane that was an
extension of the unpaved walkway.
and, second, because Phillip's vehicular progress through the intersection was controlled by a
Yield sign.
That Del Piero was walking in an unmarked crosswalk at the time he was struck is subject
to considerable contention on this appeal. The applicable ordinance, RMC 6.04.140(1),
4
defines a crosswalk as a part of a roadway at an intersection. Phillips maintains that the
Mill-Rock intersection is limited to that area approximately square in shape with its
boundaries at each light signal pole. If we were to accept Phillips's definition, then Del Piero
would not have yet reached the intersection when he entered the right-turn lane.
RMC 6.04.280(1)
5
belies Phillips's restrictive definition of an intersection. Although the
first clause of this code section describes the limited, square-shaped intersection urged by
Phillips, the second clause includes within the definition of intersection the area within
which vehicles traveling upon different highways joining at any other angle [than right
angles] may come in conflict. We are satisfied that the point where the Mill Street turn lane
meets with Rock Boulevard is a point where vehicles traveling on different highways may
come in conflict. Since this collision took place at an intersection where no crosswalk is
marked, we must next examine how a pedestrian properly crosses this intersection and where
the crosswalk for a pedestrian crossing such an intersection is located.
Often the kind of crossing area occupied by Del Piero is distinctly indicated for
pedestrians crossing by lines or other marking on the surface. RMC 6.04.140(2). However
the crosswalk at Rock Boulevard and Mill Street has not as yet been so marked. Therefore, a
person traversing that intersection to the pedestrian refuge island must do so at an unmarked
crosswalk as defined in RMC 6.04.140(1).
[Headnote 2]
It is obvious that the ordinance describing crosswalks was drafted with the square-shaped
intersection defined in the first clause of RMC 6.04.2S0 in mind.
__________

4
RMC 6.04.140(1) provides:
Crosswalk means:
(1) Part of a roadway at an intersection included within the connections of the lateral lines of the
sidewalks on opposite sides of the highway measured from the curbs, or, in the absence of curbs, from the
edges of the traversable roadway.

5
RMC 6.04.280(1) provides:
Intersection means:
(1) The area embraced within the prolongation or connection of the lateral curb lines, or, if none,
then the lateral boundary lines of the roadways of two (2) highways which join one another at, or
approximately at, right angles, or the area within which vehicles traveling upon different highways
joining at any other angle may come in conflict.
clause of RMC 6.04.280 in mind. We are faced here, however, with the kind of intersection at
which different highways [are] joining at [another] angle than a right angle. This kind of
angled intersection makes the application of the crosswalk ordinance, which places an
unmarked crosswalk at the [p]art of the roadway at an intersection included within the
connections of the lateral lines of the sidewalks on the opposite sides of the highway
measured from the curbs, somewhat more difficult. (Our emphasis.) In this case the
opposite sides of the highway are the curb bordering the unpaved sidewalk on the southerly
border of the right-turn lane where it meets Rock Boulevard and the curb on the southerly end
of the pedestrian refuge island. If we were to describe the connections of the lateral lines of
the sidewalks, we would extend the lateral lines of the Rock Boulevard sidewalk on which
Del Piero was walking to the points where they meet the refuge island curb. Del Piero's path
after stepping off the curb into the right-turn lane was in the same direction as the extended
lateral lines of the sidewalk. Although there is not a sidewalk as such on the pedestrian
refuge island, the island was designed to accommodate pedestrian traffic. It does not seem
unreasonable to conclude in this case that Del Piero crossed the intersection on a part of the
highway at an intersection included within the connections of the lateral lines of the
sidewalks on opposite sides of the highway, that is to say, the lateral lines of the Rock
Boulevard sidewalk extending to the pedestrian refuge island. Because Del Piero was
crossing an intersection in an unmarked crosswalk, he had the right-of-way with respect to
Phillips.
Del Piero also had the right-of-way because there was a yield sign controlling Phillips's
entry into the intersection of the right-turn lane and Rock Boulevard. Phillips seems to argue
that the yield control has no relation to pedestrian traffic. On the contrary, as cited by Phillips
himself, the YIELD [sic] sign assigns right-of-way to traffic on certain approaches to an
intersection. Vehicles controlled by a YIELD sign need stop only when necessary to avoid
interference with other traffic that is given the right-of-way. Manual on Uniform Traffic
Control Devices, sec. 2B-7. There is no reason to believe that the word traffic as used here
should be restricted to mean only vehicular traffic. When vehicular traffic enters such an
intersection the yield sign assigns right-of-way to pedestrian traffic as well as to vehicular
traffic; accordingly, [v]ehicles controlled by a yield sign must stop when it is necessary to
avoid interference with [pedestrian] traffic that is given the right-of-way. Del Piero had the
right-of-way by virtue of the yield sign, and Phillips failed to yield to Del Piero this
right-of-way.
We have gone on at some length to show that Del Piero was clearly entitled to have the
jury instructed on the law of negligence per se and that it was very prejudicial not to have the
jury aware of the consequences of Phillips's apparent violation of rules of the road. The trial
court committed reversible error in refusing to give these instructions.
It is hard to understand how a jury could have found under these circumstances that
Phillips's negligence was not greater than the negligence of Del Piero; still, we are reluctant to
grant judgment notwithstanding the verdict as requested by Del Piero. Instead, we reverse the
judgment on the ground discussed, error in denying the negligence per se instructions, and
remand for new trial.
6

Young, C. J., Steffen and Mowbray, JJ., concur.
____________
105 Nev. 53, 53 (1989) Four Queens v. Employment Security Dep't
FOUR QUEENS, INC., dba FOUR QUEENS HOTEL & CASINO, AND CALIFORNIA
HOTEL AND CASINO, Appellants, v. BOARD OF REVIEW OF THE NEVADA
EMPLOYMENT SECURITY DEPARTMENT; APPEALS REFEREES OF
NEVADA EMPLOYMENT SECURITY DEPARTMENT; THE EXECUTIVE
DIRECTOR OF THE NEVADA EMPLOYMENT SECURITY DEPARTMENT; and
Individual Claimants: MARK ABBOTT, FRANCINE BROWN, BENITO
CUNAHAN, JEAN DOTY, HENRY FEENSTER, RUTH FISHER, STEVE
FRANKOVICH, DANI HALEY, SHIRLEY HECKARD, KATHY LEE, ZORAIDA
LOZANO, DOROTHY MANIFOLD, BRYAN MOORE, CONNIE McMURRAY,
ALMA MAE PHILLIPS, THOMAS PETERSON, BARRY REGAN, ROBERTO
REYES, JERRY RILEY, RICHARD REUILLARD, LEONA SMART, MARY SOU,
VI E. SULLIVAN, MERCEDES TACARONTO, RICHARD THEMMEN, ARLENE
WALSH, MARIA WATSON, DEAN WHALEY, ROBERT WINDHORST, JOM
WINGFIELD, SHIRLEY WOOD AND MILDRED YALICH, Respondents.
No. 18528
February 22, 1989 769 P.2d 49
Appeal from an order of the district court upholding a decision of the Employment
Security Department that the individual employee respondents are entitled to receive
unemployment compensation benefits.
__________

6
employee respondents are entitled to receive unemployment compensation benefits. Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
Employees initially involved in labor dispute who were permanently replaced by other
employees sought unemployment compensation benefits. The district court upheld decision
of the Employment Security Department to effect that employees were entitled to receive
benefits, despite labor dispute disqualification statute, and employer appealed. The
Supreme Court, Springer, J., held that employees were eligible for benefits if they were no
longer engaged in dispute and no longer entitled to gains sought by labor in still-pending
labor dispute.
Affirmed.
Schreck, Jones, Bernhard, Woloson & Godfrey, Las Vegas, for Appellants.
Crowell, Susich, Owen & Tackes, Carson City, for Respondent Employment Security
Department.
Timothy S. Cory, Las Vegas, for Respondents Jean Doty and Alma Mae Phillips.
Davis, Cowell & Bowe and Steven Stemerman, Reno, for Respondents Jean Doty and
Alma Mae Phillips.
Labor Relations.
Permanently replaced striking workers who have severed themselves from ongoing union dispute and then seek unemployment
benefits may be eligible for such benefits as long as worker is no longer engaged in labor dispute and no longer entitled to gains sought
by labor in still-pending dispute. NRS 612.395, subd. 1.
OPINION
This case involves the so-called labor dispute disqualification under Nevada's
Unemployment Compensation Law. The labor dispute disqualification for unemployment
compensation attaches to an applicant for benefits for any week with respect to which the
executive director [of the Employment Security Department] finds that his total or partial
unemployment is due to a labor dispute in active progress at the . . . premises at which he is
or was last employed. NRS 612.395.
1
An applicant so disqualified must be denied
unemployment benefits.
__________

1
NRS 612.395 provides:
Appellant Four Queens contends that employee respondents (Employees) were subject
to the statutory labor dispute disqualification and therefore ineligible for benefits because
their unemployment was due to a labor dispute. Employees contend that when Four Queens
permanently replaced them with other employees, they were thereafter involuntarily
unemployed, not due to a labor dispute, but due to their having been terminated by their
employer.
2

We hold that under the proper circumstances the labor dispute disqualification may be
eliminated during a labor dispute in active progress. The employment security director may
decide for any week that an employee who has been involved in a labor dispute may still be
eligible for unemployment benefits when the director finds that the employee is involuntarily
unemployed and that the employee is no longer engaged in a labor dispute and no longer
entitled to the gains sought by labor in a still-pending labor dispute.
The facts out of which these controversies arose are as follows. In the spring of 1984,
Culinary Union Local 226 and Bartenders Union Local 165 attempted to negotiate a new
labor agreement with various Las Vegas hotel-casinos, including the Four Queens Hotel
and Casino and the California Hotel and Casino, both owned by Four Queens, Inc.
__________
1. An individual shall be disqualified for benefits for any week with respect to which the executive
director finds that his total or partial unemployment is due to a labor dispute in active progress at the . . .
premises at which he is or was last employed.
2. This section shall not apply if it is shown to the satisfaction of the executive director that:
(a) The individual is not participating in or financing or directly interested in the labor dispute which
caused his unemployment; and
(b) The individual does not belong to a grade or class of workers of which, immediately before the
commencement of the labor dispute, there were members employed at the premises at which the labor
dispute occurs, any of whom are participating in or financing or directly interested in the labor dispute;
but if in any case separate branches of work which are commonly conducted as separate businesses in
separate premises are conducted in separate departments of the same premises, each such department
shall, for the purposes of this section be deemed to be a separate . . . premise[.]

2
Employees make no attempt to escape disqualification by invoking NRS 612.392(2). According to
Employees, it would be impossible to meet the conjunctive requirements of NRS 612.395(2)(a) and (b) in the
present case. As we observed in Alldredge v. Archie, 93 Nev. 537, 569 P.2d 940 (1977), provisions similar to
NRS 612.395(2)(b) have been criticized as one of the most remarkable principles of vicarious guilt found in law,
thwarting the basic purpose of unemployment compensation to provide sustenance to those who are involuntarily
unemployed. See, e.g., Reuben and Schuckers, The Labor Dispute Disqualification of the Pennsylvania
Unemployment Compensation Law, 50 Temple L.Q. 211 (1977); Shadur, Unemployment Benefits and the
Labor Dispute' Disqualification, 17 U.Chi.L.Rev. 294 (1950). Alldredge, 93 Nev. at 543-44 n.2, 569 P.2d at
945 n.2.
with various Las Vegas hotel-casinos, including the Four Queens Hotel and Casino and the
California Hotel and Casino, both owned by Four Queens, Inc. These negotiations failed; and,
on April 1, 1984, the old labor agreement expired. On April 2, 1984, the unions began an
economic strike against Four Queens. Negotiations between the unions and Four Queens
continued during the strike.
By May, Four Queens chose to hire a number of permanent replacements for the striking
workers in order to avoid having to close its businesses. On May 25, Four Queens told the
unions that Four Queens would accept all of the basic terms of the contract most recently
ratified by union members and further proposed an immediate return to work for the vast
majority of striking employees. Four Queens would not, however, agree to fire the
permanent employees it had hired. The unions responded with the ultimatum that unless all
union members were allowed to return to work, none would. Solely because of the impasse
on this issue, the strike continued until both unions were de-certified in the middle of 1985.
Between August 29, 1984, and September 19, 1984, each of the Employees submitted a
claim for unemployment benefits to the Employment Security Department (ESD). ESD
initially determined that each of the employees was ineligible for benefits under NRS
612.395(1) because each was unemployed due to a labor dispute.
Sometime between September 1984 and March 1985, all of the Employees offered to
return to work, some crossing picket lines in order to do so. Most of the Employees were
informed that their former positions were unavailable because they had been filled by
permanent replacements. The Employees were told that they would be placed on preferential
hiring lists and called as positions became available.
A number of the Employees subsequently appealed their initial determinations of
ineligibility to ESD appeals referees. The appeals referees concluded that the appealing
Employees were eligible for benefits for the period beginning after they crossed the picket
lines and modified the initial determinations accordingly. Other Employees apparently then
filed new claims and were similarly found to be eligible for benefits because they had crossed
picket lines and offered to return to work.
Four Queens appealed the decisions of the appeals referees in favor of the Employees to
the ESD Board of Review. Those Employees who had been determined by the appeals
referees to be disqualified for benefits also appealed to the Board of Review. The appeals
were resolved in favor of the Employees.
Four Queens then filed a petition for judicial review and a motion for consolidation of the
numerous claims for unemployment benefits it challenged. After a hearing on the
consolidated actions on July 29, 1987, the trial court affirmed the decisions of the ESD Board
of Review in favor of the Employees on August 25, 1987. On September 21, 1987, the trial
court entered an order affirming the ESD Board of Review in all respects.
On its face, Four Queens's argument that any unemployment suffered by the Employees
was due to their participation in a labor dispute and that they are therefore statutorily
disqualified from benefits appears to make sense. Certainly, but for the labor dispute the
Employees would not have become unemployed. Acceptance of Four Queens's broad
interpretation of causation would mean that anyone who ever participated in a labor dispute
would continue to be ineligible until the dispute was over.
3
This conclusion, however, is at
odds with the statute, which is worded in a way that seems to empower the ESD director to
engage in periodic review of the disqualification while the dispute is still in active progress.
Continued disqualification for benefits presupposes the employment security director's
finding during any week that the applicant's unemployment continues to be due to the labor
dispute. The statute would not have used the term any week had it intended unremediable
debarment from eligibility for any employee who had participated in the ongoing labor
dispute. The implication of the statute, read as a whole, is that it is permissible during a given
week or weeks for benefits to be awarded if the director finds that the circumstances of the
unemployment do not disqualify an employee during a labor dispute in active progress.
NRS 612.395(1). The question we must address is when and under what circumstance a labor
dispute disqualification can be removed and eligibility for benefits reestablished.
Cases in other jurisdictions have generally held that the labor disqualification can be
relieved under certain factual applications, but these cases differ as to how eligibility for
benefits can be established. Some cases (e.g., Ruberoid Co. v. California Unemployment Ins.
App. Bd., 378 P.2d 102 (Ca. 1963)) have held that the mere incident of permanent
replacement of a striking employee constitutes termination of that employee's employment,
thus making the replaced employee eligible for benefits. We disagree with these rulings and
the idea that eligibility should be grounded on the mere fact of replacement alone. Although it
can
__________

3
Except, of course, in the unlikely event employees might be covered by the exception contained in NRS
612.395(2).
be argued that a striking employee who has been permanently replaced has not been
unqualifiedly terminated and thus is not, strictly speaking, unemployed at all,
4
we do not
base our decision on this ground and agree with the trial court that permanent replacement
constitutes involuntary unemployment insofar as eligibility for unemployment benefits is
concerned.
If, as we believe, the legislature intended that benefits may be allowed during any week
that unemployment was not due to the labor dispute, then we must inquire into the kinds of
circumstances in which the causal connection between the unemployment and the labor
dispute is broken and eligibility therefore restored. We hold that a break in the link between
unemployment and a labor dispute occurs when an employee abandons the dispute and
repudiates the ends sought by the union in a dispute then in active progress.
When the Employees in this case abandoned the strike and went back to their employer,
Four Queens, asking for their old jobs back, they disengaged themselves from the labor
dispute and were no longer a part of it; they were simply unemployed persons who sought
unemployment subsistence until they could get another job. These applicants could honestly
say to the director: I lost my job because I went on strike and was replaced, but now I have
abandoned the strike and have nothing to gain were the strike to be successful. My
unemployment is now due to' my being unable to find a job and is no longer connected to
activities associated with the labor dispute, which I have repudiated and abandoned.
An unconditional offer to return to one's former employment or other acts which show a
separation from the labor dispute may be taken by the director as evidence from which the
director can conclude that the unemployment of an applicant for benefits is no longer "due
to" the labor dispute.
__________

4
Indeed, some courts have felt this position to be dictated by federal labor law. In N.L.R.B. v. Mackay
Radio & Tel. Co., 304 U.S. 333 (1938), the United States Supreme Court explained that the National Labor
Relations Act does not prohibit an employer from hiring new employees to replace those participating in a strike,
nor does it bind an employer to discharge replacement workers to allow strikers to resume their employment.
Nevertheless, in N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the Supreme Court held that
permanently replaced employees are entitled to reinstatement unless the employer is able to show a legitimate
and substantial business reason for failing to rehire. Similarly, the courts in Laidlaw Corp. v. N.L.R.B., 414
F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920 (1970), and N.L.R.B. v. American Olean Tile Co., Inc., 826
F.2d 1496 (6th Cir. 1987), have written that permanently replaced employees who unconditionally apply for
reinstatement are entitled to reinstatement as the appropriate vacancies occur. In Standard Materials v.
Administrator, Employ. Sec., 401 So.2d 400 (La.App. 1981), and Elmer Candy Corp. v. Administrator, Employ.
Sec., 286 So.2d 423 (La.App. 1973), the court relied on N.L.R.B. v. Fleetwood Trailer Co. in deciding that
permanent replacement is not the equivalent of unqualified termination for the purposes of determining
eligibility for unemployment benefits.
conclude that the unemployment of an applicant for benefits is no longer due to the labor
dispute. It is up to the director to decide upon each application for benefits whether the
applicant's separation from participation in the labor dispute is sufficient to warrant
exemption from the statutory labor dispute disqualification. Stated succinctly, no one who
maintains a position in a labor dispute that is adversary to the employer and who persists in
seeking labor's particular goals in the ongoing dispute can be said to be unemployed in a
manner that is not in some way due to or connected with the labor dispute. Such an
employee is still part of the labor dispute, is still trying to accomplish labor's ends in the
dispute, and is still trying to achieve the personal advantages sought by the employee in
entering into the dispute. Cf. Building Products v. Ariz. Dept. of E. Sec., 604 P.2d 1148
(Ariz.App. 1979); Adams v. Employment Division, 717 P.2d 1199 (Or.App. 1986); Carley
Ford, Linc., Mercury, Inc. v. Bosquette, 241 N.W.2d 596 (Wis. 1976); Rice Lake Creamery
Co. v. Industrial Comm'n, 112 N.W.2d 202 (Wis. 1961).
The object and policy of the labor dispute disqualification is to assure state neutrality in
labor disputes. Airport Casino, Inc. v. Jones, 103 Nev. 387, 741 P.2d 814 (1987); Depaoli v.
Ernst, 73 Nev. 79, 309 P.2d 363 (1957). Employers are heard to say that neither they nor the
state should in fairness be required to finance a strike by providing subsistence to striking
workers.
Permanently replaced workers who have severed themselves from the ongoing dispute and
then seek unemployment benefits do not do violence to the state's policy; but, it must be said
that (as may be the case with some of the Employees in this case) if after an initial decision of
eligibility, during any week the director finds that a successful applicant for benefits has again
espoused the union's side in the labor dispute in progress, eligibility for benefits must
properly be reexamined. During any week in which the director finds that such an applicant is
again pursuing labor's ends in the ongoing dispute, again seeking to gain the advantages
promised by successful labor action, such an applicant would become ineligible to receive
benefits because of the worker's connection or reconnection to the labor dispute and
because of this state's public policy against so financing the advancement of labor's cause.
We affirm the decision of the trial court but note that this affirmance does not preclude the
ESD director from reexamining eligibility of any of these Employees in the light of this
opinion.
5

__________

5
____________
105 Nev. 60, 60 (1989) Mays v. District Court
JAMES MAYS, 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, LAS
VEGAS HILTON CORPORATION, a Nevada Corporation; HILTON HOTELS, a
Delaware Corporation dba LAS VEGAS HILTON HOTEL AND CASINO; and
CHARLES BARRY, Real Parties in Interest.
No. 19533
February 22, 1989 768 P.2d 877
Original petition for a writ of mandamus or prohibition. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Petitioner petitioned for writ of mandamus or, in the alternative, for a writ of prohibition
challenging an order of the district court waiving compliance with the discovery rules to
permit discovery by the defendants before answering an amended complaint. The Supreme
Court held that waiver of discovery rules was improper, in absence of finding that case was a
potentially difficult or protracted action that might involve complex issues, multiple parties,
difficult legal questions, or unusual proof problems.
Writ of mandamus granted.
Kelly H. Swanson, Las Vegas, for Petitioner.
Lionel Sawyer & Collins, and Stephen L. Morris and Gregory D. Morrison, Las Vegas, for
Respondent.
Pretrial Procedure.
District court improperly waived requirements of discovery rules to allow defendants to depose plaintiff before answering amended
complaint and to order plaintiff to produce all documents in his possession or under his control which might support his allegations, in
absence of any finding that the case was a potentially difficult or protracted action which might involve complex issues, multiple
parties, difficult legal questions, or unusual proof problems. NRCP 16.1, 26.
OPINION
Per Curiam:
This petition for a writ of mandamus or, alternatively, a writ of prohibition challenges an
order of the district court waiving compliance with Rules 16.1 and 26 of the Nevada Rules
of Civil Procedure.
compliance with Rules 16.1 and 26 of the Nevada Rules of Civil Procedure.
Petitioner filed a complaint against the real parties in interest alleging tortious breach of an
employment contract, violation of public policy, defamation of character, invasion of privacy,
negligent or intentional infliction of emotional distress, and negligent or intentional
interference with prospective advantage. The defendants did not answer petitioner's
complaint, but filed a motion to strike the complaint. After the district court granted the
motion to strike, petitioner filed and amended complaint on July 12, 1988.
On July 19, 1988, the defendants filed a motion requesting a partial waiver of the
requirements of NRCP 16.1. Specifically, the defendants requested that the district court
allow them to depose petitioner before answering the amended complaint, and order
petitioner to produce all documents in his possession or under his control which might
support his allegations. The defendants contended they could not answer the amended
complaint until they obtained more specific information from petitioner.
On August 2, 1988, the district court granted the defendants' request. The court waived the
requirements of Rules 16.1 and 26 of the Nevada Rules of Civil Procedure to allow the
defendants to depose petitioner before answering the amended complaint. The court directed
petitioner to produce to the defendants all documents or other evidence upon which he might
rely in proving his allegations. Petitioner moved the district court to reconsider the order
granting the defendants' request for discovery or, in the alternative, to grant petitioner the
same waiver of the discovery rules, allowing him to obtain discovery at the same time as the
defendants. The district court denied petitioner's requests.
On November 18, 1988, petitioner filed the instant petition in this court. Petitioner
requests this court to issue a writ of mandamus or prohibition directing the district court to
vacate the orders waiving the discovery rules in favor of the defendants, or, alternatively,
directing the district court to waive the discovery rules in favor of petitioner as well as the
defendants. We have considered the petition, the opposition filed by the real parties in interest
(defendants below) and the attached pleadings, and we conclude that the petition should be
granted.
This court generally declines to review discovery orders by extraordinary writ. See Clark
County Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986). We have granted extraordinary
relief only in exceptional circumstances such as when the trial court issued blanket discovery
orders without regard to relevance, or the discovery order required disclosure of privileged
information.
Id.; see also Schlatter v. District Court, 93 Nev. 189, 561 P.2d 1342 (1977); State ex rel.
Tidvall v. District Court, 91 Nev. 520, 539 P.2d 456 (1975). Nevertheless, Rule 16.1, adopted
in 1988, incorporated new procedures which are important for the orderly and efficient
conduct of pretrial discovery. Therefore, because this petition presents a question of first
impression which is a matter of significant public concern, we have elected to exercise our
discretion to entertain this petition. See State ex rel. List v. County of Douglas, 90 Nev. 272,
524 P.2d 1271 (1974); see also Jeep Corp. v. District Court, 98 Nev. 440, 652 P.2d 1183
(1982).
NRCP 16.1 and 26 govern discovery in civil actions. Within thirty days after the defendant
answers the complaint, NRCP 16.1(a) requires the attorneys for the parties to meet for a case
conference to exchange documents, lists of witnesses, and requests for production of
documents and things. Both sides are to produce documents and exchange lists of witnesses
more or less simultaneously. See NRCP 16.1(b). Within thirty days after the case conference,
Rule 16.1(c) requires the parties to prepare a case conference report outlining the schedule for
discovery and the exchange of documents and lists of witnesses. Rule 16.1(f) allows the
district court to waive the requirements of Rule 16.1 [i]n a potentially difficult or protracted
action that may involve complex issues, multiple parties, difficult legal questions, or unusual
proof problems. . . . NRCP 26(a) allows a party to obtain additional discovery, by
depositions and production of documents and things, after the party has complied with Rule
16.1 and after the filing of the case conference report pursuant to Rule 16.1(c) or the entry of
an order waiving compliance with Rule 16.1(c).
The defendants below did not comply with Rule 16.1 before requesting discovery under
Rule 26 by deposition and production of documents. The attorneys did not conduct a case
conference pursuant to Rule 16.1(a), or prepare a case conference report pursuant to Rule
16.1(c). The district court waived these requirements. The district court's order allowed the
defendants alone to proceed with discovery, in contravention of Rule 16.1(b). None of these
waivers was supported by the required finding under Rule 16.1(f) that the case is a
potentially difficult or protracted action that may involve complex issues, multiple parties,
difficult legal questions, or unusual proof problems. . . .
This court adopted NRCP 16.1 and amended NRCP 26 in 1988 in order to facilitate the
process of discovery in civil cases. These rules provide detailed procedures which we believe
will aid in the efficient and fair administration of justice. The rules also provide specific
procedures for waiving certain requirements when such waiver is warranted. In the instant
case, the defendants have attempted to circumvent the requirements of Rule 16.1 entirely.
attempted to circumvent the requirements of Rule 16.1 entirely. This irregular procedure is
not authorized by the rules themselves and is not warranted under the circumstances of this
case. We note that petitioner's amended complaint appears to comply with NRCP 8(a), which
requires the complaint to contain (1) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he
deems himself entitled. See, e.g., Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979).
If the defendants feel that certain allegations in the complaint are not sufficiently focused to
permit a definite answer, the defendants may move for a more definite statement under NRCP
12(e), or deny the allegations under NRCP 8(b) (if a party is without knowledge or
information sufficient to form a belief as to the truth of an allegation, he may deny the
allegation on that basis). The defendants may obtain further clarification of the basis for
petitioner's claims during the discovery procedures detailed in Rule 16.1.
We conclude that the district court improperly waived the requirements of NRCP 16.1 and
26. Accordingly, we grant the petition for a writ of mandamus. See Round Hill Gen. Imp.
Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) (mandamus will lie to control
discretionary action where the district court manifestly abuses its discretion); Schlatter v.
District Court, 93 Nev. 189, 561 P.2d 1342 (1977) (mandamus issued directing the district
court to vacate its improper discovery order). The clerk of this court shall forthwith issue a
writ of mandamus directing the district court to vacate its order waiving compliance with
NRCP 16.1 and 26.
____________
105 Nev. 63, 63 (1989) Passanisi v. Director, Dep't Prisons
STEVEN MICHAEL PASSANISI, Appellant, v. DIRECTOR, NEVADA DEPARTMENT
OF PRISONS, GEORGE SUMNER, Respondent.
No. 19035
February 24, 1989 769 P.2d 72
Appeal from an order of the district court dismissing without prejudice appellant's petition
for a writ of habeas corpus. First Judicial District, Carson City, Michael R. Griffin, Judge.
After pleading guilty to offenses arising out of driving under the influence and leaving the
scene of an accident involving personal injury or death, appellant filed for a writ of habeas
corpus. The district court denied petition, and appellant appealed.
appealed. The Supreme Court held that: (1) appellant failed to comply with statutory
prerequisites for filing habeas petition, by filing timely petition for post-conviction relief in
court of conviction; (2) statute setting forth prerequisite to filing post-conviction petition for
writ of habeas corpus was not an unconstitutional suspension of the writ; and (3) appellant
was not entitled to evidentiary hearing.
Affirmed.
Edward Bernard, Carson City, for Appellant.
Brian McKay, Attorney General, and Kevin G. Higgins, Deputy Attorney General, Carson
1. Habeas Corpus.
Appellant who had not previously filed a petition for post-conviction relief had to demonstrate good cause for failure to file timely
petition for post-conviction relief and actual prejudice in order to be eligible to file a petition for a writ of habeas corpus. NRS 34.725,
177.315, subd. 3.
2. Habeas Corpus.
Habeas corpus petitioner who had failed to previously file petition for post-conviction relief in the court that convicted him or
show good cause for not doing so was not entitled to maintain habeas petition, absent any demonstration of external impediment to
defense which prevented filing timely petition for post-conviction relief. NRS 34.725, 177.325, 177.365, subd. 1; Const. art. 1, 5;
U.S.C.A.Const. art 1, 9, cl. 2.
3. Habeas Corpus.
Statute requiring petitioners to first seek relief in the court of conviction within a year of conviction was reasonable, and not an
unconstitutional suspension of the writ of habeas corpus, particularly when requirement could be waived by showing of prejudice and
good cause for failure to meet it. NRS 34.725, 177.325, 177.365, subd. 1; Const. art 1, 5; U.S.C.A.Const. art 1, 9, cl. 2.
4. Habeas Corpus.
Question of whether district court would have considered habeas corpus petitioner's claim that his sentence was illegal in petition
for post-conviction relief was premature where petitioner had failed to file required petition for post-conviction relief. NRS 34.725,
34.810, subd. 1(a), 174.035, 177.375, subd. 1.
5. Habeas Corpus.
Habeas corpus petitioner who failed to satisfy statutory prerequisites for filing was not entitled to evidentiary hearing regarding
claim relating to the voluntariness of his guilty plea. NRS 34.725, 34.740, subd. 2.
OPINION
Per Curiam:
Appellant entered a guilty plea to two counts of driving under the influence of
intoxicating liquor causing substantial bodily harm or death to another person, NRS
4S4.3795, and one count of leaving the scene of an accident involving personal injury or
death, NRS 4S4.219.
the influence of intoxicating liquor causing substantial bodily harm or death to another
person, NRS 484.3795, and one count of leaving the scene of an accident involving personal
injury or death, NRS 484.219. The judgment of conviction was entered in the Ninth Judicial
District Court in Douglas County on September 9, 1986.
On September 8, 1987, appellant filed a petition for a writ of habeas corpus in the First
Judicial District Court, Carson City, alleging that his guilty plea was involuntary and coerced,
that he was denied effective assistance of counsel, and that imposition of the consecutive
sentences was illegal and improper. On April 26, 1988, in response to the state's motion, the
district court entered an order dismissing without prejudice appellant's petition for a writ of
habeas corpus. This appeal followed.
The district court based its decision on appellant's failure to comply with NRS 34.725 and
did not consider the merits of appellant's petition. NRS 34.725, which was added to NRS
Chapter 34 in 1987, provides:
A petitioner may not file a petition for a writ of habeas corpus unless he previously
filed a petition for post-conviction relief pursuant to NRS 177.315 to 177.385,
inclusive, or demonstrates good cause for the failure to file a petition for
post-conviction relief or meet the time requirements for filing a petition for
post-conviction relief and actual prejudice to the petitioner.
Appellant did not file a petition for post-conviction relief prior to filing his petition for a writ
of habeas corpus.
Appellant explains that he met the one-year time requirement under NRS 177.315(3) for
filing a petition for post-conviction relief. Appellant argues that his having lost the
opportunity to take a direct appeal from his judgment of conviction constitutes actual
prejudice. Appellant contends that his meeting the time requirement for filing a petition for
post-conviction relief and his showing of actual prejudice makes him eligible under NRS
34.725 to file a petition for habeas corpus.
[Headnotes 1, 2]
We do not agree with appellant's reading of the statute. Under NRS 34.725, a petitioner,
such as appellant, who has not previously filed a petition for post-conviction relief must
demonstrate good cause for his failure to file a timely petition for post-conviction relief and
he must demonstrate actual prejudice in order to be eligible to file a petition for a writ of
habeas corpus. Appellant did not meet the statutory requirement that he previously file a
petition for post-conviction relief in the court that convicted him or show good cause for not
doing so before seeking a petition for a writ of habeas corpus.
convicted him or show good cause for not doing so before seeking a petition for a writ of
habeas corpus. See NRS 34.725 and NRS 177.325.
1
See also NRS 177.365(1). Appellant
also did not show good cause for his failure to file the proper petition in the proper court. The
district court correctly found that appellant had not met the requirements of NRS 34.725.
Appellant has not shown any impediment external to the defense which prevented him from
filing a timely petition for post-conviction relief in the Ninth Judicial District Court. Thus, he
cannot overcome the procedural default. See Murray v. Carrier, 477 U.S. 478 (1986).
[Headnote 3]
Next, appellant contends that NRS 34.725 is an unconstitutional suspension of the writ of
habeas corpus. See Nev. Const. art. I, 5; see also U.S. Const. art. I, 9. We note that the
procedure for filing a petition for post-conviction relief provides a remedy in addition to the
constitutional writ of habeas corpus. See Marshal v. Warden, 83 Nev. 442, 445, 434 P.2d 437,
439 (1967). NRS 34.725 sets forth a prerequisite to filing a post-conviction petition for a writ
of habeas corpus. The legislature may, however, impose a reasonable regulation on the writ of
habeas corpus, so long as the traditional efficacy of the writ is not impaired. Grego v. Sheriff,
94 Nev. 48, 574 P.2d 275 (1978). Requiring petitioners to first seek relief in the court of
conviction within a year of conviction is a reasonable regulation, especially when that
requirement can be waived by a showing of prejudice and good cause for failure to meet it.
Therefore, we conclude that NRS 34.725 and the statutory scheme regarding petitions for
post-conviction relief are constitutional as reasonable regulation of the writ of habeas corpus.
See Marshal, supra.
[Headnote 4]
Appellant explains that he filed a petition for a writ of habeas corpus without first filing a
petition for post-conviction relief because the district court might not consider all of the
issues which he wishes to raise if they were presented in a petition for post-conviction relief.
In particular, appellant argues that under NRS 177.375(1)
2
the district court would not have
considered appellant's claim that his sentence was illegal in a petition for post-conviction
relief.3 This argument is premature.
__________

1
NRS 177.325 provides in part: The proceeding is commenced by filing with the clerk of the court in which
the conviction took place a petition verified by the petitioner or his counsel. . . . The clerk shall . . . [w]henever
possible, assign the petition to the original judge or court. . . .

2
NRS 177.375(1) provides: If the petitioner's conviction was upon a plea of guilty, all claims for
post-conviction relief are waived except the claim that the plea was involuntarily or unknowingly entered or that
the plea was entered without the effective assistance of counsel.
post-conviction relief.
3
This argument is premature. If the district court does refuse to
consider appellant's claim regarding the legality of his sentence, appellant may then appeal
that ruling or seek relief through the writ of habeas corpus. Moreover, appellant's preference
for the writ of habeas corpus is without basis in the statutes, because the restriction he seeks
to avoid applies equally to petitions for the writ of habeas corpus. Compare NRS 177.375(1)
with NRS 34.810(1)(a).
Appellant cites previous decisions in which this court referred to habeas and
post-conviction procedures as alternative remedies. See, e.g., Marshal, supra. These decisions
have, however, been superseded by the legislature's enactment in 1987 of NRS 34.725 which
requires that a request for a writ of habeas corpus be preceded by a timely petition for
post-conviction relief or, alternatively, be accompanied by a showing of prejudice and good
cause why the movant has not filed a timely petition for post-conviction relief.
[Headnote 5]
Finally, appellant contends that the district court erred in not granting him an evidentiary
hearing regarding his claims relating to the voluntariness of his plea, the effectiveness of his
counsel and the propriety of his sentence. The First Judicial District Court could properly
dismiss appellant's petition summarily and without a hearing on the basis of his procedural
default. See NRS 34.740(2).
4
Appellant's failure to meet the statutory prerequisites of NRS
34.725 for filing a petition for habeas corpus is a proper ground for dismissal of his petition.
For the reasons stated above, we conclude that the district court properly dismissed
without prejudice appellant's petition for habeas corpus relief and did not err in denying him
an evidentiary hearing. The order of the district court is affirmed.
5

__________

3
We note that if appellant's guilty plea was validly entered, it was necessarily predicated on his receiving a
sentence that is not illegal. See NRS 174.035 (the court shall not accept a guilty plea without first determining
that the defendant is making the plea voluntarily and with understanding of the nature of the charge and the
consequences of his guilty plea).

4
NRS 34.740(2) provides in pertinent part: If it plainly appears from the face of the petition and any
documents and petitions annexed to it that the petitioner is not entitled to relief, the judge or justice shall make
an order for its summary dismissal and cause the petitioner to be notified.

5
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our order dismissing this appeal filed December 29, 1988.
____________
105 Nev. 68, 68 (1989) Lopez v. State
MANUEL SAUCEDO LOPEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 16677
February 27, 1989 769 P.2d 1276
Appeal from judgment of conviction of murder by torture, from order denying motion for
new trial, and from sentence of death. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Defendant was convicted in the district court of murder by torture, and sentenced to death,
and he appealed. The Supreme Court held that: (1) absence of trial transcript for one day of
the trial did not warrant new trial; (2) reconstructed record was adequate for review; (3)
victim's mother's testimony did not have to be corroborated; (4) trial court did not err in
failing to give supplemental jury instructions; (5) new penalty hearing was not required due to
absence of transcript; (6) three-year delay in preparing trial transcript did not deprive
defendant of due process; and (7) death sentence was not disproportionate.
Affirmed.
Kevin M. Kelly, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Rex Bell, District Attorney, James
Tufteland, Deputy, and Daniel M. Seaton, Deputy, Clark County, for Respondent.
1. Criminal Law.
Absence of trial transcript for one day of trial due to malfeasance of court reporter did not warrant new trial where testimony of six
witnesses who testified that day was reconstructed through combination of notes taken by two state trial counsel and was accepted by
trial court as fair representation of witnesses' testimony. NRAP 10(c).
2. Criminal Law.
Authentication by trial court of reconstructed record was not necessary. NRS 52.015, 52.015, subds. 1, 2.
3. Criminal Law.
Reconstructed record of missing day of trial transcript was adequate for meaningful appellate review where there were four
separate sets of notes from which the record was reconstructed, all notes were taken contemporaneously with the testimony, notes were
of testimony concerning which trial judge had personal knowledge, notes were all favorable to defendant, and there was little
discrepancy or variance between the notes.
4. Criminal Law.
Testimony of mother of four-year-old victim of murder by torture was not required to be corroborated where, although
characterized as an accomplice by the defendant, mother was not viewed as an accomplice by the State.
105 Nev. 68, 69 (1989) Lopez v. State
accomplice by the defendant, mother was not viewed as an accomplice by the State. NRS 175.291, subd. 2.
5. District and Prosecuting Attorneys.
Prosecutors have wide discretion in performance of their duties.
6. Criminal Law.
Late receipt by defendant, who had been charged with murder by torture of his four-year-old stepdaughter, of psychiatric reports
on his wife did not warrant mistrial where reports were received by defense at same time State obtained them, it was questionable
whether information was exculpatory to defendant, and there was no showing that information was suppressed or intentionally
withheld from defendant.
7. Criminal Law.
Mistrial motions are committed to discretion of trial court.
8. Criminal Law.
Statements made by four-year-old victim of murder by torture to her mother regarding her stepfather's physical abuse were excited
utterances where first statement was made when mother discovered her daughter sitting in tub full of hot water and second statement
occurred when mother discovered child tied up in closet.
9. Criminal Law.
While admission of certain photographs in murder by torture prosecution without objection was conditioned on photographs being
tied up, same agreement did not apply to physical evidence, and thus failure to object to admission of that physical evidence
precluded appellate consideration of any error in its admission.
10. Criminal Law.
Even if issue were preserved for appeal, trial court did not err in murder by torture prosecution of four-year-old stepdaughter in
admitting electrical wire, electrical cord, and macrame plant holder where there was sufficient relevant evidence to show that
stepdaughter had been tied up by the cords and hung by her hair from the plant holder by use of the cords.
11. Criminal Law.
Admission of rebuttal evidence is within discretion of trial court.
12. Criminal Law.
Trial court did not err in permitting State to introduce on rebuttal mannequin of approximately same height and weight as
four-year-old victim of murder by torture where State's purpose in introducing the mannequin was to contradict defendant's contention
that child's mother was responsible for the child's death by showing how hard it would be for pregnant woman to lift forty-seven pound
child over her head.
13. Criminal Law.
Trial court did not err in refusing to give supplemental jury instructions 24 hours after jury sought clarification and was given
initial supplemental instructions; original instructions adequately addressed primary concern of jury.
14. Criminal Law.
Despite existence of conflicting evidence, jury verdict will not be disturbed on appeal where verdict is supported by substantial
evidence.
15. Homicide.
Evidence supported conviction for murder by torture of defendant's four-year-old stepdaughter.
105 Nev. 68, 70 (1989) Lopez v. State
Meaningful, effective appellate review depends on availability of accurate record covering lower court proceedings relevant to
issues on appeal and failure to provide adequate record on appeal handicaps appellate review and triggers possible due process clause
violations. U.S.C.A.Const. Amend. 14.
17. Criminal Law.
Defendant was not entitled to new penalty hearing due to absence of penalty hearing transcript in record on appeal because of
professional dereliction of court reporter; record was reconstructed from reporter's notebooks and audio tapes by experienced court
reporters familiar with original reporter's work and style, attorneys for both sides reviewed the reconstructed transcript, and trial judge
reviewed the transcript and stated that it appeared to be complete and accurate.
Due process was not violated by three-year delay in obtaining appellate review of murder by torture conviction and death penalty
due to need to reconstruct penalty phase trial transcripts where defendant was not prejudiced in his ability to fully develop and present
his issues on appeal and review by Supreme Court was not impaired. U.S.C.A.Const. Amend. 14.
19. Criminal Law.
Prejudice is shown from delay if appellant is able to demonstrate that he is unable to present adequate appeal because of delay or
that he will be unable to adequately defend in the event conviction is reversed and retrial is ordered.
Defendant's anxiety during post-conviction incarceration caused by delay of appeal does not violate due process. U.S.C.A.Const.
Amend. 14.
21. Homicide.
Imposition of death sentence on defendant convicted of murder by torture of his four-year-old stepdaughter was not excessive or
disproportionate; both age of victim and methods of torture to which she was subjected reflected high degree of depravity and
indifference to human suffering.
22. Homicide.
Evidence that incidents leading to murder by torture of four-year-old stepdaughter were neither isolated nor product of
instantaneous acts of rage supported finding of death penalty aggravating circumstances of torture and depravity of mind. NRS
200.033, subd. 8.
23. Criminal Law.
Failure of jurors in prosecution for murder by torture of four-year-old stepdaughter to disclose on voir dire that they had been
abused as children did not constitute misconduct warranting new trial where there was no intentional concealment, despite contention
that jurors would not accept as correct defense theory that child's mother, as abused child herself, became abuser of the victim.
24. Criminal Law.
Trial court did not err in refusing mistrial in prosecution for murder by torture based upon alleged perjured testimony of key
witness for prosecution; alleged perjury, that witness was in fact brother of victim's mother, was not proved.
105 Nev. 68, 71 (1989) Lopez v. State
OPINION
Per Curiam:
This appeal concerns the murder by torture of a four-year-old child, Jessica. Appellant,
Manuel Saucedo Lopez (Lopez), was convicted by a jury of the murder and sentenced to
death in a separate penalty hearing. After a careful and extended review of the issues, the
record, and the briefs and arguments of counsel, we conclude that Lopez was fairly tried,
convicted and sentenced; we therefore affirm.
I. THE FACTS
The testimony adduced at trial, although controverted by Lopez, established a pattern of
abuse and torture that eventuated in the merciful demise of the four-year-old child-victim,
Jessica, the daughter of Maria Lopez (Maria) and stepdaughter of appellant, Lopez.
The State's chief witness was Maria. She explained that Jessica was fathered by a man in
Tijuana, Mexico, and that the child lived with her in Mexico for the first two years after her
birth in 1980. Thereafter, until the early part of November, 1984, Jessica stayed in Tijuana
with her maternal grandmother. While the child was in Tijuana, Maria entered the United
States illegally and eventually married Lopez in 1982. Maria's aunt and uncle brought Jessica
to her mother in November, 1984, informing her that Jessica was a bright child with a
bed-wetting problem. Maria was pregnant at the time with her second child by Lopez.
Maria testified that there were no problems initially, but by Thanksgiving Lopez was
beating Jessica twice a day with a belt because of the child's incontinence. Thereafter,
according to Maria, the stepfather's acts of brutality against the child included: (1) asking
Jessica if she knew where the bathroom was, then grabbing her by the hair and dashing her
against the toilet bowl; (2) hanging Jessica by her hair with her feet above the floor all night
long; (3) stripping her and tying her up in a nearby shed, where, when Maria went to retrieve
her, the child protested out of fear that Lopez would hurt her; (4) leaving Jessica in a bathtub
filled with cold water for two hours, and afterwards, when she could not stop shivering and
would not react, forcing her to drink a half glass of whiskey; when Maria sought to intervene,
Lopez shoved her into a door, causing Maria to commence labor; (5) placing Jessica in a tub
of extremely hot water and forcing her to remain there with a towel pushed into her mouth to
muffle her screams; (6) hanging Jessica in a closet by her hair and forcing the child to eat her
own feces because, being tied up, she had no recourse other than to defecate in her
underpants; and {7) the night before Jessica died, trying to force her to get up and walk,
and when she was unable to do so, grabbing her by the hair, throwing her against the
wall, and striking her with a belt.
105 Nev. 68, 72 (1989) Lopez v. State
recourse other than to defecate in her underpants; and (7) the night before Jessica died, trying
to force her to get up and walk, and when she was unable to do so, grabbing her by the hair,
throwing her against the wall, and striking her with a belt.
Dr. James Clarke, who performed the post-mortem examination on the deceased child,
testified that his external findings included: (1) extensive burns about the lower legs,
buttocks, perineum and genital area, and an extensive second degree burn involving the right
lower leg, extending up to the knee; (2) extensive bruising about the right hip and both arms,
in particular numerous small bruises spaced about the right upper arm suggesting forcible
grasping by fingers or a hand; (3) a swollen upper lip, a black eye appearance around both
eyes and several bruises about the forehead; and (4) hair missing from part of the scalp.
Dr. Clarke concluded that the child suffered an extremely painful death resulting from
abdominal peritonitis due to a perforated ulcer caused by a state of shock ensuing from the
injuries and burns.
Jessica's death first officially became known on January 11, 1985, when a city fireman was
dispatched to the Lopez apartment and directed to a bedroom to check on a sick child. Upon
ascertaining that the child was dead, the fireman, William Jepson, made inquiry of Lopez
concerning the whereabouts of the child's parents and was told, untruthfully, that Lopez did
not speak English. Although Maria and the stepfather were both present among a gathering of
family and friends, Jepson was told that the child's parents were in Tijuana, Mexico.
Eventually, Lopez and Maria were identified as Jessica's parents. Through a police
interpreter, both Maria and Lopez told a police detective that Jessica had fallen from a slide.
However, within an hour or two later at the detective bureau, Maria said that Lopez was
responsible for Jessica's death by beating and burning her. Maria explained that she had gone
along with the story about the child falling off the slide because she was afraid the police
would deport her to Mexico.
A Spanish-speaking police officer participated as an interpreter during separate interviews
with Lopez and Maria. He testified that Maria was distraught and crying as she recounted
what Lopez had done to her daughter. The officer indicated that Lopez, on the other hand,
showed no remorse and when asked about the child's burns said that after he finished taking a
shower he told Jessica to take a shower. Lopez also told the officer that apparently the water
was too hot and Jessica came running out and had burned herself. When the officer then
asked Lopez what had happened, Lopez replied that "maybe she slipped."
105 Nev. 68, 73 (1989) Lopez v. State
happened, Lopez replied that maybe she slipped. The officer also testified that Lopez had
exclaimed in English, Go ahead and shoot and kill me. I know you want to. I deserve it. I
have nothing to live for.
Although we find it unnecessary to recite additional facts from the record, we do note that
physical evidence gathered from the apartment and testimony elicited from neighbors tended
to support the verdict against Lopez.
II. THE ISSUES
A. The Guilt Phase
1. Whether the trial court erred in denying defendant's motion for new trial due to an
inadequate reconstructedrecord for appeal.
[Headnote 1]
There is no dispute that due to the malfeasance of the court reporter there is no trial
transcript of the trial proceedings occurring on April 15, 1988. On that date, six witnesses
testified on behalf of the defense. As a result of the reporter's failure, Lopez moved the trial
court for a new trial.
The testimony of the six witnesses was reconstructed through a combination of notes taken
by the two trial counsel for the State and two members of an organization known as Families
of Murder Victims who attended the trial. Counsel for Lopez declined to participate. At a
hearing for the purpose of reconstructing the record pursuant to NRAP 10(c)
1
and an order
of this court, the trial judge reviewed the notes, accepted the tendered supplemental record as
a fair representation of the testimony of the six witnesses, and denied the motion for new
trial.
In essence, Lopez contends that the reconstructed record is inadequate for this court to
fulfill its appellate role and that it was error for the trial court to deny a new trial. Although
the reconstructed record may not be ideal, it is amply sufficient to obviate the necessity of a
new trial.
__________

1
NRAP 10(c) states:
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable,
the appellant may prepare a statement of the evidence or proceedings from the best available means,
including his recollection. The statement shall be served on the respondent, who may serve objections or
propose amendments thereto within ten (10) days after service. Thereupon the statement and any
objections or proposed amendments shall be submitted to the district court for settlement and approval
and as settled and approved shall be included by the clerk of the district court in the record on appeal.
105 Nev. 68, 74 (1989) Lopez v. State
Lopez strongly urges us to rely on State v. Moore, 534 P.2d 1124 (N.M. 1975), where the
court held that the absence of a trial transcript warranted a new trial.
2
In Moore, the trial
recorder was unable to produce the record because the trial tapes were inaudible;
consequently, the appellate court found itself unable to review the defendant's allegation of
error relating to the voluntariness of his confession. However, Lopez's reliance on Moore is
misplaced as it is readily distinguishable from the instant case. In Moore, practically the
entire record was unavailable to the appellate court, which noted that only a skeleton
transcript had been filed. 534 P.2d at 1124. Whereas the Moore court had virtually no record
to review, we have some 1,700 pages of testimony available to us in the record on appeal.
Secondly, the Moore court noted that because the tapes were inaudible and defense counsel
was unable to recall events at trial, the record could not be reconstructed.
3
Although Lopez's
counsel likewise claims an inability to recall the testimony covered by the missing transcripts,
a reconstruction was not only undertaken, but approved by the district court as a fair
representation of the testimony of the witnesses. In fact, the Moore court noted that, in
considering whether a new trial should be granted for inability to produce a transcript, a
factor to consider is whether a substitute or alternative form of record may be had. 534 P.2d
at 1125.
[Headnote 2]
In his amended opening brief, Lopez raises a number of objections to the manner in which
the record was reconstructed. His primary objection relates to the trial court's failure to
authenticate, as assertedly required by NRS 57.015, the trial notes used to reconstruct the
missing testimony. There are simply no cases suggesting that such authentication is necessary
when a trial court is certifying a reconstructed record.4 It is far from clear that NRAP 10{c)
mandates the application of NRS 52.015 {authentication and identification) to attempts to
reconstruct the trial record.
__________

2
Lopez provides a string of citations to support the claim that the missing transcripts mandate a new trial.
However, the cases cited are largely irrelevant: they deal with the equal protection problem raised when the State
provides written transcripts to defendants able to pay but denies the same to indigent defendants.
Of marginal relevance is United States v. Workcuff, 422 F.2d 700 (D.C.Cir. 1970). In Workcuff the court
required a new trial on a finding that the reconstructed record was unacceptable. Importantly, however, the
reconstructed record in Workcuff was made from the incomplete hearsay recollections of one of the parties
which consisted of notes that were primarily illegible scrawls. Id. at 701-02 (emphasis added). In the instant
case, the notes were not recollections but notes taken as the testimony was given; neither is there any problem
concerning the legibility of the notes.

3
Indeed, the State in Moore did not even oppose the defendant's motion for a new trial.
105 Nev. 68, 75 (1989) Lopez v. State
is certifying a reconstructed record.
4
It is far from clear that NRAP 10(c) mandates the
application of NRS 52.015 (authentication and identification) to attempts to reconstruct the
trial record. NRAP 10(c) authorizes the preparation of a statement of the evidence which . . .
statement and any objections or proposed amendments shall be submitted to the district court
for settlement and approval and as settled and approved shall be included by the clerk of the
district court in the record on appeal.
Lopez suggests that the authors of the contemporaneous trial notes should have been
required to take the stand to authenticate their efforts. Although under ordinary circumstances
authentication of evidence to which the trial court has no personal knowledge is typical, in the
instant case the State was asking the court to certify a reconstructed record which reflected
testimony which had occurred in the presence of the court. Moreover, at the hearing for
reconstructing the record, Deputy District Attorney Dan Seaton, as an officer of the court,
identified the contemporaneous trial notes that both he and Deputy District Attorney Ray
Jeffers took of the testimony of the defense witnesses. In an affidavit filed with the court in
conjunction with the State's opposition to the defendant's motion for a new trial, Eva
Collenberger swore that she took notes of the defense witnesses' testimony on April 15, 1985,
and attached those notes to her affidavit. All of the aforementioned notes are legible and
included in the record on appeal. Consequently, it was unnecessary to call authentication
witnesses to the stand in an evidentiary hearing.
Even if this court were to conclude that NRS 52.015 is applicable to NRAP 10(c)
proceedings, NRS 52.015(1) specifies that the requirement of authentication or identification
. . . is satisfied by evidence or other showing sufficient to support a finding that the matter in
question is what its proponent claims (emphasis added). Hence, the trial court has the
discretion to determine whether, by other showing, the requirement of authentication has
been met.
5

Finally, Lopez contends generally that the reconstructed record is simply inadequate to
enable this court to determine whether there is sufficient evidence to sustain
__________

4
Lopez relies on Com v. Harris, 379 N.E.2d 1073 (Mass. 1978), as supporting the proposition that an
evidentiary hearing must be held when reconstructing the record. However, a close analysis of Com reveals that
the court suggested general guidelines for the trial court to follow in reconstructing the record and did not
mandate an evidentiary hearing.

5
NRS 52.015(2) provides that examples listed as meeting the requirements for authentication (NRS
52.025-.110) are illustrative and not restrictive examples of authentication or identification. . . . (emphasis
added).
105 Nev. 68, 76 (1989) Lopez v. State
there is sufficient evidence to sustain a conviction of first-degree murder.
6
He claims that the
six witnesses were called not to solely attest to his good character, but to present factual
evidence regarding the actions of Lopez and Maria preceding Jessica's death and to the
physical well-being of Jessica on the various occasions when she was allegedly mistreated by
Lopez.
[Headnote 3]
We hold that the reconstructed record is adequate for this court to perform a meaningful
appellate review, including a determination concerning the sufficiency of the evidence to
sustain the conviction. The following factual findings support the trial judge's conclusion that
the reconstructed record was a fair representation of the six witnesses' testimony: (1) there
were four separate sets of notes dealing with the same events; (2) all the notes were taken
contemporaneously with the testimony; they were not notes of present recollection; (3) the
notes were of testimony concerning which the trial judge had personal knowledge; (4) the
notes were all favorable to Lopez and detrimental to Maria; and (5) there is little discrepancy
or variance between the notes.
We conclude this point with the observation that although Lopez has strenuously argued
that the reconstructed record is inadequate to permit a full and fair review of the sufficiency
of the evidence to sustain a first-degree murder conviction, his reply brief resorts to the same
record to demonstrate to this court why the evidence is insufficient.
7
Thus, without
specifying sources of deficiency in the reconstructed record that are prejudicial to his defense,
Lopez anomalously relies on its accuracy in supporting his position against the State.
__________

6
To bolster his claim, Lopez correctly observes that none of the notes taken mentions objectionsthe nature
of which he cannot specifically recallbut which he believes he made during the State's cross-examination of
the six witnesses. Although the trial judge felt there were no legal issues raised during the testimony of the six
witnesses, Lopez challenges the premise with the claim that [t]he legal issue in these six witnesses' testimony is
precisely that there is insufficient evidence as illustrated by the testimony of these six witnesses to sustain a
conviction of first degree murder. . . .

7
Appellant's defense theory was that Maria caused Jessica's death. In support of his theory, the six witnesses
not only testified to appellant's character, but of Maria's relationship to Jessica and Jessica's physical well-being
on various days she was allegedly mistreated by Lopezall of this testimony was detrimental to Maria and
highly favorable to Lopez. By extensively quoting from the testimony of three of these witnesses, via the
reconstructed record, appellant seeks to support his claim that the evidence was insufficient to sustain the
first-degree murder conviction. However, contrary to Lopez's claim, the testimony of the six defense witnesses
does not demonstrate that the conviction cannot be sustained. What the testimony
105 Nev. 68, 77 (1989) Lopez v. State
The reconstructed record fairly represents the trial testimony occurring on April 15, 1985;
the trial court did not err in denying Lopez's motion for new trial.
2. Whether reversal is warranted because of uncorroborated accomplice testimony.
[Headnotes 4, 5]
Lopez contends that he was prejudiced by the uncorroborated testimony of the victim's
mother, Maria, whom Lopez characterizes as an accomplice. NRS 175.291(2) defines an
accomplice as
. . . one who is liable to prosecution, for the identical offense charged against the
defendant on trial, in the cause in which the testimony of the accomplice is given
(emphasis added).
Although Lopez assumed that Maria was an accomplice, the State's position at trial was that
Maria was not responsible for Jessica's death and that she was not an accomplice in the
commission of the crime. Prosecutors have wide discretion in the performance of their duties.
See Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973). It necessarily follows that NRS
175.291 has no application to the instant case.
8
Moreover, the position taken by Lopez on
this issue is undermined by his disavowal of any involvement in brutalizing the victim.
Appellant's contention is simply without merit.
3. Whether the trial court erred in denying appellant's motion for mistrial.
[Headnote 6]
During the trial, Lopez made a motion for mistrial on the claim that the State had
intentionally withheld information alleged to be exculpatory. The information concerns a
written report by Ted Salazar, wherein he states, in consultation with Dr. Strauss, a
psychiatrist, that Maria has organic brain damage. The report also provides greater detail as to
the extent Maria was abused as a child.
__________
shows is that there was conflicting evidence presented to the jury. In such event, it is the function of the jury to
resolve areas of disputenot the court. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1980).

8
A case on point is Globensky v. State, 96 Nev. 113, 605 P.2d 215 (1980), wherein this court held that NRS
175.291 did not apply where evidence showed without serious contradiction that the defendant's wife, who was
initially held on the same charge but who testified against the defendant, was not liable to prosecution for the
identical crime charged. In the instant case, Maria was initially charged with Accessory to Felony Child Abuse;
however, she was never charged with the crime appellant stands convicted of: murder by torture.
105 Nev. 68, 78 (1989) Lopez v. State
Based on a motion for continuing discovery granted to appellant March 28, 1985, Lopez
complains that the late receipt of the written report on April 9, 1985, during a trial lunch
recess, violates NRS 174.295 and the Supreme Court mandate of Brady v. Maryland, 373
U.S. 83 (1963). The contention is without merit. NRS 174.295 in pertinent part provides:
. . . if, subsequent to compliance with [a discovery order] and prior to or during trial, a
party discovers additional material previously requested or ordered which is subject to
discovery or instruction . . . he shall promptly notify the other parties or attorneys . . .
of the existence of additional material.
The Brady Court held that suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of good faith or bad faith of the prosecution. 373 U.S. at 87.
9
In
following the Brady rule, this court has reversed a conviction where the prosecutor
intentionally failed to disclose a psychiatrist's report. Wallace v. State, 88 Nev. 549, 501 P.2d
1036 (1972).
Although the preceding authority cited by Lopez correctly states the law, application of the
particular facts of the instant case to that law supports the district court's denial of the motion
for mistrial.
When appellant's March 28, 1985, motion for continuing discovery was granted, counsel
acknowledged that the State had already provided most of what had been requested in his
motion, and that he had been advised that Maria had been abused as a child. In his request for
any additional written reports or statements made by Maria, appellant's counsel was informed
by the State that it did not have any reports. On April 9, 1985, during a trial lunch recess, Ted
Salazar came to Mr. Jeffers' office, at which time Jeffers asked Salazar if he had any reports.
Salazar indicated he had notes from different interviews with Maria; Jeffers requested the
notes and immediately delivered copies to appellant's counsel. Thus the notes were received
by Lopez at the same time the State obtained them.
However, the notes reveal that Mr Jeffers was present at a March 24, 1985, psychiatric
interview of Maria wherein greater details of Maria's abuse as a child and her potential
organic brain defect were revealed.
__________

9
In Moore v. Illinois, 408 U.S. 786 (1972), the Supreme Court notes that in applying the Brady rule the
important factors to consider are (a) suppression by the prosecution after a request by the defense, (b) the
evidence's favorable character for the defense, and (c) the materiality of the evidence. 408 U.S. at 794-95.
105 Nev. 68, 79 (1989) Lopez v. State
defect were revealed. Lopez contends that Jeffers' failure to promptly convey this information
to him constitutes grounds for a mistrial. Although it is questionable whether the information
is exculpatory to him,
10
appellant fails to demonstrate that the information was suppressed or
intentionally withheld from him. Appellant's only support to this effect is that since the
specific information in the notes was not promptly provided when the State learned of it, it
can only be inferred that it was intentionally withheld. The evidence does not support this
inference. Prior to the motion for continuing discovery, Jeffers had already informed
appellant's counsel that Maria had been abused as a child. Upon learning that Mr. Salazar had
notes of his interviews with Maria, Jeffers requested the notes and immediately delivered
copies thereof to appellant's counsel.
[Headnote 7]
Mistrial motions are committed to the discretion of the trial court, Reese v. State, 95 Nev.
419, 424, 596 P.2d 212, 216 (1979), and under the facts related, the trial court did not abuse
that discretion.
4. Whether the trial court erred in denying appellant's motion in limine.
During trial, appellant's counsel moved the court to disallow testimony by Maria of
statements made to her by her daughter, Jessica. The motion was properly denied.
[Headnote 8]
First, Lopez argues unpersuasively that NRS 48.075 is inapplicable to this case. NRS
48.075 unambiguously provides that [e]vidence is not inadmissible solely because it is
evidence of transactions or conversations with or the actions of a deceased person. Next,
Lopez contends that the statements made by Jessica to Maria do not fall within any hearsay
exception. To the contrary, statements Maria testified were made to her by Jessica fall under
the excited utterance exception.
11
Maria testified of only two conversations with Jessica
regarding physical abuse by Lopez. The first occasion relates to the time Lopez burned
Jessica by forcing her to sit in hot water. Right after Lopez left, Maria woke up to Jessica's
crying and found her in the tub, at which time Jessica related what Lopez had done to her.
__________

10
The information revealed that Maria had been beaten with a horse rope and dragged by her hair. The only
evidence that Jessica had been dragged by the hair came from Arturo Montez, who testified that he saw
appellant drag Jessica by the hair. Even assuming that the information created an inference that Maria was
involved in the physical abuse of Jessica, appellant fails to demonstrate how this exculpates him.

11
NRS 51.095 provides: A statement relating to a startling event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter, is not inadmissible under the hearsay rule.
105 Nev. 68, 80 (1989) Lopez v. State
woke up to Jessica's crying and found her in the tub, at which time Jessica related what Lopez
had done to her. The second incident concerns the time when Maria discovered Jessica in the
closet with her hands tied and cord tangled in her hair. Maria asked Jessica what happened;
Jessica told her she could not go to the bathroom and consequently had a bowel movement in
her clothes and that Lopez forced her to eat her own feces. This statement was made within a
couple of hours of the event at a time when the child was still tied up in the closet. Under
such circumstances, the statements in question are excited utterances. Dearing v. State, 100
Nev. 590, 691 P.2d 419 (1984).
Finally, although Lopez contests the admissibility of Maria's testimony of these
statements, he nevertheless, on direct examination, testified to several statements he
attributed to Jessica. Thus, Lopez endorses the application of NRS 48.075 to his own
testimony, but not to Maria's. The motion in limine was properly denied.
5. Whether the trial court erred in refusing to strike certain State exhibits.
[Headnote 9]
The exhibits in question concern an electrical wire, a red and white electrical cord which
had been spliced together, and a macrame plant holder. Each of these exhibits were admitted
into evidence without objection from appellant's counsel, who now argues that he did not
object because it was his understanding that the evidence was being admitted subject to being
tied up. Because, he contends, the items were never identified as instrumentalities used
against Jessica, he was entitled to a motion to strike the exhibits.
A review of the record does not support the contention that there was an understanding
between all that certain evidence would be admitted without objection if in fact it was tied
up. Apparently, what the prosecutor asked the court was whether he could show certain
photographs to some of the State's witnesses, prior to calling Detective Wohlers to the stand,
to lay the foundation for the admission of the photographs; the discussion was irrelevant with
respect to the exhibits. This court has held that as a general rule the failure to object . . . will
preclude appellate consideration. Garner v. State, 78 Nev. 366, 372, 374 P.2d 525, 529
(1962).
[Headnote 10]
Even if we were to accept appellant's interpretation of the prosecutor's statement and
conclude that the issue is preserved for appeal, the trial court still did not err. There was other
sufficient relevant evidence shown to permit admission of the exhibits.
105 Nev. 68, 81 (1989) Lopez v. State
sufficient relevant evidence shown to permit admission of the exhibits. There was testimony
that Jessica had been tied up by cords, and that she had been hung by her hair from a
macrame plant holder by the use of cords; the hair expert, Dan Berkabile, testified that hair
found on all three exhibits was most likely Jessica's. Consequently, the trial court did not err
in failing to grant the motion to strike.
6. Whether the trial court erred in admitting a mannequin during the State's rebuttal.
Lopez contends that the trial court erred in permitting the State to introduce a mannequin
(approximately the same height and weight of the child-victim) during its rebuttal phase of
the trial. Lopez argues that such evidence did not constitute rebuttal evidence and should have
been introduced during the State's case in chief.
[Headnote 11]
Admission of rebuttal evidence is within the discretion of the trial court. See Morrison v.
Air California, 101 Nev. 233, 699 P.2d 600 (1985). In Morrison, a civil case, this court
defined rebuttal evidence as that which explains, contradicts, or disproves evidence
introduced by a Defendant during his case in chief. Id. at 235-36, 699 P.2d at 602.
[Headnote 12]
The law as applied to the facts of the instant case affirms that the trial court did not abuse
its discretion. The court ruled that the evidence was clearly rebuttal evidence becauseas
shown by the recordit was not until Lopez put on his case that the State was sure of
appellant's defense theory that Maria was responsible for Jessica's death. During the time
Jessica was abused, Maria was either pregnant, in the hospital delivering a baby, or
recuperating after the baby's birth. There was evidence tending to corroborate Maria's
testimony that Jessica had been hung by her hair. The State's purpose in introducing the
mannequin was to allow the jury members to see for themselves how hard it is to lift a
forty-seven pound child over one's head. It was an attempt to contradict appellant's case in
chief; such is the very nature of rebuttal evidence. Consequently, appellant's argument lacks
merit.
7. Whether the trial court erred in refusing to give supplemental jury instructions.
[Headnote 13]
During the jury deliberations, the jury sent the court two questions: 1.
105 Nev. 68, 82 (1989) Lopez v. State
1. If the defendant had any knowledge of any acts leading to the death of victim, does it
constitute involuntary manslaughter.
2. Does knowledge of torture constitute first degree murder.
Seeking clarification of their questions, the court sent a note to the jury which read: Whose
knowledge of which do you mean. Shortly thereafter, the jury sent another set of questions:
Your honor:
We the jury request a clarification on points of law.
1. Pertaining to instruction No. 10, involuntary manslaughter, without due caution and
circumspection would this be synonomous [sic] to knowledge of?
2. Does knowledge of torture constitute first degree murder?
In response, the court, upon the agreement of counsel, sent a supplemental instruction to the
jury which read:
Mere presence of knowledge of the commission of a crime without any participation by
the person with such knowledge will not support a conviction of first degree murder by
torture, or involuntary manslaughter.
No further questions were posed to the court. However, despite the lack of further jury
inquiries, the next day appellant's counsel proposed two additional supplemental jury
instructions. The proposed instructions expanded the answer to the jury's last request by
defining without due caution and circumspection. Although the State proffered no
objection, both the prosecutor and the court expressed concern in interrupting the jury almost
24 hours after the last request had been made. Indeed, the judge noted, I think at this point if
we tried to submit these instructions, I think that we are indicating to them that they should be
thinking along these lines, and I do think that is invading the province of the jury. The
prosecutor was of the opinion that the original supplemental instruction already submitted
adequately addressed the primary concern of the jury and the trial judge agreed.
The trial judge also concluded, and we agree, that the jury was primarily concerned with
whether knowledge on the part of Lopez that Maria was abusing the child, would make him
criminally responsible. This concern, it is submitted, was adequately addressed by the
supplemental instruction submitted to the jury. Appellant in effect alleges that without the
additional supplemental instructions, the jury continued their deliberations in total ignorance
of the law and in a state of confusion. . . . The facts simply do not support this allegation.
105 Nev. 68, 83 (1989) Lopez v. State
simply do not support this allegation. The trial court properly denied the additional jury
instructions.
8. Whether the evidence is sufficient to support the verdict of the jury.
Lopez maintains that a rational trier of fact could not have concluded beyond a reasonable
doubt that he committed the crime of first-degree murder. He also broadly asserts that from
the very onset of the investigation by police, every conceivable violation of fundamental
fairness occurred, supporting this allegation by pointing to all the issues he has raised as
though they had been resolved in his favor.
[Headnotes 14, 15]
Our review of the record on appeal reveals sufficient evidence to establish guilt beyond a
reasonable doubt, as determined by a rational trier of fact. See Wilkins v. State, 96 Nev. 367,
609 P.2d 309 (1980). Despite the existence of conflicting evidence, a jury verdict will not be
disturbed on appeal where, as here, the verdict is supported by substantial evidence. See
Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
B. The Penalty Phase.
1. Whether appellant is entitled to a new penalty hearing because of an inadequate
reconstruction of the penalty phase record.
This issue will be discussed in some detail because of the serious concerns attached to
appellant's contention that this court has been deprived of an accurate and complete penalty
record upon which to base a full and fair review of his sentence of death.
Oral argument in this case was held on October 12, 1987. At oral argument, it was
determined that because of the professional dereliction of the court reporter, Lucile Fisher, the
record on appeal did not include a penalty hearing transcript. As a result, this court concluded
that further efforts to reconstruct the penalty hearing record should be pursued.
On October 15, 1987, we ordered the district court to conduct further hearings for the
purpose of reconstructing the penalty hearing record. To this end, hearings were held and
Stella Butterfield, a highly experienced court reporter, was enlisted to reconstruct a record
from Lucile Fisher's notebooks and long-playing tapes. The attorneys involved in the case
also assisted.
Unfortunately, the audio tapes provided nothing from the April 22, 1985 penalty hearing.
However, Fisher's notebook covering the hearing was located and identified. The notebook
was interpreted and translated into English. Butterfield compared the Lopez trial transcript to
Fisher's shorthand notes.
105 Nev. 68, 84 (1989) Lopez v. State
Lopez trial transcript to Fisher's shorthand notes. From this, a glossary or outline was
created which could then be used to interpret Fisher's penalty hearing notes. The glossary that
emerged revealed that Fisher used an offshoot of the original Gregg shorthand called
progressive writing, a technique also used by Butterfield. As a result, Butterfield was able to
commence the translation process.
The foregoing notwithstanding, punctuation was a major problem. Fisher did not
punctuate her shorthand notes. As a result, Butterfield had to provide punctuation based upon
her experience and familiarity with courtroom proceedings and decorum.
Butterfield, however, was not without help in her effort to translate the Fisher notebook.
First, Fisher herself was able to reconstruct five and a half transcript pages. Second, Frances
Holden, a shorthand writer who worked with the courts for thirty years and had also
transcribed with Fisher assisted Butterfield. Between Butterfield and Holden, they were able
to translate the rest of Fisher's notebook and provide a penalty hearing transcript draft.
Upon completion, the transcript draft was presented to the trial court and subjected to a
page by page review. Principally present during the review were Daniel Seaton, Chief Deputy
District Attorney, Kevin Kelly, appellant's attorney, and the trial judge. All three were present
at the original penalty hearing and all three reviewed the transcript draft and made necessary
changes. At the close of the draft review, Butterfield would not certify the transcript but
testified that it was a pretty clear representation of what occurred on that day [April 22,
1985]. After reading the corrected transcript version, the trial judge stated that it appeared to
be complete and accurate.
On June 9, 1988, a reconstructed penalty hearing transcript was filed and approved by the
trial judge for transmission to this court.
In conjunction with the filing of the reconstructed penalty transcript, appellant filed a
supplemental brief. In it, Lopez contends (1) that the reconstructed penalty hearing transcript
is insufficient to provide this court with a meaningful basis for review, and (2) that he has
been denied due process of law because of the three year transcript preparation delay.
Lopez argues that the reconstructed penalty hearing transcript does not provide sufficient
basis for review by this court. As a result, he demands that his death sentence be vacated, that
his conviction be reversed, and that this case be remanded for a new trial. For reasons
discussed below, we do not agree.
[Headnote 16]
Obviously, meaningful, effective appellate review depends upon the availability of an
accurate record covering lower court proceedings relevant to the issues on appeal.
105 Nev. 68, 85 (1989) Lopez v. State
upon the availability of an accurate record covering lower court proceedings relevant to the
issues on appeal. Failure to provide an adequate record on appeal handicaps appellate review
and triggers possible due process clause violations. See Van White v. State, 752 P.2d 814,
820-821 (Okl.Cr. 1988); State v. Dupris, 373 N.W.2d 446, 448-449 (S.D. 1985); State v.
Bolling, 246 S.E.2d 631, 637 (W.Va. 1978).
Turning to the merits of appellant's claim, reconstruction is the procedure followed in most
cases unless the appellant can show some specific error or prejudice resulting from the failure
to record or preserve trial proceeding records.
12
See Butler v. State, 570 S.W.2d 272,
274-275 (Ark. 1978); Craig v. State, 510 So.2d 857, 861 (Fla. 1987); Montford v. State, 298
S.E.2d 319, 321 (Ga.App. 1982); State v. Wright, 542 P.2d 63, 64-65 (Idaho 1975); State v.
Dupris, 373 N.W.2d 446, 449 (S.D. 1985); State v. Helmick, 286 S.E.2d 245, 249 (W.Va.
1982).
[Headnote 17]
In this case, the penalty phase transcript has been reconstructed and is adequately fair and
accurate to afford this court a sufficient record for appellate review. First, one quarter of the
transcript was reconstructed by the original court reporter. Second, a shorthand writer,
Frances Holden, familiar with the original reporter's work and style, assisted in the production
of the remaining three quarters of the record. Third, attorneys for both sides reviewed the
reconstructed transcript, page by page, and made changes. Fourth, Judge Shearing, who was
present during the penalty phase, reviewed it and stated that it appeared to be complete and
accurate. Finally, our own review of the reconstructed record suggests that the penalty hearing
transcript is a reasonably accurate reconstruction of what was said.
Although the record is not without errors and omissions, Lopez has failed to show
specifically how such errors and omissions are prejudicial. Specifically, Lopez urges this
court to take judicial notice of the alleged fact that the attorney who represented the State
generally makes inappropriate and prejudicial statements during murder trials and, thus,
presumably did the same in this case.
__________

12
The Fifth Circuit holds that where a defendant is represented by new counsel on appeal, the absence of a
substantial record, even absent any showing of specific prejudice, is sufficient to mandate reversal. See e.g.,
United States v. Taylor, 607 F.2d 153, 154 (5th Cir. 1979); United States v. Selva, 559 F.2d 1303, 1305 (5th
Cir. 1977). In Van White v. State, 752 P.2d 814, 821 (Okl.Cr. 1988), the court held that a complete stenographic
record is required in all capital proceedings. In State v. Perry, 401 N.W.2d 748, 751 (Wis. 1987), the court
stated that whether a particular transcript is sufficient for an appeal is dependent upon the nature of the case, the
nature of the claim of error, the passage of time from the date a transcript originally was, or should have been,
prepared, and whether the trial was to the court or to a jury.
105 Nev. 68, 86 (1989) Lopez v. State
statements during murder trials and, thus, presumably did the same in this case. Lopez also
argues that reconstructing a transcript from an unpunctuated notebook, with an apparent
illogical margin system and clear omissions is unjust, unfair, and unconstitutional. These
allegations, however, are vague and abstract. They fail to specifically demonstrate how Lopez
was prejudiced and in what specific, material areas the reconstructed transcript is deficient.
Without more, Lopez has failed to demonstrate that the reconstructed penalty hearing
transcript is materially less than essentially complete and accurate, as found by the trial judge.
2. Whether Lopez was deprived of due process because of a three-year delay in preparing the
trial transcript.
[Headnote 18]
Lopez argues that the trial and penalty hearing transcript preparation delay violated his due
process rights and, thus, his conviction should be reversed. This issue is one of first
impression in this court. However, other jurisdictions have recognized that a defendant may
be denied due process of law where there is an inordinate delay in the appeal process. See
e.g., Delancy v. Caldwell, 741 F.2d 1246, 1247 (10th Cir. 1984); United States v. Pratt, 645
F.2d 89, 91 (1st Cir. 1981); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980).
Our review of case law reveals that the courts basically have taken one of two approaches
in resolving this issue. The first relies heavily upon the Barker v. Wingo, 407 U.S. 514
(1972), analysis developed to determine issues involving the Sixth Amendment right to a
speedy trial. Proponents argue that the reasons for limiting acceptable appellate delay are
analogous to the motives underpinning Sixth Amendment speedy trial rights. Rheuark, 628
P.2d at 303-304. The Barker analysis requires the application and balancing of four factors.
13

[Headnote 19]
The second approach rejects the speedy trial analogy, looking instead to due process
questions of fairness and prejudice. Sands v. Cunningham, 617 F.Supp. 1551, 1566-1567
(D.C.N.H. 1985); State v. Chapple, 660 P.2d 1208, 1225 (Ariz. 1983); United States v.
Alston, 412 A.2d 351, 356-357 (D.C. 1980); State v. Hall, 487 A.2d 166, 171 (Vt. 1984).
Prejudice is shown if the appellant is able to demonstrate that he is unable to present an
adequate appeal because of the delay, or that he will be unable to adequately defend in the
event the conviction is reversed and retrial is ordered.
__________

13
Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant. 407 U.S. at 530.
105 Nev. 68, 87 (1989) Lopez v. State
retrial is ordered. Chapple, 660 P.2d at 1225-26; Alston, 412 A.2d at 356-57; Hall, 487 A.2d
at 171.
The rationale for rejecting the speedy trial analogy was outlined in Sands:
The purpose of the constitutional guarantee of speedy trial is (1) to prevent undue
and oppressive incarceration prior to trial, (2) to minimize anxiety and concern
accompanying public accusation, and (3) to limit possibilities that long delay will
impair the accused's ability to defend himself. [Citations omitted.] The Sixth
Amendment was adopted to assure that one accused of a crime is promptly brought to
trial. [Citation omitted.] The purposes of the Sixth Amendment, however, do not apply
in the context of an appellate proceeding where the accused has already been convicted
of an offense. [Citations omitted.]
617 F.Supp. at 1566. We agree with the reasoning of Sands and conclude that the second
approach is the better one to be adopted by this court.
[Headnote 20]
As a result, the questions to be resolved in the instant case are whether Lopez has shown
that he is unable to present an adequate appeal because of the delay, and whether he will be
unable to adequately defend himself should retrial become a reality. Apparently, Lopez does
not argue that he is unable to present his case on appeal. Instead, he contends that he has
suffered great anxiety while incarcerated during the appellate delay. However, defendant's
anxiety during post-conviction incarceration does not violate due process. See Chapple, 660
P.2d at 1226; Alston, 412 A.2d at 359.
Additionally, Lopez makes the argument that he will be unable to adequately prepare a
defense in the event of a retrial. Specifically, he argues that the key witness in the case, his
wife and mother of the deceased child, has since allegedly recanted her trial testimony, is now
in Mexico, and is unavailable for retrial. The State counters that the absence of the
prosecution's key witness would benefit Lopez on retrial. Whether, and to what extent, either
side would benefit or suffer from Maria's absence or recantation is speculative.
In our view, the fact that the appellate delay has not prejudiced appellant's ability to fully
develop and present his issues, or impaired our duty to review an essentially complete and
accurate record, is dispositive of the retrial issue. We have concluded that Lopez was fairly
tried and convicted, as revealed by the trial record, and is not entitled to a new trial.
Therefore, at this juncture, concerns regarding prejudice upon retrial are of no relevance.
105 Nev. 68, 88 (1989) Lopez v. State
relevance. Of course, if review under the federal system results in the prospect of a new trial
for Lopez, the present issue concerning the effect of Maria's absence and recantation may
assume greater significance. However, for our purposes, we conclude that Lopez was not
deprived of his right to due process because of the three-year appellate delay attributable to
the malfeasance of the court reporter.
3. Whether the death sentence was disproportionate to other cases in the State of Nevada.
[Headnote 21]
The death sentence imposed on Lopez for the torture-murder of four-year-old Jessica was
not excessive or disproportionate to the penalty invoked in similar cases in this State,
considering both the crime and the defendant.
14
The medical examiner testified that the
child's death was slow and painful. Both the age of the victim and the methods of torture to
which she was subjected reflect a high degree of depravity and indifference to human
suffering. In that regard, this murder is disquietingly reminiscent of the killing in Ybarra v.
State, 100 Nev. 167, 679 P.2d 797 (1984). In any event, this court has upheld the death
penalty in cases less egregious than appellant's. See, e.g., Hardison v. State, 104 Nev. 530,
763 P.2d 52 (1988); Mazzan v. State, 102 Nev. 69, 733 P.2d 850 (1987); Miranda v. State,
101 Nev. 562, 707 P.2d 1121 (1985); Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985);
Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). Accordingly, appellant's
proportionality challenge is without merit. Moreover, our review of the record compels us to
conclude that Lopez's sentence was not imposed under the influence of passion, prejudice, or
any arbitrary factor.
4. Whether the evidence supports the finding of aggravating circumstances.
[Headnote 22]
The jury found that Jessica's murder in the first-degree by Lopez was aggravated by the
circumstances of torture and depravity of mind. NRS 200.033(8). The jury also found that the
mitigating circumstances were insufficient to outweigh the aggravating circumstances. Our
review of the record reveals sufficient evidentiary support for the jury's finding. The incidents
leading to the child's demise were neither isolated nor the product of instantaneous acts of
rage, at least in those instances when the child was made to suffer over prolonged periods
that could have been shortened and alleviated by the onset of kinder, cooler passions.
__________

14
Because Lopez's crime antedated the amendment of NRS 177.055(2)(d) purporting to abolish the
proportionality review requirement, such a review by this court is required. However, we express no opinion as
to whether the amendment, effective June 6, 1985, accomplished its intended purpose.
105 Nev. 68, 89 (1989) Lopez v. State
child was made to suffer over prolonged periods that could have been shortened and
alleviated by the onset of kinder, cooler passions.
C. Other Issues
1. Whether the trial court erred in denying appellant's motion for new trial based upon
alleged juror misconduct.
[Headnote 23]
Following the penalty phase, appellant's counsel learned that two jurors, during
deliberations, revealed that they had been victims of child abuse. The incidents were brought
to the attention of the court, which denied an evidentiary hearing request, but instead
questioned the jurors. Based on the jurors' response, and in light of the voir dire proceedings
before trial, the judge concluded that there had been no misconduct. Lopez thereafter made a
motion for a new trial, alleging in effect that the court's inquiry of the two jurors was
inadequate, that failure of the jurors to disclose on voir dire that they had been abused as
children constituted misconduct, and that the disclosures during the jury deliberations were in
effect misconduct per se.
15
The trial court found that there was no misconduct in either voir
dire or during jury deliberations and denied appellant's motion. The trial court did not abuse
its discretion in denying the motion.
This court has held that where it is claimed that a juror has answered falsely on voir dire
about a matter of potential bias or prejudice, In the final analysis, the determination . . . turns
upon whether or not he was guilty of intentional concealment. The determination of that
question must be left with the sound discretion of the trial court. Walker v. State, 95 Nev.
321, 323, 594 P.2d 710, 711 (1979), (quoting McNally v. Walkowski, 85 Nev. 696, 701, 462
P.2d 1016, 1019 (1969)) (emphasis added). Upon learning that two jurors had been the
victims of child abuse, the trial court conducted an in-chambers proceeding wherein the
following questions were asked:
Q: Were you the subject of child abuse as a child?
A (Juror B.J.): Yes I was.
Q: And were you aware that there was a crime when you were questioned earlier in
the proceedings?
A: I believe it was brought up that that was, that child abuse was a crime. I've read it
in the papers, that child abuse was a crime, but I never associated it to mine until we
got into the jury room actually.
__________

15
This last contention is based on appellant's defense theory at trial that the abused becomes the abuser.
Despite having been abused as children, both jurors during deliberations indicated that they, nonetheless, had not
become abusers themselves.
105 Nev. 68, 90 (1989) Lopez v. State
was a crime, but I never associated it to mine until we got into the jury room actually.
Q: Okay. You did answer, in response to one of my questions, I believe, were you
ever the victim of a crime, and your answer was no.
A: No. But at that time I didn't associate child abuse to a crime.
. . . .
Q: Were you the subject of child abuse when you were a child?
A (Juror M.D.): Yes, I was. May I explain something, though?
Q: Yes.
A: When I answered the question that you had asked me about being the victim of a
criminal crime?
Q: Yes.
A: When I was a child, this wasn't specified as a criminal crime, so I didn't figure
that, you know, that was why I answered that way.
Q: Were you deliberately trying to withhold the information?
A: No.
Based on the responses, the trial court concluded that there had been no intentional
concealment. The preceding dialogue supports this conclusion. Furthermore, appellant's
counsel gave no indication to the jury or the court, before or during voir dire, that he would
rely upon expert testimony to the effect that Maria was the victim of abuse as a child and was
therefore more likely to be an abuser than Manuel Lopez.
16
The facts of the instant case
simply do not bear out appellant's allegation that during voir dire there had been intentional
concealment of information by the two jurors.
Lopez in effect argues that the conduct of the two jurors in deliberations constituted
misconduct because they did not accept as correct the defense theory that the abused becomes
the abuser. Appellant's behavioral theory is hardly a truism. In fact, there was conflicting
expert testimony regarding the validity of the defense theory in the context of this case. Jurors
are not expected to lay aside their own observations and experiences in life.
__________

16
Appellant gave no explanation whatsoever why he never addressed the issue of abuse. In reflecting on this,
the trial court in its written opinion convincingly argues:
It is inconceivable to this court that a defense attorney can deliberately fail to question jurors regarding
matters that relate to his defense theory of which only he has knowledge, and then later claim misconduct
when a juror is revealed to have a background which might influence his or her reaction to that defense
theory.
105 Nev. 68, 91 (1989) Lopez v. State
to lay aside their own observations and experiences in life. Almost all of the reported cases
which discuss juror misconduct during deliberations involve either independent research of
objective facts during deliberations or impermissible outside influence during deliberations.
Such limitations on juror misconduct represent sound judicial policy as observed by one
court: It must be, too, that in their deliberations jurors more or less generally recall
experiences in their own lives, and if new trials were commonly granted for such a reason
there would be no end to litigation. People v. Gabourie, 154 Cal.Rptr. 635, 642 (Cal. 1979),
(quoting Casey v. United States, 20 F.2d 752, 754 (9th Cir. 1927)).
The disclosures by the two jurors during deliberations did not constitute misconduct
justifying a new trial.
2. Whether the trial court erred in refusing a mistrialbased upon allegedly perjured testimony
of akey witness for the prosecution.
[Headnote 24]
Ten months after trial, appellant's attorney observed a TV interview of Arturo Montez.
17
The words Brother of Maria Lopez were superimposed on the screen. Appellant's attorney
contacted the reporter and obtained an affidavitsigned under strong protestthat during the
interview Mr. Montez advised her that he was Maria's brother and Jessica's uncle. Montez
submitted an affidavit denying he ever told anyone, including the reporter, that he was related
to Maria Lopez.
Based on the conflicting affidavits, appellant's counsel concluded that Montez committed
perjury at trial. He simply chose to ignore two other possibilities: that the reporter was
mistaken or dissembling. In any event, Lopez filed a motion for a new trial. However, at the
hearing Lopez proffered no evidence or witnesses, but relied wholly on the reporter's
affidavit. Arturo Montez took the stand and in no uncertain terms testified that he was not the
brother of Maria Lopez.
At the hearing for a new trial the judge noted: It defies credulity to think that, as I have
reviewed the transcripts, that theyMr. Lopez was totally ignorant of a brother who was
living right down the street for some time and never knewthey never knew each other, that
they never spoke. It just doesn't make any sense, that he is the brother or that perjury has been
committed on the stand, and therefore I'm going to deny the motion for a new trial."
__________

17
Mr. Montez was the state's witness who testified of having seen Lopez grab Jessica by the hair and drag
her home. He also testified that Lopez responded no and shut the door in Mr. Montez' face when Mr. Montez
invited the Lopez family over for Thanksgiving.
105 Nev. 68, 92 (1989) Lopez v. State
new trial. The trial judge was correct; this issue is without merit.
III. CONCLUSION
We have carefully examined the remaining contentions of error and conclude that they
lack merit. Lopez was fairly tried, convicted and sentenced. Therefore, the judgment of the
trial court is affirmed.
18

____________
105 Nev. 92, 92 (1989) Nova Horizon v. City Council, Reno
NOVA HORIZON, INC., a Nevada Corporation, and NOVA INVEST, a Nevada
Corporation, Appellants, v. THE CITY COUNCIL OF THE CITY OF RENO and the
Members Thereof, Consisting of PETE SFERRAZZA, RICHARD SCOTT, JANICE
PINE, FLORENCE LEHNERS, JAMES THORNTON, DAVE HOWARD and GUS
NUNEZ, Respondents.
No. 16555
February 28, 1989 769 P.2d 721
Appeal from order of the district court denying appellants' petition for a writ of mandamus.
Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Developers appealed order of the district court denying developers' petition for writ of
mandamus compelling city to grant applications for zone change, special use permit, and
tentative approval of subdivision map. The Supreme Court held that there was no evidentiary
basis for city's denial of zone change request.
Reversed in part and remanded.
[Rehearing denied July 7, 1989]
James W. Hardesty, Reno, for Appellants.
Robert L. Van Wagoner, City Attorney, John R. McGlamery, Assistant City Attorney,
Reno, for Respondents.
1. Zoning and Planning.
Actions of zoning authority are presumed valid, and are reviewed only for support by substantial evidence.
Zoning authority must adopt zoning regulations that are in substantial agreement with the master plan, including any land use
guide. NRS 278.010 et seq., 278.250, subd. 2.
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18
The Hon. Robert E. Rose, Justice, did not participate in the decision of this appeal.
City council's denial of requested zone change to accommodate hotel and casino, when surrounding properties enjoyed the same
zoning sought, was without substantial evidentiary basis, and, in rejecting application on ground that new casino would be located
outside downtown area, council failed to accord any deference to its master plan. NRS 278.250, subd. 2.
4. Mandamus.
While peremptory writ of mandamus requiring city council to grant application for zone change was appropriate, court refrained
from granting similar relief with respect to request for special use permit and tentative approval of subdivision map, as it would have
been inappropriate for court to authorize the project.
OPINION
Per Curiam:
1

Appellants are developers who planned to build a hotel/convention center (the Project) on
land next to the Bally Grand in Reno. Prior to submitting an application for necessary
approvals, appellants purchased the land in question. The plot consists of 2.9 acres, bordered
on three sides by the Bally Grand. On August 29, 1984, appellants submitted to the Reno
Planning Commission an application requesting:
1. a change of zoning, M-1 to C-3;
2. a Special Use Permit; and
3. acceptance of a tentative subdivision map,
to construct a twenty-eight story, 804-room hotel and casino. At that time, the property owned
by appellants was zoned M-1 as defined and limited in Section 18.06.270 of the Reno
Municipal Code. M-1 zoning allows commercial development but imposes height restrictions
of sixty-five feet, which would not accommodate appellants' project as planned. Additionally,
M-1 does not allow any residential use and the proposed project was planned to include the
sale of 312 units on a time-share basis.
On November 7, 1984, the Reno Planning Commission, by a vote of four to three,
recommended to the City Council that it approve the three separate requests. Appellants'
application came before respondents on December 10, 1984. At that time, a public hearing
was held wherein appellants presented their case and the community was given the
opportunity to respond. After the conclusion of testimony, the City Council unanimously
voted to deny all of appellants' requests.
On December 24, 1984, the Reno City Attorney presented to respondents a document
entitled "Findings and Conclusions."
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1
respondents a document entitled Findings and Conclusions. This document consisted of a
list of post-hearing considerations developed by the City Attorney and presented to
respondents. This document was read into the minutes of the Reno City Council, which
approved and adopted it. Thereafter, appellants filed a petition for a writ of mandamus with
the district court. An order for issuance of an alternative writ was issued on January 2, 1985.
Appellants also filed a motion in limine in an attempt to preclude the use of the document
entitled Findings and Conclusions.
After a hearing on appellants' petition, the district court denied both appellants' motion in
limine and their petition for writ of mandamus. In its decision, the court concluded as a
matter of law that there was substantial evidence supporting respondents' denial of the zone
change, the special use permit, and acceptance of the subdivision map. The district court also
held that the City's land use/transportation guide was nothing more than a guide and could not
be construed to compel a change in the zoning of property.
[Headnote 1]
We note, preliminarily, that the district court properly subjected the City's action to a
substantial evidence standard of review. This court, in addressing the propriety of a district
court ruling reversing a zone change approval by the appropriate governmental body,
declared:
Respondents recognize the general rule that a court is not empowered to substitute its
judgment for that of a zoning board, in this case the board of county commissioners,
when the board's action is supported by substantial evidence.
* * *
The lower court had before it the same evidence as the board. Its function was not to
conduct a trial de novo, but only to ascertain as a matter of law if there was any
substantial evidence before the board which would sustain the board's action. The
function of this court at this time is the same as that of the lower court. [Citation
omitted.]
* * *
Under the police power, zoning is a matter within sound legislative action and such
legislative action must be upheld if the facts do not show that the bounds of that
discretion have been exceeded.
McKenzie v. Shelly, 77 Nev. 237, 240-242, 362 P.2d 268, 269-70 (1961). In Shelly, we
reversed the district court since the presumptive validity of the board's action was supported
by substantial evidence and there was no showing that the board abused its discretion.
Numerous cases support the premise that zoning boards may not unreasonably or
arbitrarily deprive property owners of legitimate, advantageous land uses. For example, the
Supreme Court of Virginia affirmed a trial court decision holding an unduly restrictive zoning
classification void. Town of Vienna Council v. Kohler, 244 S.E.2d 542 (1978). The Kohler
court concluded that a denial of a rezoning request will not be sustained if under all the facts
of the particular case, the denial is unreasonable, or is discriminatory, or is without substantial
relationship to the public health, safety, morals and general welfare. Id. at 548. See also, e.g.,
Raabe v. City of Walker, 174 N.W.2d 789 (Mich. 1970) (invalidating rezoning of small
enclave in midst of residential area to accommodate an industrial park); City of Conway v.
Housing Authority, 584 S.W.2d 10 (Ark. 1979) (City of Conway directed to rezone property,
as the denial of the rezoning request was arbitrary and inconsistent with surrounding zoning);
Lorve v. City of Missoula, 525 P.2d 551 (Mont. 1974) (restrictive zoning impressed on
landowner's property was so lacking in fact information as to constitute an abuse of
discretion; rezoning held to be invalid). In the latter case, the Montana Supreme Court,
quoting from an earlier case, stated:
Under the guise of protecting the public or advancing its interest, the state may not
unduly interfere with private business or prohibit lawful occupations, or impose
unreasonable or unnecessary restrictions upon them. Any law or regulation which
imposes unjust limitations upon the full use and enjoyment of property, or destroys
property value or use, deprives the owner of property rights.
In the instant case, the requested change in zoning was in conformity with the long-range
development plans adopted by the City of Reno. The zone change was requested at the
suggestion of the Reno City Planning staff and is consistent with the zoning of the
surrounding property. Moreover, it appears that appellants may have invested substantial
sums of money (allegedly over $1,200,000.00) in land acquisition and project development
costs in anticipation of the City's approval of their application.
At the public hearing in which appellants' application was considered, only one person
presented opposition to the project and his objections were basically rebuffed by members of
the Reno City Council. Nevertheless, the Council unanimously denied approval to what was
described as an architecturally superior project on the specified grounds that approval
would violate a campaign promise against locating new casinos outside the downtown area
and a similar pledge to diversification that would pay higher employee wages.
In determining whether the action of the Council concerning the zone change was
without substantial evidentiary support and, consequently, an abuse of discretion, it is
essential to first consider the effect of the City's master plan, as amended, and land
useJtransportation guide on the Council's latitude in zoning matters.
the zone change was without substantial evidentiary support and, consequently, an abuse of
discretion, it is essential to first consider the effect of the City's master plan, as amended, and
land use/transportation guide on the Council's latitude in zoning matters.
[Headnote 2]
Chapter 278 of the Nevada Revised Statutes governs many aspects of planning and zoning.
It not only provides for the formation and compensation of planning commissions and the
adoption of master plans, it also provides for zoning in accordance with an adopted master
plan. NRS 278.250(2) provides, in pertinent part: 2. The zoning regulations shall be adopted
in accordance with the master plan for land use. . . . (Emphasis supplied.) This suggests that
municipal entities must adopt zoning regulations that are in substantial agreement with the
master plan, including a land-use guide if one is also adopted by the city council. Other
jurisdictions have construed their statutes as requiring strict conformity between master plans
and zoning ordinances, even to the point of requiring changes in zoning after a modification
in a master plan. See Baker v. City of Milwaukee, 533 P.2d 772 (Or. 1975); Fasano v. Board
of County Comm'rs, 507 P.2d 23 (Or. 1973). While such a strict view of the invariable
application of a master plan on zoning matters may lend a high degree of predictability to
prospective land uses and facilitate usage planning by land owners, we do not perceive the
legislative intent to be so confining and inflexible. We therefore choose to view a master plan
as a standard that commands deference and a presumption of applicability, rather than a
legislative straight-jacket from which no leave may be taken. In pertinent part, the Montana
Supreme Court analyzed the issue as follows:
To require strict compliance with the master plan would result in a master plan so
unworkable that it would have to be constantly changed to comply with the realities.
The master plan is, after all, a plan. On the other hand, to require no compliance at all
would defeat the whole idea of planning. Why have a plan if the local government units
are free to ignore it at any time? The statutes are clear enough to send the message that
in reaching zoning decisions, the local governmental unit should at least substantially
comply with the comprehensive plan (or master plan).
Little v. Board of County Comm'rs, 631 P.2d 1282, 1293 (Mont. 1981).
[Headnote 3]
Having determined that master plans are to be accorded substantial compliance under
Nevada's statutory scheme, and recognizing anew the general reluctance to judicially
intervene in zoning determinations absent clear necessity, Board of Comm'rs v. Dayton
Dev. Co., 91 Nev. 71
nizing anew the general reluctance to judicially intervene in zoning determinations absent
clear necessity, Board of Comm'rs v. Dayton Dev. Co., 91 Nev. 71, 530 P.2d 1187 (1975), we
turn now to the issue of respondents' zoning action in the instant case. It is clear on the record
that no evidentiary basis exists for the Council's denial of appellants' zone change request. It
is equally clear that no deference, let alone a presumptive applicability, was accorded Reno's
master plan by the Council. In one instance, an expression of deference to a campaign
promise was the stated basis for what was tantamount to a disregard for the master plan. The
other expression offered as a specific basis for rejecting appellants' application was a pledge,
presumably to constituents, to seek diversification in favor of higher employee wages. The
latter point was equally untenable as a basis for zoning denial. Moreover, as noted above, the
surrounding properties enjoyed the same zoning sought by appellants and no evidence, let
alone reasoning, was presented to justify a denial of appellants' request for rezoning. We
therefore are compelled to reverse the district court on this point.
[Headnote 4]
We are not constrained to grant similar relief concerning appellants' request for a special
use permit and acceptance of a tentative subdivision map. While the record provides no
existing or prospective basis for denying the zone change, we are loathe to direct
authorization for a project that may or may not be deserving of the Council's approval. The
Council simply did not effectively address the effect of the impact of such a substantial
project on the City of Reno. While it may be argued with considerable cogency from the
record that appellants justified an approval of their entire application, and that it is unfair to
subject them to further proceedings, we nevertheless conclude that it would be unwise and
inappropriate for this court to accommodate an approval by forfeiture.
If appellants remain interested in the construction of their project, we will assume that,
upon rehearing, the Council will exercise its judgment fairly and in accordance with the
merits as reflected by the evidence and deliberations of record.
We realize that our ruling may appear to be inconsistent with our opinion in City Council,
Reno v. Travelers Hotel, 100 Nev. 436, 683 P.2d 960 (1984), where we affirmed the issuance
of a peremptory writ of mandamus requiring approval of a special use permit for a
hotel-casino. In that case, however, rezoning was not an issue and the Council was able to
focus directly on the project itself. Here, the only specified basis for rejecting appellants'
application was essentially the project's location outside the downtown area, a reason which,
if implemented, would constitute an inappropriate de facto amendment to the City's master
plan and land useJtransportation guide.
plan and land use/transportation guide. We are simply unable to discern from the record that
the Council adequately focused its attention on the merits of the project and its total impact
on the community. Considerations of public health, safety and welfare demand both such a
focused attention and the exercise of a fair and enlightened discretion by the Council based
upon substantial evidence.
The judgment of the district court is reversed insofar as the zone change is concerned, and
remanded with instructions to issue a peremptory writ of mandamus requiring respondents to
grant appellants' application for zone change. The district court shall also modify its judgment
to the extent of requiring respondents, upon application by appellants, to entertain anew the
merits of appellants' application for special use permit and acceptance of tentative subdivision
map, all in accordance with this opinion.
Steffen, Springer, and Mowbray, JJ., and Mendoza, D. J.,
2
concur.
____________
105 Nev. 98, 98 (1989) Vidal v. State
ERNESTO M. VIDAL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18530
March 9, 1989 769 P.2d 1292
Appeal from judgment of conviction, pursuant to jury verdict, of one count of possession
of a controlled substance with intent to sell and one count of trafficking in a controlled
substance. Eighth Judicial District Court, Clark County, Carl J. Christensen, Judge.
Defendant was convicted by jury in the district court of possession of controlled substance
with intent to sell and trafficking in controlled substance, and he appealed. The Supreme
Court held that defendant could not be convicted of both charged offenses, and although
prosecutor could charge both offenses jury had to be instructed that defendant could only be
found guilty of one of them.
Reversed in part; affirmed in part.
Mark B. Bailus, Las Vegas, for Appellant.
__________

2
The Honorable John F. Mendoza, Judge of the Eighth Judicial District, was designated by the Governor to
sit in the place of The Honorable Cliff Young, Chief Justice, who voluntarily recused himself. Nev. Const., art.
6, 4.
105 Nev. 98, 99 (1989) Vidal v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James Tufteland
and Thomas Leen, Deputy District Attorneys, Clark County, for Respondent.
Criminal Law.
Defendant convicted of trafficking in controlled substance could not also be convicted of possession of controlled substance with
intent to sell, though prosecutor could charge both offenses provided that jury was instructed that defendant could only be found guilty
of one of them. NRS 453.337, 453.3385.
OPINION
Per Curiam:
A jury convicted appellant Ernesto M. Vidal of (1) possession of a controlled substance
with intent to sell and (2) trafficking in a controlled substance. See NRS 453.337; NRS
453.3385. Vidal seeks reversal of his convictions upon numerous grounds. For reasons
hereinafter stated, we reverse the conviction for possession of a controlled substance with
intent to sell and affirm the conviction for trafficking in a controlled substance.
An informant told Officer Winslow and Sergeant Meadow of the Las Vegas Metropolitan
Police Department that he could phone an order for heroin to a drug dealer, and within
minutes the dealer would deliver the heroin. The informant took the police to Apartment 4,
1517 Cobb Street, Las Vegas and pointed out a blue pickup truck that he said was used to
deliver heroin. The pickup was registered to appellant Ernesto Vidal, and the registration
listed Vidal's address as 1517 Cobb Street, Las Vegas. The police subsequently set up a
surveillance of the apartment and saw Vidal and two other men arrive in Vidal's blue pickup.
Vidal used his own key to open the door and the three went inside.
Shortly after the three entered the apartment the informant placed a telephone call to the
apartment to order heroin. Minutes after the informant made his call, Paul Tabares left the
apartment.
1
Sergeant Meadow stopped Tabares and told him to raise his hands. As Tabares
complied, he dropped a small tin foil packet. Sergeant Meadow handcuffed Tabares, opened
the packet, and discovered that it contained what appeared to be heroin. It was subsequently
determined that the packet contained .31 grams of heroin.
Sergeant Meadow ordered the other officers to enter the apartment to prevent the
destruction of evidence. Sergeant Meadow then advised Tabares of his Miranda rights.
Tabares told Sergeant Meadow that he and Vidal lived in the apartment.
__________

1
The phone company's records showed that Vidal and Tabares had jointly applied for the phone.
105 Nev. 98, 100 (1989) Vidal v. State
Meadow that he and Vidal lived in the apartment. Tabares consented to a search of the
apartment, and signed a consent form. The police entered the apartment and detained three
people in the living room. The subsequent search revealed three scales, aluminum foil, plastic
wrap, a twelve gauge shotgun, approximately $4,500 in cash, and 34.21 grams of heroin. The
police found 8.56 grams of heroin in a jacket in the northwest bedroom, and 24.92 grams
upon the person of David Quintero, one of the three people detained in the living room. The
police discovered Vidal hiding in a closet of the northeast bedroom. The police found
$700.00 upon the person of Vidal, and .42 grams of heroin in a pair of pants in the closet of
the northeast bedroom where Vidal was hiding. Vidal was charged by way of information
with possession of a controlled substance with intent to sell and trafficking in a controlled
substance (9.29 grams). A jury found Vidal guilty on both counts, and the district court
sentenced Vidal to seven years for possession of a controlled substance with intent to sell and
ten years for trafficking in a controlled substance, the sentences to run concurrently. The
district court also imposed a $50,000 fine for the trafficking offense. This appeal followed.
Vidal contends that his convictions violate the double jeopardy clause of the Fifth
Amendment of the United States Constitution. Specifically, Vidal contends that unlawful
possession of a controlled substance with intent to sell (NRS 453.337) is a lesser included
offense of trafficking in a controlled substance (NRS 453.3385).
2

We need not reach this constitutional issue. Although not addressed by the parties, the
legislature has mandated that a defendant cannot be punished for possession with intent to
sell when a greater penalty is provided for in, inter alia, a trafficking conviction. See NRS
453.337(2).
3
Because this was Vidal's first offense, NRS 453.337 prescribed a sentence of
1 to 15 years and a $5,000 fine.
__________

2
NRS 453.3385 provides, in relevant part, that:
Except as authorized by the provisions of NRS 453.011 to 453.552, inclusive, any person who knowingly
or intentionally sells, manufactures, delivers or brings into this state or who is knowingly or intentionally
in actual or constructive possession of any controlled substance which is listed in schedule I, except
marihuana, or any mixture which contains any such controlled substance shall be punished, if the quantity
involved:
1. Is 4 grams or more, but less than 14 grams, by imprisonment in the state prison for not less than 3
years nor more than 20 years and by a fine of not less than $50,000.

3
NRS 453.337 provides, in relevant part, that:
2. Unless a greater penalty is provided in NRS 453.3385, 453.339 or 453.3395, any person who
violates this section shall be punished:
(a) For the first offense, by imprisonment in the state prison for not less than 1 year nor more than 15
years and may be further punished by a fine of not more than $5,000. (Emphasis added.)
105 Nev. 98, 101 (1989) Vidal v. State
offense, NRS 453.337 prescribed a sentence of 1 to 15 years and a $5,000 fine. Under NRS
453.3385, Vidal faced a penalty of 3 to 20 years and a $50,000 fine. Clearly, Vidal cannot be
sentenced under NRS 453.337 because NRS 453.3385 provides a greater penalty. It is a
canon of statutory interpretation that statutes should be construed in a manner that avoids
unreasonable results, and it is unreasonable to say that the legislature intended that a
defendant could be convicted of a crime for which he could not be sentenced.
4

Vidal's other contentions have been carefully examined and found to be without merit.
Accordingly, the conviction for possession of a controlled substance with intent to sell is
hereby reversed. The conviction for trafficking in a controlled substance is hereby affirmed.
____________
105 Nev. 101, 101 (1989) Geissel v. Galbraith
SUE GALBRAITH GEISSEL, EXECUTRIX OF THE ESTATE OF DONALD BENNETT
GALBRAITH, Appellant, v. ROSEMARY E. GALBRAITH, Respondent.
No. 18890
March 9, 1989 769 P.2d 1294
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
County; Earle W. White, Jr., Judge.
Executrix of her father's estate brought reformation action, claiming that deed of trust and
note drawn by title company were prepared and took effect in manner contrary to parties'
intentions and should therefore be reformed. The district court dismissed action, and
executrix appealed. The Supreme Court, in Geissel v. Galbraith, 101 Nev. 125, 695 P.2d
1316 (1985), reversed and remanded. On remand, the district court granted summary
judgment for decedent's wife and disposed of case on basis of res judicata. On appeal, the
Supreme Court held that district court violated law of the case and erred in granting summary
judgment.
Reversed.
__________

4
Although we hold that a defendant cannot be convicted of both possession of a controlled substance with
intent to sell and trafficking in a controlled substance under these circumstances, we also hold that it is not
improper for the prosecutor to charge both offenses. In such case, however, the district court judge must instruct
the jury that the defendant may only be found guilty of one of the alternative offenses.
John Peter Lee and Grenville Thomas Pridham, Las Vegas, for Appellant.
Brown, Wells, Kravitz & Schnitzer, for Respondent.
Under doctrine of law and the case, where appellate court states principle or rule of law in deciding case that rule becomes law
of the case and is controlling both in lower courts and on subsequent appeals so long as facts remain substantially the same; thus, if
judgment is reversed on appeal, court to which cause is remanded can only take such proceedings as conform to appellate court's
judgment.
District court violated law of the case by granting summary judgment for respondent in reformation action on basis of
stipulation-based judgment, where appellate court had originally concluded that appellant proved prima facie case for reformation and
had remanded matter for trial and given respondent the opportunity to rebut appellant's evidence.
3. Stipulations.
Judgment pursuant to stipulation of the parties does not have res judicata effect.
OPINION
Per Curiam:
This is an appeal from a NRCP 56(c) summary judgment grant. Appellant Geissel is the
executrix of the estate of her father, Donald Galbraith. In her amended complaint, she
claimed that a certain trust deed and promissory note were erroneously drawn and prepared so
that proceeds were made payable to Donald Galbraith and his wife, respondent Rosemary E.
Galbraith, as joint tenants. Although appellant attempted to persuade the district court to
reform the instruments in question, her case was dismissed pursuant to NRCP 41(b). On
appeal, this court reversed the dismissal and remanded the matter to the district court. See
Geissel v. Galbraith, 101 Nev. 125, 695 P.2d 1316 (1985). On remand, the district court
granted respondent's motion for summary judgment and disposed of the case on the basis of
res judicata. Because the doctrine of the law of the case is controlling and res judicata is not,
we conclude that the district court erred.
The controversy arose out of the sale of certain real property owned by Donald Galbraith
as an unmarried man. However, because Galbraith had married since his acquisition of the
property, the escrowee requested that he obtain a quitclaim from his wife or arrange to have
her sign the deed.
Although Galbraith insisted that the property was his sole and separate property, he later
agreed to have respondent sign. New escrow instructions were prepared, indicating that a
deed was to be signed by "Donald and Rosemary Galbraith, husband and wife as joint
tenants."
escrow instructions were prepared, indicating that a deed was to be signed by Donald and
Rosemary Galbraith, husband and wife as joint tenants. The escrow instructions relative to
payment, however, provided that the buyer would execute a deed of trust and promissory note
in the amount of $142,000 in favor of Donald B. Galbraith. The aforementioned instruction
notwithstanding, the escrowee prepared a trust deed and note payable to Donald B. Galbraith
and Rosemary E. Galbraith, husband and wife as joint tenants. The record is not clear as to
why the instruments were not prepared consistent with the escrow instructions. There is no
indication that Donald Galbraith consented to the variance. To the contrary, approximately
ninety days after the close of escrow, Galbraith filed suit to quiet title to the property as his
sole and separate property. The suit was resolved by the parties entering into a stipulation that
the property was the sole and separate property of Donald Galbraith. On the same day as
the stipulation was signed, a judgment was entered which reflected the stipulation.
On June 7, 1982, Donald Galbraith died and appellant was appointed executrix of his
estate. Appellant then filed an action to have the foregoing note and trust deed reformed to
reflect her deceased father as the sole payee and beneficiary and to declare the instruments to
be Galbraith's sole and separate property. Respondent countered with an NRCP 41(b) motion
to dismiss and the district court granted the motion. On appeal, we reversed and remanded,
stating that, given the evidence, it is very difficult to conclude, as did the trial judge, that as a
matter of law the plaintiff failed to prove a prima facie case for reformation. . . . Geissel, 101
Nev. at 127, 695 P.2d 1316.
On remand, respondent moved for summary judgment claiming, under a theory of res
judicata, that the original stipulation-based judgment precluded reformation. More
specifically, respondent argued that even though the stipulation and judgment recognized
Galbraith as the sole and separate property owner, the stipulation did not speak to the
reformation question and thus res judicata precluded reformation. The district judge agreed
with respondent and granted her motion. This appeal followed. We reverse.
[Headnote 1]
Under the doctrine of the law of the case, where an appellate court states a principal or rule
of law in deciding a case, that rule becomes the law of the case and is controlling both in the
lower courts and on subsequent appeals, so long as the facts remain substantially the same.
State, Dep't Hwys. v. Alper, 101 Nev. 493, 496, 706 P.2d 139, 141 (1985). Thus, if a
judgment is reversed on appeal, the court to which the cause is remanded can only take such
proceedings as conform to the appellate court's judgment.
only take such proceedings as conform to the appellate court's judgment. LoBue v. State ex
rel. Dep't Hwys., 92 Nev. 529, 532, 554 P.2d 258, 260 (1976).
[Headnotes 2, 3]
Applying the foregoing to the facts of this case, we conclude that the district court violated
the law of the case and erred in granting summary judgment. This court originally concluded
that appellant proved a prima facie case for reformation. Geissel, 101 Nev. at 127-28, 695
P.2d at 1317. Given this conclusion, we remanded the matter for trial and gave respondent the
opportunity to rebut appellant's evidence. However, the lower court looked to res judicata
and granted summary judgment on the basis of a stipulation-based judgment. This constituted
error and violated the law of the case. Moreover, a judgment pursuant to stipulation of the
parties does not have a res judicata effect. See United States v. International Building Co.,
345 U.S. 502, 505-506 (1953) (no res judicata effect afforded stipulation-based tax court
decision); In Re Daley, 776 F.2d 834, 838 (9th Cir. 1985) (fraud claim not actually litigated
where dismissal entered pursuant to a stipulation, hence no collateral estoppel); Chaney Bldg.
Co. v. City of Tucson, 716 P.2d 28, 30 (Ariz. 1986) (nothing is adjudicated between parties to
a stipulated dismissal, hence no collateral estoppel); Rajspic v. Nationwide Mut. Ins. Co., 662
P.2d 534, 537 (Idaho 1983) (stipulation in civil action for assault and battery not given
collateral estoppel effect); Am. Mut. Liability Ins. Co. v. Mich. Mut. Liability Co., 235
N.W.2d 769, 776 (Mich.App. 1975) (consent judgment could not be given collateral estoppel
effect).
In this case, there is no evidence that the respondent and Donald Galbraith intended that
their stipulation should have a res judicata effect. The lower court's contrary determination
constituted an erroneous conclusion of law. Hence, the district court's grant of summary
judgment, based upon its erroneous conclusion of law with its concomitant denial of a trial on
the merits as directed by this court, violates the law of the case.
Accordingly, the summary judgment is reversed and this case is remanded to the district
court for a trial on the merits.
____________
105 Nev. 105, 105 (1989) Halimi v. Blacketor
EDWARD M. HALIMI, Appellant, v. H. R. BLACKETOR, Respondent.
No. 18920
March 15, 1989 770 P.2d 531
Appeal from an order of the district court granting respondent summary judgment in a
breach of contract action brought by appellant. Second Judicial District Court, Washoe
County; Robert Schouweiler, Judge.
Appeal was taken from order of the district court entered in action for breach of option
agreement. The Supreme Court held that option holder was entitled to continuance in order to
conduct additional discovery.
Reversed.
Stephens, Knight & Edwards, Reno, for Appellant.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for Respondent.
Pretrial Procedure.
Option holder was entitled to continuance in order to conduct additional discovery in action for breach of option agreement in
order to establish that party who had given option had agreed to deposit other documents into escrow not required by option agreement,
where less than a year had passed between option holder's complaint and grant of opposing party's motion for summary judgment.
NRCP 56(f).
OPINION
Per Curiam:
Appellant Halimi sued respondent Blacketor for breach of an option agreement. Halimi
had the right under the option agreement to purchase promissory notes along with other
security rights and agreements by placing the purchase price in escrow on the second
anniversary of the option agreement. Halimi failed to deposit the purchase price on time and
Blacketor claimed Halimi thereby forfeited the option pursuant to their agreement. Blacketor
moved to dismiss the suit pursuant to NRCP 12. Halimi replied that he was prevented from
performing because Blacketor did not deposit additional documents in escrow as he had
promised. In his memorandum in opposition to Blacketor's motion Halimi requested
additional time to conduct discovery in order to support his contention. The district court
refused to allow Halimi additional time for discovery and granted Blacketor summary
judgment. This appeal followed.
105 Nev. 105, 106 (1989) Halimi v. Blacketor
Halimi contends that the district court abused its discretion by granting Blacketor summary
judgment. Specifically, Halimi contends that the district court should have granted him a
continuance to conduct discovery in order to gather facts in support of his contention that
Blacketor had agreed to deposit other documents into escrow not required by the option
agreement. This contention has merit.
In Harrison v. Falcon Products, 103 Nev. 558, 746 P.2d 642 (1987), we held that summary
judgment was improper where the appellant had sought additional time to conduct discovery
in order to compile facts in support of his position. NRCP 56(f)
1
provides that a district
court may order a continuance where the party opposing summary judgment lacks facts
supporting his position.
Halimi's request for additional time for discovery in his memorandum in opposition is
sufficient for purposes of NRCP 56(f). In addition, less than a year had passed since the
complaint and the granting of summary judgment. Furthermore, Halimi's request for
additional time is reflective of his diligence in pursuing the action. Cf. Harrison, 103 Nev. at
560, 746 P.2d at 642. (Noting that less than two years had passed since the filing of the
complaint and summary judgment, and that the request for additional time reflected diligence
in pursuing the action). Based on these facts, the district court abused its discretion by not
granting Halimi a continuance at such an early stage in the proceedings. As a result, we need
not address Halimi's other contentions. Accordingly, the order granting summary judgment is
reversed and the case remanded to the district court for further proceedings.
Young, C. J., Steffen, Springer, and Rose, JJ., and Whitehead, D. J.,
2
concur.
__________

1
NRCP 56(f) provides:
When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion
that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is just.

2
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District Court, was designated by the
Governor to sit in the place of The Honorable John Mowbray, Justice. Nev. Const. art. 6, 4.
____________
105 Nev. 107, 107 (1989) Orfield v. State
KATHERINE L. ORFIELD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18257
March 30, 1989 771 P.2d 148
Appeal from conviction of robbery and second degree murder. Sixth Judicial District
Court, Humboldt County; Llewellyn A. Young, Judge.
Defendant was convicted, along with other defendants, by jury in the district court of
murder and accompanying robbery of elderly woman at rest stop, and he appealed. The
Supreme Court, Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985), reversed and
remanded. Defendant was retried separately and convicted of second degree murder and
robbery. On appeal, the Supreme Court held that: (1) migrant farm worker accompanying
group was not accomplice, and defendant thus could be convicted on basis of his
uncorroborated testimony, and (2) defendant was not entitled to reversal because of loss of
material evidence on basis of washing of farm worker's pants, allegedly resulting in removal
of bloodstains therefrom.
Affirmed.
Rupert C. Schneider, Battle Mountain, for Appellant.
Brian McKay, Attorney General, Brian R. Hutchins, Deputy Attorney General, Carson
1. Criminal Law.
Person is not an accomplice simply because he or she happened to be present when crime was committed; accomplice is one
who is liable to prosecution for identical offense charged against defendant or who is culpably implicated in or unlawfully cooperates,
aids or abets in commission of crime charged. NRS 175.291, subd. 2.
2. Criminal Law.
Migrant farm worker who was accompanying group charged with murder of elderly woman at rest stop was not accomplice, and
his uncorroborated testimony thus could be basis of defendant's conviction; worker's acts of abandoning group at first opportunity after
attack and immediately leading police to victim so she could be treated were sufficient circumstantial evidence from which his lack of
participation in criminal intent could be inferred. NRS 175.291.
3. Criminal Law.
To meet test for reversal because material evidence has been lost, accused must show either bad faith or connivance on part of
government or prejudice from its loss and also that evidence was exculpatory; evidence which only suggests alternative theory for
accused and is not directly exculpatory is insufficient.
4. Criminal Law.
Defendant was not entitled to reversal of murder conviction because of loss of material evidence on basis of jailer's
washing of purported accomplice's pants, allegedly resulting in removal of bloodstains therefrom; had State
purposefully intended to destroy evidence to better its claim that person was not accomplice, his boots
would probably have been washed as well, defendant was not prejudiced from loss of that evidence as
blood matching that of victim was found on boots, and missing evidence was relevant only to impeaching
purported accomplice or to establishing his culpability and was not exculpatory.
of loss of material evidence on basis of jailer's washing of purported accomplice's pants, allegedly resulting in removal of bloodstains
therefrom; had State purposefully intended to destroy evidence to better its claim that person was not accomplice, his boots would
probably have been washed as well, defendant was not prejudiced from loss of that evidence as blood matching that of victim was
found on boots, and missing evidence was relevant only to impeaching purported accomplice or to establishing his culpability and was
not exculpatory.
OPINION
Per Curiam:
On July 4, 1980, appellant Katherine L. Orfield was traveling from Louisiana to California
with Ronnie Milligan, Paris Leon Hale, Terry Carl Bonnette, Ramon Houston and Kathy
Orfield, appellant's teenage daughter. Houston was a migrant farm worker whom the others
had picked up at a rest stop near Omaha several days before.
The group met elderly Zalihon Voinski at a rest stop near Valmy. Voinski was
experiencing mechanical problems with her car, and left the rest stop with appellant and the
others. Voinski was subsequently beaten to death with a sledgehammer. Orfield, Milligan,
Hale and Bonnette were convicted of the murder and accompanying robbery; Orfield's
conviction was reversed because the district court quantified the concept of reasonable doubt.
Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985), cert. denied, 479 U.S. 870 (1986).
Orfield was retried separately and convicted of second degree murder and robbery. She
challenges her conviction on two grounds: (1) that her conviction is based on uncorroborated
accomplice testimony, and (2) that the State's loss of material evidence requires reversal.
[Headnotes 1, 2]
First, Orfield alleges that Terry Bonnette and Ramon Houston were accomplices whose
uncorroborated testimony led to her conviction in contravention of NRS 175.291.
1
We
disagree.
While Bonnette was an accomplice, the same cannot be said of Houston. Not only was
Houston not prosecuted, but the evidence shows he was not an accomplice.
__________

1
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely
shows the commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense
charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
shows he was not an accomplice. A person is not an accomplice simply because he or she
happened to be present when the crime was committed. See Winston v. Sheriff, 92 Nev. 616,
555 P.2d 1234 (1976).
An accomplice is one who is liable to prosecution for the identical offense charged against
the defendant, NRS 175.291(2), or who is culpably implicated in, or unlawfully cooperates,
aids or abets in the commission of the crime charged. See Potter v. State, 96 Nev. 875, 619
P.2d 1222 (1980). Moreover, it is hornbook law that conduct, to be criminal, must consist of
something more than mere action (or non-action where there is a legal duty to act); some sort
of bad state of mind is required as well. W. LaFave, A. Scott, Criminal Law, 176 (1972); see
also Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971).
Houston abandoned the group at the first opportunity after the attack and immediately led
the police to Voinski so she could be treated. He implicated appellant and the others with his
statements and actions before his arrest. Houston's acts are sufficient circumstantial evidence
from which lack of participation in the criminal intent can be inferred. Cf. Robertson v.
Sheriff, 85 Nev. 681, 683, 462 P.2d 528, 529 (1969).
Orfield also claims that the washing of Houston's pants removed blood stains, thereby
prejudicing her ability to prove Houston's complicity in the crime. The State concedes that
after Houston and the others were arrested, the State took their clothes for evidence, except
Houston's, which were washed and returned to him.
[Headnote 3]
To meet the test for reversal because material evidence has been lost, the accused must
show either (1) bad faith or connivance on the part of the government, or (2) prejudice from
its loss. Crockett v. State, 95 Nev. 859, 865, 603 P.2d 1078, 1081 (1979). An appellant must
also show the evidence was exculpatory. Evidence which only suggests an alternative theory
for the appellant and is not directly exculpatory is insufficient. See Wood v. State, 97 Nev.
363, 366-367, 632 P.2d 339, 341 (1981). Further, the appellant must demonstrate:
that it could be reasonably anticipated that the evidence sought would be exculpatory
and material to appellant's defense. . . . It is not sufficient that the showing disclose
merely a hoped-for conclusion from examination of the destroyed evidence, nor is it
sufficient for the defendant to show only that examination of the evidence would be
helpful in preparing his defense.
Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979) (citations omitted).
[Headnote 4]
Orfield has not shown that the State acted in bad faith. It strains logic to claim that the
State would pursue an evil objective in such a haphazard fashion. Had the State purposefully
intended to destroy evidence to better its claim that Houston was not an accomplice,
Houston's boots would probably have been washed as well. It is plausible that as Houston had
cooperated with the police, and had been traveling in the clothes for several days, that the
jailor simply decided to wash them for Houston.
Orfield has not shown prejudice from the loss of evidence. Though she claims the blood
on Houston's clothing was necessary to establish his complicity, blood matching that of the
victim was found on Houston's boots. Orfield has not shown what bloody pants could prove
that bloody boots do not already reveal. Loss of the blood on Houston's pants, therefore, was
not a loss of evidence which caused Orfield prejudice. Ybarra v. State, 100 Nev. 167, 173,
679 P.2d 797, 800 (1984).
Finally, the missing evidence would not have established Orfield's innocence. It was only
relevant to impeaching Houston or to establishing Houston's culpability. Thus, while the
evidence may have contributed to Orfield's defense, it was not exculpatory.
Having reviewed the record on appeal, we find Orfield's contentions devoid of merit.
2

____________
105 Nev. 110, 110 (1989) Wilson v. State
EDWARD THOMAS WILSON and JOHN STEVEN OLAUSEN, Appellants, v. THE
STATE OF NEVADA, Respondent.
No. 18496
March 30, 1989 771 P.2d 583
Appeal from the district court's denial of post-conviction relief following judgment of
conviction and imposition of the death penalty. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Defendants pled guilty to first degree murder, robbery with use of a deadly weapon, and
kidnapping with use of a deadly weapon and were sentenced to death. The Supreme Court
upheld their sentences, Wilson v. State, 99 Nev. 362, 664 P.2d 32S {19S3), and Wilson v.
State, 101 Nev. 452
__________

2
The Honorable Cliff Young, Chief Justice, voluntarily recused himself from participation in this appeal.
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our order dismissing this appeal filed September 21, 1988.
sentences, Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983), and Wilson v. State, 101 Nev.
452, 705 P.2d 151 (1985). Defendants then sought post-conviction relief on the ground that
they were denied effective assistance of counsel at the penalty hearing. The district court
denied the petitions and defendants appealed. The Supreme Court held that: (1) one defendant
was denied effective assistance as a result of counsel's neglect to present large body of
available mitigating evidence and his damaging remarks to sentencing panel, and (2) other
defendant failed to show prejudice by counsel's failure to present more mitigating evidence.
Affirmed in part, reversed in part.
Lawrence D. Wishart, Reno, for Appellant Wilson.
Phillip M. Stone, Reno, for Appellant Olausen.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant who was sentenced to death was denied effective assistance of counsel at penalty hearing as a result of appointed
counsel's neglect to present large body of available mitigating evidence and counsel's damaging remarks to sentencing panel during
opening statement and closing argument. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
To show ineffective assistance of counsel, accused must show that counsel's representation fell below an objective standard of
reasonableness and that counsel's deficient performance prejudiced his defense in that there is reasonable probability that but for
counsel's mistakes, result of proceeding would have been different. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
To prove prejudice necessary to show ineffective assistance of counsel, defendant challenging death sentence must demonstrate
reasonable probability that absent errors sentencer would have concluded that balance of aggravating and mitigating circumstances did
not warrant death. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
When judges have sentencing discretion, possession of fullest information possible regarding defendant's life and characteristics is
essential to selection of appropriate sentence; sentencer may not refuse to consider or be precluded from considering any relevant
mitigating evidence.
5. Criminal Law.
Appointed counsel's reminding sentencer that his undertaking to represent defendant is not by choice represents breach of
counsel's duty of loyalty to his client. U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Defendant who was sentenced to death suffered no prejudice by counsel's failure to present more mitigating evidence and was
therefore not denied effective assistance of counsel in view of counsel's legitimate concerns that if
defendant's family were called to testify, they might deliver damaging testimony on cross-examination, and
in view of lack of evidence that search for mitigating testimony from people unrelated to defendant would
have been fruitful.
not denied effective assistance of counsel in view of counsel's legitimate concerns that if defendant's family were called to testify, they
might deliver damaging testimony on cross-examination, and in view of lack of evidence that search for mitigating testimony from
people unrelated to defendant would have been fruitful.
OPINION
Per Curiam:
Appellants John Olausen and Edward Wilson pleaded guilty to first degree murder,
robbery with use of a deadly weapon, and kidnapping with use of a deadly weapon, and the
district court sentenced them to death. We upheld their sentences in Wilson v. State, 99 Nev.
362, 664 P.2d 328 (1983), and in Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985).
Appellants then sought post-conviction relief in the district court, claiming that their trial
counsel's performances at the 1979 penalty hearing violated their Sixth Amendment right to
effective assistance of counsel. The district court denied their petitions, and Wilson and
Olausen appeal.
[Headnote 1]
Olausen's claim has merit because the record indicates that his attorney neglected to
present a wealth of mitigating evidence that was available to him at the time of the penalty
hearing. Moreover, counsel made a number of damaging remarks to the sentencing panel
during his opening statement and closing argument. Therefore, because he did not receive the
effective assistance of counsel during the sentencing phase, we now vacate Olausen's death
sentence and remand his case to the district court for another penalty hearing. We affirm the
district court's decision with respect to Wilson.
[Headnote 2]
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court defined standards
for a defendant's Sixth Amendment right to effective assistance of counsel. The court
described two components of a showing of ineffective assistance of counsel in the context of
a murder conviction or death sentence. First, the accused must show that counsel's
representation fell below an objective standard of reasonableness. Id. at 688. Second,
defendant must demonstrate that the attorney's deficient performance prejudiced his defense.
Id. at 687.
[Headnote 3]
In order to prove prejudice, the accused must show that there is a reasonable probability
that, but for counsel's mistakes, the result of the proceeding would have been different. Id. at
694.
Thus, when a defendant challenges a death sentence, he must demonstrate a reasonable
probability that, absent the errors, the sentencer would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death. Id. at 695.
Olausen argues that his attorney's decision not to present a large body of mitigating
evidence, coupled with counsel's egregious remarks before the sentencing panel, denied him
the effective assistance of counsel. We agree.
The bulk of the five-day penalty hearing consisted of the district attorney's presentation of
aggravating factors. James Forman, Olausen's trial counsel, asked only his mother and father
to testify on his behalf. Although their testimony was relevant, it would naturally appear
somewhat biased in favor of Olausen. Incredibly, given the wealth of other mitigating
evidence available to him, the parents' testimony was the only evidence presented by Forman
in support of Olausen's attempt to avoid a death sentence.
Forman refused to allow Olausen's parents to testify as to his difficult childhood following
their divorce and Mr. Olausen's remarriage to an emotionally unstable woman. He also
refused to present the father's testimony concerning phone calls made to both parents two
days before the murder, when the eighteen-year-old Olausen asked for permission to return
home, but was rejected by both of his parents.
1

John Olausen (Olausen's father), testified at the 1987 hearing for post-conviction relief.
Mr. Olausen stated that in 1979, he told Forman about his son's difficult childhood and the
problems the family had endured in the recent past. Mr. Olausen also told Forman about his
sons's involvement in sports activities and the Boy Scouts.
According to Mr. Olausen, Forman's response to this information was [h]e's not a kid
anymore, he's a murderer. He's someone that it would be a waste of time to present that type
of background . . . and this stuff, . . . it would just piss off the judge. (Emphasis added.)
Apparently, Mr. Forman decided that an attempt to save his client from the death penalty
would not be worth the effort.
Furthermore, Forman failed to take advantage of NRS 7.135 which permits
court-appointed attorneys to employ investigators to assist them in preparing their client's
defense. When Mr.
__________

1
Olausen's stepmother, Diane, testified at the 1987 hearing for post-conviction relief. She said that her
husband told Forman many times about Olausen's telephone plea to return home shortly before the murder.
However, Forman was disinterested in this information because it didn't pertain to the case and . . . it wouldn't
help him. Forman told Mr. Olausen that [w]e have to go with litigation, not hurt, . . . and this is bullshit.
Olausen personally offered to hire an investigator in the preparation of his son's case, Forman
became defensive and said: I'm only getting $7,500 for this case. If I didn't want to handle it
or I didn't think I could, I sure wouldn't bother with it. . . . It's not important, that type of stuff,
it would just waste the court's time.
Before the 1979 penalty hearing, Olausen's sister, Suzanne, contacted approximately
twenty people in his home town of Chico, California who told her that they would be willing
to testify on Olausen's behalf.
2
When Suzanne told Forman that these people were willing to
testify, Forman discouraged the idea because it would waste court time.
3
Forman was also
disinterested in Olausen's struggle with dyslexia because [i]t didn't have anything to do with
the crime that Olausen had committed. When Suzanne told Forman that Olausen saved his
cousin's life when they were children, Forman responded: He was a child. They were boys. It
[doesn't] have any bearing. He's a man now.
After his arrest in 1979, detectives interrogated Olausen for approximately one hour and
ten minutes. Although the police officers ostensibly recorded Olausen's entire confession,
there were over fifteen minutes of time unaccounted for on the cassette tape. Mr. Olausen was
present at his son's interrogation, and later testified that the detectives turned off the tape
recorder when Olausen began to become emotional. Moreover, although he remembered his
son expressing remorse for his crime and sympathy for the victim's family, Mr.
__________

2
At Olausen's 1987 hearing for post-conviction relief, Forman testified that in a capital case, he would not
want to omit any mitigating evidence at the penalty phase. Nevertheless, in his 1979 opening statement, Forman
told the sentencing panel that I could put the hundred some-odd letters I have before this court, letters that say
he's a good kid; he's not violent. Thus, the record demonstrates that Forman had a number of letters in support
of Olausen in his possession, but he refrained from producing them for the panel.

3
At the 1987 hearing for post-conviction relief, the leader of Olausen's former Boy Scout troop testified as
to his scout participation and difficult childhood. His former art instructor testified as to Olausen's chaotic home
environment and his tendency to be a follower. His high school guidance counselor spoke of Olausen's
unstable family life, his learning disability, and his efforts to do his best in school in spite of his problems. The
athletic director of his former high school described Olausen as a good athlete and a self-motivator. Olausen's
cousin testified that appellant saved his life when they were children. His former girlfriend's mother described
how Olausen was thrown out of his home and left with no one. His closest childhood friend described
Olausen's unhappy home, and how he became part of his friend's family. Olausen's younger sister Suzanne
described how he tried to keep the family together after their parents' marriage fell apart, and Olausen's close
relationship with his grandmother. After reviewing the record, we fail to comprehend why the presentation of
any of this easily accessible evidence would have wasted the sentencing panel's time.
remembered his son expressing remorse for his crime and sympathy for the victim's family,
Mr. Olausen testified that the final recording included none of these statements.
On several occasions before the penalty hearing, Mr. Olausen spoke to Forman regarding
the missing segments of the tape. Forman told Mr. Olausen that since the whole courtroom's
full of cops, . . . [it would] be useless to try and bring something like this when we're the bad
guys.
Moreover, in 1979, Douglas Mathewson, a Mormon bishop, visited Olausen several times
in his jail cell. On those occasions, Olausen expressed his sorrow and remorse for his actions.
Olausen also asked the bishop for instruction in the process of repenting. Mathewson visited
Forman prior to the sentencing hearing and raised the issues of Olausen's sorrow, remorse and
repentance. Forman never asked Mathewson to testify.
We note from the record that Fred Stites and David Lani, the two young men prosecuted
with John Olausen and Edward Wilson, received sentences of life imprisonment without
possibility of parole for their complicity in the same homicide. As mitigating circumstances
for Stites and Lani, the sentencing panel found that both young men exhibited remorse for
their crime. Not surprisingly, the panel failed to make this same finding with respect to
Olausen, who received a death sentence. Accordingly, we disagree with Forman's conclusion
that it would have been useless to present evidence of Olausen's remorse at the 1979
penalty hearing.
[Headnote 4]
When, as in the instant case, judges have sentencing discretion, possession of the fullest
information possible regarding the defendant's life and characteristics is essential to the
selection of an appropriate sentence. Lockett v. Ohio, 438 U.S. 586, 603 (1978). A sentencer
may not refuse to consider or be precluded from considering any relevant mitigating
evidence. Skipper v. South Carolina, 476 U.S. 1, 4 (1986).
Forman's failure to present more mitigating evidence on Olausen's behalf was error serious
enough to abrogate Olausen's Sixth Amendment right to counsel. Because of the gravity and
sheer quantity of counsel's omissions, there exists a reasonable probability that, absent
Forman's errors, the sentencing panel would have concluded that the balancing of aggravating
and mitigating circumstances did not warrant death. Strickland v. Washington, 466 U.S. 668,
695 (1984). Therefore, Forman's deficient performance prejudiced Olausen and he is entitled
to a new sentencing proceeding. Id. at 687.
In addition, Forman's performance before the sentencing panel was remarkable not for the
forcefulness of his advocacy, but rather for the ambivalence he showed toward Olausen's
case. In both his opening statement and closing argument, Forman alternated between
comments intended to spare his client from the death penalty, and remarks that were more
appropriate for the district attorney.
At the start of his opening statement, Forman indicated to the sentencing panel his
perceived weakness of Olausen's case when he said: I will be very honest with this court that
until five minutes ago, I didn't know which way I was going to proceed. Continuing, Forman
told the three-judge panel: I could put him up to say he is sorry, but everybody is sorry at this
time. I'm sorry, and I'm sure they would say they are sorry. He downplayed the significance
of Olausen's remorse again when he said: The remorse today is not going to bring Officer
Hoff back. It isn't going to help these defendants.
Finally, Forman summed up the reasons for not giving Olausen the death penalty: I
contend that the circumstances just aren't there. . . . The evidence of Mr. Wilson's influence
over these men, I don't know. He's young; he's eighteen years of age, and he is sorry, and I
think that is probably the most significant mitigating circumstance.
[Headnote 5]
In his closing argument, Forman made several comments that assisted the prosecution
rather than his client. Forman warmed the judges to Olausen's plea for mercy by stating: I
don't know if Fred stuck him full of holes or if Steve [Olausen] stuck him full of holes.
Later, Forman championed the district attorney's position when he said: I certainly hope
the court hasn't been offended by possibly my curt attitude with regard to Mr. Olausen, but I
think this court has a dutyhas a duty to law enforcement, has a duty to the prosecution to
weigh this case from a legal standpoint.
Forman continued his sterling advocacy with the thought that: I'm sure friends of Officer
HoffI'm sure if it was my friend, I would want them dead. But I would have to go home and
have to think about the oath that I took, the education that I have spent half of my life
acquiring, and the fact that this court has a duty to weigh the circumstances of this case. . . .
(Emphasis added.) We believe that after Mr. Forman made the above comments, there was
little doubt as to which penalty Olausen would receive.
Forman also distanced himself from Olausen when he told that court that [i]f I thought
executing these three young men would bring Officer Hoff back, I would say: Execute them.
But we are not going to bring Officer Hoff back.
not going to bring Officer Hoff back. I have a job; I have a job as an attorney. I took an oath
to do a job. . . .
In his closing argument in King v. Strickland, 748 F.2d 1462 (11th Cir. 1984), cert.
denied, 471 U.S. 1016 (1985), the defense attorney unnecessarily stressed the horror of the
crime and his status as an appointed representative. Id. at 1464. Reminding the sentencer that
the undertaking is not by choice represents a breach of counsel's duty of loyalty to his client.
Id. The Eleventh Circuit Court of Appeals held that counsel's argument, combined with
counsel's failure to present mitigating evidence, denied defendant effective assistance of
counsel. Id.
In this case, Forman never specifically mentioned his appointed status, but he clearly
distanced himself from Olausen during his closing argument. While never mentioning the
details of the murder, his statement that, if he was the decedent's friend, he would want the
defendants dead, stressed the inhumanity of the crime. When combined with his failure to
present available mitigating evidence, Forman's remarks to the sentencing panel denied
Olausen effective assistance of counsel. King, 748 F.2d at 1464.
Accordingly, for the reasons discussed above, we vacate Olausen's death sentence and
remand his case to the district court for a new sentencing hearing.
[Headnote 6]
Wilson argues that his counsel's failure to present certain mitigating evidence before the
sentencing panel constituted ineffective assistance of counsel. While counsel's efforts may
have been less than heroic, the record on appeal indicates that his performance was within
constitutional standards.
After meeting with Wilson's family before the penalty hearing, counsel decided not to have
them testify. He was afraid that their mitigating testimony would do more harm than good.
Specifically, counsel was concerned that on cross-examination, Wilson's father or sister
would have to discuss an incident which occurred when Wilson was eighteen. He was
arrested in Sacramento, and his older sister posted his bail. Shortly afterwards, Wilson came
to live with his sister and stole a necklace. He returned the necklace approximately one week
later.
Strickland establishes a strong presumption that counsel's decisions were sound trial
strategy. 466 U.S. at 689. Given counsel's legitimate concerns that Wilson's own family
might deliver damaging testimony, his decision not to call the family to testify did not vitiate
Wilson's Sixth Amendment right to counsel.
Prior to the penalty hearing, counsel made no effort to consult with people unrelated to
Wilson, who might have been able to offer favorable testimony.
offer favorable testimony. However, at the 1987 hearing for post-conviction relief, only
Wilson's father and brother offered mitigating evidence in his behalf. They described how
Wilson worked at his father's service station as a boy in order to assist the family during
difficult financial times. As well, Wilson's brother described his prowess as a high school
athlete and student leader.
It is clear that the limited amount of mitigating evidence offered by Wilson's father and
brother at the hearing for post-conviction relief does not outweigh the aggravating
circumstances present in his case. Although counsel may have been lax in not searching for
more unrelated, but favorable witnesses for Wilson, we have no evidence that such a search
would have been fruitful. Thus, unlike Olausen, Wilson suffered no prejudice by counsel's
failure to present more mitigating evidence. Therefore, with respect to Wilson, the record on
appeal does not support a finding of ineffective assistance of counsel. Strickland, 466 U.S. at
687-695.
After further review of the record, we conclude that Wilson's other contentions lack merit.
Accordingly, we affirm the district court's decision denying him post-conviction relief.
4

____________
105 Nev. 118, 118 (1989) Kenning Car Rental v. Desert Rent-A-Car
KENNING CAR RENTAL, INC., dba AMERICAN INTERNATIONAL RENT-A-CAR, a
Delaware Corporation, Appellant, v. DESERT RENT-A-CAR, INC., a Nevada
Corporation; and DONALD BOGGIO, Individually, Respondents.
No. 18687
March 30, 1989 771 P.2d 150
Appeal from an order granting a motion for change of venue. Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
On appeal from order of the district court granting motion for change of venue in suit
alleging default on notes, the Supreme Court held that defendant was not required to make
timely demand if motion for change of venue was brought pursuant to subsection permitting
such change when county designated in complaint was not the proper county, when there was
reason to believe that impartial trial could not be had therein, or when convenience of
witness and ends of justice would be promoted by change.
__________

4
convenience of witness and ends of justice would be promoted by change.
Affirmed.
Hawkins and Sharp, and John McMillan, Reno, for Appellant.
Mills & Gibson, Las Vegas, for Respondents.
Venue.
Defendant need not make timely demand for change of venue if motion is brought pursuant to subsection permitting court to
change place of trial when county designated in complaint is not the proper county, when there is reason to believe that an impartial
trial cannot be had therein, or when convenience of witnesses and ends of justice would be promoted by the change; however, motion
to change venue as of right must be preceded by timely demand. NRS 13.050, subds. 1, 2.
OPINION
Per Curiam:
On November 21, 1986, respondents, Desert Rent-A-Car, Inc. and Donald Boggio
(Desert), purchased a Las Vegas rental car franchise from appellant Kenning Car Rental,
Inc. (Kenning). On July 24, 1987, Kenning filed a complaint in Washoe County alleging
that Desert had defaulted on three promissory notes. Desert had until September 1, 1987, to
answer the complaint. Desert filed an answer on September 9, 1987. Desert, seeking to
change venue to Clark County, filed a Demand for Change of Venue and a Motion For
Change of Venue on September 18th and September 22nd respectively. The motion was
premised on the grounds that (1) Washoe County was not the proper county for trial because
both defendants resided in Clark County
1
and (2) both the convenience of witnesses and the
ends of justice would be promoted by the change of venue. See NRS 13.050.
2
The district
court found that Desert's motion was not preceded by a timely demand pursuant to NRS
13.050{1).
__________

1
NRS 13.040 provides, in relevant part:
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. . . .

2
NRS 13.050 provides, in pertinent part:
1. If the county designated for that purpose in the complaint be not the proper county, the action may,
notwithstanding, be tried therein, unless the defendant before the time for answering expires demand in
writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent
of the parties, or by order of the court, as provided in this section.
2. The court may, on motion, change the place of trial in the following cases:
district court found that Desert's motion was not preceded by a timely demand pursuant to
NRS 13.050(1). However, the district court granted Desert's motion pursuant to NRS
13.050(2)(c) in order to promote the convenience of the witnesses and the ends of justice, and
ordered the case transferred to Clark County. This appeal followed.
Kenning contends the district court erred by granting Desert's motion for a change of
venue. Specifically, Kenning claims that Desert's failure to make a timely demand as per NRS
13.050(1) was fatal to its motion for change of venue, even though the motion was brought,
inter alia, pursuant to NRS 13.050(2)(c). This contention is without merit.
In order to bring a motion to change venue as of right pursuant to NRS 13.050(1), a
defendant must timely demand that the trial be held in the proper county. If this is done, and
if the district court finds that the county designated in the complaint is not the proper county,
the district court must grant the defendant's motion to change venue. Motions brought
pursuant to NRS 13.050(2) need not be preceded by a timely demand and are addressed to the
discretion of the court. Cf. Nevada Transit Company v. Harris Bros., 80 Nev. 465, 469, 396
P.2d 133, 134-135 (1964) (motion brought pursuant to NRS 13.050(2)(c) considered even
though no timely demand made).
Kenning contends that if the demand requirement of NRS 13.050(1) is not applied to NRS
13.050(2), the former would be little more than idle ceremony. Kenning's fears are
groundless. Although we hold that a defendant need not make a timely demand if a motion is
brought pursuant to NRS 13.050(2), a motion brought pursuant to NRS 13.050(1) must be
preceded by a timely demand. The demand requirement of NRS 13.050(1) is therefore not an
idle ceremony.
Accordingly, we affirm the judgment of the district court.
__________
(a) When the county designated in the complaint is not the proper county.
(b) When there is reason to believe that an impartial trial cannot be had therein.
(c) When the convenience of the witnesses and the ends of justice would be promoted by the change.
(Emphasis added.)
____________
105 Nev. 121, 121 (1989) White v. State
HOWARD LEE WHITE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18462
March 30, 1989 771 P.2d 152
Appeal from conviction for burglary and a finding by the court of appellant's status as an
habitual criminal. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
Defendant was convicted in the district court of burglary. Defendant appealed. The
Supreme Court held that: (1) trial court did not abuse its discretion in deciding that
defendant's six past criminal convictions warranted finding of habitual criminal; (2) sentence
of life in prison, with possibility of parole in ten years, was not disproportionate to crime and
was not cruel and unusual punishment; and (3) it was not a denial of due process to bring
defense witness into courtroom in prison attire and physical restraints.
Affirmed.
[Rehearing denied June 23, 1989]
Morgan Harris, Public Defender, Sharon L. Gwin, Deputy Public Defender, and D.
Eugene Martin, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Ten year limit for admissibility of past convictions for use of impeachment evidence could not be used as a guide in determining
admissibility of past convictions at hearing on status of habitual criminal. NRS 50.095.
2. Criminal Law.
Trial court did not abuse its discretion in deciding that defendant's six past criminal convictions warranted finding of habitual
criminal, although convictions may have occurred more than ten years previously; legislature placed no time limit on prior convictions
which could be considered in enhancing sentence, and six prior convictions, one a violent crime against a person, were not trivial.
3. Burglary; Criminal Law.
Sentence of life in prison, with possibility of parole in ten years, was not disproportionate to crime of burglary, did not shock the
conscience, and thus, was not cruel and unusual punishment. U.S.C.A.Const. Amend. 8; NRS 205.060, 207.010.
4. Criminal Law; Witnesses.
Defense witnesses are not cloaked in accused's presumption of innocence; consequently, there is no constitutional right accorded
to defendant to have his prison witness appear in civilian clothes.
105 Nev. 121, 122 (1989) White v. State
5. Constitutional Law; Criminal Law; Witnesses.
It was not a denial of due process to bring defense witness into courtroom in prison attire and physical restraints. U.S.C.A.Const.
Amends. 5, 14.
6. Habeas Corpus.
District court abused its discretion when it conducted hearing on writ of habeas corpus without petitioner present; however,
reversal was not required given that petitioner was represented by counsel at hearing and contentions raised in petition were without
merit. NRS 178.598.
OPINION
Per Curiam:
A jury convicted appellant for burglary, and after a hearing before District Judge Joseph
Pavlikowski, appellant was adjudged an habitual criminal. Appellant was sentenced to life in
prison with the possibility of parole. NRS 207.010(2).
Appellant challenges the finding of habitual criminal, arguing that his past convictions are
stale, and that the sentence imposed is disproportionate to the crime charged. Appellant
further contends that the district court erred by allowing the only defense witness, other than
appellant, to be brought into court to testify in chains and prison attire. Finally, appellant
appeals from the trial court's denial of a pretrial writ of habeas corpus alleging insufficient
evidence to support probable cause, and that the trial court erred by conducting the hearing
without appellant present.
[Headnotes 1, 2]
Appellant contends that his prior convictions, which were considered by the trial court in
finding appellant an habitual criminal, were stale and trivial and should not have been
considered by the court. Appellant argues that this court should consider the ten year limit for
the admissibility of past convictions for use as impeachment evidence, as set out in NRS
50.095, as a guide in determining the admissibility of past convictions at a hearing on the
status of an habitual criminal. This court rejects appellant's proffer.
The legislature placed no time limit in the recidivist statute on prior convictions which can
be considered in enhancing the appellant's sentence. Curry v. Slansky, 63 F.Supp. 947
(D.Nev. 1986). Further, appellant's six prior felony convictions, one a violent crime against
the person, are not trivial. Id. at 952. The trial court did not abuse its discretion when deciding
that appellant's six past criminal convictions warranted a finding of habitual criminal.
[Headnote 3]
Appellant contends that his sentence, life in prison with the possibility of parole, is
disproportionate to the crime charged, and therefore violative of the Eighth Amendment
to the United States Constitution's proscription against cruel and unusual punishment.
105 Nev. 121, 123 (1989) White v. State
possibility of parole, is disproportionate to the crime charged, and therefore violative of the
Eighth Amendment to the United States Constitution's proscription against cruel and unusual
punishment. Appellant's sentence is within the statutory limit, and therefore not cruel and
unusual punishment unless it is so disproportionate to the crime or crimes charged that it
shocks the conscience. Lloyd v. State, 94 Nev. 167, 575 P.2d 740 (1978). Appellant is
eligible for parole from imposition of the life sentence, in 10 years. NRS 207.010. The
maximum sentence for burglary is 10 years. NRS 205.060. Accordingly, we hold that
appellant's sentence of life in prison, with the possibility of parole in 10 years is not
disproportionate to the crime of burglary, and does not shock the conscience. Houk v. State,
103 Nev. 659, 747 P.2d 1376 (1987).
[Headnotes 4, 5]
Appellant argues that it was a denial of due process to bring a defense witness into the
courtroom in prison attire and physical restraints. The United States Supreme Court and the
Nevada Supreme Court have recognized that it is a violation of the defendant's due process
rights for a state to compel an accused to stand trial in prison clothing, as prison attire is
inconsistent with the presumption of innocence mandated by the constitution. Estelle v.
Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1926); Grooms v. State, 96 Nev.
143, 605 P.2d 1145 (1980). Defense witnesses are not cloaked in the accused's presumption
of innocence. Consequently there is no constitutional right accorded to a defendant to have
his prison witness appear in civilian clothes. See McMannis v. Mohn, 254 S.E.2d 805 (W.Va.
1979).
1

This court has yet to decide whether the denial of a pretrial writ of habeas corpus alleging
insufficient evidence to support probable cause to bind the defendant over for trialwhere
the defendant is later convictedis appealable. See Snow v. State, 101 Nev. 439, 705 P.2d
632 (1985). However, in this case there was sufficient evidence presented to support a
finding of probable cause. Id. at 445.
__________

1
The Mohn decision noted, that since prison witnesses do not appear in court without some prior
arrangements with the custodial authorities, the court believed it was incumbent upon defense counsel to make
voluntary arrangements with the custodial authorities to allow the prison witnesses to appear in civilian attire.
254 S.E.2d at 809, n.3.
Furthermore, the court stated that most courts recommend that a pretrial hearing be held if voluntary
arrangements cannot be made on the use of physical restraints. The purpose of the hearing is to settle the issue in
advance of trial so that the court is not suddenly confronted with the witness being brought into court in physical
restraints. The court felt it placed no undue burden on defense counsel, who is familiar with the status of the
defendant and his witnesses, to initiate such a hearing. Id. at 810, n.7.
105 Nev. 121, 124 (1989) White v. State
was sufficient evidence presented to support a finding of probable cause. Id. at 445.
[Headnote 6]
The district court did abuse its discretion when it conducted the hearing on the writ of
habeas corpus without the appellant present. However, appellant was represented by counsel
at the hearing. Further, the contentions raised in the petition were without merit. No
substantial right of appellant was affected by way of his absence from the hearing. Any error,
defect, irregularity or variance which does not affect substantial rights shall be disregarded.
NRS 178.598.
None of appellant's contentions are persuasive.
Accordingly, we affirm Howard Lee White's conviction for burglary and the district court's
finding of White's status as an habitual criminal.
____________
105 Nev. 124, 124 (1989) Jones v. State
DAVID EDWARD JONES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19042
March 30, 1989 771 P.2d 154
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of driving
under the influence, third offense, a felony. Ninth Judicial District Court, Douglas County;
David Gamble, Judge.
Defendant pled guilty and was convicted in the district court of one count of third offense
driving under the influence, a felony, and he appealed. The Supreme Court held that: (1)
evidence of defendant's prior out-of-state DUI convictions was legally sufficient to establish
convictions for enhancement purposes, and (2) there was no distinction between conviction
entered upon plea of guilty, plea of nolo contendere, or plea of not guilty for enhancement
purposes.
Affirmed.
Terri Steik Roeser, State Public Defender, and John Lambrose, Deputy State Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, and
Daniel J. Greco, Deputy District Attorney, Douglas County, for Respondent.
105 Nev. 124, 125 (1989) Jones v. State
1. Criminal Law.
Evidence of defendant's prior out-of-state DUI convictions was legally sufficient to establish convictions for purposes of
sentencing defendant to enhanced term for third offense DUI, a felony. NRS 176.105, 484.3792, subd. 2.
2. Criminal Law.
California municipal courts would be presumed, in absence of proof to the contrary, to have the same jurisdiction as Nevada
municipal courts, including ability to hear misdemeanor traffic offenses, for purposes of claim that State was required to show that
prior California DUI convictions were entered by courts with jurisdiction to do so before those convictions could be used for
enhancement purposes.
3. Criminal Law.
There is no distinction between conviction entered upon plea of guilty, plea of nolo contendere, or plea of not guilty for purposes
of determining whether sentence may be enhanced on basis of prior convictions.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
driving under the influence, third offense, a felony.
On January 14, 1988, Trooper Folke Lilyquist of the Nevada Highway Patrol arrested
appellant on a charge of driving under the influence. At the preliminary hearing, the state
produced evidence of the instant offense through the testimony of two eyewitnesses and
Trooper Lilyquist, and the state also produced evidence of appellant's two prior convictions
for DUI in California. The justice of the peace bound appellant over for trial in the district
court on the charge of third offense DUI, a felony. Prior to trial, however, appellant entered
into plea negotiations with the state. In exchange for appellant's promise to enter a plea of
guilty to third offense DUI, the state agreed to drop any remaining criminal charges and to
recommend that appellant receive the minimum sentence and fine. Appellant reserved his
right to contest the validity of his prior convictions at the sentencing hearing. The district
court found that the prior convictions were valid and sentenced appellant to a one-year term
in the Nevada State Prison. The district court also imposed a fine of $2,000.00. This appeal
followed.
[Headnote 1]
Appellant first contends that the district court improperly sentenced him to an enhanced
term because the evidence presented below of his prior California DUI convictions was
legally insufficient to establish convictions as defined by NRS 176.105 and NRS
4S4.3792{2).1 We disagree.
105 Nev. 124, 126 (1989) Jones v. State
NRS 484.3792(2).
1
We disagree. Contrary to appellant's assertion, our review of the
documents in question reveals that the various California court records of each prior
conviction are legally sufficient to establish that California judgments of conviction were
entered against appellant. Moreover, we have previously held that, in evaluating the court
records made in municipal court misdemeanor prosecutions, the realities of the typical
environment of such prosecutions cannot be ignored, and where the court records reflect that
respect was accorded to the spirit of constitutional principles, those records should be
deemed constitutionally adequate. See Koenig v. State, 99 Nev. 780, 789, 672 P.2d 37, 43
(1983). The California municipal court records at issue here clearly reflect that appellant's
constitutional rights were respected in the California proceedings, and that judgments of
conviction were entered against appellant. Consequently, we conclude that the district court
properly rejected appellant's contention in this regard.
Appellant next contends that the district court erred in enhancing his sentence based on the
two prior California convictions because those convictions do not constitute prior offenses
under Nevada law. Specifically, appellant contends that because the California DUI statutes,
Vehicle Code 23152 and 23153, do not limit a DUI offense to one that occurs on a
highway or on premises to which the public has access as does NRS 484.379, the California
convictions do not constitute prior offenses as defined by NRS 484.3792(7) (a prior offense
includes a violation of a law of any other jurisdiction prohibiting the same conduct).
2
We
disagree. In the instant case, the documents respecting appellant's prior California DUI
convictions clearly reveal that the offenses occurred on public highways. Further, same
need not mean "identical"; it can
__________

1
Pursuant to NRS 176.105(1)(b), a valid judgment conviction in this state must set forth the defendant's
plea, the verdict or finding and the adjudication and sentence. Further, NRS 176.105(3) provides that the
judgment must be signed by the judge and entered by the clerk. Pursuant to NRS 484.3792(2), a prior DUI
offense committed within seven years of the principal DUI offense constitutes grounds for enhancement of the
sentence when evidenced by a conviction.

2
Appellant also argues that the California DUI statutes prohibit driving with more than .1 grams of alcohol
per one hundred mililiters [sic] of blood, without reference to the weight of the blood. Nevada's law, on the other
hand, refers to percent by weight, not by volume, of blood. Appellant misreads NRS 484.379. NRS 484.379
specifically refers to weight of alcohol, not weight of blood. Further, California Vehicle Code 23152 and
23153 and NRS 484.379 specifically prohibit driving with 0.10 percent or more by weight of alcohol in his
blood. Thus, the statutes are identical in this respect, and this argument is without merit.
105 Nev. 124, 127 (1989) Jones v. State
mean identical; it can refer to conduct of the kind or species. Blacks Law Dictionary 1203
(5th ed. 1979). Thus, the phrase same conduct as used in NRS 484.3792(7) refers to the
conduct of driving under the influence whether or not the particulars are identical. See, e.g.,
Koenig v. State, 99 Nev. 780, 783, 672 P.2d 37, 39 (1983) (priors include violations of the
same or similar offense). Therefore, this issue is without merit.
Appellant next contends that the district court erred in enhancing his sentence because
convictions from states other than Nevada cannot qualify as prior offenses. Specifically,
appellant notes that the legislature, in enacting NRS 207.010, the habitual criminal statute,
specifically authorized the use of convictions in this state or elsewhere. Appellant further
notes that the legislature, in enacting NRS 484.3792(7), defined a prior DUI offense as a
violation of a law of any other jurisdiction which prohibits the same conduct. Appellant
then argues that because the legislature did not specifically provide that the phrase violation
of a law of any other jurisdiction could refer to DUI convictions in other states, the
legislature did not intend for DUI convictions from other states to constitute prior offenses.
We disagree. The phrase any other jurisdiction clearly includes states other than Nevada.
Appellant's proposed interpretation of the statute would produce an unreasonable result, and
we therefore reject it. See Alper v. State ex rel. Dep't Hwys., 96 Nev. 925, 621 P.2d 492
(1980).
[Headnote 2]
Appellant next contends that the district court erred in enhancing his sentence based on the
prior California convictions because the state failed to introduce evidence tending to show
that the convictions were entered by courts with jurisdiction to do so and that the convictions
were valid. We disagree. In the absence of proof to the contrary, we will assume that the
California municipal courts have the same jurisdiction as do Nevada municipal courts, which
includes the ability to hear misdemeanor traffic offenses. See Texas Department of Public
Safety v. Hamilton, 304 S.W.2d 719 (Tex.Civ.App. 1957). Thus, the district court properly
rejected this contention.
[Headnote 3]
Appellant next contends that, under Nevada statutory provisions respecting the
admissibility of evidence, the district court improperly admitted and considered the court
records of his prior California convictions because those convictions were entered upon pleas
of nolo contendere. See NRS 48.125(2) (evidence of a plea of nolo contendere is not
admissible in a civil or criminal proceeding involving the person who made the plea); NRS
51.295{1) {evidence of a final judgment entered upon a plea of nolo contendere
adjudging a person guilty of a felony is inadmissible under the hearsay rule to prove any
fact essential to sustain the judgment).
105 Nev. 124, 128 (1989) Jones v. State
proceeding involving the person who made the plea); NRS 51.295(1) (evidence of a final
judgment entered upon a plea of nolo contendere adjudging a person guilty of a felony is
inadmissible under the hearsay rule to prove any fact essential to sustain the judgment). We
disagree. It is the conviction itself that is the relevant factor, and no distinction is drawn
between a conviction entered upon a plea of guilty, a plea of nolo contendere, or a plea of not
guilty. See Potter v. Board of Co. Comm'rs, 92 Nev. 153, 547 P.2d 681 (1976); see also State
v. Marquez, 731 P.2d 965 (N.M.Ct.App. 1986) (a clear majority of jurisdictions hold that, for
enhancement purposes, a valid conviction of a previous offense is equally conclusive whether
the underlying plea was guilty, not guilty or nolo contendere). Thus, this argument is without
merit.
Appellant finally contends that the justice's court erred in admitting into evidence the
printout prepared by the California Department of Motor Vehicles in order to establish the
existence of the two prior offenses. We disagree. As noted by the state, appellant, in the
memorandum of plea agreement, failed to preserve this issue for appellate review. Therefore,
we decline to reach the merits of the contention.
Based on the foregoing, we affirm the judgment of the district court.
____________
105 Nev. 128, 128 (1989) Shaw v. Stutchman
GERALD H. SHAW, EXECUTOR OF THE ESTATE OF ELIZABETH A. LYNN,
Appellant, v. THOMAS R. STUTCHMAN, and FALLON CONVALESCENT CENTER,
INC., a Nevada Corporation, Respondents.
No. 18944
March 30, 1989 771 P.2d 156
Appeal from an order granting summary judgment. Seventh Judicial District Court, White
Pine County; Merlyn H. Hoyt, Judge.
On appeal from order of the district court granting summary judgment for defendant in suit
by purported executor of estate, the Supreme Court held that defect from foreign
representative's commencement of suit in Nevada without authorization was one of capacity
rather than subject matter jurisdiction, and issue of capacity was waived where it was not
raised by specific negative averment as required by NRCP.
Reversed.
Gary D. Woodbury, Elko, for Appellant.
I. R. Ashleman, Reno, for Respondents.
Executors and Administrators.
Defect in foreign representative's commencement of suit in Nevada without authorization was one of capacity rather than subject
matter jurisdiction, and issue of capacity was waived where not raised by specific negative averment as required by civil rule. NRCP
9(a).
OPINION
Per Curiam:
FACTS
On October 29, 1979, Elizabeth A. Lynn entered into an agreement with respondents
Thomas R. Stutchman and Fallon Convalescent Center, Inc. (FCC) whereby Stutchman,
individually and on behalf of FCC, assigned to Lynn certain debts allegedly owed to them. In
return, Lynn promised, inter alia, not to enforce any judgment that might be entered against
Stutchman in a pending action.
1
Lynn died testate on April 4, 1984. Thereafter, the King
County Superior Court, State of Washington, entered an order admitting Lynn's Last Will and
Testament to probate, appointing appellant Gerald H. Shaw executor of Lynn's Estate, and
issuing Letters Testamentary to Shaw.
On October 24, 1985, John M. Woodley, on behalf of the Lynn Estate, brought the suit
that is the subject of this appeal against Stutchman and FCC.
2
The complaint alleged that
Woodley was the duly authorized and acting executor of the estate of Elizabeth A. Lynn,
and that Stutchman and FCC had never satisfied portions of the 1979 agreement. In
answering the complaint, Stutchman and FCC stated they were without knowledge or
information sufficient to form a belief as to the truth of the [allegation that Woodley was the
executor of the Lynn Estate], and therefore, upon such lack of knowledge or information,
deny the same.
Subsequently, Gary Woodbury, the Nevada attorney employed to pursue the action,
learned that Shaw, rather than Woodley, was the executor of Lynn's Estate and should have
been named plaintiff. Pursuant to a stipulation between the parties, the district court ordered
that Shaw be substituted for Woodley.
__________

1
The action referred to eventually reached this court as Lynn v. Ingalls, 100 Nev. 115, 676 P.2d 797 (1984).

2
Woodley, an attorney licensed in Washington, represents the Lynn Estate. He employed local counsel here
to pursue the action.
court ordered that Shaw be substituted for Woodley. Counsel for Stutchman and FCC later
learned that neither Woodley nor Shaw ever obtained authorization to act as executor of
Lynn's Estate in this state.
On September 11, 1987, almost two years after the complaint was filed, Stutchman and
FCC moved for summary judgment. They argued that Woodley, who never had authority to
act on behalf of Lynn's Estate, lacked standing to bring the suit and that Shaw, although
executor of Lynn's Estate in Washington, had neither initiated ancillary administration nor
qualified to act as executor of Lynn's Estate in Nevada. Thus, according to Stutchman and
FCC, the district court was without subject matter jurisdiction and they were entitled to
summary judgment as a matter of law.
Following a hearing on the motion, the district court ruled that Shaw's authorization to act
as executor in Washington lacked effect in this state and, therefore, Shaw could not have
initiated the suit. Apparently agreeing that it lacked jurisdiction, the district court granted
summary judgment in favor of Stutchman and FCC. This appeal followed.
DISCUSSION
Shaw concedes that in the absence of authorization by statute, a foreign executor's
commencement of suit in this state is defective. He argues, however, that the defect is one of
capacity, not jurisdiction. We agree.
Most courts that have addressed the issue Shaw raises have concluded that a foreign
representative's failure to obtain authorization to act on behalf of an estate involves a defect
of capacity rather than subject matter jurisdiction. See Lefebure v. Baker, 220 P. 1111 (Mont.
1923). See also Canfield v. Scripps, 59 P.2d 1040, 1042 (Cal.Dist.Ct.App. 1936) (right of
foreign administrator to maintain action involves only question of capacity to sue); 6 C.
Wright & A. Miller, Federal Practice and Procedure, 1559 (1971) (Capacity has been
defined as a party's personal right to come into court, and should not be confused with the
question of whether a party has an enforceable right or interest or is the real party in
interest.).
NRCP 17(b) provides that [t]he capacity of an individual, including one acting in a
representative capacity, to sue or be sued shall be determined by the law of this State. . . .
(emphasis supplied). As the district court correctly noted in its order granting summary
judgment, the Nevada Revised Statutes contain no statutory provision permitting suit by a
foreign executor, and, in the absence of statutory law, the common law controls. See NRS
1.030. Under the common law, [e]very grant of administration is strictly confined in its
authority and operation to the limits of the territory of the government which grants it;
and does not, de jure, extend to other countries.
[e]very grant of administration is strictly confined in its authority and operation to the
limits of the territory of the government which grants it; and does not, de jure, extend to
other countries. It cannot confer, as a matter of right, any authority to collect assets of
the deceased in any other state; and whatever operation is allowed to it beyond the
original territory of the grant is a mere matter of comity, which every nation is at liberty
to yield or to withhold, according to its own policy and pleasure, with reference to its
own institutions and the interest of its own citizens. . . . Hence it has become an
established doctrine that an administrator, appointed in one state, cannot, in his official
capacity, sue for any debts due to his intestate in the courts of another state. . . .
Vaughan v. Northrup, 40 U.S. (15 Pet.) 1, 6 (1841). See also Matter of the Estate of
Widemeyer, 741 S.W.2d 758, 760 (Mo.App. 1987) (an administrator, appointed in state A,
cannot sue in his representative capacity in state B in the absence of a statute in state B
authorizing him to do so. . . .). Thus Shaw, and a fortiori Woodley, lacked legal capacity to
bring suit in this state on behalf of Lynn's Estate.
Shaw also argues that if the defect is one of capacity, then it may be waived. Again, we
agree. NRCP 9(a), in pertinent part, provides:
It is not necessary to aver the capacity of a party to sue or to be sued or the authority of
a party to sue or be sued in a representative capacity. . . .When a party desires to raise
an issue as to the legal existence of any party or the capacity of any party to sue or be
sued or the authority of a party to sue or be sued in a representative capacity, he shall
do so by specific negative averment, which shall include such supporting particulars as
are peculiarly within the pleader's knowledge.
(emphasis supplied).
In Kucharski v. Pope & Talbot, 4 FRD 208 (S.D.N.Y. 1944), a fact situation similar to the
instant matter was presented. There, a foreign administratrix, appointed in Pennsylvania,
brought suit in New York. The defendant answered denying knowledge or information
sufficient to form a belief concerning the plaintiff's allegation that she was the administratrix
of the decedent's estate. Subsequently, the defendant moved for summary judgment on the
ground that the plaintiff lacked capacity to sue in New York. In denying the motion, the
district court stated: Such a denial of knowledge or information did not satisfy the
requirements of [FRCP] Rule 9(a) and consequently by the terms of the Rule it failed to raise
an issue as to plaintiff's legal capacity." Id. at 209.
failed to raise an issue as to plaintiff's legal capacity. Id. at 209. See also Tractortechnic
Gebrueder Kulenkempft & Co. v. Bousman, 301 F.Supp. 153, 155 (E.D.Wis 1969) (A mere
denial of information is not the equivalent of a specific negative averment.); Brown v.
Music, Inc., 359 P.2d 295, 301 (Alaska 1961) (answer denying allegation based on want of
knowledge or information not sufficient to raise issue of capacity, and failure to raise issue in
manner specified in rule results in waiver of defense); 5 C. Wright & A. Miller, Federal
Practice and Procedure 1294 (1969) ([A]n issue of capacity cannot be raised by a general
denial. Nor can the issue be raised by a denial of knowledge or information sufficient to form
a belief, at least not when the information concerning capacity is a matter of record or is
readily accessible to the party attempting to put the matter in issue.).
Here, the complaint affirmatively alleged Woodley to be the executor of the Lynn Estate.
Approximately five months after the complaint was filed, and after making a demand and
motion for a change of venue and a motion for a more definite statement, Stutchman and FCC
answered. In their answer, Stutchman and FCC stated: Defendants are without knowledge or
information sufficient to form a belief as to the truth of the [allegation that Woodley is the
executor of the Lynn Estate], and therefore, upon such lack of knowledge or information,
deny the same. (emphasis supplied). Not until September 11, 1987, almost two years after
the complaint was filed, did Stutchman and FCC in their motion for summary judgment raise
the issue of Woodley/Shaw's standing.
We believe that the authorities cited above are correct in suggesting that respondents'
denial of Woodley's authority to sue was insufficient to raise the issue of Woodley's
representative capacity. Respondents, with a minimum of effort, could have determined the
identity of the executor of Lynn's Estate and whether that person had qualified to act as
executor in Nevada. Having failed to raise the issue of capacity by specific negative
averment, as required by NRCP 9(a), Stutchman and FCC waived their objection. See Tobler
& Oliver Constr. v. Nevada St. Bank, 89 Nev. 269, 510 P.2d 1364 (1973);
3
Music, Inc., 395
P.2d at 301.
__________

3
In Tobler, we stated that NRCP 8(c) and NRCP 9(a) require allegations of lack of standing and capacity to
be pled affirmatively and with particularity. Tobler, 89 Nev. at 271, 510 P.2d at 1365. This was not entirely
correct. We note here that NRCP 9(a)'s requirement of a specific negative averment is not an affirmative
defense governed by Rule 8(c). See 5 C. Wright & A. Miller, Federal Practice and Procedure 1294 n.32
(1969). When the issue of lack of capacity is properly raised by a specific negative averment, the burden of
persuasion rests with the party claiming capacity.
P.2d at 301. The subsequent substitution of Shaw for Woodley did not affect respondents'
previous waiver.
CONCLUSION
We conclude that the district court erred in granting summary judgment in favor of
Stutchman and FCC. Although a foreign representative's commencement of suit in this state
without authorization is defective, the defect is one of capacity. As such, if the opposing party
does not raise the issue of capacity in the manner provided in NRCP 9(a), the objection is
waived.
Accordingly, we reverse the district court's order granting Stutchman and FCC summary
judgment, and remand the case to that court for further proceedings.
____________
105 Nev. 133, 133 (1989) Petersen v. Petersen
DONNA MARIE ANTRACCOLI PETERSEN, Appellant, v. STEVEN F. PETERSEN,
Respondent.
No. 19028
March 30, 1989 771 P.2d 159
Appeal from an order of the district court denying appellant's motion to set aside a
judgment and decree of divorce pursuant to NRCP 60(b). Second Judicial District Court,
Washoe County; Jerry C. Whitehead, Judge.
Wife moved to set aside judgment and decree of divorce. The district court denied the
motion. Wife appealed. The Supreme Court held that it was error to dismiss wife's motion on
the basis that, although the motion was filed within six month time limit, it was not filed
within a reasonable time period.
Reversed.
Richard W. Young, Reno, for Appellant.
Petersen and Petersen, Reno, for Respondent.
Divorce.
It was error to dismiss wife's motion to set aside judgment and divorce decree on basis that, although motion was filed within six
month time limit, it was not filed within a reasonable time; wife sought to assert her rights only 90 days after judgment was filed,
questionable timeliness of motion was due, for the most part, to wife's attorney's delay in preparing motion, and wife alleged a
substantial wrong, i.e., that she was defrauded by her husband with respect to property settlement he had her sign. NRCP 60(b).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's motion to set aside
a judgment and decree of divorce pursuant to NRCP 60(b). After five years of marriage,
appellant, Donna Marie Petersen (Wife), informed her husband, Steven Petersen (Husband),
that she wished to be divorced. Husband, an attorney experienced in handling divorce cases,
drew up the papers and a property settlement agreement. Wife alleges that she was urged by
Husband to sign the papers and agreement without the benefit of counsel. Wife also alleges
that Husband failed to disclose to her an accurate description of their community assets.
Only three days after Wife initially asked for the divorce, Husband filed the complaint and
property settlement agreement in the district court. A default was entered, and judgment was
ordered the same day. During these proceedings, Wife was never represented by counsel.
Approximately ninety days later, while reflecting on the fairness of the property settlement
agreement drafted by Husband, Wife obtained a copy of a financial statement which
previously had been drawn up for the couple. The statement revealed that the couple had a net
worth of $758,900.00; yet Wife had received only $82,666.00 under the property settlement
agreement.
Wife immediately hired an attorney to determine whether the distribution of the
community property under the settlement agreement was fair. Wife was advised by her
attorney that it was not. Wife's attorney then went about preparing a motion, based upon
NRCP 60(b), to set aside the divorce judgment and decree. Wife's attorney waited
approximately ninety days before filing the motion. As a result, Wife's motion was filed one
day short of six months after the judgment of divorce was entered.
The district court judge denied Wife's motion solely upon his finding that although the
motion was filed within the six-month time limit of NRCP 60(b), it was not filed within a
reasonable time as required by the statute. Wife now asserts that the district court judge
abused his discretion by so ruling.
The salutory purpose of Rule 60(b) is to redress any injustices that may have resulted
because of excusable neglect or the wrongs of an opposing party. Rule 60 should be liberally
construed to effectuate that purpose. Nevada Industrial Development, Inc. v. Benedetti, 103
Nev. 360, 364, 741 P.2d 802, 805 (1987) (citations omitted). Here, Wife alleges a substantial
wrong, that she was defrauded by Husband. The issue of Wife's claim of fraud is not now
before this court, and accordingly, this court will not comment on the merits of the claim.
However, it concerns us that such a weighty allegation has been dismissed, apparently
without any consideration of the merits.
concerns us that such a weighty allegation has been dismissed, apparently without any
consideration of the merits.
We hold that, under the facts of this case, it was error for the district court to dismiss
Wife's motion on the basis of untimeliness. Wife's motion was filed within the outermost
limit of six months as prescribed by Rule 60(b). Moreover, it appears that Wife sought to
assert her rights only ninety days after the judgment was filed. The questionable timeliness of
the motion was due, for the most part, to Wife's attorney's delay in preparing the motion.
Furthermore, Wife has not yet been given the opportunity to challenge the fairness of the
settlement agreement since the original agreement was taken by default. Under such
circumstances, the trial judge's denial of Wife's motion on the basis that it was not filed
within a reasonable time produces harsh results which are inconsistent with the spirit of
Rule 60(b).
For these reasons, we reverse the district court's ruling and remand the case back to the
district court to determine whether Wife's allegations of injustice are substantial enough to
support her motion to set aside the judgment and decree of divorce.
____________
105 Nev. 135, 135 (1989) Flanagan v. State
SEAN PATRICK FLANAGAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19059
SEAN PATRICK FLANAGAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19248
March 30, 1989 771 P.2d 588
Appeals from sentences of death imposed pursuant to judgments of conviction for first
degree murder and from order denying a motion for a new penalty hearing. Eighth Judicial
District Court, Clark County; James A. Brennan, Judge. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Defendant pled guilty and was convicted in the district court of two counts of first degree
murder and was twice sentenced to death, and he appealed. The Supreme Court held that: (1)
defendant's waiver of appellate review was valid; (2) sufficient evidence supported finding of
aggravating circumstances that defendant had been previously convicted of felony involving
use of violence to another, that defendant had depraved mind, and that defendant committed
murder while engaged in commission of or in attempt to commit robbery; and (3) sentences
of death were not imposed under influence of passion, prejudice, or arbitrary factor and
were not excessive, in view of evidence that defendant brutally murdered two men simply
because he believed they were homosexual.
under influence of passion, prejudice, or arbitrary factor and were not excessive, in view of
evidence that defendant brutally murdered two men simply because he believed they were
homosexual.
Affirmed.
Morgan D. Harris, Public Defender, and J. Daniel Hastings and Michael L. Miller,
Deputy Public Defenders, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney and James
Tufteland and Daniel M. Seaton, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Defendant validly waived right to Supreme Court review of his death sentences based on guilty plea to two counts of first degree
murder; statute, providing that appeal from judgment of death was deemed automatically taken unless defendant or his counsel
affirmatively waived that appeal within 30 days after rendition of judgment, applied only where accused entered plea of not guilty or
not guilty by reason of insanity, and defendant appeared to be intelligent man who understood what transpired at proceedings below
and fully comprehended ramifications of waiver of appeals. NRS 177.055, subd. 1.
2. Homicide.
Finding of aggravating circumstance supporting death penalty, that murder was committed by person previously convicted of
felony involving use of violence to another, was supported by corrections officer's testimony that defendant battered him and by copy
of judgment of conviction for that offense. NRS 177.055, subd. 2.
3. Homicide.
For purpose of death penalty determination, finding of aggravated circumstance of depravity of mind was supported by evidence
of defendant's repeated and varied attempts to kill over period of time, by circumstances of strangulation murder, and by subsequent
dismemberment of victim's body. NRS 177.055, subd. 2.
4. Homicide.
Finding of aggravating circumstance supporting death penalty, that murder was committed while defendant was engaged in
commission of or in attempt to commit robbery, was supported by defendant's admission that he had formed intent to take victim's car
and personal effects before killing him. NRS 177.055, subd. 2.
5. Homicide.
Finding that murder involved aggravating circumstance of depravity of mind was supported by evidence that defendant continued
to speak to victim as he choked him, telling him that he was going to die because he was homosexual, by defendant's admission that he
felt no remorse for murder and no sympathy for victim and took pleasure in victim's murder, and by defendant's statement that he
would kill any inmate who made homosexual advances toward him or suggested sexual relations. NRS 177.055, subd. 2.
6. Homicide.
Sentences of death were not imposed under influence of passion, prejudice, or any arbitrary factor and were not
excessive, in view of evidence that defendant brutally murdered two men simply because he believed they
were homosexual.
prejudice, or any arbitrary factor and were not excessive, in view of evidence that defendant brutally murdered two men simply because
he believed they were homosexual. NRS 177.055, subd. 2.
OPINION
Per Curiam:
1

Appellant Sean Patrick Flanagan pleaded guilty to two counts of first degree murder and
was twice sentenced to death. Although Flanagan's counsel filed appeals of his sentences,
Flanagan wrote to this court requesting that we waive both appeals. This court ordered the
parties to file points and authorities to resolve the question of whether Flanagan validly
waived appellate review. We conclude that Flanagan's waiver was valid and that his death
sentences conform with Nevada law.
On October 13, 1987, the City of Orange, California police stopped Flanagan for
jaywalking. Subsequently, Flanagan voluntarily confessed to committing two murders in Las
Vegas. According to Flanagan, he met James Lewandowski in Las Vegas in late September
1987. Flanagan became enraged when Lewandowski subsequently made homosexual
overtures toward him. On October 5, 1987, Flanagan met Lewandowski at Foxy's Casino in
Las Vegas and planned to kill him. Flanagan lured Lewandowski back to his (Flanagan's)
motel room. Between 4:00 a.m. and 6:00 a.m. on October 6, 1987 while the two were sitting
on Flanagan's bed, Flanagan suddenly lunged for Lewandowski, put him into a head lock,
and strangled him. Flanagan released Lewandowski after several minutes, and saw that
although unconscious, Lewandowski was breathing and his heart was still beating. Flanagan
struck Lewandowski in the throat with his fist, rolled Lewandowski's body off the bed onto
the floor, and pushed a mattress on top of the body.
Later that day, Flanagan rented his motel room for another day and went out to buy a knife
and garbage bags. During the night of October 6 and the morning of October 7, Flanagan
systematically dismembered Lewandowski's body. Flanagan cut off Lewandowski's head,
arms and legs and chopped his torso in half. Flanagan placed the various pieces in garbage
bags, which he later deposited into dumpsters behind an apartment complex near his motel.
Flanagan told the police that at 9:00 p.m., October 10, 1987, Albert Duggins offered him a
ride while Flanagan was walking on Sahara Avenue in Las Vegas. Duggins invited him for
drinks at the Sahara Hotel.
__________

1
Although Docket No. 19059 and Docket No. 19248 were argued separately, we have consolidated the two
cases for purposes of disposition.
the Sahara Hotel. Flanagan accepted and according to Flanagan, within fifteen to twenty
minutes planned to kill Duggins because he believed Duggins to be homosexual. After two or
three hours the two left the hotel and went to Duggins' apartment complex, where they spent
some time at the pool area. At approximately 3:00 or 4:00 a.m., October 11, 1987, Flanagan
asked Duggins to take him back to Sahara Avenue. Duggins and Flanagan entered Duggins'
car. When Duggins made ready to start the car, Flanagan told Duggins that Duggins was
going to die because he (Duggins) was a faggot. Flanagan then grabbed Duggins by the
neck, and strangled him. Flanagan continued to speak to Duggins as he choked him, telling
him that he did not deserve to live and that his whole kind should be exterminated.
Flanagan drove Duggins' car to a remote area, took Duggins' clothes and wallet, and disposed
of Duggins' body.
The State prosecuted Flanagan separately for the two murders. Representing himself,
Flanagan pleaded guilty to the premeditated murder of Albert Duggins.
2
A penalty hearing
was held before a three-judge panel. Although standby counsel requested the court's
permission to present mitigating evidence, pursuant to Flanagan's wishes, the court refused.
Flanagan freely admitted that he felt no remorse, that he took pleasure in killing, and that he
might kill again.
The panel found three aggravating circumstances and no mitigating circumstances. See
NRS 200.033; NRS 200.035. The panel found (1) that the murder was committed while
Flanagan was engaged in the commission of or in an attempt to commit robbery, (2) that
Flanagan had previously been convicted of a felony involving the use or threat of violence to
another (battery by a prisoner), and (3) that the murder of Albert Duggins involved torture,
depravity of mind, or mutilation of the victim. The panel noted that the aggravating
circumstance of torture, depravity of mind, or the mutilation of the victim was itself sufficient
to justify the death penalty. Accordingly, the panel sentenced Flanagan to death by lethal
injection. The panel subsequently denied Flanagan's motion for a new penalty hearing.
Flanagan, again representing himself, also pleaded guilty to the premeditated murder of
James Lewandowski. Appointed counsel represented Flanagan at the penalty hearing before a
three-judge panel.
3
The panel found four aggravating circumstances and only one mitigating
circumstance. See NRS 200.033; NRS 200.035.
__________

2
Flanagan also pleaded guilty to grand larceny auto and robbery. The district court sentenced Flanagan to
ten years imprisonment on each offense.

3
Although Flanagan proceeded in proper person, Flanagan ultimately requested assistance from standby
counsel.
NRS 200.035. The panel found (1) that the murder was committed by a person who was
previously convicted of a felony involving the use of violence to another (battery by a
prisoner), (2) that the murder was committed by a person who was previously convicted of
another murder, (3) that the murder involved depravity of mind and (4) that the murder
involved mutilation of the victim. As a mitigating circumstance, the panel found that
Flanagan had no significant history of prior criminal activity until shortly before the
commission of the murder. The panel ruled that this lone mitigating circumstance did not
outweigh any of the aggravating circumstances.
Flanagan's appointed counsel timely filed notices of appeal. Subsequent to the filing of
these notices of appeal, yet prior to oral argument, Flanagan sent a letter to this court, in
which he requested that we accept his waiver of the appeals in both cases and that the state
execute him. On November 22, 1988, this court entered an order directing the parties to file
points and authorities addressing the question of whether Flanagan had made a valid waiver
of his right to this court's review of his death sentences.
[Headnote 1]
Flanagan's counsel contends that Flanagan's waiver was untimely and therefore invalid.
Specifically, counsel argues that the waiver was made after the 30-day period for waiver
provided in NRS 177.055(1).
4
Counsel relies upon a portion of that statute, which provides
that an appeal is deemed automatically taken by the defendant without any action by him or
his counsel, unless the defendant or his counsel affirmatively waives the appeal within thirty
days after the rendition of the judgment.
Counsel's reliance is misplaced. Counsel overlooks the first clause of NRS 177.055(1)
which limits the applicability of that statute to actions in which the accused enters a plea of
not guilty or not guilty by reason of insanity. Because Flanagan pleaded guilty below, the
30-day requirement in NRS 177.055(1) is inapposite, and Flanagan's waiver need only be
intelligently made and with full comprehension of its ramifications to be valid. Cole v.
State, 101 Nev. 585, 588, 707 P.2d 545, 547 (1985). See Johnson v. Zerbst, 304 U.S. 458,
464-65 (1938).
After careful review of the record, we are convinced that Flanagan made a valid waiver of
his appeals. Based on two psychiatric reports, Flanagan was found competent to assist
counsel, aid in his own defense, understand the nature of the charges against him, and
waive his preliminary hearing.
__________

4
1. When upon a plea of not guilty or not guilty by reason of insanity a judgment of death is entered,
an appeal is deemed automatically taken by the defendant without any action by him or his counsel,
unless the defendant or his counsel affirmatively waives the appeal within 30 days after the rendition of
the judgment.
counsel, aid in his own defense, understand the nature of the charges against him, and waive
his preliminary hearing. At the time of the penalty hearing for the murder of Albert Duggins,
Flanagan was twenty-seven years old. He had served in the Marine Corps for almost four
years. Flanagan appears to be an intelligent man who understood what transpired at the
proceedings below, and functioned satisfactorily while representing himself. Flanagan's letter
to this court demonstrated that he fully comprehended the ramifications of his waiver.
Flanagan repeatedly asserted that he wished to forego his appeals and that the State carry out
the death penalty. Under these circumstances, it is clear that Flanagan validly waived his
appeals. See Cole v. State, 101 Nev. at 588, 707 P.2d at 547. Therefore, we need not consider
the contentions raised by Flanagan's appointed counsel.
Finding that Flanagan effectively waived his appeals is not, however, the end of our
inquiry. NRS 177.055(2)
5
requires that this court determine whether the evidence presented
supports the finding of an aggravating circumstance or circumstances, whether the sentence
of death was imposed under the influence of passion, prejudice or any arbitrary factor, and
whether the sentence of death is excessive, considering both the crime and the defendant.
[Headnote 2]
At Flanagan's penalty hearing for the murder of Lewandowski, the panel found as an
aggravating circumstance that the murder was committed by a person previously convicted of
a felony involving the use of violence to another (battery by a prisoner). The State offered the
testimony of James Dingus, a corrections officer at the Clark County Detention Center, who
stated that on October 31, 1987, Flanagan battered him. The State also offered a copy of the
judgment of conviction for this offense. Thus, sufficient evidence supports the finding of this
aggravating circumstance. The State also introduced evidence (including a certified copy of
the judgment of conviction) that appellant killed Albert Duggins. Therefore, sufficient
evidence supports the finding of the aggravating circumstance that appellant had previously
been convicted of murder.
__________

5
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is
taken:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any
arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
[Headnote 3]
The panel found that the Lewandowski murder involved the aggravating circumstance of
depravity of mind. Flanagan attempted to strangle Lewandowski, and then struck
Lewandowski in the Adam's apple with his fist when he found he was still alive. These
repeated and varied attempts to kill over a period of time demonstrate depravity of mind. See
Rogers v. State, 101 Nev. 457, 468, 705 P.2d 664, 671-72 (1985), cert. denied, 476 U.S. 1130
(1986). The circumstances of Lewandowski's strangulation murder also support a finding of
depravity of mind. See Neuschafer v. State, 101 Nev. 331, 337, 705 P.2d 609, 613 (1985).
The subsequent dismemberment of the victim's body further supports a finding of depravity
of mind. Cavanaugh v. State, 102 Nev. 478, 487, 729 P.2d 481, 486 (1986). Sufficient
evidence supports the finding of the aggravating circumstance of depravity of mind.
The panel also found as an aggravating circumstance that the murder of Lewandowski
involved mutilation of the victim. We have not previously decided and we need not now
decide if dismemberment of a corpse is mutilation within the meaning of NRS 200.033(8). Id.
Although the panel found as a mitigating circumstance that Flanagan had no significant
history of prior criminal activity, it concluded that this did not outweigh any one of the
aggravating circumstances. There was sufficient evidence to support the finding of the other
aggravating circumstances. Thus, even assuming arguendo that the panel erred when it
concluded that Lewandowski's murder involved mutilation, the error was harmless.
[Headnote 4]
At the penalty hearing for the murder of Duggins, the panel found as an aggravating
circumstance that Flanagan committed the murder while engaged in the commission of or in
an attempt to commit a robbery. Flanagan admitted that he had formed the intent to take
Duggins' car and personal effects before killing Duggins. Therefore, the record contains
sufficient evidence from which the panel could find this aggravating circumstance.
[Headnote 5]
Further, the panel found that the Duggins' murder involved the aggravating circumstance
of depravity of mind. When asked if he killed Duggins quickly or let him linger on, Flanagan
replied that while he did not try to torture Duggins, he was in no hurry to kill him. Flanagan
continued to speak to Duggins as he choked him, telling Duggins that he was going to die
because he (Duggins) was homosexual. Flanagan told the panel that he felt no remorse for
either murder and felt no sympathy for his victims. Flanagan told the panel that he would
kill any inmate who made homosexual advances towards him or suggested sexual
relations.
told the panel that he would kill any inmate who made homosexual advances towards him or
suggested sexual relations. Flanagan admittedly took pleasure in the murder of Duggins
simply because he thought Duggins was homosexual. Therefore, the record contains
sufficient evidence from which the panel could find the aggravating circumstance of
depravity of mind.
The sentencing panel found, as an aggravating circumstance, that Flanagan had previously
been convicted of a crime involving the use of violence to another, i.e., battery by a prisoner.
The State introduced into evidence a certified copy of the judgment of conviction for the
battery by a prisoner offense. As discussed above, sufficient evidence supports the finding of
this aggravating circumstance.
[Headnote 6]
The record reveals that the sentences of death were not imposed under the influence of
passion, prejudice, or any arbitrary factor. There is no evidence that either panel was
influenced by anything but the facts presented to them. In view of the circumstances of the
crimes and Flanagan's admitted propensity for violence, the sentences of death are not
excessive. Flanagan brutally murdered two men simply because he believed they were
homosexual. We affirm the judgment of the district court.
____________
105 Nev. 142, 142 (1989) Basf Corp. v. Jafbros, Inc.
BASF CORPORATION, INMONT DIVISION, Appellant, v. JAFBROS, INC., Respondent.
No. 19086
March 30, 1989 771 P.2d 161
Appeal from an order of the district court denying appellant's motion to set aside a default
judgment. Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Buyer of paint mixing system brought action against seller. Seller counter-claimed and
filed cross-claim against third-party nonresident corporate defendant. The district court
entered default judgment against third-party defendant and denied third-party defendant's
motion to set aside default judgment. Third-party defendant appealed. The Supreme Court
held that trial court abused its discretion in refusing to set aside default judgment.
Paul W. Freitag, Sparks, for Appellant.
William W. Harrison, Sparks, for Respondent.
1. Judgment.
Defendant who seeks to vacate default judgment on basis that defendant was not personally served must satisfy three conditions:
defendant must show he was not personally served, he filed his motion in a timely fashion, and he has meritorious defense. NRCP
60(c).
2. Judgment.
Third-party nonresident defendant made out prima facie case for relief from judgment on basis that defendant was not personally
served, and thus, trial court abused its discretion in refusing to set aside default judgment; defendant was not personally served since
Secretary of State never forwarded summons and complaint to defendant, defendant filed its motion to set aside default within six
months allowed by statute, and defendant established meritorious defense through its counsel's affidavit and deposition of one of its
sales representatives. NRCP 60(c).
3. Judgment.
Once defendant moving for relief from default judgment on basis that defendant was not personally served demonstrates presence
of the three criteria necessary for granting relief, prima facie case exists in favor of motion to vacate default judgment, and burden
shifts to opposing party to show circumstances which would make granting motion inequitable. NRCP 60(c).
4. Corporations.
Fact that nonresident third-party defendant corporation may have failed to file its list of officers for one year, and thus, may have
failed to comply with corporate filing requirements did not deprive corporation of opportunity to seek relief from default judgment on
the basis that it was not personally served. NRCP 60(c); NRS 80.150.
OPINION
Per Curiam:
Barrett Paint Supply sold respondent Jafbros, Inc. a paint mixing system. Jafbros made the
down payment and failed to pay the remaining balance. Barrett then filed a complaint against
Jafbros for money allegedly owed.
Jafbros filed its answer, counterclaim and cross-claim against third-party defendants
Glasurit and Glasurit/Limco. Appellant Basf Corporation, Inmont Division, used Glasurit as a
trade name. Subsequently, Jafbros filed an amended third-party cross-claim against Basf.
Since Basf, a foreign corporation, had no agent, cashier or secretary within Nevada, Jafbros
served the summons and complaint upon the secretary of state's office according to NRCP
4(d)(2). However, the summons and complaint were never forwarded to Basf. The district
court entered a default judgment against Basf and denied Basf's motion to set aside this
judgment.
Basf appeals, alleging that the district court abused its discretion in refusing to set aside
the default judgment pursuant to NRCP 60(c).
1
We agree.
[Headnote 1]
A defendant who seeks to vacate a default judgment under NRCP 60(c) must satisfy three
conditions: (1) he was not personally served; (2) he filed his motion in a timely fashion; and
(3) he has a meritorious defense. Jenkins v. Goldwater, 84 Nev. 422, 425, 442 P.2d 897, 899
(1968).
[Headnote 2]
In the instant case, Basf was not personally served since the secretary of state never
forwarded the summons and complaint. As well, Basf filed its motion to set aside the default
judgment within the six months allowed by statute.
Finally, Basf argues that it established a meritorious defense through its counsel's affidavit
and a deposition of John Lupo, one of its sales representatives. Statements in these documents
indicate that thousands of body shops and automobile dealerships have purchased the paint
mixing machine and they continue to operate successfully. Moreover, Jafbros may not have
operated the machine properly because it failed to use Glasurit products. These statements, if
true, would demonstrate a meritorious defense sufficient to satisfy the last requirement. See
Jenkins, 84 Nev. at 425, 422 P.2d at 899 (holding that a responsive pleading which, if true,
would tend to establish a meritorious defense is sufficient to satisfy the third requirement for
vacation of default). Therefore, Basf made a prima facie case under NRCP 60(c).
[Headnote 3]
Once the movant demonstrates the presence of the three criteria, a prima facie case exists
in favor of the motion to vacate the default judgment, and the burden shifts to the opposing
party to show circumstances which would make granting the motion inequitable. Id.
Consequently, the opposing party's demonstration of such circumstances allows the trial court
to exercise its discretion and deny the motion. Id.
Jafbros asserts two circumstances which, it contends, meet its burden and allow the district
court discretion in deciding whether to set aside the motion.
__________

1
NRCP 60(c) provides in part:
(c) Default Judgments: Defendant Not Personally Served. When a default judgment shall have been
taken against any party who was not personally served with summons and complaint, either in the State of
Nevada or in any other jurisdiction, and who has not entered his general appearance in the action, the
court, after notice to the adverse party, upon motion made within six months from the date of rendition of
such judgment, may vacate such judgment and allow the party or his legal representatives to answer to
the merits of the original action.
to set aside the motion. First, Jafbros argues that Basf had knowledge of the lawsuit because
Lupo gave a deposition at the request of the original plaintiff, Barrett. Moreover, according to
Jafbros, Barrett informed Basf of the suit and cross-claim against Glasurit. However, Lupo is
not an officer or director of the corporation, and the record does not reflect that Basf knew of
the third-party complaint against Glasurit from Lupo or Barrett.
[Headnote 4]
Second, Jafbros contends that the secretary of state did not know the names and addresses
of Basf's corporate officers because Basf failed to file its list of officers for the year of 1987.
Jafbros correctly states that non-compliance with the filing requirement deprives a
corporation of the right to do business within the State of Nevada. NRS 80.150. Jafbros
argues that Basf's non-compliance makes setting aside the default judgment inequitable.
However, equity does not demand that a corporation, delinquent in its filings with the
secretary of state, lose the opportunity to defend itself against a lawsuit. Consequently, since
Jafbros failed to meet its burden in opposing Basf's set aside motion, the district court
committed reversible error by ruling against the motion.
Accordingly, we reverse the order from which Basf appealed and remand the case with
instructions to the district court to vacate its default judgment and to permit Basf to file an
answer.
____________
105 Nev. 145, 145 (1989) Clevenger v. Employment Security Dep't
DONNA M. CLEVENGER, Appellant, v. NEVADA EMPLOYMENT SECURITY
DEPARTMENT, STANLEY P. JONES, in His Capacity as Executive Director and
HAROLD KNUDSON, in His Capacity as Chairman of Nevada Employment Security
Department Board of Review; LINDA K. LEE, in Her Capacity as a Member of the
Nevada Employment Security Department Board of Review, MEL MYERS, in His
Capacity as a Member of the Nevada Employment Security Department Board of
Review, Respondents.
No. 18827
March 31, 1989 770 P.2d 866
Appeal from an order of the district court upholding the decision of the Nevada Board of
Review, denying unemployment benefits due to termination for misconduct. Third Judicial
District Court, Churchill County; Mario G. Recanzone, Judge.
Discharged explosive operator appealed Unemployment Board's denial of unemployment
benefits on basis that employee had engaged in misconduct by using marijuana. The appeals
referee reversed, and employer, an explosives manufacturer, appealed. The Board of Review
reversed, and operator appealed. The district court affirmed, and operator appealed. The
Supreme Court held that: (1) there was reasonable connection between manufacturer's policy
prohibiting illegal drug use off-the-job and its legitimate safety interests, and (2) operator
deliberately violated manufacturer's rule against off-the-job use of marijuana or showed
willful disregard of regulations and obligations owed to manufacturer.
Affirmed.
John S. Bodger, Carson City, for Appellant.
Crowell, Susich, Owen & Tackes, Carson City; Erickson, Thorpe, Swainston, Cobb &
Lundemo and Roger B. Whomes, Reno, for Respondents.
1. Social Security and Public Welfare.
Employee's misconduct must be connected with his or her work before that person can be deemed ineligible for unemployment
benefits. NRS 612.385.
When off-the-job conduct violates employer's rule or policy, such as prohibiting use of marijuana, analysis must be made to
determine if employer's rule or policy has reasonable relationship to work to be performed and if so, whether there has been intentional
violation or willful disregard of that rule or policy, before employee terminated for violation of policy is deemed ineligible for
unemployment benefits. NRS 612.385.
For purpose of determining whether explosive operator's off-the-job use of marijuana constituted misconduct which made operator
ineligible for unemployment benefits, there was reasonable connection between explosives manufacturer's policy prohibiting illegal
drug use off-the-job and its legitimate safety interests. NRS 612.385.
Explosive operator's off-the-job use of marijuana deliberately violated explosives manufacturer's rule against illegal drug use, and
showed willful disregard of regulations and obligations operator owed to manufacturer, and thus operator was properly deemed
ineligible for unemployment benefits on basis that she engaged in misconduct; operator tested positive for marijuana three times,
although employee argued that she passively inhaled someone else's marijuana smoke before third test.
OPINION
Per Curiam:
This is an appeal from an order of the district court upholding the decision of the Nevada
Board of Review that denied unemployment benefits to appellant because of her termination
for misconduct, that misconduct being the continued use of marijuana.
FACTS
Appellant Clevenger worked as an explosive operator for Day & Zimmerman/Basil
Corporation (DZB) from 1980 until she was terminated in December of 1986. In July, 1986
appellant was involved in an occupational accident.
1
DZB's policy required appellant to
submit to a screening test for controlled substances.
2
The results of the drug screen were
positive, showing the presence of THC metabolites, an element of marijuana.
__________

1
The record on appeal does not reflect the nature of the occupational accident, or whether appellant was at
fault.

2
Under the heading Safety Accidents/Incidents, DZB Policy No. 100-102 provides:
If an employee was involved in a safety accident/incident, e.g., first aid incident, vehicle accident,
disabling injury, safety violation incident, etc., will be required to submit to a screening test for controlled
substances. . . . When a positive test result is obtained, in the absence of symptoms (in the judgment of
the medical officer) the employee will be placed in a leave without pay status, pending followup tests.
DZB Policy No. 100-102 further provides under the heading Follow-up Screening Tests that:
In the event an employee produces a positive test result during the surveillance physical or as a result
of a safety accident/incident screening test, a follow-up test will be conducted on the fifth working day
following the first positive test result. If the follow-up test is negative, the employee will be returned to
work. Upon the return to work, additional follow-up screening tests will be accomplished at the discretion
of the management without advance notice to the employee. If, however, tests results remain positive or a
positive test result is obtained by a follow-up test, the company will assume the employee has a substance
abuse problem and the employee will be placed on a medical leave of absence for up to, but not to
exceed, thirty calendar days. . . . The employee will be returned to work at the end of the thirty day period
subject to follow-up tests at the discretion of management, provided that he/she produces a negative test
result and provides proof of successful participation with an improved [sic] rehabilitation
counselor/treatment facility. In the event the test results remain positive at the end of the thirty day period
or the employee fails to obtain approved rehabilitation counseling/treatment during this period, the
employee may be terminated.
The results of the drug screen were positive, showing the presence of THC metabolites, an
element of marijuana. Appellant was suspended for five days. At the end of the five day
suspension, appellant returned to work and continued to have periodic negative test results
until September, 1986. After a positive test in September, appellant placed herself in a
substance abuse counseling program for 30 days.
Appellant returned to work on October 14, 1986, and was subjected to random screening
tests. All tests were negative until December 9, 1986. At that time appellant tested positive
for the presence of THC metabolites, and was terminated.
Appellant denied using marijuana since completing the drug counseling program in
September 1986 and challenged the results of the EMIT test conducted on her urine. She
claimed that she had taken four Advil tablets and the pain reliever in those pills could
interfere with the EMIT test conducted on SYVA equipment.
Appellant requested a retest. DZB explained that she could obtain a test at her own
expense, with the understanding that DZB would pay the cost of the retest and reinstate her if
the retest result was negative. Appellant did not proceed further, but DZB conducted a retest
on the December 9 urine sample by use of a gas chromatograph mass spectrophotometer. The
chromatograph test result was positive for THC metabolites and confirmed the results of the
EMIT test.
Appellant filed a claim for unemployment benefits in late December, 1986. She was
denied those benefits because she was discharged for misconduct within the meaning of NRS
612.385.
3

Appellant appealed the decision denying benefits and prevailed before the appeals referee.
Benefits were reinstated. The appeals referee based her decision to overturn the
Unemployment Board's earlier denial of benefits largely on her own research. The referee
found the method of drug testing (EMIT) to be unreliable, and the potential for human error
to be ever present. Additionally, the referee discussed the potential effect of passive
marijuana smoke upon the test results.
4
The referee found that there was no evidence of
"behavior which adversely affected her work performance or proved detrimental to her
employer's interest," and found that there is reasonable doubt that appellant violated the
employer's policy by off-duty conduct.
__________

3
The notice of determination regarding appellant's request for unemployment benefits states as the reason
for the decision denying benefits:
You were discharged from D.Z.B. because you tested positive for a controlled substance while on
duty. You had previously tested positive and been warned. Reporting for work while under the influence
of a controlled substance is misconduct. Therefore, you are not entitled to unemployment benefits as
shown above.

4
The EMIT test performed on appellant, presumably the 100 ng/mL, has been found to be correct 95 percent
of the time.
Inadvertent or passive exposure to marijuana was later claimed as the basis for the positive urine. Studies have
shown that passive inhalation of
The referee found that there was no evidence of behavior which adversely affected her
work performance or proved detrimental to her employer's interest, and found that there is
reasonable doubt that appellant violated the employer's policy by off-duty conduct.
DZB appealed the referee's findings to the Board of Review. The Board reversed the
referee, and benefits were again denied. The Board considered appellant's history of drug
abuse, the fact that appellant did not obtain a retest on her own, and DZB's methodic
application of its drug testing program. The Board found that a preponderance of evidence
showed that appellant had used a controlled substance and was properly discharged for
misconduct.
Appellant appealed the Board's decision to the district court. The district court found the
Board of Review's decision to be proper, not arbitrary or capricious, and supported by
substantial evidence. The appeal to this court followed.
There is nothing in the record on appeal, nor was any evidence presented at any of the
hearings below, demonstrating that appellant was under the influence of a controlled
substance on December 9, other than the results of the screening tests.
DISCUSSION
[Headnote 1]
Nevada law requires that an employee's misconduct be connected with his or her work
before that person can be deemed ineligible for unemployment benefits. NRS 612.385 states:
Discharge for misconduct. A person is ineligible for benefits for the week in which he
has filed a claim for benefits, if he was discharged from his last or next to last
employment for misconduct connected with his work, and remains ineligible until he
earns remuneration in covered employment equal to or exceeding his weekly benefit
amount in each of not more than 15 weeks thereafter as determined by the executive
director in each case according to the seriousness of the misconduct. (Emphasis added).
__________
marijuana smoke does occur and can result in a positive test. At the time of this study, the screening method used
was the low sensitivity 20 ng/mL test. In order for urine to test positive from passive inhalation, the subject
would have to be confined in a small smokey area without ventilation for at least an hour. Research shows that a
positive showing at 20 ng/mL level from passive inhalation is highly improbable. However, the 100 ng/mL test
is capable of detecting a much lower level of metabolites which increases the risk of identifying positive urines
that result from inadvertent (passive) inhalation. Laboratory Detection of Marijuana Use, Journal of the
American Medical Association, Vol. 254, No. 6 at 788-792 (Aug. 9, 1985).
There are numerous cases where an employee's misconduct is sufficient ground for
termination, but does not justify the denial of unemployment benefits because the misconduct
was not shown to be connected with his or her work. Blake v. Hercules, Inc., 356 S.E.2d 453
(Va.Ct.App. 1987); Glide Lumber Products Co. v. Employment Division, 741 P.2d 907
(Or.Ct.App. 1987). (These cases are cited as illustrations and not necessarily to approve their
holdings.)
[Headnote 2]
When off-the-job conduct violates an employer's rule or policy, such as prohibiting the use
of marijuana, an analysis must be made to determine if the employer's rule or policy has a
reasonable relationship to the work to be performed; and if so, whether there has been an
intentional violation or willful disregard of that rule or policy. In analyzing a statute similar to
NRS 612.385, the Virginia Supreme Court stated the rule as follows:
[A]n employee is guilty of misconduct connected with his work when he deliberately
violates a company rule reasonably designed to protect the legitimate business interests
of his employer, or when his acts or omissions are of such a nature or so recurrent as to
manifest a willful disregard of those interests and the duties and obligations he owes his
employer.
Branch v. Virginia Employment Comm'n, 249 S.E.2d 180, 182 (Va. 1978).
[Headnote 3]
DZB manufactures explosives. The very nature of that work would require its employees
to be free from controlled substances that may impair their work performance or judgment.
There is a reasonable connection between DZB's policy prohibiting illegal drug use
off-the-job and the legitimate safety interests of this employer.
[Headnote 4]
The remaining question is whether appellant deliberately violated DZB's rule against
off-the-job use of marijuana or showed a willful disregard of the regulations and the
obligation she owed to her employer. We conclude that she did.
DZB first detected marijuana in appellant's system in July, 1986. Again, in September,
1986, appellant tested positive. Thereafter, appellant placed herself in a substance abuse
counseling program for a month. DZB followed its policy and regulations, reinstated the
appellant and did not attempt to discharge or otherwise sanction her.
On December 9, 1986, the EMIT test results indicated that appellant had ingested or
inhaled marijuana and this result was confirmed by the gas chromatograph testing
procedure.
appellant had ingested or inhaled marijuana and this result was confirmed by the gas
chromatograph testing procedure. That appellant was a continual user of marijuana provides
the basis for the reasonable belief and finding that she had intentionally inhaled or ingested
marijuana within 30 days prior to that test and refutes any claim that she passively inhaled
someone else's marijuana smoke.
5

The facts of this case establish that appellant showed a willful disregard for the rules of her
employer, and that the rule prohibiting off-duty drug use has a reasonable relation to the work
performed and the employer's legitimate safety concerns in this type of business. We affirm
the judgment of the district court.
____________
105 Nev. 151, 151 (1989) Thompson v. State
WILLIAM PAUL THOMPSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18813
April 4, 1989 771 P.2d 592
Appeal from denial of petition for post-conviction relief. Second Judicial District Court,
Washoe County; Deborah A. Agosti, Judge.
Defendant filed petition for post-conviction relief alleging ineffective assistance of
counsel. The district court denied post-conviction relief petition, and defendant appealed. The
Supreme Court, Rose, J., held that: (1) jailhouse informant's testimony regarding
incriminating statements made by defendant did not violate defendant's privilege against
self-incrimination, and (2) trial court properly denied special cautionary instructions
concerning testimony of jailhouse informant.
Affirmed.
Robison, Belaustegui & Robb and David C. McElhinney, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
__________

5
THC metabolites can be detected by the EMIT test at concentrations greater than 20 ng/mL in urine for a
period of approximately 30 days after the last use of marijuana. Persistence of Urinary Abstinence, American
Journal of Psychiatry. Vol. 139, p. 1196-1198 (1982).
1. Criminal Law.
Jailhouse informant's testimony regarding incriminating statements made by defendant did not violate defendant's privilege against
self-incrimination, where informant's conversation with defendant was result of a chance encounter and not pursuant to any
prearranged agreement between informant and police. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
2. Criminal Law.
When jailhouse informant elicits incriminating information from an accused while acting on his own initiative and not pursuant
to any specific prior agreement with law enforcement, incriminating statements may be received in evidence against accused without
violating his state or federal constitutional rights. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
3. Criminal Law.
No special cautionary instructions concerning testimony of jailhouse informant were needed where informant was neither an
unannounced police presence nor eliciting information for police pursuant to prior agreement.
OPINION
By the Court, Rose, J.:
Appellant Thompson was arrested on April 21, 1984, in Reno and eventually charged with
murder, attempted murder, robbery and attempted robbery, in Washoe County, Nevada. On
August 16, 1984, Thompson was waiting for a hearing to begin in district court and spent six
hours in a holding cell with another inmate, Robert Dean Kennedy, who was charged with
burglary and the possession of stolen property committed in the Reno area.
Sitting across the table from each other, Thompson and Kennedy engaged in the usual
jailhouse talk that included their offenses, drugs and sex. Thompson discussed his pending
charges in Reno; and when Kennedy mentioned that he had a matter pending in Placer
County, California, Thompson volunteered in detail the circumstances of the murder of two
men he had committed along the American River near Auburn, California.
Regarding the Reno homicide, Thompson told Kennedy that he thought he could beat the
case by using the defense of self defense and that he would testify that the victim pulled a
knife on him at the murder scene, even though that was not the case. Thompson also told
Kennedy that he put a knife in the victim's hand and that Thompson knows that the police
found a knife.
Thompson also told Kennedy that he committed murders in Kansas and New York and
that he always used a .22 because it was the perfect assassination weapon. Kennedy observed
that Thompson had a gleam in his eye and an erection when talking about the murders he had
committed.
Kennedy was no stranger to law enforcement and had acted as an informant and agent for
the police in the past. In 1982, Kennedy testified as a prosecution witness in a murder case in
California. He testified about the accused confessing to him when both were inmates in jail.
This testimony was subsequently suppressed because the California Superior Court declared
that Kennedy was an unannounced police presence and was acting as a police agent when the
admissions by the accused were made. The court decision was based on the fact that Kennedy
had reached an agreement with the prosecutor whereby Kennedy would obtain information
from the accused and then testify to it. In exchange for his help, Kennedy would have certain
charges pending against him dismissed. Kennedy elicited the incriminating admissions
subsequent to reaching the agreement with the prosecutor.
Kennedy also had a history as an agent and informer for the United States Drug
Enforcement Administration (DEA). Prior to coming to Nevada, Kennedy was held in
Oregon on unrelated charges. At that time, he was working as an informer for the DEA and
making arrangements with inmates for the sale of drugs to others who were not incarcerated.
Pursuant to a prior arrangement Kennedy would inform DEA of the particulars of these drug
transactions, for which he was compensated.
1
Kennedy waived extradition to Nevada to
dispose of the charges pending against him in Washoe County. Shortly after arriving in
Washoe County, Kennedy contacted Scott Laurence, an officer with the DEA in Portland,
Oregon. He informed Laurence of his location and requested money. Laurence sent him $200.
This money was not paid for any future work or a specific assignment and it was totally
unrelated to the Thompson case.
After his lengthy conversation with Thompson, Kennedy telephoned a Reno Police
Department detective and informed him that he had information regarding Thompson, that he
had acted as an informant in the past and that he hoped to receive some consideration from
the Placer County District Attorney's Office regarding his pending burglary charges in
exchange for his assistance in the Thompson case. Without any specific promises being made
to Kennedy, Kennedy then told the police of his discussion with Thompson.
At Thompson's trial, Kennedy testified regarding the admissions Thompson had made
concerning the Reno homicide and also testified to Thompson's confession to the California
murders. At the end of the trial, Thompson was convicted of murder in the first degree with
use of a deadly weapon, attempted murder with use of a deadly weapon, robbery with use
of a deadly weapon, attempted robbery with use of a deadly weapon, and carrying a
concealed weapon.
__________

1
The record suggests Kennedy was compensated for his help as an informer both monetarily and in the form
of plea bargains resulting in reduced sentences.
with use of a deadly weapon, robbery with use of a deadly weapon, attempted robbery with
use of a deadly weapon, and carrying a concealed weapon. The jury then imposed the death
penalty for the murder and the court sentenced Thompson to the maximum sentences on the
remaining charges. The judgment and sentences have been affirmed by this court.
On November 14, 1986, Thompson filed a petition for post-conviction relief and alleged
that he was denied his constitutional right to the effective assistance of counsel at his trial.
The thrust of his alleged errors is that defense counsel failed to file a motion to suppress the
testimony of Kennedy and also failed to request a cautionary jury instruction at trial
concerning the testimony of Kennedy. The district court found that Kennedy did indeed have
a history as a paid informant for law enforcement and that he had acted as a snitch in
several cases. However, the district judge concluded that Kennedy was not acting as a paid
informant or agent of the police when he obtained the incriminating statements from
Thompson in 1984, that Nevada law enforcement authorities were initially unaware of
Kennedy's history as an informant, and that Nevada authorities did not have a prearranged
agreement with Kennedy or place him in the cell with Thompson to collect information.
The district court concluded that any motion to suppress Kennedy's testimony would not
have been successful because he was not a paid informant or government agent and that no
cautionary instruction with regard to the reliability of a paid informant's testimony was
necessary. The appellant's post-conviction relief petition was denied and this appeal was
taken.
This court has disapproved of the practice of an inmate and law enforcement striking an
agreement whereby the inmate is placed with an accused, solicits information to be used
against the accused and then have the inmate testify against the accused concerning any
admission secured, all in exchange for concessions by law enforcement to the charges
pending against the inmate. Holyfield v. State, 101 Nev. 793, 711 P.2d 835 (1985). In that
case, we held that the jailhouse informant's communication with the accused was the
functional equivalent of express police questioning and that this violated the accused's
privilege against self-incrimination as stated in the United States and Nevada Constitutions.
Thompson argues that the case at bar is the same as the Holyfield case, and that Kennedy
represented an unannounced police presence. We disagree with this contention.
[Headnote 1]
Thompson made his numerous incriminating statements to Kennedy prior to Kennedy
having any discussion with Nevada law enforcement authorities. Kennedy's conversation with
Thompson was the result of a chance encounter and not pursuant to any prearranged
agreement between Kennedy and law enforcement.
to any prearranged agreement between Kennedy and law enforcement. Kennedy had learned
that providing information to law enforcement and being a jailhouse informant could be
beneficial to someone accused of a crime, and he was obviously hopeful that the information
secured from Thompson, that he provided to the police, would result in some benefit to him.
However, no agreement had been made between Kennedy and the police concerning the
Thompson case prior to his conversation with Thompson. Kennedy did not provide the
information contingent upon a deal or any specific agreed upon benefit. The district court
expressly found that Kennedy did not obtain any benefit from the disclosure of Thompson's
statements.
2

Thompson places heavy reliance upon United States v. Henry, 447 U.S. 264 (1980), a case
where an inmate was requested by government agents to be alert to any statements made by
federal prisoners. After the inmate had been released from jail, he was again contacted by the
government agent and he disclosed incriminating evidence Henry had told him about a bank
robbery. The inmate was paid for the information, testified at the trial concerning Henry's
admissions, and Henry was convicted.
The Court held that Henry's incriminating statements made to the informant were not
admissible at Henry's trial because the government had violated the defendant's sixth
amendment right to counsel by intentionally creating a situation likely to induce the defendant
to make incriminating statements without the assistance of counsel and then having the
informant elicit the admissions.
In United States v. Malik, 680 F.2d 1162 (7th Cir. 1982), a similar factual situation to the
case at bar was presented and that court observed that the Henry case required three important
factors to be considered. First, whether the inmate was acting under instructions as a paid
informant of the Government, second, whether the inmate was ostensibly no more than a
fellow inmate of Henry's, and third, whether Henry was in custody when he made the
statements. Id. at 1165. In analyzing the factors, the court determined that there were ample
facts to support the lower court's decision that the informant was not acting under instructions
from the government when the incriminating statements were made and it refused to extend
the Henry rule to situations where an informant, acting on his own initiative, elicited
incriminating information from an accused.
__________

2
Kennedy did receive the standard witness fee of $25 for each of the three times he testified in the
Thompson case for a total of $75.00. Additionally, Kennedy pleaded to the possession of stolen property charge,
and the burglary was dropped. The amended information may have been a result of negotiations arising from
information provided to Washoe County authorities in several cases subsequent to the Thompson case. Nothing
in the record suggests that Kennedy requested consideration from any other entity besides Placer County for the
Thompson information.
We refuse to extend the rule of Massiah and Henry to situations where an individual,
acting on his own initiative, deliberately elicits incriminating information. In Henry, the
Court specifically referred to the Government's role as being an important factor. 447
U.S. at 270, 100 S.Ct. at 2187. The Maliks suggest that the Government must go to
extraordinary lengths to protect defendants from their own loose talk; they suggest that
potential informants be segregated from other inmates. We do not believe that the Sixth
Amendment right to counsel requires the Government to take such steps. Id. at 1165.
[Headnote 2]
The Malik decision is well reasoned and makes good sense. Accordingly, we hold that
when a jailhouse informant elicits incriminating information from an accused while acting on
his own initiative and not pursuant to any specific prior agreement with law enforcement, the
incriminating statements may be received in evidence against the accused without violating
his state or federal constitutional rights. An inmate should not be immune from the
consequences of his voluntary loose talk to another inmate who does not represent a police
presence.
[Headnote 3]
Since Kennedy was not an unannounced police presence or eliciting information for the
police pursuant to a prior agreement, there was no need to give the cautionary instruction
concerning the testimony of a paid informant as required in Crowe v. State, 84 Nev. 358, 441
P.2d 90 (1968), or as recommended in Buckley v. State, 95 Nev. 602, 600 P.2d 227 (1979).
The general cautionary instruction concerning witnesses testimony was given and there was
substantial evidence to support each jury verdict as we previously determined in Thompson v.
State, 102 Nev. 348, 721 P.2d 1290 (1986).
Accordingly, the decision of the district court denying appellant's petition for
post-conviction relief is affirmed.
Young, C. J., and Whitehead, D. J., concur.
3

Steffen, J., concurring:
I concur in the result only.
__________

3
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District Court, was designated by the
Governor to sit in the place of The Honorable John Mowbray, Justice. Nev. Const. art. 6, sec. 4.
The Honorable Charles E. Springer voluntarily disqualified himself in this case.
____________
105 Nev. 157, 157 (1989) Mendez v. Brinkerhoff
ANNA MENDEZ, Individually and as Next of Kin of ROBERT MENDEZ, JR., Appellant, v.
KAREN M. BRINKERHOFF, Respondent
No. 18526
April 6, 1989 771 P.2d 163
Appeal from a denial of motions for directed verdict and a new trial. Sixth Judicial District
Court, Pershing County; Llewellyn A. Young, Judge.
Oncoming motorist appealed from judgment of the district court entered on jury verdict in
favor of left-turning motorist. The Supreme Court held that: (1) evidence did not mandate
verdict in favor of oncoming motorist, and (2) evidence that left-turning motorist had
forfeited bail under traffic citation was not admissible to show that she committed the traffic
offense charged in the citation.
Affirmed.
Osborne, Jenkins & Gamboa, Reno, for Appellant.
Erickson, Thorpe, Swainston, Cobb & Lundemo and William C. Jeanney and Roger
Whomes, Reno, for Respondent.
1. Automobiles.
Although there was substantial evidence supporting negligence claim against left-turning motorist, evidence was not so
overwhelming as to mandate a verdict in favor of oncoming motorist in view of substantial conflicting evidence indicating that either
the negligence of the oncoming motorist or circumstances unrelated to either party's conduct may have caused the accident.
2. Evidence.
Evidence that motorist had forfeited bail under traffic citation is not admissible as an admission that he or she committed the
traffic offense charged in the citation. NRS 51.035, subd. 3(a).
3. Automobiles.
Evidence showing only that a party received a traffic citation is inadmissible in a civil action.
OPINION
Per Curiam:
This appeal arises out of a collision between automobiles driven by appellant Anna
Mendez, plaintiff below, and respondent Karen Brinkerhoff. Mendez and her passenger-son,
Robert, were traveling through an intersection in Reno as Brinkerhoff was attempting to
negotiate a left-hand turn. The two cars collided, resulting in injuries to Mendez and her son
as well as Brinkerhoff, who filed a counterclaim against Mendez.
resulting in injuries to Mendez and her son as well as Brinkerhoff, who filed a counterclaim
against Mendez. The jury returned a verdict favoring Brinkerhoff, but awarded no damages.
On appeal, Mendez contends that the trial court erred in denying her motions for a directed
verdict and a new trial. We disagree and affirm.
During trial, the district court excluded evidence which revealed that the investigating
officer issued Brinkerhoff a citation for failing to yield the right-of-way as required by NRS
484.317.
1
The court also excluded evidence showing that Brinkerhoff forfeited bail when
she failed to appear in court to contest the citation.
At the close of Brinkerhoff's evidence, Mendez made a motion for a directed verdict. The
court denied the motion and allowed the issue of liability to go to the jury. As noted
previously, the jury ultimately returned a verdict in Brinkerhoff's favor, but awarded no
damages. The jury also found by special verdict that neither Brinkerhoff nor Mendez was
negligent.
[Headnote 1]
Mendez first argues that the district court erred when it denied her motion for directed
verdict. Although Mendez did present substantial evidence supporting her negligence claim
against Brinkerhoff, her evidence was not so overwhelming that a verdict in her favor was
mandated by law. See Bliss v. DePrang, 81 Nev. 599, 602, 407 P.2d 726, 628 (1965).
Brinkerhoff presented substantial conflicting evidence indicating that either Mendez's
negligence or circumstances unrelated to either party's conduct may have caused the collision.
Therefore, we cannot say that the district court erred in denying Mendez's directed verdict
motion. Id.
Mendez also contends that the district court erred in excluding evidence showing that
Brinkerhoff forfeited bail under her citation. She maintains that the evidence should have
been admitted as a party admission under NRS 51.035(3)(a).
2
We disagree.
__________

1
The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to
any vehicle approaching from the opposite direction which is within the intersection or so close thereto as
to constitute an immediate hazard, but such driver, having so yielded and having given a signal when and
as required, may make such left turn and the drivers of all other vehicles approaching the intersection
from the opposite direction shall yield the right of way to the vehicle making the left turn.

2
NRS 51.035(3)(a) provides:
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
[Headnote 2]
When a person forfeits bail under a traffic citation, there is no recorded interchange
between a court and an alleged traffic offender to ascertain why he or she chose not to contest
the charges. The evidence, standing alone, is equivocal, supporting both an admission of guilt
and an inference that the party forfeited bail as a matter of convenience or sound economics.
Because the evidence is so ambivalent, we conclude that it is not admissible against the
forfeiting party as an admission that he or she committed the traffic offense charged in the
citation. See 29 Am.Jur.2d Evidence 701 (1967). See also Walker v. Forrester, 764 P.2d
1337 (Okla. 1988); Samuel v. Mouzon, 320 S.E.2d 482 (S.C.Ct.App. 1984).
[Headnote 3]
Because it is not a party admission, the fact that Brinkerhoff forfeited bail is relevant
only as proof that she received a traffic citation. Evidence showing only that a party received
a traffic citation is inadmissible in a civil action. Frias v. Valle, 101 Nev. 219, 221, 698 P.2d
875, 876 (1985). Therefore, the district court properly excluded the evidence of forfeited bail
in this case.
For the foregoing reasons, the jury verdict is affirmed.
Steffen, A. C. J., Springer, Mowbray, and Rose, JJ., and Foley, D. J.,
3
concur.
__________
. . . .
3. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity. . . .

3
The Honorable Thomas A. Foley, Judge of the Eighth Judicial District, was designated by the Governor to
sit in the place of The Honorable Cliff Young, Chief Justice, who voluntarily recused himself. Nev. Const., art.
6, 4.
____________
105 Nev. 160, 160 (1989) Wolzinger v. District Court
RUTH WOLZINGER and MELVIN WOLZINGER, Petitioners, v. EIGHTH JUDICIAL
DISTRICT COURT IN AND FOR THE COUNTY OF CLARK, STATE OF
NEVADA, and THE HONORABLE THOMAS A. FOLEY, DISTRICT JUDGE,
Respondents, and FIRST INTERSTATE BANK OF NEVADA, N.A., Real Party in
Interest.
No. 18715
MELVIN WOLZINGER, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT, and THE
HONORABLE MYRON E. LEAVITT, and THE HONORABLE THOMAS A. FOLEY,
DISTRICT JUDGES, Respondents.
No. 18912
IN THE MATTER OF THE ESTATE OF HAZEL MAE WILSON, DECEASED; RUTH
WOLZINGER, Appellant, v. FIRST INTERSTATE BANK OF NEVADA, N.A.,
Respondent.
No. 18972
IN THE MATTER OF THE ESTATE OF EARL ELY WILSON, DECEASED; OSCAR
HARTWIG, Appellant, v. FIRST INTERSTATE BANK OF NEVADA, N.A., Respondent.
No. 19223
IN THE MATTER OF THE ESTATE OF HAZEL MAE WILSON, DECEASED; EARL
RAY SITTON, JUDITH VAN DUSEN, THOMAS ISENBERG and FERNE
BISBEE, Appellants, v. FIRST INTERSTATE BANK OF NEVADA, N.A.,
Respondent.
No. 19269
April 20, 1989 773 P.2d 335
Original petition for writs of certiorari, prohibition and mandamus (18715); original
petition for writ of mandamus or prohibition (18912); appeal from order denying petition for
appointment as successor executrix and for letters testamentary (18972); appeal from order
denying petition for appointment as successor executor and for letters testamentary (19223);
appeal from order denying petition for appointment as administrator and letters of
administration (19269). Eighth Judicial District Court, Clark County; Thomas A. Foley,
Judge; Myron E. Leavitt, Judge (18912).
The district court on his own motion, suspended estate executor, denied various motions to
appoint successors, and appointed special administrator. The district court also declined to
disqualify Judge Foley. On appeal, the Supreme Court held that: (1) refusal to disqualify
probate court judge was not abuse of discretion, and (2) person nominated as successor
executrix in will was not disqualified by fact that she was married to initial, suspended
executor, though initial executor might be subject to surcharge resulting from his execution of
estate.
Petitions denied, Docket Nos. 18715 and 18912; reversed and remanded with
instructions, Docket No. 18972; vacated and remanded, Docket No. 19223; dismissed,
Docket No. 19269.
Lionel Sawyer & Collins and Mark A. Solomon, Las Vegas, for Wolzingers and Hartwig.
Miles, Pico & Mitchell and Gary L. Myers, Las Vegas, for First Interstate Bank of Nevada,
N.A.
John Peter Lee and Grenville T. Pridham and Daniel Marks, Las Vegas, for Sitton, Van
Dusen, Isenberg, and Bisbee.
1. Certiorari.
If act complained of is within jurisdiction of inferior tribunal, writ of certiorari will not be granted, even if decision or order of
lower court was incorrect.
2. Executors and Administrators.
District court had jurisdiction to suspend estate executor, and appoint special administrator, upon determination that executor had
failed to timely file inventory, act on creditor's claims, or file first accounting. NRS 141.090, 141.100.
Estate executor was not entitled to presuspension hearing. NRS 141.110.
4. Action.
Suspended executor's claim of entitlement to protectable property right, and alleged denial of due process as result of indefinite
suspension, were rendered moot when executor voluntarily resigned. NRS 141.080; U.S.C.A.Const. Amends. 5, 14.
Person named in will as successor executrix should, rather than third party, have been appointed as special administrator upon
suspension of initially named executor, assuming executrix otherwise qualified for position. NRS 140.020.
6. Prohibition.
Writ of prohibition will issue only where district court has acted in excess of his jurisdiction.
7. Mandamus.
Party to probate proceeding was not entitled to writ of mandamus compelling supervising judge to grant petition to disqualify
probate judge; supervising judge had no absolute duty to disqualify probate judge and did not abuse his discretion in finding no actual
or implied bias on part of probate judge.
Fact that special administrator had already been appointed was not proper basis for denying petition for letters testamentary;
special administrator was not general representative of estate, but rather was emergency officer with limited authority to care for and
preserve estate until executor or general administrator was ascertained or appointed as his proper legal representative.
Person nominated as successor executrix in will was not disqualified by fact that she was married to initial, suspended executor,
though initial executor might be subject to surcharge resulting from his execution of estate; allegation of potential conflict of interest
did not disqualify wife from position of successor executrix. NRS 138.020.
OPINION
Per Curiam:
This opinion considers two petitions for extraordinary writs, and three appeals from orders
of the district court.
Docket No. 18715 is a petition for writs of certiorari, prohibition and mandamus.
Petitioners Melvin and Ruth Wolzinger challenge an order of the district court suspending
Melvin Wolzinger from his position as executor of the estate of Hazel Mae Wilson, and
appointing First Interstate Bank of Nevada (FIB) as special administrator.
1
Petitioners
contend the district court's order is in excess of jurisdiction, void and unconstitutional as a
violation of due process under the laws of Nevada and the Constitution of the United States.
Petitioners seek to prohibit the district court from allowing FIB to continue to act as special
administrator of the estate of Hazel Mae Wilson. Petitioners contend that Ruth Wolzinger is
entitled to the position of special administrator as the preferred party named in the will of
Hazel Mae Wilson, pursuant to NRS 140.020(3).
Docket No. 18912 is a petition for a writ of mandamus or, alternatively, prohibition.
Petitioner Melvin Wolzinger challenges an order of respondent District Judge Myron E.
Leavitt denying petitioner's motion to disqualify respondent District Judge Thomas A.
__________

1
Petitioners also challenged the district court's order denying Ruth Wolzinger's request to be appointed
successor executor to the estate of Hazel Mae Wilson. In an order dated March 7, 1988, this court indicated that
the district court's order is appealable, and we declined to review this claim in this original proceeding. This
claim is properly raised in Docket No. 18972, which has been consolidated herewith.
denying petitioner's motion to disqualify respondent District Judge Thomas A. Foley in the
probate proceedings involving the estate of Earl Ely Wilson. Petitioner seeks an order
compelling the disqualification of District Judge Foley or, in the alternative, prohibiting
Judge Foley from acting as judge in any matter concerning the estates of Earl Ely Wilson and
Hazel Mae Wilson.
Docket No. 18972 is an appeal by Ruth Wolzinger from an order of the district court
denying her petition for letters testamentary in the estate of Hazel Mae Wilson.
Docket No. 19223 is an appeal by Oscar Hartwig from an order of the district court
denying his petition for letters testamentary in the estate of Earl Ely Wilson.
Docket No. 19269 is an appeal by Earl Ray Sitton, Judith Van Dusen, Thomas Isenberg,
and Ferne Bisbee from an order of the district court denying Earl Ray Sitton's petition for
letters of administration in the estate of Hazel Mae Wilson.
FACTS
Earl Ely Wilson died on January 11, 1984. Paragraph eight of his last will and testament
provides:
I nominate, constitute and appoint Melvin Wolzinger, JAY H. BROWN and
GOODMAN, OSHINS, BROWN & SINGER, CHARTERED, in the order named, as
Executor of this Will. If they shall for any reason fail to qualify or cease to act as such
Executor, the law firm of GOODMAN, OSHINS, BROWN & SINGER,
CHARTERED, its successors or assigns, (or if GOODMAN, OSHINS, BROWN &
SINGER, CHARTERED shall fail to act, by the Court having jurisdiction over the
probate of my estate) shall designate a successor or substitute Executor by filing a
written instrument with the Court having jurisdiction over the probate of my estate. . . .
On February 10, 1984, the district court confirmed Melvin Wolzinger as executor of the
estate of Earl Ely Wilson.
Hazel Mae Wilson, widow of Earl Ely Wilson and principal beneficiary of Earl's estate,
died on June 6, 1986. Paragraph nine of her last will and testament provides:
I nominate, constitute and appoint Melvin Wolzinger as Executor of this Will. If he
shall for any reason fail to qualify or cease to act as such Executor, then I nominate
Ruth Wolzinger or JAY H. BROWN, in the order named, Executrix or Executor in his
place and stead. The term my Executor as used in this Will shall include any personal
representative of my estate. No bond shall be required of any Executor nominated in
this Will.
On July 21, 1986, Melvin Wolzinger was approved as executor of the estate of Hazel Mae
Wilson.
On October 15, 1987, District Judge Foley, on his own motion, issued an order suspending
Melvin Wolzinger from his duties as executor of the estate of Hazel Mae Wilson. Judge
Foley appointed FIB as special administrator of the estate of Hazel Mae Wilson, and ordered
Melvin Wolzinger to show cause why he should not be removed as executor of the estate of
Earl Ely Wilson. Both the order of suspension and the order to show cause are based on
Melvin Wolzinger's failure to file an inventory within sixty (60) days after his appointment as
executor as mandated by NRS 144.010, his failure to act on creditor's claims within fifteen
(15) days after expiration of the time for filing such claims as required by NRS 147.110, and
his failure to file promptly the first accounting as required by NRS 150.090.
A hearing on the order to show cause was held on December 4, 1987. At that hearing
Melvin Wolzinger filed a first accounting pursuant to NRS 150.090 for both estates. After
receiving testimonial evidence, Judge Foley took the matter under submission. On December
18, 1987, before Judge Foley issued a decision, Melvin Wolzinger submitted his resignation
as executor of both the Hazel Mae Wilson and the Earl Ely Wilson estates.
On December 18, 1987, the day Melvin Wolzinger submitted his resignations, Ruth
Wolzinger, Melvin's wife, filed a petition for appointment as successor executrix and for
letters testamentary to the estate of Hazel Mae Wilson. Ruth Wolzinger was designated under
the will of Hazel Mae Wilson as successor executrix if Melvin Wolzinger ceased to act or
was unable to fulfill his duties as executor. FIB opposed Ruth Wolzinger's petition. FIB
contended that, because Melvin Wolzinger may be subject to surcharge resulting from his
execution of the Hazel Mae Wilson estate, the appointment of Ruth Wolzinger as executrix
might give rise to a conflict of interest. Judge Foley denied Ruth Wolzinger's petition without
addressing the merits. The basis for the denial was that no vacancy existed for the executor
position in Hazel Mae Wilson's estate on December 18, 1987.
2
Paragraph eight of Earl Ely
Wilson's will nominated Jay H.
__________

2
NRS 141.080 provides in relevant part:
An executor . . . may resign his appointment at any time, by a writing filed in the district court, to take
effect upon the settlement of his accounts.
Although not stated in the district court's order denying Ruth Wolzinger's petition, Melvin Wolzinger had not
settled his accounts on the date of his resignation, and therefore his resignation was not effective on that date.
FIB objected to the first accounting on January 8, 1988. By January 20, 1988, the day of the hearing on the
petition of Ruth Wolzinger, no hearing had been set for objection to the first accounting.
Paragraph eight of Earl Ely Wilson's will nominated Jay H. Brown, and the law firm of
Goodman, Oshins, Brown & Singer, Chartered, its successors or assigns, in that order, to fill
the position of executor, if for any reason Melvin Wolzinger failed to qualify or was unable to
act as executor. On December 18, 1987, Jay H. Brown filed a declination to act and a
renunciation of right to letters testamentary, thereby giving up his right to act as executor of
the Earl Ely Wilson estate. The law firm of Goodman, Oshins, Brown & Singer also filed a
declination to act as executor, stating that the aforementioned law firm no longer existed.
However, the law firm did assert its right, by and through its alleged corporate successor in
interest, to nominate Oscar Hartwig for the position of successor executor. On January 21,
1988, at the hearing on the petition of Oscar Hartwig to become successor executor in Earl
Ely Wilson's estate, Judge Foley, ruling from the bench, denied the petition, finding the
alleged corporate successor to be incompetent to nominate an executor.
On June 1, 1988, Earl Ray Sitton (Sitton) petitioned the district court for letters of
administration in the estate of Hazel Mae Wilson, pursuant to NRS 141.070.
3
Sitton is the
son of Ferne Bisbee (Bisbee), the sister of Hazel Mae Wilson. Bisbee nominated Sitton for
the position of administrator. Judge Foley denied the Sitton petition on the ground that the
district court was divested of jurisdiction in the estate of Hazel Mae Wilson, pending the
appeal of Ruth Wolzinger.
Docket No. 18715
[Headnote 1]
In Docket No. 18715, Melvin and Ruth Wolzinger petition this court for a writ of
certiorari to review the order of the district court suspending Melvin Wolzinger from his
position as executor of the Hazel Mae Wilson estate and appointing FIB as special
administrator. This court has often stated that the inquiry upon a petition for a writ of
certiorari is limited to whether the inferior tribunal acted in excess of its jurisdiction. If it is
determined that the act complained of was within the jurisdiction of the tribunal, this court's
inquiry stops even if the decision or order of the lower court was incorrect. See Goicoechea v.
District Court, 96 Nev. 2S7, 607 P.2d 1140 {19S0); Iveson v.
__________

3
If all the executors or administrators die or from any cause become incapable of executing the trust, or
the authority of all of them is revoked or annulled according to law, the district court shall direct letters of
administration with the will annexed, or otherwise, to be issued to the surviving husband or wife, next of
kin or others, in the same manner as directed in relation to original letters of administration.
Nev. 287, 607 P.2d 1140 (1980); Iveson v. District Court, 66 Nev. 145, 206 P.2d 755 (1949).
[Headnote 2]
The district court's jurisdiction to suspend an executor and appoint a special administrator
is provided by NRS 141.090 and NRS 141.100. NRS 141.090 provides in relevant part:
Whenever a district judge has reason to believe, from his own knowledge or from
credible information, that any executor or administrator:
. . . .
4. Has wrongfully neglected the estate; or
5. Has unreasonably delayed the performance of necessary acts in any particular as
executor or administrator;
he shall, by an order entered upon the minutes of the court, suspend the powers of the
executor or administrator until the matter can be investigated.
4

The district court's jurisdiction is further defined by NRS 141.100, which provides:
During the suspension of the powers of an executor or an administrator, as provided
in NRS 141.090, the district court or judge, if the condition of the estate requires it,
may appoint a special administrator to take charge of the effects of the estate, who shall
give bond and account as other special administrators are required to do.
The district court acted within its jurisdiction, pursuant to NRS 141.090 and 141.100, when it
suspended Melvin Wolzinger from his position as executor of the Hazel Mae Wilson estate
and appointed a special administrator.
[Headnote 3]
Petitioners additionally argue that to suspend Melvin Wolzinger from his position as
executor without the benefit of a pre-suspension or post-suspension hearing constituted a
denial of due process, and was therefore in excess of the district court's jurisdiction. See
Watson v. Housing Authority, 97 Nev. 240, 242, 627 P.2d 405, 407 (1981) (for purposes of
writ of certiorari, the term jurisdiction has a broader meaning that the concepts of personal
and subject matter jurisdiction, and includes constitutional limitations). Petitioners'
contention that Melvin Wolzinger was entitled to a pre-suspension hearing is without merit.
NRS 141.110 contemplates that a hearing on an order to show cause shall occur after the
order of suspension is entered by the district court.5
__________

4
The record on appeal does not indicate the nature or source of the information Judge Foley relied on when
suspending Melvin Wolzinger in the estate of Hazel Mae Wilson.
shall occur after the order of suspension is entered by the district court.
5

Petitioners argue that by indefinitely suspending Melvin Wolzinger without affording him
the post-suspension hearing required by NRS 141.110, the district court effectively deprived
Melvin Wolzinger of his position as executor of the estate of Hazel Mae Wilson. Petitioners
assert that indefinite suspension from the position of executor constitutes a denial of due
process, and that the position of executor is a property right because that right was a
legitimate claim of entitlement under Board of Regents v. Roth, 408 U.S. 564 (1972).
[Headnote 4]
Assuming, without deciding, that Melvin Wolzinger had a legitimate claim of entitlement
to the position of executor, we note that on December 18, 1987, Melvin Wolzinger resigned
as executor of the estate of Hazel Mae Wilson pursuant to NRS 141.080. When an individual
voluntarily resigns an office or position, he waives his right to the procedural protection to
which he otherwise would be entitled. Morrell v. Stone, 638 F.Supp. 163 (W.D.Va. 1986). Cf.
Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982) (court concluded that it is not a
deprivation of due process of law to be put to the option of defending oneself in a proper
dismissal hearing or voluntarily accepting a change in one's job status). The issues
concerning Melvin Wolzinger's claim of entitlement to a protectable property right and the
alleged denial of due process were rendered moot when Melvin Wolzinger voluntarily
resigned from his position as executor of the Hazel Mae Wilson estate. Accordingly, we deny
petitioner's petition in Docket No. 18715 to the extent that it seeks issuance of a writ of
certiorari.
[Headnote 5]
Petitioners also seek in Docket No. 18715 a writ of prohibition to preclude the lower court
from allowing FIB to continue as special administrator and a writ of mandamus to compel the
district court to appoint Ruth Wolzinger as special administrator of the estate of Hazel Mae
Wilson. Petitioner's claim has merit in light of NRS 140.020 which directs that the person
entitled to letters testamentary or letters of administration shall be given preference. In light
of our disposition of the appeal in Docket No.
__________

5
NRS 141.110 (emphasis added) provides in relevant part:
1. When the suspension has been made, the clerk shall issue a citation, reciting the order of
suspension, to the executor or administrator to appear before the court at a time therein to be stated, as
fixed by the court or judge, to show cause why his letters should not be revoked.
18972, however, these issues are rendered moot. Accordingly, we deny petitioners' petition in
Docket No. 18715 for writs of mandamus and prohibition.
Docket No. 18912
In Docket No. 18912, Petitioner Melvin Wolzinger seeks a writ of mandamus compelling
Judge Leavitt to grant his petition to disqualify Judge Foley or, alternatively, a writ of
prohibition prohibiting Judge Foley from acting as judge in any further proceedings involving
the estate of Earl Ely Wilson.
6

[Headnote 6]
A writ of prohibition will issue only where the district court has acted in excess of its
jurisdiction. See Goicoechea v. District Court, 96 Nev. 287, 607 P.2d 1140 (1980). Because
Judge Leavitt had jurisdiction to consider petitioner's challenge to Judge Foley for bias, see
NRS 1.235(5), and Judge Foley has jurisdiction in the matters pending below, a writ of
prohibition cannot issue.
[Headnote 7]
A writ of mandamus will issue to compel the performance of an absolute duty enjoined by
law or to control the abuse of discretion by a lower tribunal. See Round Hill Gen. Imp. Dist.
v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). In this case, we conclude that Judge Leavitt
had no absolute duty to disqualify Judge Foley, and that Judge Leavitt did not abuse his
discretion in finding no actual or implied bias on the part of Judge Foley. Accordingly, we
deny the petition in Docket No. 18912. Nevertheless, in light of our disposition of the appeals
in this matter, infra, and in the interest of avoiding a potential appearance of impropriety and
further delay occasioned by any future objections to Judge Foley's participation, we direct the
Chief Judge of the Eighth Judicial District Court to assign all further proceedings in these
matters to another judge not previously involved in these cases.
7
See Nev. Const. art. 6,
19(1); Lane v. District Court, 104 Nev. 427, 760 P.2d 1245 (1988).
__________

6
Melvin Wolzinger also seeks an order disqualifying Judge Foley from further participation in the
proceedings in the estate of Hazel Mae Wilson. We note, however, that petitioner has not challenged Judge
Foley in the proceedings concerning the estate of Hazel Mae Wilson below, and this portion of this petition is
therefore not properly before this court. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534
(1981).

7
This court is aware that there is a high probability of further objections to Judge Foley continuing to
preside in future proceedings in this matter.
Docket No. 18972
[Headnote 8]
In Docket No. 18972, Ruth Wolzinger appeals from the district court's order denying her
petition for letters testamentary in the estate of Hazel Mae Wilson. Judge Foley denied the
petition on the ground that no vacancy existed for the position because FIB was serving as
special administrator. This was an improper basis for denying the petition. This court has
previously stated, A special administrator is not a general representative of the estate. He is
an emergency officer with limited authority to care for and preserve the estate until an
executor or general administrator is ascertained or appointed as its proper legal
representative. Bodine v. Stinson, 85 Nev. 657, 660, 461 P.2d 868, 871 (1969). In fact, it is
questionable whether a special administrator has the authority to object to or challenge a
petition for letters testamentary, that power properly lying with parties interested in the estate.
NRS 138.050(1). Cf. In re Santini's Estate, 56 Nev. 350, 52 P.2d 338 (1936) (interpreting the
predecessor to NRS 137.010, allowing only interested persons to contest a will, this court
held that a special administrator was not an interested person under the statute).
[Headnote 9]
In the Last Will and Testament of Hazel Mae Wilson, Ruth Wolzinger is unequivocally
nominated as successor executrix, if for any reason the executor fails to qualify or ceases to
act as executor. Ruth Wolzinger correctly relies on this court's holding in Foley v. Silvagni,
76 Nev. 93, 100, 349 P.2d 1062, 1065-1066 (1960), which states: Absent any right of
discretion created by statute, no discretion rests in the probate court in respect to the issuance
of letters testamentary to the person nominated in the will. The testator has the absolute right
to select the executor to carry out the provisions of his will. . . .
Respondent FIB contends that Ruth Wolzinger should be disqualified as executrix of the
estate of Hazel Mae Wilson. FIB asserts that Ruth Wolzinger is presumed to be under the
control of her husband, and that since Melvin Wolzinger may be subject to surcharge
resulting from his execution of the Hazel Mae Wilson estate, the confirmation of Ruth
Wolzinger as executrix would create a potential conflict of interest. The potential conflict of
interest alleged by respondent FIB does not warrant disqualification of Ruth Wolzinger as
executrix. The grounds for disqualification of an executor or executrix are provided by NRS
138.020(1):
1. No person is competent to serve as an executor or executrix who, at the time the
will is probated: {a) Is under the age of majority;
(a) Is under the age of majority;
(b) Has been convicted of a felony;
(c) Upon proof, is adjudged by the court incompetent to execute the duties of the
trust by reason of drunkenness, improvidence, or want of integrity or understanding; or
(d) Is a banking corporation whose principal place of business is not in the State of
Nevada, unless it associates a coexecutor a banking corporation whose principal place
of business is in this state. . . .
Pursuant to the statute, a spouse is not disqualified from serving as executrix because of a
potential adverse interest in the estate proceedings. Cf. Dickerson v. District Court, 82 Nev.
234, 414 P.2d 946 (1966) (alleged adverse interest did not disqualify niece of decedent
from appointment as administrator of estate). Because no valid grounds for disqualification
pursuant to NRS 138.020 were presented to the court below, we reverse the order of the
district court denying Ruth Wolzinger's petition for letters testamentary, and we remand
Docket No. 18972 to the district court with instructions to immediately appoint Ruth
Wolzinger as executrix of the estate of Hazel Mae Wilson and discharge FIB as special
administrator of this estate.
Docket No. 19223
On December 18, 1987, Oscar Hartwig, appellant in Docket No. 19223, filed a petition for
appointment as successor executor of the estate of Earl Ely Wilson. On December 31, 1987,
FIB, as special administrator of the estate of Hazel Mae Wilson, objected to the appointment
of Hartwig as executor on the grounds that Hartwig had a conflict of interest with the estate,
and Hartwig's nominators were not competent to nominate anyone for the position. As noted
above, the allegation of a potential conflict of interest does not disqualify Hartwig from the
position of successor executor of the estate of Earl Ely Wilson.
The record below shows that the issue regarding the existence of corporate successors or
assigns to the firm of Goodman, Oshins, Brown & Singer, Chartered, was never fully
litigated. This was in part due to the eleventh-hour filing of the affidavit of Michael H.
Singer, asserting that the corporate successor is a presently existing law firm. Therefore, we
vacate the order of the district court denying the petition of Oscar Hartwig, and we remand
Docket No. 19223 to the district court for a full evidentiary hearing to determine whether
there is a corporate successor or assign to the law firm of Goodman, Oshins, Brown & Singer,
Chartered. This hearing shall be conducted before a new district judge, as the chief judge
shall assign.
Docket No. 19269
In Docket No. 19269, Earl Ray Sitton, Judith Van Dusen, Thomas Isenberg, and Ferne
Bisbee appeal from the order of the district court denying the petition of Earl Ray Sitton for
letters of administration in the estate of Hazel Mae Wilson. This appeal has been rendered
moot by the opinion of this court in Docket No. 18972, the appeal of Ruth Wolzinger in the
estate of Hazel Mae Wilson. Accordingly, we dismiss Docket No. 19269.
8

____________
105 Nev. 171, 171 (1989) Lucini/Parish Insurance v. Lucas
LUCINI/PARISH INSURANCE, INC., and WILLIAM PARISH, Appellants and
Cross-Respondents, v. RAY LUCAS, Respondent and Cross-Appellant.
No. 18210
April 25, 1989 772 P.2d 317
Appeal and cross-appeal from a judgment entered against appellants following a jury
verdict and from the district court's order denying a new trial and order of remittitur. Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Applicant for insurance brought action against insurance broker and brokerage company,
alleging that broker had negligently misrepresented that he could bind crop insurance
coverage orally over telephone. The district court on jury verdict, entered judgment in favor
of applicant, but ordered remittitur of lost profits award. Broker and brokerage company
appealed denial of motion for new trial and applicant cross-appealed. The Supreme Court
held that: (1) jury instruction was relevant to issues involved, and (2) trial court erred in
ordering remittitur of jury's award of $70,000 for lost profits.
Jon Douglas Benson, Reno, for Appellants and Cross-Respondents.
Conner and Steinheimer, Reno; Diehl, Steinheimer, Riggio, Haydel and Mordaunt and
Scott Malm, Stockton, California, for Respondent and Cross-Appellant.
1. Insurance.
Instruction, that where applicant for insurance and broker having authority enter into oral insurance agreement which includes risk
insured against, amount of insurance and amount of premium, ordinarily binding insurance contract results,
was relevant to issues involved in action by applicant for insurance alleging that broker had negligently
misrepresented that broker could bind coverage orally over telephone; the instruction was helpful to jury in
deciding whether applicant could reasonably rely on assurances that oral binder existed.
__________

8
The Honorable Justice John Mowbray voluntarily recused himself from these matters.
insured against, amount of insurance and amount of premium, ordinarily binding insurance contract results, was relevant to issues
involved in action by applicant for insurance alleging that broker had negligently misrepresented that broker could bind coverage orally
over telephone; the instruction was helpful to jury in deciding whether applicant could reasonably rely on assurances that oral binder
existed.
Instruction, that where applicant for insurance and broker having authority enter into oral insurance agreement which includes risk
insured against, amount of insurance and amount of premium, ordinarily binding insurance contract results, could not have affected
jury's determination that broker had negligently misrepresented that he could bind coverage orally over telephone, in action by
applicant seeking damages for losses broker allegedly represented were insured.
3. Damages.
Trial court erred in ordering remittitur of jury's award of $70,000 for lost profits on crops resulting from hail storm; amount was
reasonable and evidence concerning lost profits was not conflicting, despite contention that, because entire farming operation showed
loss for income tax purposes, no profit could have been made from crop.
OPINION
Per Curiam:
In July of 1984, respondent, Ray Lucas, telephoned appellant, Lucini/Parish Insurance,
Inc., regarding crop insurance. Lucas called Parish again on August 9, 1984, to commence
coverage. Lucas testified that Parish assured him that coverage was effective immediately.
Parish denied that he gave any such assurances to Lucas. Parish sent Lucas a certified letter
the following day stating that a signed application was necessary to bind the coverage.
However, Lucas did not receive this letter until August 31, 1984, one day after a hailstorm
destroyed most of his barley and wheat crops.
Lucas sued when the insurance company and appellants refused to pay for the loss. Before
trial, the insurance company was dropped from the suit, along with the causes of action for
breach of contract and covenant of fair dealing. The case proceeded to trial against appellants
on theories of negligent misrepresentation, breach of fiduciary duty and deceit by
nondisclosure of facts. The jury awarded Lucas $183,268.00. The award included
$113,268.00 in crop damages and $70,000.00 in lost profits for 1985. The district court
ordered remittitur of the 1985 lost profits award on the basis that it was not supported by the
evidence and appellants' motion for a new trial was denied. Both parties appealed.
Appellants contend that the district court erred in denying them a new trial because one of
the instructions given to the jury was erroneous.
erroneous. Specifically, appellants contend that Instruction No. 14 was erroneous as it
instructed the jury on matters irrelevant to the issues involved.
1

Appellants bear the burden of demonstrating that the instruction was erroneous and that a
different result was probable had the erroneous instruction not been given. See
Truckee-Carson Irrigation District v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968), cert. denied,
395 U.S. 910 (1969). It is error to instruct the jury on matters irrelevant to the issues
involved. See Cutler v. Pittsburg Silver Peak Gold Mining Co., 34 Nev. 45, 116 P. 418
(1911).
[Headnote 1]
The suit was tried upon issues of negligence. Lucas claimed that Parish had negligently
misrepresented that he (Parish) could bind coverage orally over the telephone. The key issues
involved were whether Parish made the representations and whether Lucas justifiably relied
upon the representation. The instruction was helpful to the jury in deciding whether an
insured could reasonably rely upon assurances that an oral binder existed. Therefore the
instruction did not concern matters irrelevant to the issues involved and was not erroneous.
[Headnote 2]
Furthermore, the determining factor in the action was whether the jury believed Lucas or
Parish. If the jury believed Lucas then it would have found that Parish had represented that he
could bind the coverage over the telephone. If the jury believed Parish then it would have
found that no such representation had been made. The jury chose to believe Lucas. The
instruction could not have affected the jury's determination. Therefore, it is not probable that
the jury would have reached a different conclusion even if the instruction had not been given.
[Headnote 3]
Lucas contends in his cross-appeal that the district court erred in ordering remittitur of the
jury's award of $70,000.00 for lost profits to zero. The standard of review for such a decision
is abuse of discretion. Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971). The trial judge has
the opportunity to evaluate the evidence and witnesses, and his decision must be granted
deference. Id. On the other hand, when the evidence is not in conflict, a decision to order
remittitur "becomes suspect unless the amount . . . is so excessive as to suggest the
intrusion of passion and prejudice." Id.
The evidence concerning lost profit was not conflicting.
__________

1
Instruction 14 provided:
[w]here an applicant for insurance and a broker having authority enter into an oral insurance agreement
which includes the risk insured against, the amount of insurance and the amount of premium, ordinarily a
binding insurance contract results.
decision to order remittitur becomes suspect unless the amount . . . is so excessive as to
suggest the intrusion of passion and prejudice. Id.
The evidence concerning lost profit was not conflicting. Lucas testified that his profit from
the 560 acres amounted to approximately $150.00 per acre. He asked for and received lost
profits amounting to $125.00 per acre, a reasonable amount. Appellants assert that because
the entire farming operation showed a loss for income tax purposes Lucas could not have
made any profit from crops. The fact that Lucas' farming operation as a whole showed a loss
for income tax purposes is not conflicting evidence of the profitability of the crops involved.
The loss could have been caused by other portions of Lucas' farming operation or simply
income tax accounting methods. Appellants did not present any evidence regarding the cause
of the loss. Thus, the evidence could not be viewed as conflicting. Therefore, the district court
erred by ordering remittitur.
Accordingly, we order the jury verdict awarding respondent $70,000.00 in lost profit
reinstated and affirm the judgment in all other respects.
2

____________
105 Nev. 174, 174 (1989) City of Las Vegas v. Nevada Industries
CITY OF LAS VEGAS, NEVADA, Appellant, v. NEVADA INDUSTRIES, INC., A
NEVADA CORPORATION, Respondent.
No. 18491
April 25, 1989 772 P.2d 1275
Appeal from a decision of the district court holding portions of the Las Vegas Municipal
Code unconstitutional as applied to respondent, granting preliminary and permanent
injunctions against enforcement of those ordinances against respondent, and making
permanent a previously issued writ of mandamus. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Business challenged city's revocation of its business licenses. The district court issued
permanent injunction and writ of mandamus prohibiting enforcement of business license
ordinances against business, and city appealed. The Supreme Court, Young, C. J., held that:
(1) misrepresentation in license applications that business was not sexually oriented justified
revocation of licenses, and {2) ordinance provision serving as basis for imposition of fine
against business was invalid.
__________

2
The Honorable Robert E. Rose, Justice, did not participate in the consideration of this appeal.
licenses, and (2) ordinance provision serving as basis for imposition of fine against business
was invalid.
George F. Ogilvie, City Attorney, Robert Yeargin, Deputy City Attorney, and Val Steed,
Deputy City Attorney, Las Vegas, for Appellant.
Alan B. Andrews, Las Vegas, for Respondent.
1. Licenses.
Falsely representing on applications for business licenses that business was not sexually oriented justified city's revocation of
business licenses pursuant to municipal code, irrespective of any First Amendment interests. U.S.C.A.Const. Amend. 1.
2. Municipal Corporations.
While municipalities generally enjoy power to enforce their ordinances using fines, such ordinances must fix valid maximum
penalty.
Standardless ordinance invites discriminatory enforcement.
4. Licenses.
Municipal code provision authorizing imposition of penalty upon business, determined to have misrepresented its status as
sexually oriented business in application for business licenses, was invalid, as it vested city officials with unlimited discretion to
establish fines and posed great risk of excessive fines. Const. art. 1, 6.
5. Licenses; Municipal Corporations.
Portions of penalty provision of municipal business license ordinances determined to be invalid for failing to establish valid
maximum fine could be severed without defeating objectives of ordinance and, therefore, validity of remaining portions of ordinance
would be sustained. Const. art. 1, 6.
OPINION
By the Court, Young, C. J.:
This action arose out of the appellant Las Vegas City Council's (Las Vegas) decision to
revoke respondent Nevada Industries' business licenses. Nevada Industries operates a lounge
facility with a jacuzzi and meeting rooms. A detective observed nudity and the exposure and
touching of female breasts during a visit to the facility.
After an investigation and a hearing, Las Vegas revoked the business licenses because it
found that Nevada Industries is a sexually oriented business, i.e. a nude show.
Consequently, it found that respondent made a misrepresentation on its application for
business licenses by stating that it would not operate a sexually oriented business.1
Moreover, Las Vegas found that Nevada Industries violated a Las Vegas zoning ordinance
prohibiting the establishment of a sexually oriented business within one thousand feet of
another sexually oriented business, church, school, park or playground.2 Las Vegas also
found that Nevada Industries violated ordinances concerning the keeping of business
records and failed to properly maintain its State Industrial Insurance System {SIIS)
coverage.
ally oriented business.
1
Moreover, Las Vegas found that Nevada Industries violated a Las
Vegas zoning ordinance prohibiting the establishment of a sexually oriented business within
one thousand feet of another sexually oriented business, church, school, park or playground.
2
Las Vegas also found that Nevada Industries violated ordinances concerning the keeping of
business records and failed to properly maintain its State Industrial Insurance System (SIIS)
coverage. Pursuant to these findings, Las Vegas revoked Nevada Industries' business licenses
and fined respondent $50,000.
3
On Nevada Industries' motion, the district court issued a
writ of mandamus and reviewed Las Vegas' actions.
__________

1
Las Vegas Municipal Code 6.02.330 provides in part:
6.02.330 Disciplinary actionGood cause designated. The licensee may be subject to disciplinary
action by the Board of Commissioners for good cause, which may include, but is not limited to:
(A) The application is incomplete or contains false, misleading or fraudulent statements with respect
to any information required in the application;
(B) The licensee or any of its principals fails to satisfy any qualification or requirement imposed by
this Code, or other local, State or Federal law or regulation pertaining to the particular license or
approval for suitability sought or held;
. . . .
(F) The licensee or any of its principals has committed acts which would constitute a crime involving
moral turpitude, or involving any Federal, State or local law or regulation relating to the same or a similar
business;
(G) When substantial information exists which tends to show that the licensee or any of its principals
is dishonest or corrupt;
. . . .
(I) The actual business activity constitutes a public or private nuisance, or will be or is conducted in
an unlawful, illegal or improper manner;
. . . .

2
In Young v. American Mini Theatres, 427 U.S. 50 (1976), the Supreme Court upheld the constitutionality
of a zoning ordinance similar to that implemented by Las Vegas in this case. The Court noted that the mere fact
that commercial exploitation of material arguably protected by the First Amendment is subject to zoning and
other licensing criteria is an insufficient reason for invalidating these ordinances. Id. at 62. Moreover, we must
give great respect to Las Vegas' interest in preserving the quality of urban life and to its need to experiment with
solutions to difficult problems. Id. at 71. Thus, we find that the zoning ordinance implicated in this case is
constitutional.

3
The City imposed the fine pursuant to Las Vegas Municipal Code 6.88.120 which provides that:
6.88.120 Decision by Board. After the hearing of a contested matter, the Board of Commissioners
shall render a decision on the merits which shall include findings of fact and conclusions of law and the
penalty to be imposed, if any, and shall thereafter make and enter its order in its minutes in conformity to
such decision. The decision of the Board shall be served on the parties personally or shall be sent to them
by registered or certified mail. The decision shall become and remain effective upon such service unless
the Board shall otherwise order.
On Nevada Industries' motion, the district court issued a writ of mandamus and reviewed
Las Vegas' actions. The district court concluded that Nevada Industries' activities enjoyed
First Amendment protection because Las Vegas sought to regulate them as a nude show.
The court found the applicable ordinances unconstitutional as applied to this protected
activity, and issued a permanent injunction and a writ of mandamus prohibiting their
enforcement against Nevada Industries. Las Vegas appeals from the district court's judgment.
[Headnote 1]
Las Vegas' finding that Nevada Industries' activities constituted a nude show provided the
basis for its conclusion that Nevada Industries made misrepresentations on its application for
a business license, and for its finding that Nevada Industries violated Las Vegas' zoning
ordinance by operating within one thousand feet of another sexually oriented business.
LVMC 19.74.020(I) addresses sexually oriented businesses, and defines nude show as
any establishment which provides or permits sexual conduct or the display of specified
anatomical areas upon its premises as entertainment or as an attraction for business. The
provision also defines adult motion picture theaters, adult bookstores, and similar
establishments as sexually oriented businesses. Las Vegas correctly points out that the
sucking of a woman's breast by a man, as observed by one of its detectives, constitutes
sexual conduct under LVMC 19.74.010(A)(1), as do other actions which the detective
observed.
Nevada Industries' facilities and advertising support the conclusion that it intended to
operate in its present manner (i.e. as a sexually oriented business) at the time it applied for its
business license. Therefore, the record demonstrates that Nevada Industries falsely
represented on its license application that it was not a sexually oriented business.
Consequently, we conclude that we need not address the issue of whether Nevada
Industries' activities enjoy First Amendment protection because respondent's affirmative
misrepresentation formed the basis for the revocation of its licenses. Accordingly, without
addressing the First Amendment issues raised by respondent, we hold that Las Vegas acted
within its discretion when it revoked Nevada Industries' business licenses pursuant to the Las
Vegas Municipal Code.
Because Las Vegas determined that Nevada Industries' operation included a nude show,
the district court held that this case must turn upon First Amendment principles. According to
the United States Supreme Court, under some circumstances, nude dancing might be entitled
to First and Fourteenth Amendment protection. California v. LaRue, 409 U.S. 109, 118
(1972).
Thus, the district court concluded that Las Vegas' licensing procedures must meet the strict
constitutional standards imposed on all statutes which impinge upon First Amendment rights.
We disagree.
Las Vegas characterized the entertainment provided by Nevada Industries as a nude
show in order to demonstrate that respondent made misrepresentations on its business
license applications. Las Vegas revoked Nevada Industries' business licenses not because of
the forms of expression which occurred at their operations, but for the simple reason that
respondent perpetrated a fraud upon Las Vegas. Therefore, Nevada Industries' First
Amendment rights are not dispositive of this case.
We note that under our decision in this case, Nevada Industries remains free to reapply for
new business licenses. However, should they continue to operate as a sexually oriented
business, Las Vegas Municipal Code section 19.74.030 provides a basis for denying their
licenses.
Accordingly, we reverse that portion of the district court's decision which permanently
enjoined Las Vegas from using its municipal ordinances to revoke Nevada Industries'
business licenses. However, we affirm the district court insofar as it enjoined the imposition
of Las Vegas' $50,000 fine upon respondent.
[Headnotes 2-5]
According to Las Vegas Municipal Code section 6.88.120, after a hearing on a dispute, the
board of commissioners shall render a decision on the merits, including the penalty to be
imposed, if any. After concluding that Nevada Industries violated Las Vegas' business
licensing ordinances, the board of commissioners fined respondents $50,000.
Generally, municipalities enjoy the power to enforce their ordinances using fines.
Commonwealth v. Cabell, 185 A.2d 611, 616 (Pa.Super.Ct. 1962). However, the ordinance
must fix a valid maximum penalty. Verona v. Shalit, 232 A.2d 431, 433
(N.J.Super.Ct.App.Div. 1967). Because the penalty provision of section 6.88.120 fails to
provide any limitation on the fines imposed, that clause is void. Id.
Municipal ordinances must not be oppressive. Hunter v. City of Atlanta, 91 S.E.2d 338,
340 (Ga. 1956). In its present form, section 6.88.120 is invalid because it vests Las Vegas
officials with unlimited discretion to establish fines. A standardless ordinance invites
discriminatory enforcement. Baer v. City of Wauwatosa, 716 F.2d 1117, 1124 (7th Cir.
1983). Because of the great risk of excessive fines resulting from enforcement of the penalty
provision, it cannot stand.
4
Nev. Const. art. 1, 6.
__________

4
According to NRS 193.170, whenever a statute prohibits the performance of any act but fails to impose a
penalty for the violation thereof, commission
When invalid provisions of a municipal ordinance are severable without defeating the
objectives of the ordinance, we sustain and give effect to valid portions of the ordinance.
5
City of Portland v. Dollarhide, 692 P.2d 162, 167 (Or.Ct.App. 1984). Accordingly, we sustain
the validity of the remaining portions of section 6.88.120.
Therefore, we affirm the judgment of the district court insofar as it enjoins the imposition
of Las Vegas' fine on Nevada Industries, and reverse that portion of the district court's
decision which permanently enjoined Las Vegas from using its municipal ordinances to
revoke Nevada Industries' business licenses.
6

Steffen, Springer, and Mowbray, JJ., concur.
____________
105 Nev. 179, 179 (1989) Schroeder v. State, Dep't of Motor Vehicles
CHARLES ALAN SCHROEDER, Appellant, v. THE STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.
No. 18710
April 25, 1989 772 P.2d 1278
Appeal from the district court's denial of a petition for judicial review of a decision by a
department of motor vehicles hearing officer to revoke appellant's driving privileges. Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Driver appealed from denial by the district court of petition for judicial review of decision
by Department of Motor Vehicles hearing officer to revoke driving privileges. The Supreme
Court held that: (1) arresting officer gave driver a reasonable version of his rights and
obligations under implied consent law; (2) driver's eventual consent to blood-alcohol test did
not vitiate his prior refusals; and (3) police did not obstruct driver's right to acquire
independently administered chemical sobriety test.
Affirmed.
__________
of the act shall be a misdemeanor. When, as in the instant case, a corporation stands convicted of an offense
which, for a natural person, would be punishable as a misdemeanor, and the law prescribes no other punishment,
the corporation's fine shall not exceed $1,000. NRS 193.160. Therefore, under the present ordinance, Las Vegas
could not fine Nevada Industries more than $1,000.

5
We note that the vague penalties referred to in section 6.88.120 can easily be clarified by amendment.

6
Appellant.
Brian McKay, Attorney General, Carson City, and Neil H. Friedman, Deputy Attorney
General, Las Vegas, for Respondent.
1. Automobiles.
Arresting officer gave drunk driving suspect a reasonable version of his rights and obligations under implied consent law, and was
not required to provide driver with proviso on absence of a right to consult counsel before submitting to chemical sobriety test. NRS
484.382-484.384.
2. Automobiles.
Because right to counsel does not attach in implied consent situations, any response conditioned upon obtaining advice of attorney
amounts to refusal to take test. NRS 484.382-484.384.
3. Automobiles.
Driver's eventual consent to blood-alcohol test did not vitiate his prior refusals. NRS 484.382-484.384.
4. Automobiles.
Drunk driving suspect's request for chemical sobriety test could have been reasonably interpreted as one for a police administered
blood-alcohol test, and officer's proper refusal of the request did not obstruct driver's right to acquire independently administered test.
NRS 484.382-484.384.
5. Automobiles.
Police must not hinder driver's timely, reasonable attempts to obtain independently administered chemical sobriety test, but they
need not assist him. NRS 484.382-484.384.
OPINION
Per Curiam:
After Nevada State Trooper Donald Fazio arrested him for driving under the influence of
alcohol, appellant Charles Schroeder refused to submit to a chemical sobriety test for at least
forty minutes. Schroeder told the arresting officer that he would not take any test until he
spoke with his attorney. After the trooper left Schroeder in the Clark County jail and returned
to his patrol, Schroeder changed his mind and requested a test. The police officer present
refused to administer the test to Schroeder, and pursuant to Nevada's implied consent law, the
department of motor vehicles revoked his driving privileges. A hearing officer affirmed the
department's decision, and the district court denied Schroeder's petition for judicial review.
Schroeder argues that the arresting officer confused him as to his right to consult counsel
before submitting to a chemical sobriety test. Therefore, he contends that he did not actually
refuse to take the required test. Moreover, Schroeder claims that his eventual consent to take
the test vitiated his prior refusals.
Finally, Schroeder argues that the State violated his due process right to collect evidence by
preventing him from obtaining an independently administered chemical sobriety test. None of
Schroeder's contentions have merit.
Schroeder argues that because of Fazio's confusing rendition of the implied consent law
and the Miranda warnings, he believed that he had a right to consult his attorney before
submitting to a chemical sobriety test. Therefore, under these circumstances, Schroeder
claims that equity and good conscience demand that the State not revoke his license. We
disagree.
[Headnote 1]
This court construes Nevada's implied consent law liberally in order to further the
legislative policy of removing intoxicated drivers from our highways. Davis v. State, 99 Nev.
25, 27, 656 P.2d 855, 856 (1983). In the instant case, the admonition regarding submission to
a chemical test which Fazio read to Schroeder was a summary of the provisions contained
within NRS 484.382-484.384. Nothing in the statutes directs law enforcement officers to
provide drunk driving suspects with a proviso on the absence of a right to consult an attorney
prior to taking a test. Therefore, Trooper Fazio gave Schroeder a reasonable version of his
rights and obligations under the implied consent law.
[Headnote 2]
Moreover, at Schroeder's hearing, Trooper Fazio testified that after appellant failed most
of the field sobriety tests, he read the implied consent law warnings to Schroeder. Schroeder
responded that he wanted to speak with an attorney before submitting to a chemical sobriety
test. Because the right to counsel does not attach in implied consent situations, any response
conditioned upon obtaining the advice of an attorney amounts to a refusal to take the test.
McCharles v. State, DMV, 99 Nev. 831, 834, 673 P.2d 488, 490 (1983). Only after that
exchange did Fazio inform Schroeder of his Miranda rights. Thus, the evidence indicates that
Schroeder's refusal to take a test was not the result of any commingling of the implied consent
law warnings and a recitation of Schroeder's Miranda rights.
Furthermore, once at the Clark County jail, Fazio specifically explained to Schroeder that
in Nevada, implied consent has nothing to do with seeing an attorney, but rather that it
was for the revocation of his driving privilege. Schroeder again refused to submit to a test,
stating that he wanted to speak with a lawyer. Therefore, Fazio effectively resolved any
possible confusion that may have existed in Schroeder's mind regarding his right to consult an
attorney before taking a chemical sobriety test. Nevertheless, for a second time, Schroeder
refused the test. Accordingly, the record does not support Schroeder's claim that he was
confused as to his right to consult his attorney prior to submitting to the test.
ingly, the record does not support Schroeder's claim that he was confused as to his right to
consult his attorney prior to submitting to the test.
[Headnote 3]
After Trooper Fazio returned to his patrol, Schroeder changed his mind and told another
officer on duty in the jail that he wanted to take a chemical sobriety test. However, the officer
refused to give the test to Schroeder. Schroeder argues that his eventual consent to a
blood-alcohol test constituted a retraction of his earlier refusal, and therefore, the State should
not have revoked his driving privileges. Schroeder's claim lacks merit.
Other states hold that an initial refusal to take a chemical sobriety test is final, and thus,
the accused has no right to cure the original refusal. State v. Corrado, 446 A.2d 1229, 1232
(N.J.Super.Ct.App.Div. 1982). We cannot reasonably expect the arresting officer to consider
a refusal as conditional, one that could be withdrawn at any time, and compel him to remain
near the arrested person for an extended period of time. People v. Shorkey, 321 N.E.2d 46, 48
(Ill.App.Ct. 1974). Even if the facilities to conduct a test were still available, it would be
inconsistent with the purpose of the implied consent statutes to require law enforcement
officers to drop other responsibilities and arrange for a belated test which the defendant
already refused after receiving warnings of the consequences of his noncompliance. Zidell v.
Bright, 71 Cal.Rptr. 111 (Cal.Ct.App. 1968).
One immediate purpose of the implied consent statutes is to obtain the best evidence of a
suspect's blood alcohol content at the time when the arresting officer reasonably believes him
to be driving under the influence. Id. at 113. The statutes contemplate that police officers
administer the tests without unreasonable delay because the effectiveness and reliability of a
breathalyzer as well as a blood test decline with the passage of time. Harlan v. State, 308
A.2d 856, 858 (N.H. 1973). Therefore, no sound reason exists to give a driver the opportunity
to delay a test to his benefit, and which would be contrary to the implied consent statutes'
purpose of obtaining an accurate indication of his condition. Id.
One who is lawfully under arrest for drunk driving should not be able to defeat the purpose
of the implied consent statutes by being uncooperative with the arresting officers. Noll v.
Department of Motor Vehicles, 178 Cal.Rptr. 5, 7 (Cal.Ct.App. 1981). In the instant case,
given Nevada's longstanding policy of removing intoxicated drivers from our highways, we
reject Schroeder's contention that his eventual request to take a chemical sobriety test vitiated
his prior refusals. Davis v. State, 99 Nev. 25, 27, 656 P.2d 855, 856 (1983).
Schroeder argues that the police's refusal to provide him with a chemical sobriety test after
he eventually consented to one denied him his right to an independently administered test,
and therefore, deprived him of due process. NRS 484.391. Specifically, Schroeder contends
that the police intentionally frustrated his efforts to obtain an independently administered test,
resulting in the loss of evidence that was material to his defense. Schroeder's contention lacks
merit.
[Headnote 4]
The record indicates that Schroeder never requested an independently administered test.
Schroeder testified that when, in the Clark County jail, he eventually decided to submit to a
test: I looked around and I asked the officer closest to me on the right and told him, you
know, I would like to take a test. I would like to take your test and he looked at me and said,
I am sorry you can't take the test.' (Emphasis added.) Thus, the police officer present would
have reasonably interpreted Schroeder's request as one for a police administered
blood-alcohol test. Therefore, as discussed above, the officer properly refused to provide the
test.
[Headnote 5]
The police must not hinder an individual's timely, reasonable attempts to obtain an
independent examination, but they need not assist him. Com. v. Alano, 448 N.E.2d 1122,
1128 (Mass. 1983). In this case, nothing in the record suggests that the police obstructed
Schroeder's right to acquire an independently administered chemical sobriety test. Therefore,
the State did not deprive Schroeder of his due process right to obtain evidence.
Accordingly, we affirm the district court's denial of Schroeder's petition for judicial
review.
____________
105 Nev. 183, 183 (1989) Tore, Ltd. v. Church
TORE, LTD., Appellant, v. HERBERT R. CHURCH, JR., Respondent.
No. 18775
April 25, 1989 772 P.2d 1281
Appeal from summary judgment. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
Lessor brought action against corporate officer on officer's oral promise to answer for
obligations of corporation under lease extension agreement. Officer moved for summary
judgment on statute of frauds defense. The district court granted the motion, and lessor
appealed. The Supreme Court held that issue of material fact on whether corporate officer's
main purpose in guarantying the corporation's obligation was to secure some benefit for
himself precluded summary judgment.
material fact on whether corporate officer's main purpose in guarantying the corporation's
obligation was to secure some benefit for himself precluded summary judgment.
Reversed and remanded for trial.
Swafford, Hoffman, Test and Dickey, Reno, for Appellant.
Robison, Belaustegui & Robb, Reno, for Respondent.
1. Judgment.
Issue of material fact on whether corporate officer promised to guaranty corporation's obligation under lease extension agreement
precluded summary judgment in action on the guaranty brought by lessor against officer who asserted defense of statute of frauds.
2. Evidence.
Parol evidence was admissible to determine whether corporate officer orally promised to guaranty corporation's obligations under
lease extension agreement; written lease was silent on that issue and guaranty was not inconsistent with its terms.
3. Judgment.
Issue of material fact on whether corporate officer's main purpose in guarantying corporation's obligations under lease extension
agreement was to benefit himself precluded summary judgment on officer's statute of frauds defense to lessor's action on the guaranty.
OPINION
Per Curiam:
This is an appeal from summary judgment granted pursuant to NRCP 56(c). Appellant
Tore, Ltd. (Tore) alleged below that respondent Herbert R. Church, Jr. orally promised to
answer for the obligations of a newly-formed corporation Church had been instrumental in
organizing. The new corporation, Hobby Towne, Inc., entered into a lease agreement with
Tore which the corporation subsequently breached. Church moved for summary judgment,
arguing that even assuming he made an oral promise, under the Nevada Statute of Frauds,
NRS 111.220(2),
1
enforceable promises to answer for the debt, performance or obligations
of another must be in writing. After reviewing the pleadings and evidence, the district court
granted Church's motion. On appeal, Tore's primary contention is that genuine issues of
material fact remain unresolved.
__________

1
NRS 111.220 provides in pertinent part:
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:
. . . .
2. Every special promise to answer for the debt, default or miscarriage of another.
Tore's primary contention is that genuine issues of material fact remain unresolved. For
reasons discussed below, we reverse.
On April 14, 1975, Church entered into an agreement with Tore to lease certain
commercial property. The lease was to run for ten years with an option to extend it for
another five years. After executing the lease agreement, Church entered the premises and
began operating a business under the name Hobby Towne.
Almost ten years later, Church incorporated Hobby Towne. Church became a Hobby
Towne shareholder and corporate vice-president and Brett L. Jensen, not a party to this
appeal, became corporate president. Subsequent to Hobby Towne's incorporation, Church
sought to exercise the lease option and extend the lease term. Alice Jacobsen, Tore
vice-president and general manager, swore that Church communicated his intention to extend
the lease but requested that Hobby Towne, Inc. be substituted as lessee. She further averred
that Tore agreed to this on condition that Church and Jensen be individually responsible for
the corporation's lease obligations. Jacobsen maintained that Church and Jensen agreed and
that Church's attorney revised the lease document to reflect the changes. The lease extension
agreement was executed by Jensen as president and Church as vice-president on April 17,
1985. Additionally, the signatures of Church and Jensen appear individually on the lease
extension agreement signature page with no accompanying explanation.
On April 29, 1985, Church sold his Hobby Towne stock to Jensen. Subsequently, Hobby
Towne defaulted on the lease extension agreement. As a result, Tore brought an action
against Hobby Towne, Inc., Jensen and Church. Church responded and denied promising to
answer for Hobby Towne's performance under the lease. Additionally, Church moved for
summary judgment, contending that even assuming an oral guaranty, under the statute of
frauds, the promise had to be in writing and a sufficient writing did not exist. The district
court agreed with Church and granted his motion. This appeal followed.
As a preliminary matter, it is important to note that we review orders granting summary
judgment de novo. In other words, the question on appeal is whether any genuine issues of
fact were created by the pleadings and proof offered below. McPherron v. McAuliffe, 97 Nev.
78, 79, 624 P.2d 21, 21 (1981). Furthermore, evidence is reviewed in a light most favorable
to the party against whom summary judgment was entered. Tschabold v. Orlando, 103 Nev.
224, 225, 737 P.2d 506, 507 (1987).
[Headnotes 1, 2]
Turning to the merits and reviewing the evidence in a light most favorable to Tore, we
conclude that genuine issues of fact remain unresolved. First, the question of whether Church
promised to guaranty Hobby Towne's lease extension agreement obligations remains
unanswered.
ised to guaranty Hobby Towne's lease extension agreement obligations remains unanswered.
In making this determination, parol evidence is admissible. Specifically, the existence of a
separate oral agreement as to any matter on which a written contract is silent, and which is
not inconsistent with its terms, may be proven by parol. Crow-Spieker #23 v. Robinson, 97
Nev. 302, 305, 629 P.2d 1198, 1199 (1981) (quoting Alexander v. Simmons, 90 Nev. 23, 24,
518 P.2d 160, 161 (1974)).
In this case, the lease extension agreement is silent as to any guaranty of Hobby Towne,
Inc.'s lease obligations. Given this silence, it follows that a separate oral guaranty would not
contradict the lease extension agreement terms. Cf. Golden Press, Inc. v. Pac. Freeport
Warehouse, 97 Nev. 163, 625 P.2d 578 (1981) (where parties had reduced contract to writing,
district court erred in admitting parol evidence to show alleged guaranty which altered the
express terms of the contract).
[Headnote 3]
Second, assuming the existence of a guaranty promise, the question of whether the
promise necessitates a writing under NRS 111.220 remains undetermined. Specifically, the
main purpose, original promise or leading object doctrine constitutes an exception to
the statute of frauds. As the United States Supreme Court explained almost a century ago, if
the alleged guarantor has a personal, immediate and pecuniary interest in the underlying
transaction in which a third party is the original obligor, courts should give effect to the
guarantor's oral promise. Davis v. Patrick, 141 U.S. 479, 488 (1891). Since Davis, the
doctrine has gained widespread approval. See, e.g., Merdes v. Underwood, 742 P.2d 245,
251-252 (Alaska 1987); Frei v. Hamilton, 601 P.2d 307, 310 (Ariz.App. 1979); Merritt v.
J.A. Stafford Co., 440 P.2d 927, 932 (Cal. 1968); James D. Swoish, Inc. v. Panda Foods, Inc.,
639 P.2d 426, 428 (Haw.App. 1982); Ricci v. Reed, 523 N.E.2d 1218, 1221 (Ill.App. 1988);
Graybar Elec. Co. v. Sawyer, 485 A.2d 1384, 1389-1391 (Me. 1985); Esselman v. Production
Credit Ass'n, 380 N.W.2d 183, 187 (Minn.Ct.App. 1986); Sierra Blanca Sales Co., Inc. v.
Newco Industries, Inc., 505 P.2d 867, 881 (N.M. 1972); White Stag Mfg. Co. v. Wind
Surfing, Inc., 679 P.2d 312, 316 (Or.App. 1984); Morrison-Knudsen Co., Inc. v. Hite Crane
& Rigging, Inc., 678 P.2d 346, 348-349 (Wash.App. 1984); Restatement (Second) of
Contracts 116 (1969).
Focusing on the Statute of Frauds, the Davis court explains the rationale for the exception
as follows:
The purpose of this provision was not to effectuate, but to prevent, wrong. It does
not apply to promises in respect to debts created at the instance and for the benefit of
the promisor, but only to those by which the debt of one party is sought to be
charged upon and collected from another.
promisor, but only to those by which the debt of one party is sought to be charged upon
and collected from another. The reason of the statute is obvious, for in the one case if
there be any conflict between the parties as to the exact terms of the promise, the courts
can see that justice is done by charging against the promisor the reasonable value of that
in respect to which the promise was made, while in the other case, and when a third
party is the real debtor, and the party alone receiving benefit, it is impossible to solve
the conflict of memory or testimony in any manner certain to accomplish justice.
141 U.S. at 487. The Oregon Court of Appeals further explains, [t]he doctrine is applied
when the pecuniary interests of a promisor in a commercial context replace the gratuitous
elements often present in suretyship. It eliminates the need for the evidentiary safeguards
provided by the writing requirement of the Statute of Frauds. White Stag Manufacturing Co.,
679 P.2d at 316. Finally, as observed by the court in Graybar Electric Co., 485 A.2d at 1389,
the section of the Statute of Frauds pertaining to special promises to answer for the debt of
another has long been subject to an exception in a case where the promisor's main purpose in
making his promise is to secure some benefit for himself.
An application of Davis and its progeny to the facts of this case reveals evidence that may
support a claim against Church. Consequently, it was error to grant summary judgment.
Based upon the foregoing, we reverse the summary judgment and remand to the district
court for a trial on the merits focusing primarily on the questions of whether Church promised
to guaranty Hobby Towne's obligations under the lease extension agreement, and if so,
whether such promise was given for Church's personal, immediate and pecuniary interest.
2

__________

2
In view of our ruling, we decline to consider Tore's contention that the district court erred in granting
summary judgment without an oral hearing.
____________
105 Nev. 188, 188 (1989) Hornwood v. Smith's Food King
SANFORD and RITA HORNWOOD, Appellants/Cross-Respondents, v. SMITH'S FOOD
KING NO. 1 and SMITH MANAGEMENT CORPORATION,
Respondents/Cross-Appellants.
No. 18980
April 25, 1989 772 P.2d 1284
Appeal and cross-appeal from a final judgment and order granting appellants' NRCP 52(b)
motion in a breach of contract action. Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
Shopping center brought action against anchor tenant for breach of lease. The district court
entered judgment for tenant, and tenant appealed. The Supreme Court held that: (1) anchor
tenant was liable for diminution in value of the shopping center due to its breach, and (2)
shopping center was entitled to costs and attorney fees pursuant to the lease.
Reversed in part, affirmed in part.
Marquis, Haney & Aurbach, Las Vegas, for Appellants/Cross-Respondents.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Respondents/Cross-Appellants.
Thorndal, Backus, Maupin & Armstrong, Las Vegas, for Amicus Curiae.
1. Landlord and Tenant.
Anchor tenant at shopping center was liable to the center when it breached its lease by ceasing operations for diminution in value
of the center.
Difference in value of shopping center with anchor tenant lease and value without lease was proper measure of damages for anchor
tenant's breach of lease by ceasing operations.
3. Costs.
Shopping center which was found to have suffered consequential damages in form of diminution of property value due to breach
by anchor tenant was entitled to costs and attorney fees pursuant to the lease as prevailing party in action for breach of the lease.
OPINION
Per Curiam:
On June 2, 1975, Smith's Food King No. 1 (Smith's) entered into a thirty year lease of
shopping center property owned by Sanford and Rita Hornwoods' {Hornwoods)
predecessor in interest.1 Smith's leased approximately 2S,000 square feet of space at 27
cents per square foot.
into a thirty year lease of shopping center property owned by Sanford and Rita Hornwoods'
(Hornwoods) predecessor in interest.
1
Smith's leased approximately 28,000 square feet of
space at 27 cents per square foot. The lease called for approximately $92,398 minimum
annual rent and approximately 2.7 million dollars in total rent over the thirty year span of the
lease. In addition, the agreement required Smith's to pay percentage rent calculated at 1.5
percent of sales generated by Smith's during the previous calendar year, less the aggregate
amount of minimum rent paid during that calendar year. Smith's paid percentage rent for
1979 and 1980, but has not paid percentage rent since 1980 due to insufficient sales volume.
On November 1, 1986, Smith's closed its business at the leased premises and ceased its
retail grocery operations. The closure occurred without any prior notice to the Hornwoods.
The Hornwoods allege that Smith's closed its store at the leased premises because a new
Smith's, built a short distance away, directly competed with the store Smith's operated at the
leased premises. However, Smith's alleges that it closed its store as a result of various market
studies, lost profits, and increased competition. Smith's further claims that it failed to give
notice of the closure to the Hornwoods due to company policy. The policy is allegedly a result
of previous experience with diminished employee morale, pilfering, and other attendant
problems when notice of closure is given.
Smith's retained possession of the demised premises and continued to pay minimum rent
after closing the store. The Hornwoods took no action to evict Smith's, instead choosing to
allow Smith's to retain the premises and locate suitable subtenants. In May 1987, Smith's
subleased 18,128 square feet to HUB Distributing, Inc., d/b/a Millers Outpost. Smith's
subleased the remaining 10,000 square feet to Video Tyme in early 1988.
On December 4, 1986, the Hornwoods filed a complaint against Smith's charging that
Smith's breached its lease by ceasing operations and vacating the demised premises prior to
the expiration of the lease. After trial, the district court held that Smith's breached an implied
covenant of continuous operation by ceasing operations with approximately twenty years
remaining on the thirty year lease. However, the district court held that, because Smith's has
continued to pay minimum rent, the Hornwoods were not entitled to an award of
compensatory damages for breach of lease.
Additionally, the district court refused to award damages to the Hornwoods on any of their
consequential damages theories. The Hornwoods sought consequential damages based on
the diminution in value of the shopping center, lost future percentage rents from Smith's
and the other tenants of the shopping center, and lost rent and other expenses associated
with the other tenants.
__________

1
The Hornwoods purchased the shopping center and assumed the status of landlords under the assigned
lease in 1979.
Hornwoods sought consequential damages based on the diminution in value of the shopping
center, lost future percentage rents from Smith's and the other tenants of the shopping center,
and lost rent and other expenses associated with the other tenants. The court ruled that all of
the alleged consequential damages were unforeseeable as a matter of law.
Furthermore, the Hornwoods claimed tort damages, alleging that Smith's acted in bad faith
by closing its store, thereby breaching the implied covenant of good faith and fair dealing.
The district court refused to impose tort liability upon Smith's, ruling that Smith's did not
breach its duty of good faith and fair dealing.
Finally, the district court concluded that Smith's was entitled to costs and attorney's fees as
the prevailing party.
The district court found that the lease contained an implied covenant to continuously
operate as a grocery store, citing First American Bank v. Safeway Stores, Inc., 729 P.2d 938
(Ariz.Ct.App. 1986). Furthermore, the district court found that Smith's breached the implied
covenant of continuous operation by ceasing to operate its grocery store located at the
demised premises.
2
However, the district court did not award the Hornwoods compensatory
or consequential damages resulting from this breach. The Hornwoods do not contest the
district court's ruling on compensatory damages. However, the Hornwoods argue that the
diminution in value of the shopping center occurring when Smith's breached the lease is a
recoverable consequential damage. We agree.
Damages from a breach of contract should be such as may fairly and reasonably be
considered as arising naturally, or were reasonably contemplated by both parties at the time
they made the contract. Conner v. Southern Nevada Paving, 103 Nev. 353, 356, 741 P.2d
800, 801 (1987) (citation omitted). The Hornwoods argue that the diminution in value of the
shopping center both arose naturally and foreseeably as a result of the termination of
operations by Smith's.
The Hornwoods presented substantial evidence to support their argument. Mr. Maury
Abrams, developer of the center, testified that anchor tenants, (i.e. Smith's) draw the largest
amount of customers, attract other satellite tenants, and are necessary for long-term
financing. Mr. Joe Abdenour, the leasing agent for the shopping center, testified that when an
anchor tenant leaves, the rental value of the shopping center immediately decreases, thereby
decreasing the overall value of the shopping center.
__________

2
We have considered respondents' claim that the trial court erred by finding an implied covenant of
continuous operation in the lease. Respondents' contention is without merit.
thereby decreasing the overall value of the shopping center. Further, the Hornwoods
presented evidence that Smith's attracted approximately 40,000 customers a month into the
shopping center. On the other hand, the Hornwoods showed that Millers Outpost, a subtenant
of Smith's, generated only 4,500 customers per month.
3
Additionally, Mr. K. Donald Dunn,
a certified real estate appraiser, stated that the value of the center decreased by $1,425,000
during the year following the departure of Smith's.
[Headnote 1]
The district court found that the shopping center decreased in value in excess of one
million dollars after Smith's ceased operations. However, the court concluded that the
diminution of property value to the shopping center as a result of the departure of Smith's was
unforeseeable and not compensable as a matter of law. We disagree.
Smith's is a sophisticated business entity. Smith's knew that its presence as the anchor
tenant had a critical impact on the shopping center's success. Without an anchor tenant,
obtaining long-term financing and attracting satellite tenants is nearly impossible for a
shopping center. Perhaps most importantly, the anchor tenant insures the financial viability of
the center by providing the necessary volume of customer traffic to the shopping center.
Therefore, we find that the district court clearly erred in concluding, as a matter of law, that
the diminution in value of the Hornwoods' shopping center was unforeseeable. Conner, 103
Nev. at 356, 741 P.2d at 801. Accordingly, we reverse that portion of the district court's
ruling and remand to the district court for an assessment of the Hornwoods' damages as a
consequence of the loss of their anchor tenant.
[Headnote 2]
The Hornwoods cite Washington Trust Bank v. Circle K Corp., 546 P.2d 1249
(Wash.Ct.App. 1976), as authority for the proper measure of damages for the district court to
use on remand. In Washington Trust, the lessee (Circle K) entered into a lease with the
expectation of modifying the demised premises for its own business purposes. However,
when city officials told Circle K that certain changes would not be permitted, Circle K
repudiated its lease. The Washington Court of Appeals held that, [t]he measure of damages
is the difference between the present worth of the property with the lease less the present
worth of the property without the lease." Id. at 1252.
__________

3
The Hornwoods did not include Video Tyme, another subtenant of Smith's, in the customer traffic count
because Video Tyme merely moved from another location within the same shopping center to the remaining
portion of the space formerly occupied by Smith's.
property without the lease. Id. at 1252. In Washington Trust, the trial court awarded the
plaintiff $12,500 which represented the difference in the value of the property with the lease
($41,000) and the value without the lease ($28,500). Id. On remand, we direct the district
court to use the Washington Trust formula to determine the extent of consequential damages
suffered by the Hornwoods.
[Headnote 3]
As a necessary incident of reversal on the issue of consequential damages, we also reverse
the district court's award of costs and attorney's fees to Smith's as the prevailing party. A
plaintiff may be considered the prevailing party for attorney's fee purposes if it succeeds on
any significant issue in litigation which achieves some of the benefit is sought in bringing the
suit. Women's Federal S & L Ass'n. v. Nevada Nat. Bank, 623 F.Supp. 469, 470 (D.Nev.
1985) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Because we find that the
Hornwoods suffered consequential damages in the form of diminution of property value due
to the breach by Smith's, the Hornwoods have achieved a benefit in bringing this suit.
Therefore, as the prevailing party, the Hornwoods are entitled to costs and attorney's fees
pursuant to the lease. Upon remand, we direct the district court to award the Hornwoods
reasonable costs and attorney's fees.
We have carefully considered appellant's other contentions and find them to be without
merit.
____________
105 Nev. 192, 192 (1989) Sutherland v. Gross
RICHARD R. SUTHERLAND, Appellant, v. EARL L. GROSS, and EARL L. GROSS,
TRUSTEE OF LAS VEGAS 70, LTD., EXCHANGE TRUST, JACK M. and
PENNY COPELAND, PHILIP D. GRAY, and PHILIP D. GRAY REALTY, INC.,
DENNIS D. BROWN, WESTERN REALTY VENTURES, INC., Respondents.
No. 19070
April 25, 1989 772 P.2d 1287
Appeal from a judgment rendered in a quiet title action. Eighth Judicial District Court,
Clark County; Thomas A. Foley, Judge.
In quiet title action, the district court quieted title in plaintiff, denied one defendant's
counterclaim and cross-claim, and awarded another cross-claiming defendant vacancy
allowances, and appeal was taken. The Supreme Court held that: (1) record supported
determination that apartment purchaser breached release and settlement agreement that he use
his best efforts to rent apartments; {2) purchaser failed to show that he suffered any
actual harm, as required to prove conspiracy to intentionally interfere with his
subcontract of sale; {3) cross-claiming defendant could not take judgment against
defendant which failed to respond to cross-claims which were answered and successfully
defended against by other defendants; but {4) defaulting defendant could not benefit
from other defendants' successful defense of cross-claim as to which there was no
common defense between defaulting defendant and answering defendants.
rent apartments; (2) purchaser failed to show that he suffered any actual harm, as required to
prove conspiracy to intentionally interfere with his subcontract of sale; (3) cross-claiming
defendant could not take judgment against defendant which failed to respond to cross-claims
which were answered and successfully defended against by other defendants; but (4)
defaulting defendant could not benefit from other defendants' successful defense of
cross-claim as to which there was no common defense between defaulting defendant and
answering defendants.
Marquis, Haney & Aurbach, and William T. Martin, Las Vegas, for Appellant.
Deaner, Deaner & Scann, Las Vegas, for Respondents Gross and Las Vegas 70.
William L. McGimsey, Las Vegas, for Respondents Copelands, Gray, Gray Realty, and
Western Realty Ventures.
Dennis D. Brown, Newark, CA, In Proper Person.
1. Compromise and Settlement.
Record supported determination that purchaser of apartment building breached release and settlement agreement that he use his
best efforts to rent apartments, by changing apartments from monthly rental units to overnight lodging facility for tour groups.
2. Conspiracy.
Actionable conspiracy consists of combination of two or more persons who, by some concerted action, intend to accomplish
unlawful objective for purpose of harming another, and damage results from act or acts.
3. Torts.
To establish intentional interference with contractual relations, plaintiff must show: valid and existing contract; defendant's
knowledge of contract; intentional acts intended or designed to disrupt contractual relationship; actual disruption of contract; and
resulting damage.
4. Conspiracy.
Purchaser failed to show that he suffered any actual harm, as required to prove conspiracy to intentionally interfere with his
subcontract of sale.
5. Judgment.
Answer of co-defendant inures to benefit of defaulting defendant when there exists common defense as to both.
6. Judgment.
When defenses interposed by answering co-defendant call into question the validity of plaintiff's entire cause of action, and when
such defenses prove successful, defenses inure to benefit of defaulting co-defendant.
7. Judgment.
Cross-claiming defendant could not take judgment against defendant which failed to respond to cross-claims which
were answered and successfully defended against by other defendants.
which failed to respond to cross-claims which were answered and successfully defended against by other defendants.
8. Judgment.
Defendant who failed to respond to another defendant's cross-claims could not benefit from other defendants' successful defense of
cross-claim as to which there was no common defense between defaulting defendant and answering defendants.
OPINION
Per Curiam:
FACTS
All parties in this case at one time had a property interest in the Desert Pines Apartments,
also known as the Fremont Arms Apartments (Apartments). Respondent Earl Gross, as
trustee for Las Vegas 70, Ltd., Exchange Trust, entered into a contract to sell the Apartments
to respondents Jack and Penny Copeland. Because the sale involved a real estate installment
contract, Las Vegas 70 retained legal title to the Apartments.
On November 13, 1984, the Copelands conveyed the Apartments to appellant Richard
Sutherland by way of a subcontract of sale. On that same date, the Copelands assigned a 10.2
percent interest in the Sutherland subcontract to their realtor, respondent Philip D. Gray
Realty, Inc., in satisfaction of the real estate commission.
On September 1, 1985, Sutherland assigned his interest in the Apartments to respondent
Dennis Brown. Brown assumed the first mortgage to Las Vegas 70, assumed the obligations
to the Copelands, and agreed to pay Sutherland $600,000 on or before September 1, 1990.
Finally, on December 13, 1985, Brown transferred his interest in the Apartments to
respondent Western Realty Ventures, Inc. for $30,000. Gray Realty owned all of Western's
stock, and respondent Philip Gray and his wife were the sole officers and directors of
Western.
In all of the conveyances previously described, each contract contained a waiver of
personal liability. The provision stated that the vendee would assume no personal liability as
a result of a breach of the agreement. Instead, the seller would look only to the real property
for its security and payments.
While Sutherland possessed the property, a dispute arose between himself and the
Copelands. Consequently, they executed a release and settlement agreement which provided
for a monthly rental subsidy of $215 for every vacant unit in excess of six. The Copelands
agreed to reimburse Sutherland for a total of 300 vacant units in exchange for Sutherland
using his best efforts to rent the Apartments.
Once Sutherland transferred the property to Brown, all payments to Las Vegas 70 and the
Copelands ceased. The Copelands' legal counsel and Las Vegas 70 notified Sutherland and
Brown that they were in default on their contracts.
After several months of negotiations among the parties, respondents had a meeting on
December 13, 1985. At that meeting, respondents entered into numerous transactions,
including Brown's conveyance of the Apartments to Western.
Once Western obtained its interest in the Apartments, Gross, as trustee for Las Vegas 70,
instituted this quiet title action. Sutherland filed a counterclaim and a cross-claim, including
the following allegations: that respondents intentionally conspired to interfere with his
contractual relations with Brown; that Gross, the Copelands and Gray conspired to cause
Brown to breach a power of attorney which Brown accepted from Sutherland; and that
Sutherland loaned $25,000 to Brown which Brown agreed to repay on demand. The
Copelands filed a cross-claim against Sutherland alleging that he breached the release and
settlement agreement.
The district court quieted title in Las Vegas 70 as against the defendants, denied all the
relief sought by Sutherland, and awarded the Copelands $15,480 for vacancy allowances paid
for a time when Sutherland failed to use his best efforts to rent the Apartments.
RELEASE AND SETTLEMENT AGREEMENT
[Headnote 1]
The district court found that in July 1985, Sutherland began to change the Apartments
from monthly rental units to an overnight lodging facility for tour groups. Consequently,
Sutherland breached the release and settlement agreement when he did not use his best efforts
to rent the Apartments. Therefore, the district court concluded that Sutherland was unjustly
enriched by the sum of $15,480, the amount of rental subsidy which the Copelands paid to
Sutherland for the vacancies during July and August 1985.
On appeal, Sutherland contends that no evidence sustains the district court's finding that he
did not use his best efforts to rent the Apartments during July and August 1985. He maintains
that the only people with personal knowledge of the rentals were himself and Jack Griffin, the
Apartments' manager. Griffin testified that Sutherland did not talk to him about evicting
tenants until August 1985. Sutherland also testified that the conversion did not begin until
September 1985.
However, Brown testified that when he and Sutherland visited the property in
mid-September 1985, it was nearly vacant. Brown further stated that Sutherland told him that
the Apartments were vacated 60 to 90 days prior to their visit to facilitate the conversion
to a motel operation.
vacated 60 to 90 days prior to their visit to facilitate the conversion to a motel operation.
Moreover, a summary of an October 1985 conversation between the Copelands and the
Griffins, introduced into evidence at trial, contradicted Jack Griffin's trial testimony. The
summary indicated that Sutherland ordered the Apartments emptied and no new rents taken
after July 1, 1985.
This court will not set aside findings of fact unless clearly erroneous. NRCP 52(a).
Moreover, when the evidence conflicts, we will not disturb the factual findings of the trial
court. Sherman Gardens Co. v. Longley, 87 Nev. 558, 562, 491 P.2d 48, 51 (1971). Although
the evidence conflicts on this issue, the record supports the district court's ruling that in July
1985, Sutherland breached the release and settlement agreement. Accordingly, the trial court
correctly entered judgment in favor of the Copelands for $15,480.
CONSPIRACY TO INTENTIONALLY INTERFERE WITH CONTRACTUAL RELATIONS
On appeal, Sutherland contends that Gross, the Copelands, Gray and Western conspired to
interfere with Sutherland's installment contract with Brown. He argues that we should set
aside the district court's finding to the contrary as clearly erroneous. We disagree.
[Headnote 2]
An actionable conspiracy consists of a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of harming
another, and damage results from the act or acts. Collins v. Union Fed. Savings & Loan, 99
Nev. 284, 303, 662 P.2d 610, 622 (1983).
[Headnote 3]
To establish intentional interference with contractual relations, the plaintiff must show: (1)
a valid and existing contract; (2) the defendant's knowledge of the contract; (3) intentional
acts intended or designed to disrupt the contractual relationship; (4) actual disruption of the
contract; and (5) resulting damage. Ramona Manor Convalescent Hosp. v. Care Ent., 225
Cal.Rptr. 120, 124 (Ct.App. 1986).
[Headnote 4]
Sutherland asserts that when Brown acquired the Apartments, Brown intended to pay
Sutherland $600,000 in accordance with his contractual obligations. But, after the December
13, 1985 meeting, Brown no longer intended to pay that $600,000 since he assigned his rights
and obligations under the contract to Western. Additionally, Sutherland argues that Western
had no intention to pay any portion of the $600,000 due him. Thus, Sutherland contends that
the effect of respondents' conspiracy, with Western acquiring the property, and Brown, the
Copelands and Gray agreeing not to interfere with Gross' quiet title action, was to
eliminate Sutherland's interest in the Apartments.
acquiring the property, and Brown, the Copelands and Gray agreeing not to interfere with
Gross' quiet title action, was to eliminate Sutherland's interest in the Apartments.
In its findings of fact, the district court noted that the Apartments' rental records during the
ten month period in which Sutherland owned the property disclosed that the business
operated at a loss. Moreover, the records showed that Sutherland made a substantial infusion
of capital into the property during this time.
Notwithstanding the Apartments' financial condition, the subcontract of sale between
Sutherland and Brown required Brown to pay $600,000 to Sutherland in addition to assuming
the obligations to Las Vegas 70 and the Copelands. Consequently, the trial court found that
this subcontract incorporates values that are non-existent and obligations that were never
intended to be honored or paid. Therefore, the court concluded that Sutherland's only rights
were those he received from the Copelands by way of this contract.
The district court observed that Sutherland's rights in the Apartments did not change with
the December 13 meeting. Both before and after the meeting, Sutherland's only remedy in
case of default was to take possession of the property and to look to the property for any and
all liability. Consequently, Sutherland failed to show that he suffered any actual harm as
required in order to prove a conspiracy to intentionally interfere with contractual relations.
Findings of fact are reversible only if clearly erroneous. NRCP 52(a). As well, substantial
evidence to support the district court's determinations, and thus, the constraints of the
appellate process preclude us from disturbing the court's conclusion that respondents did not
conspire to intentionally interfere with contractual relations. Leavitt v. Leisure Sports, Inc.,
103 Nev. 81, 89, 734 P.2d 1221, 1226 (1987).
SUTHERLAND'S FIFTH CLAIM FOR RELIEF AGAINST BROWN
The district court's judgment provided that Sutherland's counterclaims against Gross and
his cross-claims against the other defendants were dismissed with prejudice. But, Brown
failed to respond to Sutherland's cross-claims. Consequently, the clerk filed an entry of
judgment against Brown.
On appeal, Sutherland argues that Brown's failure to answer constituted an admission of
the complaint. Based on those allegations, Sutherland contends that he is entitled to a
judgment against Brown for conspiring with Gross, Gray and the Copelands to deprive
Sutherland of his interest in the Apartments. Moreover, Sutherland maintains that during
November 1985, Brown accepted a power of attorney from Sutherland to consummate a
sale of Sutherland's interest in the property.
Brown accepted a power of attorney from Sutherland to consummate a sale of Sutherland's
interest in the property. Instead, Brown negotiated a deal which resulted in the sale of
Brown's interest for $30,000 cash, without any payment to Sutherland. Thus, Sutherland
argues that the conspiracy caused Brown to breach his fiduciary duty to Sutherland. Finally,
Sutherland claims that Brown failed to repay Sutherland $25,000 which he advanced for
expenses in renovating the property during the time when Brown owned the Apartments.
[Headnotes 5, 6]
However, the answer of a co-defendant inures to the benefit of a defaulting defendant
when there exists a common defense as to both of them. Paul v. Pool, 96 Nev. 130, 132, 605
P.2d 635, 636 (1980). Likewise, when the defenses interposed by the answering co-defendant
call into question the validity of plaintiff's entire cause of action and when such defenses
prove successful, the defenses inure to the benefit of the defaulting co-defendant. Kooper v.
King, 15 Cal.Rptr. 848, 852 (Ct.App. 1961) (citations omitted). Consequently, the plaintiff
cannot take judgment against the defendant in default. Id.
[Headnote 7]
In the instant case, the respondents, other than Brown, answered Sutherland's
counterclaims and cross-claims, and they successfully defended the allegations against them.
The district court concluded that no conspiracy existed among Gross, the Copelands, Gray
and Western to interfere with the contractual relationship between Sutherland and Brown. As
well, the court concluded that Sutherland failed to meet his burden of proving his claims for
quiet title and conspiracy to breach a fiduciary duty. Therefore, the district court properly
dismissed these claims against Brown as well as the other respondents.
[Headnote 8]
However, Sutherland's fifth claim for relief demanded from Brown $25,000 advanced to
him. Since no common defense existed between Brown and the other respondents as to this
claim, Brown could not benefit from their successful defense. Accordingly, we reverse the
district court's dismissal with prejudice of Sutherland's fifth claim for relief against Brown,
and we remand this claim for proceedings consistent with our opinion. We affirm the district
court's judgment in all other respects.
____________
105 Nev. 199, 199 (1989) Weathers v. State
TERRY LEE WEATHERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19096
April 25, 1989 772 P.2d 1294
Appeal from judgment of conviction for second-degree murder. Eighth Judicial District
Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted in the district court of second-degree murder with the use of a
deadly weapon, and he appealed. The Supreme Court, Springer, J., held that: (1) defendant's
self-incriminating statement should not have been admitted, but (2) its admission was
harmless.
Affirmed.
Morgan Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
1. Criminal Law.
When interrogating officer, instead of first reading defendant his Miranda rights and allowing him to invoke immediately his right
to remain silent, confronted defendant with the evidence, his statements were the functional equivalent of express questioning, and
defendant's self-incriminatory statement made to officer before he was read his Miranda rights was improperly obtained
U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Overwhelming evidence against defendant rendered harmless the erroneous admission of defendant's self-incriminating statement.
3. Criminal Law.
While defendant's post-arrest statement should not have been admitted, prosecutor's comment on it after trial court had found it
admissible was not misconduct.
OPINION
A jury convicted Terry Lee Weathers of second-degree murder with use of a deadly
weapon. His principal claim on appeal is that the admission of his self-incriminating
statement violated Miranda v. Arizona, 384 U.S. 436 (1966). Although we agree that the
court improperly admitted the statement, we hold that its admission was harmless beyond a
reasonable doubt.
admission was harmless beyond a reasonable doubt. Thus, we affirm.
Facts
On April 4, 1987, Ronald Bivins was shot in the head and killed during a drug transaction.
Bivins's friend, Jack Consijo, testified that he and Bivins drove to F and Washington Streets
in North Las Vegas to buy rock cocaine. A male approached the truck and presented some
rock cocaine to Bivins. Bivins handed the rocks back, saying that they were too small. The
seller then shot Bivins in the head. Even though Consijo originally told the police that he did
not think he could identify the assailant if he saw him, five days later he picked the appellant,
Terry Lee Weathers, out of a lineup. Weathers took the stand and denied having shot Bivins.
Henry Harris testified that he had known Weathers for about fifteen years. He stated that
he heard a shot come from the direction of Bivins's truck and looked up to see Weathers
running away from the truck.
Ronald Free testified that he was housed in the same jail cell as Weathers. Weathers told
him that Weathers had been selling cocaine in North Las Vegas and that he had shot a
prospective buyer during an argument over a sales transaction. Weathers denied having made
these statements to Free.
Finally, Lamar Richardson testified that Weathers had come to his home a couple of miles
from the murder scene later on the evening of the shooting. Weathers told Richardson that
somebody tried to rip him off that evening. Weathers also denied having made this
statement to Richardson.
The day after the shooting, Weathers was arrested for a previous unrelated battery.
Detective Dillard was contacted at his home and asked to come talk to Weathers about the
murder involved in this case. When Dillard arrived at the station, Weathers was handcuffed to
a security post in an interview room in the detective bureau.
When Dillard entered the room, he said to Weathers, Shut up. Don't say anything. When
I'm through talking, you can talk. Dillard then told Weathers that he was investigating the
homicide of Ronald Bivins that occurred the night before on F Street. He said that Weathers
was considered a suspect and that there was no problem with mistaken identity. He stated that
a witness who had known Weathers for some time had seen Weathers running from the
scene. At that point, Weathers began nodding his head up and down and said, I know who he
is. No one had told Weathers who the witness was.
Dillard then read Weathers his Miranda rights, and Weathers indicated that he would not
waive those rights and wanted to speak to a lawyer.
speak to a lawyer. At that time, Dillard ended his conversation with Weathers.
Despite defense counsel's objection to the admission of Weather's statement to Dillard, the
court admitted it as evidence. The jury found Weathers guilty of second-degree murder, and
Weathers now appeals.
Discussion
The court erred when it admitted into evidence Weathers's statement made to Detective
Dillard before the detective read him his Miranda rights. The United States Supreme Court
has declared that interrogation need not take the form of express questioning, but may also
be conduct amounting to the functional equivalent of express questioning:
[T]he term interrogation under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect. The latter portion of this definition
focuses primarily upon the perceptions of the suspect, rather than the intent of the
police.
. . . .
[T]he definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit an
incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (emphasis in original).
In Innis, the police arrested the defendant for robbing a taxicab driver. The defendant had
used a shotgun in the robbery. The police immediately advised him of his rights. The
defendant refused to waive his right to remain silent, and two policemen escorted the
defendant toward the police station. While en route, the officers engaged in a discussion
concerning the whereabouts of the shotgun. One officer said, God forbid one of [the
handicapped children] might find a weapon and shells and they might hurt themselves. The
defendant interrupted the conversation and led the officers to the shotgun. The Court found
that this did not violate the fifth amendment because the conversation was, at least in form,
nothing more than a dialogue between the two officers to which no response from the
[defendant] was invited. Id. at 302.
Cases since Innis have generally compared their facts to the facts of Innis, finding that the
defendant's fifth amendment right was not violated if the police conduct was less evocative
of an incriminating statement than the conduct in Innis.
incriminating statement than the conduct in Innis. United States v. Thierman, 678 F.2d 1331,
1334 (9th Cir. 1982).
[Headnote 1]
In this case, unlike Innis, the detective spoke directly to Weathers. Impliedly, at least, he
accused Weathers of shooting Ronald Bivins, and he confronted Weathers with the
eyewitness evidence against him. The detective's remark, When I'm through talking, you can
talk, invited Weathers to respond. Detective Dillard engaged in this kind of approach to
Weathers knowing that he was going to arrest Weathers for the homicide based on the
evidence the police had previously obtained from the eyewitness, Henry Harris. Instead of
first reading Weathers his Miranda rights and allowing Weathers to invoke immediately his
right to remain silent, Dillard confronted Weathers with the evidence. If the detective
expected Weathers to remain silent in the face of such a confrontation, his expectation was
unreasonable. The law recognizes that some kind of reaction, incriminating or otherwise, can
be expected from one's being accused of criminal conduct. See Skidmore v. State, 59 Nev.
320, 92 P.2d 979 (1939). The law also recognizes that a person is expected to respond with
exculpatory evidence or denial when wrongly accused. Accordingly, Detective Dillard's
statements to Weathers before reading Weathers his rights were the functional equivalent of
express questioning, and the trial court improperly admitted Weathers's response into
evidence.
The United States Supreme Court has determined that a constitutional error involved in
admitting evidence will be held harmless and the conviction upheld if the error was harmless
beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). More recently, the
Supreme Court has framed the inquiry as whether, absent the inadmissible evidence, it is
clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. United
States v. Hasting, 461 U.S. 499 (1983).
In a case similar to this case, the Supreme Court held that, even though the police had
obtained a confession by trickery, the conviction should not be reversed because the evidence
overwhelmingly indicated guilt. Milton v. Wainwright, 407 U.S. 371 (1972). In Milton, a
police officer posed as a fellow prisoner and elicited incriminating statements from the
defendant which the trial court allowed into evidence. The court refused to reverse the
conviction because the state had three other untainted confessions and strong corroborative
evidence. Id. at 372-73.
[Headnote 2]
The evidence against Weathers is overwhelming. Consijo testified that Weathers
approached the truck, offered the cocaine to Bivins and then shot Bivins. Consijo was in the
truck with Bivins when Bivins was shot and five days later picked Weathers from a line-up
and identified Weathers as the assailant.
when Bivins was shot and five days later picked Weathers from a line-up and identified
Weathers as the assailant. Harris saw Weathers running from the truck immediately after the
shot was fired. Harris had known Weathers for fifteen years. Free testified that, while he and
Weathers were both in jail, Weathers had told Free that he had shot a prospective buyer. And
finally, Richardson testified that Weathers came to his home later on the evening of the
shooting and told Richardson that somebody tried to rip him off. Even though at trial
Weathers denied being present at the scene of the shooting and denied having made the
statements to Free and Richardson, we hold that the evidence is sufficiently compelling to
find the admission of Weathers's self-incriminating statement harmless beyond a reasonable
doubt.
[Headnote 3]
We have also considered Weathers's contention on appeal that the prosecutor improperly
commented on Weathers's post-arrest silence. Weathers was not silent but rather made a
statement which he later contradicted in his testimony at trial. While the statement should not
have been admitted in the first place, the prosecutor's comment on it after the trial court had
found it admissible was not misconduct. Therefore, having found no prejudicial error, we
affirm the judgment of conviction.
Young, C. J., Mowbray and Rose, JJ., concur.
Steffen, J., concurring:
____________
105 Nev. 203, 203 (1989) Malinak v. Matelich
IN THE MATTER OF THE ESTATE OF MARY H. MATELICH, Deceased, LORRAINE
MALINAK, Executrix, Beneficiary and Interested Party, Appellant, v. EUGENE
MATELICH, Respondent.
No. 19102
April 25, 1989 772 P.2d 319
Appeal from a probate order. Eighth Judicial District Court, Clark County; Thomas A.
Foley, Judge.
Surviving owner of joint tenancy safe deposit box claimed stocks and bonds individually
owned by one joint tenant and placed in box became joint tenancy property when they were
placed in box and accordingly became survivor's by right of survivorship, rather than being
subject to distribution according to terms of will. The district court included stocks and bonds
in probate estate, and survivor appealed.
probate estate, and survivor appealed. The Supreme Court held that placement of individually
owned property in safe-deposit box for which signature card declared that all property placed
in box should be joint tenancy property did not create joint tenancy in the property, as the
signature card is not title-changing writing required by statute to create joint tenancy.
Affirmed.
Lynn R. Shoen, Las Vegas, for Appellant.
Shaner & Trent, Las Vegas, for Respondent.
Joint Tenancy.
Placing individually owned property in safe-deposit box for which signature card had been signed declaring that all property
placed in box should be joint tenancy property did not create joint tenancy in the individually owned property placed in box; the
signature card is not title-changing writing required by statute to create joint tenancy, although it is agreement between bank and box
renters that renters will put nothing but joint tenancy property in box. NRS 111.065, subd. 2.
OPINION
Per Curiam:
This opinion concerns the effect on the title of individually owned property when the
owner places the property in a joint tenancy safe-deposit box and signs a signature card for
the safe-deposit box declaring that all property placed in the box shall be joint tenancy
property. We hold that the signature card does not create a joint tenancy in the property
because the card is not a title-changing writing required by NRS 111.065(2) to create a joint
tenancy. Accordingly, we affirm the district court's order.
Facts
Mary Matelich and her daughter, Lorraine Malinak, opened a joint tenancy safe-deposit
box into which Matelich deposited her stocks and bonds, totaling approximately $600,000.00
in value. The card that they signed to open the safe-deposit box stated, in pertinent part, as
follows:
Joint Tenants (1) The undersigned do hereby declare and represent that we own, as joint
tenants, with the right of survivorship, all of the property of every kind or character at
any time heretofore placed in said box and that all property which may be deposited
therein by either or any of us, shall be and is owned by us as joint tenants. . . .
Matelich subsequently passed away, and Malinak claimed that the stocks and bonds
became joint tenancy property when Matelich placed them in the safe-deposit box. Malinak
argued before the district court that the stocks and bonds should not be distributed according
to the terms of Matelich's will because they became Malinak's by right of survivorship. The
district court disagreed and included the stocks and bonds in the probate estate.
Discussion
The American Law Reports notes that the majority of states hold that property placed in a
safe-deposit box becomes joint tenancy property if the signature card so provides. 14
A.L.R.2d 948, 982. We, however, question the wisdom of this rule as did the author of the
A.L.R. annotation:
[O]ne should be quick to add that this is hardly to be classed as a choice method of
arranging title.
The reasoning applied in the cases denying that joint ownership can be created by
agreement and deposit is entirely consonant with legal thinking. It is difficult to find in
the deposit anything closely approaching a traditional title-changing event. . . .
[W]ill intent (assuming intent plus deposit can change title), clearly expressed by the
parties at the time of taking a safe-deposit box, that articles placed therein shall be
jointly owned, prevail if it appears that a later deposit was meant to be temporary or
that the depositor forgot the terms of the leasing agreement, or where an effect bears
indicia of another kind of ownership?
Id., at 982-83.
Pennsylvania has rejected the majority rule that the signature card creates a joint tenancy in
the contents of the safe-deposit box. In re Estate of Secary, 180 A.2d 572 (Pa. 1962). The
facts of Secary are very similar to the facts of this case except that the holders of the
safe-deposit box were brothers. The decedent had deposited stock certificates registered
solely in his name in a safe-deposit box which the brothers rented with a provision on the
signature card that the contents would be joint tenancy property. The court held that the stock
certificates remained the property of the decedent's estate alone because no valid inter vivos
gift of a joint interest with right of survivorship had been made. Id., at 575.
In favor of finding that the contents of the box in this case became joint tenancy property,
Malinak cites to a Nevada case in which a signature card for a joint bank account created a
joint tenancy with right of survivorship in the money deposited. Weinstein v. Sodaro, 91 Nev.
638, 541 P.2d 531 (1975). However, Weinstein is based on a statute governing the
ownership of bank accounts.
Weinstein is based on a statute governing the ownership of bank accounts. See NRS 100.085.
There is no such statute for safe-deposit boxes, and we decline Malinak's invitation that we
extend the Weinstein holding to joint tenancy safe-deposit boxes.
The signature card that Matelich and Malinak signed was a declaration to the bank that
they would deposit only joint tenancy property in the box. The bank apparently wishes to
avoid the problems that might arise if one joint tenant of the safe-deposit box has access to
the box while it contains the other joint tenant's individually owned property. While the
declaration is an agreement between the bank and the renters of the box that the renters will
put nothing but joint tenancy property in the box, the declaration is not sufficient to create a
joint tenancy in the contents of the box because it is not an agreement between the renters and
is not a title-changing instrument. The signature card does not, therefore, satisfy the
requirement of NRS 111.065(2) that a joint tenancy be created by a writing.
The district court properly found that the stocks and bonds belonged to Matelich only and
became part of her estate at her death. We have also considered Malinak's remaining
assignments of error and have concluded that they are likewise without merit. Therefore, we
affirm the district court's order.
____________
105 Nev. 206, 206 (1989) State v. Wade
THE STATE OF NEVADA, Appellant, v. BRIAN EDWARD WADE, Respondent.
No. 19403
April 25, 1989 772 P.2d 1291
Appeal from a district court order dismissing a criminal information. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
The State appealed from order of the district court dismissing criminal information. The
Supreme Court, held that prisoner in another state who is serving sentence in jail, rather than
state prison, cannot require demanding state to comply with article of Interstate Agreement on
Detainers requiring receiving state to bring a defendant to trial within 180 days.
Tufteland, Chief Deputy District Attorney, and Chris Owens, Deputy District Attorney, Clark
105 Nev. 206, 207 (1989) State v. Wade
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Clark
Extradition and Detainers.
Prisoner in another state who is serving sentence in jail, rather than state prison, cannot require demanding state to comply with
article of Interstate Agreement on Detainers requiring receiving state to bring a defendant to trial within 180 days. NRS 178.620,
178.620, Article III(a).
OPINION
Per Curiam:
The issue presented in this appeal is one of first impression for this court, viz., whether a
prisoner in another state who is serving a sentence in a jail, rather than a state prison, may
require this State to comply with Article III(a) of the Interstate Agreement on Detainers
(IAD), NRS 178.620. We conclude that Article III(a) of the IAD does not apply to prisoners
serving sentences in jails.
FACTS
On April 6, 1987, respondent Brian Edward Wade (Wade) was arraigned in Clark County,
Nevada on charges of burglary and possession of stolen property. Wade subsequently
received an own recognizance release. Wade failed to appear on the date set for his
preliminary hearing, and the court issued a bench warrant for his arrest.
On September 8, 1987, a court in Arizona having convicted Wade of theft sentenced him
to serve a one year term of confinement in the Maricopa County Jail. In a letter dated
September 11, 1987, Wade informed the Clark County District Attorney's Office of his
confinement in Arizona and requested he be brought to trial on the pending Nevada charges.
1
In late May, 1988, the Clark County District Attorney's Office received from Wade a form
letter entitled Request for Speedy Trial Pursuant to the Interstate Agreement on
DetainersArticle III. The District Attorney's Office replied and informed Wade that
although it planned to extradite him at the conclusion of his Arizona sentence, it could not
accommodate his request because he was serving time in a county jail as opposed to the
Arizona State Prison.
At the conclusion of his Arizona sentence, this State extradited Wade. On July 26, 1988
Wade waived his right to a preliminary hearing and was bound over to district court.
Thereafter, Wade moved to dismiss the charges against him by arguing that the State had
failed to comply with Article III{a) of the IAD as it had not brought him to trial within 1S0
days.
__________

1
There is no indication in the record whether the District Attorney's Office received this letter. As explained
more fully below, however, we need not address when Article III(a)'s 180 day period began to run. See infra
note 3.
105 Nev. 206, 208 (1989) State v. Wade
State had failed to comply with Article III(a) of the IAD as it had not brought him to trial
within 180 days. The State opposed Wade's motion and asserted that a prisoner in a jail could
not invoke Article III(a).
At the August 16, 1988 hearing on Wade's motion, the district court did not believe that a
prisoner's rights under the IAD depended on whether the institution in which the prisoner was
incarcerated was called a jail or a prison. The district court held that the State had failed to
bring Wade to trial within the 180 day period required by Article III(a), and, therefore,
dismissed the charges against Wade with prejudice. This appeal followed.
DISCUSSION
The IAD applies only to states that are parties to the agreement. NRS 178.620. Both
Arizona and Nevada have entered into the IAD. ARS 31-481; NRS 178.620. When four
conditions precedent have been satisfied a receiving state
2
must bring a defendant to trial
within 180 days. NRS 178.620, Article III(a). The four conditions are:
(1) the defendant has entered upon a term of imprisonment in a penal or correctional
institution of a party state, (2) during the continuance of that term of imprisonment the
charges in question are pending against the defendant in another party state, (3) a
detainer based on such charges has been lodged against the defendant, and (4) the
defendant has caused written notice and request for final disposition of the charges to
be delivered to the appropriate prosecuting authorities and court.
United States v. Hutchins, 489 F.Supp. 710, 713 (N.D.Ind. 1980); NRS 178.620, Article
III(a). A state's failure to comply with Article III(a)'s 180 day limitation results in a severe
sanction. If the defendant is not brought to trial within the time proscribed, the remedy is
dismissal of all charges with prejudice. NRS 178.620, Article V(c).
The purpose of requiring a defendant to be brought to trial within the specified period is
set forth in Article I, which, in pertinent part, provides:
The party states find that charges outstanding against a prisoner, detainers based on
untried indictments, informations or complaints, and difficulties in securing speedy trial
of persons already incarcerated in other jurisdictions, produce uncertainties which
obstruct programs of prisoner treatment and rehabilitation.
__________

2
The IAD defines the term receiving state as the state in which trial is to be had on an indictment,
information or complaint pursuant to Article III or Article IV hereof. NRS 178.620, Article II(c).
105 Nev. 206, 209 (1989) State v. Wade
treatment and rehabilitation. Accordingly, it is the policy of the party states and the
purpose of this agreement to encourage the expeditious and orderly disposition of such
charges and determination of the proper status of any and all detainers based on untried
indictments, information [sic] or complaints. . . .
NRS 178.620, Article I.
The State, distinguishing the function of jails from that of prisons, maintains that the IAD's
purpose is not advanced by applying the agreement to defendants incarcerated in jails. Thus,
in the State's view, defendants serving sentences in jails should not be entitled to invoke the
IAD's provisions.
3

According to Wade, the only difference between a jail and a state prison is the sign on the
building. Wade cites numerous cases to support his position that the jail/prison distinction
raised by the State is without legal significance. See, e.g., People v. James, 318 P.2d 175,
181, 155 C.A.2d 604 (1957) (sentence in county jail is incarceration in penal institution for
purposes of enhanced punishment statute); Attorney General v. Sheriff of Worchester County,
413 N.E.2d 722, 724 (Sup.Jud.Ct.Mass. 1980) (county facility included within definition of
correctional institution for purposes of statute requiring Department of Health inspections);
State v. Tahash, 119 N.W.2d 15, 19 (Minn. 1962) (county jail is correctional facility within
meaning of statute defining escape from correctional facility). Wade argues that these cases
demonstrate that courts in other contexts have been unwilling to draw a distinction between
jails and prisons.
Although Wade's argument is not totally without merit, we believe that for purposes of
permitting a defendant to invoke Article III(a)'s provisions there is a significant distinction
between jails and state prisons. The term prison is defined in NRS 193.0215 and means
any place designated by law for the keeping of persons held in custody under process of law,
or under lawful arrest. While the definition of prison arguably includes jails, as a practical
matter jails are designed only for short-term detention and punishment, not rehabilitation.
Compare NRS 209.389 (requiring establishment of general education, vocational training and
other rehabilitation programs for prisoners in the Nevada State Prison) with NRS 211.020
{imposing no similar requirement with respect to jails).
__________

3
Moreover, the State argues that there is no evidence in the record that it lodged a detainer against Wade,
and that Wade failed to notify both the prosecutor's office and the appropriate court of his incarceration as
required by Article III(a). Thus, according to the State, Wade failed to satisfy two of Article III(a)'s four
conditions precedent.
The State did not raise these issues in the court below at the hearing on Wade's motion to dismiss, and,
therefore, the issues are not properly before this court. This court will not consider issues raised for the first time
on appeal. See Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971).
105 Nev. 206, 210 (1989) State v. Wade
the Nevada State Prison) with NRS 211.020 (imposing no similar requirement with respect to
jails).
The very programs of prisoner treatment and rehabilitation whose obstruction the IAD was
intended to prevent are not present in jails. Permitting prisoners sentenced to jails to invoke
the IAD's Article III(a) provisions, therefore, would be meaningless. In effect, uncertainties
which obstruct nonexistent programs would be eliminated. We conclude therefore that
prisoners serving jail sentences cannot avail themselves of Article III(a)'s provisions.
The Indiana Supreme Court, in Dorsey v. State, 490 N.E.2d 260 (Ind. 1986), recently
arrived at a conclusion similar to that which we reach today. Dorsey, while in custody in
Illinois on outstanding warrants from Michigan and Indiana, demanded timely extradition and
a speedy trial under the IAD. Illinois returned Dorsey to Michigan where he was incarcerated
at the Kent County Jail from June 26, 1981 until January 20, 1982. During this period Dorsey
not only was awaiting trial for escape, he also was continuing to serve his original sentence.
On May 3, 1982, Michigan returned Dorsey to Indiana.
Dorsey subsequently moved to dismiss the Indiana charges against him based on that
state's failure to bring him to trial within Article III(a)'s 180 day limit. The trial court denied
Dorsey's motion. In affirming the lower court's decision, the Indiana Supreme Court
examined the purpose underlying the IAD and stated:
The purpose of this agreement is to encourage the expeditious and orderly disposition
of charges outstanding against a prisoner because outstanding charges create
uncertainties which obstruct the prisoner's treatment and rehabilitation programs. The
act was intended to benefit persons serving time in prison. Appellant was not in prison.
Therefore, the purposes of this agreement were not frustrated by the trial court's finding
that appellant was not entitled to invoke the provisions of this act at the time that he
filed his demand for a speedy trial.
Id. at 264 (emphasis supplied).
CONCLUSION
Here, the district court erred in not looking to the purpose of the IAD. Like the Indiana
Supreme Court, we too believe that the IAD's purpose will not be frustrated by limiting its
application to those serving prison sentences. Accordingly, we reverse the district court's
order granting Wade's motion to dismiss and remand the matter for further proceedings.
____________
105 Nev. 211, 211 (1989) Nevada Bell v. Hurn
NEVADA BELL, Appellant, v. BRIAN C. HURN, Respondent.
No. 19129
May 12, 1989 774 P.2d 1002
Appeal from a judgment of the district court apportioning litigation expenses pursuant to a
subrogation lien filed by a self-insurer for workmen's compensation benefits. Second Judicial
District Court, Washoe County; Charles M. McGee, Judge.
Appeal was taken from a judgment of the district court which apportioned litigation
expenses pursuant to a subrogation lien filed by a self-insurer for workman's compensation
benefits. The Supreme Court held that self-insurer for workman's compensation benefits was
required to pay litigation expenses in same proportion as self-insurer's lien recovery bore to
net proceeds.
Affirmed.
Woodburn, Wedge and Jeppson and Suellen Fulstone, Reno, for Appellant.
Durney and Brennan, Reno, for Respondent.
Workers' Compensation.
Self-insurer for workman's compensation benefits was required to pay litigation expenses in same proportion as self-insurer's lien
recovery bore to net proceeds.
OPINION
Per Curiam:
Respondent, Brian Hurn, is an employee of appellant, Nevada Bell. Hurn was injured in
the course of his employment and received worker's compensation benefits from Nevada Bell.
Hurn instituted two civil actions against third parties for compensatory damages resulting
from the accident. One action was brought against the tortfeasor, Mr. Padellford, and the
other action was brought against Hurn's own insurer, Valley Forge. Nevada Bell filed a notice
of lien pursuant to NRS 616.560, the Nevada Industrial Insurance Act, in the amount of
$24,901.60.
Hurn settled the Padellford action for $50,000.00. Subsequently, Hurn settled the action
against his insurer for $30,000.00, bringing his total recovery to $80,000.00. The total
litigation expenses for the two actions was $27,658.90. Hurn then moved for partial summary
judgment to apportion the litigation expenses according to the formula used in Breen v.
Caesar's Palace, 102 Nev. 79, 715 P.2d 1070 (1986). Nevada Bell opposed Hurn's motion
and proposed two alternate apportionment formulas based upon the ratio of its lien to the
gross settlement proceeds.
Hurn's motion and proposed two alternate apportionment formulas based upon the ratio of its
lien to the gross settlement proceeds. The district court apportioned the litigation expenses
according to the Breen formula.
1
Nevada Bell argues that the Breen formula is inequitable because its share of the net
proceeds, after paying its share of the litigation expenses, decreases while Hurn's share of net
proceeds increases. Consequently, Nevada Bell argues that the Breen formula should be
rejected in favor of one of the formulas used in other jurisdictions. We disagree.
Other jurisdictions have used two methods for determining the insurer's share of litigation
expenses. The first method reduces the insurer's award by the same percentage as the
litigation expenses bear to the total recovery. See Transport Indemnity Co. v. Garcia, 552
P.2d 473 (N.M.Ct.App. 1976); Worthen v. Shurtleff and Andrews, Inc., 426 P.2d 223 (Utah
1967); Security Insurance Co. of Hartford v. Norris, 439 S.W.2d 68 (Ky. 1969). The second
method reduces the insurer's award in the same ratio as the award bears to the total recovery.
See Cooper v. Argonaut Insurance Co., 556 P.2d 525 (Ala. 1976).
In Breen we determined that an insurer would be unjustly enriched if it were permitted to
assess its lien against the total proceeds of the settlement without bearing its share of
litigation expenses. Breen, 102 Nev. at 85, 715 P.2d at 1074. This court then determined that
fundamental fairness requires that the insurer pay litigation expenses in the same proportion
as the insurer's lien recovery bears to the net proceeds. Thus, because Nevada Bell receives
47 percent of the net proceeds, its fair share of the litigation expenses is 47 percent.
__________

1
Nevada Bell's share of Total Amount of Lien
litigation expenses =
____________________________

Settlement [Fees and Costs]
$24,901.60
=
____________________________

$80,000.00 $27,658.98
$24,901.60
=
____________________________

$52,341.02
= .47 [or 47%]
Excess recovery over NIIA amount
Hurn's share of litigation expenses =
____________________________

Settlement Litigation
Expenses Lien
=
____________________________

$80,000 $27,658.98$24,901.60
=
____________________________

$80,000 $27,658.98
$27,658.98
=
____________________________

$52,341.02
= .53 [or 53%]
Nevada Bell receives 47 percent of the net proceeds, its fair share of the litigation expenses is
47 percent.
No further adjustment in determining shares of net proceeds should be made. It is the
injured employee who bears the risks of recovering from the tortfeasor. The injured employee
may expend thousands of dollars and recover little or nothing from the tortfeasor. The insurer
risks no additional expenditures, yet may recover the full amount it has paid in benefits. The
Breen formula encourages the injured employee to seek a recovery for his injuries from the
tortfeasor. Use of the formulas developed in other jurisdictions could lead to the injured
employee who risks losing substantial amounts of additional money, receiving nothing even
though a recovery is obtained. Such a result is unfair to the employee and his family. The
Breen formula is consistent with this court's policy of liberally construing worker's
compensation statutes to protect employees and their families. See SIIS v. Jesch, 101 Nev.
690, 709 P.2d 172 (1985).
Therefore, we affirm the Breen formula and affirm the decision of the district court.
Steffen, A. C. J., Springer, Mowbray and Rose, JJ., and Sullivan, D. J.,
2
concur.
____________
105 Nev. 213, 213 (1989) Molnar v. State, Bd. of Med. Examiners
E. MICHAEL MOLNAR, M.D., Appellant, v. THE STATE OF NEVADA, ex rel BOARD
OF MEDICAL EXAMINERS OF THE STATE OF NEVADA, Respondent.
No. 18746
May 18, 1989 773 P.2d 726
Appeal from an order of the district court affirming respondent's decision that appellant
had attempted to renew his medical license by fraud and misrepresentation and by a false,
misleading, inaccurate, and incomplete statement. Second Judicial District Court, Washoe
County; Jerry C. Whitehead, Judge.
Physician brought action to challenge public reprimand by Board of Medical Examiners.
The district court affirmed Board's decision. Physician appealed. The Supreme Court held
that Board deprived physician of due process by failing to seek recommendation of hearing
officer.
__________

2
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District, was designated by the Governor to sit
in the place of The Honorable Cliff Young, Chief Justice. Nev. Const., art. 6, 4.
Durney & Brennan, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Donald H. Haight, Deputy Attorney
General, Las Vegas, for Respondent.
Board of Medical Examiners deprived physician of due process by failing to seek recommendation of hearing officer at
disciplinary proceeding or officer's findings, conclusions, and impressions of physician whose credibility was at issue. NRS 630.339,
subd. 2; U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
Statute on hearing for disciplinary complaint against physician does not prohibit Board of Medical Examiners from asking for
recommendation of hearing officer in cases where there is conflicting evidence or credibility is determining factor. NRS 630.339, subd.
2.
Where hearing officer is appointed to conduct disciplinary hearing against physician and evidence is conflicting or credibility is
determining factor, Board of Medical Examiners is required to seek recommendation of hearing officer. NRS 630.339, subd. 2;
U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
OPINION
Per Curiam:
In July, 1985 appellant, E. Michael Molnar, M.D., applied to renew his Nevada certificate
of biennial registration. One of the questions on the application was:
Since your last registration:
1. Have you been investigated, charged or convicted of unprofessional conduct,
professional incompetence or gross or repeated malpractice by any medical licensing
board or other agency, hospital or medical society?
Although he was aware there were allegations pending against him in California for
unprofessional conduct, appellant checked the box designating No to the question.
As a result of appellant's answer, respondent, State of Nevada, ex rel Board of Medical
Examiners of the State of Nevada (Board), filed a disciplinary complaint against him under
NRS 630.304(1) alleging that appellant had attempted to renew his license by fraud or
misrepresentation or by a false or misleading, inaccurate or incomplete statement.
On March 21, 1986, a hearing was held before a hearing officer for the Board. At the
hearing appellant testified that he had inadvertently checked the wrong box on the
application. He explained that his office nurse had probably handed him the form to complete
while he was in between patients and that he had only glanced at the questions while
answering them.
glanced at the questions while answering them. He pointed out another mistake he had made
on the application and corrected. Finally, appellant objected to the procedure used because no
member of the Board had been present to observe his testimony.
On August 20, 1986, the Board issued its findings of fact, conclusions of law and order.
Each member of the Board affirmed that they had read the transcript of the proceedings held
before the hearing officer and had reviewed the evidence submitted at the hearing. However,
none of the Board members was actually present when appellant testified at the hearing, nor
did the Board receive any recommendation from the hearing officer. The Board concluded
that there was clear and convincing evidence to find that appellant's answer constituted
renewing or attempting to renew a license to practice medicine by fraud and
misrepresentation and by a false, misleading, inaccurate, and incomplete statement. The
Board ordered that appellant be publicly reprimanded. Subsequently, the Board denied
appellant's petition to amend its findings, conclusions and order.
Appellant appealed to the district court alleging three errors. First, that the hearing
procedure denied him due process. Second, that the Board's order was defective because it
stated that he had not appeared before the Board without noting that he was not required to
appear. Third, that there was no evidence to support the Board's findings. The district court
affirmed the Board's order with the modification that appellant had not been required to be
present before the Board. This appeal followed.
[Headnote 1]
Appellant contends that the hearing procedure used in this case jeopardized his right to
practice medicine without due process of law. In this case, the Board appointed a hearing
officer to take evidence pursuant to NRS 630.339(2).
1
A transcript of the hearing and all
exhibits presented at the hearing were reviewed by each board member. The hearing officer
made no recommendation to the Board and the Board did not ask for a recommendation. The
Board concluded that appellant had attempted to renew his license to practice medicine [b]y
fraud and misrepresentation and by a false, misleading, inaccurate, and incomplete
statement.
__________

1
In 1985, NRS 630.339(2) provided:
The board, a hearing officer or a panel of its members designated by the board shall hold the formal
hearing on the charges at the time and place designated in the notification. If the hearing is before a
panel, at least one member of the board who is not a physician must participate in this hearing and in the
final recommendation of the panel to the board.
Subsection (2) was amended in 1987 by deleting the language and in the final recommendation of the panel
to the board.
The due process clauses of the Nevada Constitution and the United States Constitution
provide that no person shall . . . be deprived of life, liberty or property without due process
of law. U.S. Const. amend. V; Nev. Const. art. 1, 8. The due process clause of the United
States Constitution is applied to the states through the XIV Amendment. Due process is not
a rigid concept: due process is flexible and calls for such procedural protections as the
particular situation demands.' Morrisey v. Brewer, 408 U.S. 471, 481 (1972); State ex rel.
Sweikert v. Briare, 94 Nev. 752, 588 P.2d 542 (1978). Watson v. Housing Authority, 97 Nev.
240, 242, 627 P.2d 405, 407 (1981). The right to practice medicine is a valuable property
right which cannot be arbitrarily abridged or revoked. Potter v. State Bd. of Med. Examiners,
101 Nev. 369, 371, 705 P.2d 132, 134 (1985).
As a general rule a decision-making administrative body need not hear and observe
testimony of witnesses at an evidentiary hearing. See Morgan v. United States, 298 U.S. 468,
482 (1936) (holding that the Constitution only requires that the officer making the decision
must consider and appraise the evidence which justifies the decision). However, where the
credibility of a witness is at issue, it is a denial of due process if the administrative agency
making the fact determination does not have the benefit of the findings, conclusions and
impressions of the person hearing the testimony of the witness. See Crow v. Industrial
Commission, 140 P.2d 321, 322 (Utah 1943); Goodyear Tire and Rubber Co. v. Pierce, 363
S.E.2d 433, 437 (Va.App. 1987); Shawley v. Industrial Commission, 114 N.W.2d 872, 876
(Wis. 1962).
In the instant case, appellant's credibility was the determining factor. The Board made its
decision without having viewed appellant's testimony or having received a report from the
hearing officer regarding appellant's veracity. Therefore, NRS 630.339(2), as applied to this
case, did not afford appellant due process.
[Headnotes 2, 3]
However, NRS 630.339(2) is not unconstitutional because there is a saving interpretation.
There is nothing in the language of NRS 630.339(2) that would prohibit the Board from
asking for the recommendation of the hearing officer in cases where there is conflicting
evidence or credibility is a determining factor. Therefore, in those cases where a hearing
officer is appointed to hear the case and the evidence is conflicting or credibility is a
determining factor, the Board is required to seek the recommendation of the hearing officer.
Accordingly, this case is reversed and remanded to the district court.
____________
105 Nev. 217, 217 (1989) Wheeler v. State, Dep't Transportation
RAE A. WHEELER, BEATRICE WHEELER, BARTSAS REALTY, INC., a Nevada
Corporation; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH
OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah Corporation sole;
COUNTY OF CLARK, a political subdivision of the State of Nevada, Appellants, v.
THE STATE OF NEVADA, ON RELATION OF ITS DEPARTMENT OF
TRANSPORTATION, Respondent.
No. 19039
May 18, 1989 773 P.2d 728
Appeal from a jury verdict awarding appellants compensation in a condemnation case.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
State brought eminent domain action. The district court entered judgment on jury verdict
awarding compensation, and owners appealed. The Supreme Court held that state appraiser's
estimate of condemned land's fair market value was admissible, though appraiser used term
most probable price rather than highest price when establishing value.
Affirmed.
Kermitt L. Waters, Las Vegas for Appellants.
Brian McKay, Attorney General, Roger D. Comstock, Deputy Attorney General, Carson
Eminent Domain.
State appraiser's estimate of condemned land's fair market value was admissible, though appraiser used term most probable price
rather than highest price when establishing value; appraiser testified that to him terms most probable price and highest price
were equivalent, and that he used same methodology he would have followed in finding highest price.
OPINION
Per Curiam:
This is an appeal from a jury verdict awarding appellants $31,500.00 as compensation for
the taking of their land by the State of Nevada. Appellants contend that the State's appraiser
used an improper standard to measure the land's fair market value. We disagree and affirm the
judgment in its entirety.
The Department of Transportation, State of Nevada, initiated a condemnation action to
acquire six tenths of an acre of unimproved land. The land, located approximately one half
mile south of Tropicana Avenue and one half mile north of Russell Road in Clark County,
was necessary for the extension of the U.S. 95 freeway.
105 Nev. 217, 218 (1989) Wheeler v. State, Dep't Transportation
of Tropicana Avenue and one half mile north of Russell Road in Clark County, was necessary
for the extension of the U.S. 95 freeway. The appellants' primary claim of error is that the
State's appraiser used the term most probable price rather than the highest price, when
establishing the fair market value of the land taken.
We have clearly defined the term fair market value that is to be used in condemnation
cases.
Generally the value of property taken in condemnation proceedings is its market value,
defined as the highest price estimated in terms of money which the land would bring
if exposed for sale on the open market, with reasonable time allowed in which to find a
purchaser, buying with knowledge of all the uses and purposes to which it was adopted
and for which it was capable. (emphasis added)
City of Elko v. Zillich, 100 Nev. 366, 370, 683 P.2d 5 (1984) (quoting State v. Covich, 67
Cal.Rptr. 280, 281-82 (Cal.App. 1968)). This is the standard to be used in condemnation
proceedings in Nevada and every appraiser testifying in these cases should use this standard
in valuing real property. Here, the State's appraiser testified that to him the terms most
probable price. and the highest price were equivalent, that he used the same methodology
he would have followed in finding the highest price, and that his estimate of the land's fair
market value would have been the same using either most probable price or highest price.
Additionally, appellants' appraiser used the same methodology as the State's appraiser, and
both came to final valuations that were reasonably close.
A review of the entire testimony of the State's appraiser leads to the conclusion that he
used the appropriate standard and methodology in arriving at the fair market value of the
appellant's property. A trial court is allowed wide discretion in passing on matters relating to
expert testimony in these cases, Zillich, 100 Nev. at 369, 683 P.2d at 7, and the district court
properly exercised its discretion in admitting the testimony of the State's appraiser.
We have reviewed appellants' other claims of error and conclude they are without merit.
Accordingly, the district court's judgment is affirmed.
____________
105 Nev. 219, 219 (1989) Ramirez v. Clark Co. Public Defender
MIGUEL A. RAMIREZ, Appellant, v. MORGAN D. HARRIS, individually and in his
official capacity as Public Defender of Clark County; MICHAEL L. MILLER,
individually and in his official capacity as Deputy Public Defender, Respondents.
No. 19953
May 18, 1989 773 P.2d 343
Appeal from order dismissing complaint. Eighth Judicial District Court, Clark County,
Earle W. White, Jr., Judge.
Inmate brought malpractice and civil rights action against public defenders, alleging that
they negligently represented him in felony prosecution. The district court dismissed
complaint, and inmate appealed. The Supreme Court held that: (1) public defenders could not
be held liable to plaintiff for allegedly negligently misrepresenting him, and (2) public
defenders did not act under color of state law when they represented plaintiff in criminal case
and could not be held liable in civil rights action arising from that representation.
Affirmed.
Miguel A. Ramirez, In Proper Person, Appellant.
Edwards, Hunt, Hale & Hansen, Las Vegas, for Respondents.
1. Attorney and Client.
Public defenders could not be held liable to criminal defendant for allegedly negligently misrepresenting him in felony
prosecution. NRS 41.0307, subd. 4(b), 41.032, subd. 2.
2. Civil Rights.
Public defenders did not act under color of state law when they represented defendant in criminal case, and could not be held liable
in civil rights action arising from that representation, absent allegation that they engaged in conspiracy with state to deprive defendant
of his civil rights. 42 U.S.C.A. 1983.
District court did not have jurisdiction to consider claim seeking to disbar public defenders because of their representation of
defendant in criminal case. SCR 99-116.
OPINION
Per Curiam:
Appellant is a prisoner incarcerated in the Nevada State Prison in Carson City. Respondent
Morgan D. Harris is the Public Defender of Clark County, and respondent Michael L. Miller
is a Deputy Public Defender employed by Clark County. On July 26, 19SS, appellant filed in
the district court a complaint alleging that respondents were appointed to represent him
in a criminal matter.
1988, appellant filed in the district court a complaint alleging that respondents were
appointed to represent him in a criminal matter. Appellant further alleged that respondents
represented him in a negligent manner, and that he was convicted of a felony offense as a
result of the allegedly negligent representation.
1
Therefore, appellant sought damages for
malpractice and for violation of his civil rights. The complaint also requested that the district
court disbar respondents.
Respondents filed a motion to dismiss the complaint pursuant to NRCP 12(b)(5), for
failure to state a claim upon which relief could be granted. In response, appellant filed a
motion to amend the complaint. On January 24, 1989, the district court granted respondents'
motion to dismiss and denied appellant's motion to amend the complaint. This appeal
followed.
[Headnote 1]
Initially, we note that a public defender cannot be held vicariously liable for the negligence
of his deputies. See Sanchez v. Murphy, 385 F.Supp. 1362 (D.Nev. 1974). Therefore,
appellant could not state a claim against respondent Harris. We also note that NRS 41.032(2)
precludes the maintenance of a lawsuit against an officer or employee of the state or its
political subdivisions which is
[b]ased upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or of any officer, employee or immune contractor of any of these, whether
or not the discretion involved is abused.
Moreover, NRS 41.0307(4)(b) defines the terms public officer and officer to include [a]
public defender and any deputy or assistant attorney of a public defender. Thus, respondents
cannot be sued for malpractice arising out of discretionary decisions that they made pursuant
to their duties as public defenders. Under these circumstances, we conclude that appellant
could not state a cause of action for malpractice against respondents. Therefore, the district
court properly dismissed appellant's cause of action for negligent representation.
[Headnote 2]
Moreover, we note that public defenders, although paid by the state, do not act under
color of state law. See Polk County v. Dodson, 454 U.S. 312 (1981). Appellant's complaint
did not allege that respondents engaged in a conspiracy with the state to deprive appellant of
his civil rights.
__________

1
There is nothing in the record that affirmatively discloses the nature of the crime or crimes for which
appellant was convicted.
deprive appellant of his civil rights. Therefore, the district court did not err when it
determined that appellant's complaint failed to state a claim under 42 U.S.C. 1983 for
violation of appellant's civil rights. See Tower v. Glover, 467 U.S. 914 (1984). Thus, the
district court did not err when it dismissed appellant's civil rights claim against respondents.
[Headnote 3]
Finally, we note that the district courts lack jurisdiction to impose professional discipline
on any attorney in the state. See SCR 99-116. Thus, the district court properly dismissed
appellant's request to disbar respondents.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that the district court did not err when it dismissed appellant's complaint. Further, we
conclude that under the circumstances of this case, the district court did not abuse its
discretion when it denied appellant's motion to amend his complaint. Finally, we conclude
that appellant cannot demonstrate error in this appeal, and that briefing and oral argument are
unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert.
denied, 423 U.S. 1077 (1976). Accordingly, we affirm the judgment of the district court.
____________
105 Nev. 221, 221 (1989) Leone v. Goodman
SHERI LEONE and JOSEPH R. LEONE, Appellants/Cross-Respondents, v. JORDAN
GOODMAN, M.D., Respondent/Cross-Appellant.
No. 18601
May 18, 1989 773 P.2d 342
Appeal from a judgment pursuant to a jury verdict in a medical malpractice action, and
from the district court's order denying appellants' motion for a new trial or, in the alternative,
judgment notwithstanding the verdict. Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
In medical malpractice action, the district court entered judgment for doctor, and denied
plaintiffs' motion for new trial or judgment notwithstanding the verdict, and plaintiffs
appealed. The Supreme Court held that trial judge's format of voir dire examination, which
precluded any participation by attorneys, and denied both parties their right of supplemental
attorney-conducted voir dire, was reversible error.
Lovell & Potter, Las Vegas, for Appellants/Cross-Respondents.
Galatz, Earl, Catalano & Smith and Timothy C. Williams, Las Vegas, for
Cross-appeal challenging district court's order denying prayer for attorney fees and costs would be dismissed, where
cross-appellant neither briefed nor argued issue.
2. Appeal and Error; Jury.
When trial judge unreasonably restricts or denies altogether supplemental attorney-constructed voir dire, judge commits reversible
error.
3. Appeal and Error; Jury.
Trial judge's format of voir dire examination, which precluded any participation by attorneys, and which denied both parties right
of supplemental attorney-conducted voir dire, was reversible error; judge conducted voir dire questioning, judge did not use proposed
questions for voir dire submitted by counsel, and counsel indicated his dissatisfaction with voir dire.
4. Costs.
Violating court rule of exclusion of witnesses by providing witness with transcript of prior trial testimony justifies imposition of
sanctions by district court.
OPINION
Per Curiam:
[Headnote 1]
Following trial on appellants Sheri Leone's and Joseph R. Leone's medical malpractice
action, the jury returned a verdict in favor of respondent Jordan Goodman, M.D. The Leones
subsequently moved for a new trial or, in the alternative, judgment notwithstanding the
verdict. The district court denied their motion. The Leones now appeal from the adverse
judgment and the denial of their motion arguing, inter alia, that the district court denied their
right to participate in voir dire of the jury panel and that the district court erred in failing to
strike the testimony of one of respondent's expert witnesses.
1
Because we agree that the
district court denied appellants' right to participate in voir dire of the jury panel we reverse
and remand for a new trial.
[Headnotes 2, 3]
1. In Whitlock v. Salmon, 104 Nev. 24, 25, 752 P.2d 210, 211 (1988), we held that while
a trial judge may reasonably restrict the right of supplemental attorney-conducted voir dire, .
. . he may not prohibit the right altogether. During the course of that opinion, this court
stated: The purpose of voir dire examination is to determine whether a prospective juror
can and will render a fair and impartial verdict on the evidence presented and apply the
facts, as he or she finds them, to the law given.
__________

1
Respondent filed a notice of cross-appeal challenging an order of the district court denying respondent's
prayer for attorney fees and costs. Respondent has neither briefed nor argued the issue. We assume therefore that
respondent has abandoned the cross-appeal, and accordingly order it dismissed.
The purpose of voir dire examination is to determine whether a prospective juror can
and will render a fair and impartial verdict on the evidence presented and apply the
facts, as he or she finds them, to the law given. See Oliver v. State, 85 Nev. 418, 422,
456 P.2d 431, 434 (1969). We are convinced that prohibiting attorney-conducted voir
dire altogether may seriously impede that objective.
Id. at 27, 28, 752 P.2d at 212. We emphasized in Whitlock, however, that nothing said or
implied in that opinion detracts from the absolute right of a trial judge to reasonably control
and limit an attorney's participation in voir dire. Id. at 28, 752 P.2d at 213. See also NRS
16.030(6) (The judge shall conduct the initial examination of the prospective jurors and the
parties or their attorneys are entitled to conduct supplemental examination which must not be
unreasonably restricted.) (emphasis added).
In the instant case, the district judge conducted all voir dire questioning. Counsel for
appellant supplied the court with ten pages of proposed questions for voir dire. The district
judge chose not to use any of these proposed questions. Statements made by appellants'
counsel during a break in jury selection and outside the presence of the venire, indicated his
dissatisfaction with the court exclusively conducting voir dire. In response, respondent's
counsel joined in the objection to the voir dire and requested that counsel be allowed to
participate, or, at the very least, that the court ask the proposed voir dire questions previously
submitted in writing.
This court noted in Whitlock that although the judge basically presented counsel's
questions to the prospective jurors on voir dire, he did not allow counsel to participate
directly in the process. 104 Nev. at 25, 752 P.2d at 211. When a trial judge unreasonably
restricts or denies altogether supplemental attorney-conducted voir dire he commits reversible
error. See Whitlock, 104 Nev. at 28, 752 P.2d at 213. It is clear from our reading of the record
here that the district judge established a format of voir dire examination that precluded any
participation by the attorneys and that both parties were denied their right of supplemental
attorney-conducted voir dire.
[Headnote 4]
2. During trial, the rule of exclusion of witnesses was in effect. Despite this, respondent's
attorney called a defense expert witness whom the attorney had provided with a transcript of
respondent's and another defense expert's prior trial testimony. Respondent's counsel did this
without notifying counsel for appellant or the court. Upon learning of opposing counsel's
actions, appellants moved to strike the expert's testimony. The court denied the motion, but
found that respondent's counsel had intentionally violated the rule of exclusion. The court
therefore sanctioned respondent's counsel $350.00.
sanctioned respondent's counsel $350.00. Appellants contend the district court erred in
denying their motion to strike.
In light of our decision regarding voir dire as conducted in this case, we need not
determine whether the respondent's violation of the exclusionary rule would mandate reversal
of the case.
2
We observe however, that an attorney's intentional violation of a court imposed
rule is a serious matter, and that the district court certainly was justified in sanctioning the
attorney.
The trial judge erred in denying appellants' right to supplemental attorney-conducted voir
dire. Accordingly, this case is reversed and remanded for a new trial.
____________
105 Nev. 224, 224 (1989) M & R Investment v. Anzalotti
M & R INVESTMENT CO., a Nevada Corporation dba DUNES HOTEL & COUNTRY
CLUB, Appellant, v. BERNICE ANZALOTTI, Respondent.
BERNICE ANZALOTTI, Cross-Appellant, v. MONTGOMERY ELEVATOR COMPANY, a
Delaware Corporation, Cross-Respondent.
No. 19053
May 18, 1989 773 P.2d 729
Appeal from order granting new trial on claim against one defendant and cross-appeal
from order denying new trial on claim against a second defendant. Eighth Judicial District
Court, Clark County; Earle W. White, Jr., Judge.
Passenger who allegedly fell when disembarking from elevator brought action against
elevator's owner and manufacturer on theories of both negligence and strict products liability.
After dismissing products liability claim, the district court granted passenger's motion for new
trial on claim against elevator owner, and appeal was taken. The Supreme Court held that: (1)
evidence was sufficient to support verdict in favor of defendants on negligence claim, and (2)
passenger failed to make prima facie showing that her back injury was caused by defect in
elevator that existed when it left hands of manufacturer, precluding her from recovering on
products liability claim.
Miles Pico & Mitchell and James R. Rosenberger, Las Vegas, for Appellant.
__________

2
We also decline to decide appellants' other assignments of error.
Galatz, Earl, Catalano & Smith, Las Vegas, for Respondent and Cross-Appellant Bernice
Anzalotti.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Cross-Respondent Montgomery Elevator Company.
1. Carriers; Products Liability.
Evidence was sufficient to support verdict in favor of elevator owner and elevator manufacturer in negligence action arising when
passenger allegedly fell and injured her back when disembarking from elevator that failed to stop level with adjoining floors; passenger
gave inconsistent accounts of the incident and had pre-existing history of lower back problems.
2. Carriers; Products Liability.
Both owner and manufacturer of elevator were presumptively negligent if condition of elevator violated safety code and violation
caused injury to passenger.
3. Products Liability.
Elevator passenger who was allegedly injured while disembarking from elevator failed to make prima facie showing that her back
injury was caused by defect in elevator that existed when it left hands of manufacturer, precluding her from recovering in products
liability action against manufacturer; testimony of passenger's expert witness established that elevator was properly designed,
manufactured, and installed. NRCP 41(b).
OPINION
Per Curiam:
Bernice Anzalotti allegedly fell and injured her back when disembarking an elevator that
failed to stop level with the adjoining floor. Bernice brought the underlying actions against M
& R Investment Co. (M & R) and Montgomery Elevator Company, seeking recovery for
her injury. Bernice based her claim against M & R, the elevator owner, on a theory of
negligence. She claimed that Montgomery, the elevator manufacturer/maintenance contractor,
was liable under theories of both negligence and strict products liability.
At the close of Bernice's evidence, the district court dismissed Bernice's products liability
claim. At the conclusion of the trial, the jury returned verdicts for both defendants on
Bernice's negligence claims. Bernice then moved for a new trial on her negligence claims
against both defendants on grounds that the jury could not have reached defense verdicts
without disregarding the jury instructions. See NRCP 59(a)(5). The district court granted the
motion on the claim against M & R, but denied it on the claim against Montgomery. M & R
now appeals from that part of the court's order granting a new trial; Bernice appeals from the
part of the order denying her motion for new trial against Montgomery and the order
dismissing her products liability claim.
of the order denying her motion for new trial against Montgomery and the order dismissing
her products liability claim.
The question before us when we are determining the propriety of the granting of a new
trial under NRCP 59(a)(5) is whether we are able to declare that, had the jurors properly
applied the instructions of the court, it would have been impossible for them to reach the
verdict which they reached. Weaver Brothers, Ltd. v. Misskelly, 98 Nev. 232, 234, 645 P.2d
438, 439 (1982). See also Town and Country Electric v. Hawke, 100 Nev. 701, 692 P.2d 490
(1984). We conclude that in light of this standard, the district court erred in granting Bernice's
motion for a new trial against M & R.
[Headnotes 1, 2]
The district court correctly instructed the jury that an elevator owner owes a higher degree
of care in performing the function of transporting people from one floor to another. See
Smith v. Odd Fellows Building Assoc., 46 Nev. 48, 205 P. 796 (1922). The court also
properly instructed the jury that it must presume that both M & R and Montgomery were
negligent if the condition of the elevator violated a safety code and the violation caused the
injury. See American National Standards Institute, safety code for elevators and escalators: an
American national standard A17.1 (1978). However, the jury had to apply the presumption or
consider the standard of care in these two instructions only if it believed that Bernice fell
from a malfunctioning elevator, and the fall caused her back injury.
Because Bernice's recountings of the elevator incident were fraught with inconsistencies
and because she had a pre-existing history of lower back problems, it is not impossible that
the jury disbelieved her testimony concerning the malfunction, the fall, and/or the cause of
her injury. Thus, it was not impossible for the jury to properly return defense verdicts
notwithstanding the two instructions.
1

We need not determine how the jury reached its conclusion that neither defendant was
liable; we need only determine whether it was possible for the jury to do so. Town and
Country Electric, 100 Nev. at 702. Having determined that the evidence and the jury
instructions permitted a possible verdict for M & R, we conclude that the district court's
partial grant of Bernice's new trial motion was erroneous.
For the same reasons the district court erred in granting a new trial on the claims against M
& R, the court was correct in denying Bernice's motion for new trial against Montgomery.
__________

1
It is also possible that the jury concluded Bernice's own negligence contributed more to her injury than the
negligence of either defendant. See NRS 41.141(2)(a).
denying Bernice's motion for new trial against Montgomery. The evidence and the
instructions permitted the jury to find that no negligence on the part of Montgomery caused
Bernice's back injuries.
[Headnote 3]
We also conclude that the district court correctly dismissed Bernice's products liability
claim against Montgomery pursuant to NRCP 41(b). The uncontradicted testimony of
Bernice's own expert witness established that the elevator was properly designed,
manufactured, and installed. Bernice, therefore, failed to make a prima facie showing that her
injury was caused by a defect in the product which existed when the product left the hands of
the manufacturer. See Griffin v. Rockwell International, Inc., 96 Nev. 910, 911, 620 P.2d 862,
863 (1980).
For the foregoing reasons, we reverse the lower court's grant of a new trial against M & R
Investment and affirm the court's rulings regarding Montgomery Elevator.
____________
105 Nev. 227, 227 (1989) Town of Pahrump v. Nye County
TOWN OF PAHRUMP, an Unincorporated Town; PAHRUMP TOWN BOARD, Appellants,
v. COUNTY OF NYE, A Legal Subdivision of the State of Nevada, Respondent.
No. 18951
May 18, 1989 773 P.2d 1224
Appeal from a district court order granting summary judgment and declaring certain
sections of a statute unconstitutional. Fifth Judicial District Court, Nye County; William P.
Beko, Judge.
Unincorporated town and town board appealed from decision of the district court which
granted motion for summary judgment and declared statutes transferring certain powers to
town unconstitutional. The Supreme Court held that statutes which transferred powers of
planning, zoning, land division and building inspection from county to unincorporated town
violated State Constitution.
Affirmed.
Frank W. Daykin, Carson City, for Appellants.
Respondents.
Lionel Sawyer & Collins and Garry L. Hayes, Las Vegas, for Amicus Curiae.
Statutes; Zoning and Planning.
Statutes which transferred powers of planning, zoning, land division and building inspection from county to unincorporated town
violated state constitutional provisions which prohibited legislature from passing local or special laws which regulated county business
and required that legislature establish system of county government which was uniform throughout state. Const. art. 4, 20, 25; Stats.
1985, ch. 682, 3, 4.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a motion for summary
judgment and declaring certain sections of 1985 Statutes of Nevada Chapter 682
unconstitutional. 1985 Statutes of Nevada Chapter 682 transfers powers of planning, zoning,
land division and building inspection from respondent County of Nye to appellant, the
unincorporated Town of Pahrump. The trial court found sections 3 and 4 of chapter 682 to be
unconstitutional because they violate article 4, sections 20 and 25 of the Nevada Constitution.
Article 4, section 20 of the Nevada Constitution prohibits the legislature from passing local or
special laws which regulate county business. Article 4, section 25 of the Nevada Constitution
requires that the legislature establish a system of county government which is uniform
throughout Nevada. Pahrump appeals the trial court's ruling on the basis that the trial court
misinterpreted and misapplied these provisions of the Nevada Constitution to chapter 682.
We affirm the trial court's ruling.
We are not persuaded by Pahrump's argument that chapter 682 does not offend article 4,
section 25 of the Nevada Constitution
1
because the powers of planning, zoning and building
which the statute purports to transfer from Nye County to Pahrump are not integral
components of a uniform system of government. This court has previously defined a system
of government, as used in the context of section 25, as consisting of the powers, duties, and
obligations placed upon [a] political organization. McDonald v. Beemer, 67 Nev. 419, 426,
220 P.2d 217, 221 (1959), quoting Singleton v. Eureka County, 22 Nev. 91, 35 P. 833 (1894).
Since zoning and planning fall within the powers, duties and obligations placed upon [a]
political organization, they are precisely the type of activities that section 25 was intended to
regulate. Because chapter 682 delegates these powers away from Nye County to the
unincorporated Town of Pahrump in a unique manner, one not utilized by other counties, it
destroys the uniformity of the system of government among the counties.
__________

1
Article 4, section 25 of the Nevada Constitution provides that [t]he legislature shall establish a system of
County and Township government which shall be uniform throughout the State.
the uniformity of the system of government among the counties. The trial court, therefore,
correctly ruled that chapter 682, sections 3 and 4 are violative of article 4, section 25 of
Nevada's constitution.
Neither are we persuaded by Pahrump's argument that chapter 682 merely affects county
business, but does not regulate it, and therefore does not violate article 4, section 20 of the
Nevada Constitution.
2
The powers vested by the statute are broad and ongoing, and they
substantially alter the power structure of the county. They do not relate only to a single item
or project of county business, as do the statutes which we have previously held merely
affect county business. See City of Reno v. County of Washoe, 94 Nev. 327, 580 P.2d 460
(1978); Cauble v. Beemer, 64 Nev. 77, 177 P.2d 677 (1947). Accordingly, the trial court
properly determined that chapter 682, sections 3 and 4 offend article 4, section 20 of the
Nevada Constitution.
Finally, we do not agree with Pahrump's assertion that Pahrump's location in relation to the
county seat presents a compelling reason to allow a special law that is exempt from article 4,
section 21 of the Nevada Constitution, which requires that wherever possible laws must be
general and of uniform operation throughout the state. It appears from the legislative history
that chapter 682 was originally presented as a general law; however, when various counties
voiced concern and opposition to it, the bill was amended to limit its impact to Pahrump and
Nye County. Only after the bill was so amended was passage attained.
As previously announced by this court, the reasoning behind requiring that a statute be
general in nature is that when a statute affects the entire state, then it is more likely to receive
adequate and thorough consideration from all members of the legislature; whereas, if the bill
is localized, it is apt not to be considered seriously by those who are not affected by it. See
State ex rel. Attorney General v. Boyd, 19 Nev. 43, 5 P. 735 (1885); City of Reno v. County
of Washoe, 94 Nev. 327, 580 P.2d 460 (1978). The legislative history of chapter 682
indicates that its passage was predicated on the very events which section 21 was intended to
prevent.
Furthermore, special legislation is not warranted in this situation. There are other
constitutional avenues through which Pahrump may obtain its apparent goal of fast-paced
growth without having to seek Nye County's approval. For instance, Pahrump may acquire
control over its zoning, building and growth by becoming an incorporated town. By
incorporating, Pahrump would then take on the financial responsibility for utilizing its
acquired powers and, thus, would be acting in uniformity with the arrangement between
other incorporated cities and their respective counties.
__________

2
Article 4, section 20 of the Nevada Constitution requires, in pertinent part, that [t]he legislature shall not
pass local or special laws in any of the following enumerated cases. . . . Regulating county and township
business.
would then take on the financial responsibility for utilizing its acquired powers and, thus,
would be acting in uniformity with the arrangement between other incorporated cities and
their respective counties. If incorporation is not a satisfactory alternative, then perhaps
Pahrump can achieve its growth goals by seeking more active representation of its concerns
by members of the Nye County Board of Commissioners.
We find no error in the trial court's ruling that 1985 Statutes of Nevada Chapter 682 is
unconstitutional because it violates article 4, sections 20 and 25 of the Nevada Constitution.
We, therefore, affirm the trial court's judgment in its entirety.
____________
105 Nev. 230, 230 (1989) Rogers v. State
NICKY DEAN ROGERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17974
May 18, 1989 773 P.2d 1226
Appeal from a jury conviction. Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
Defendant was convicted in the district court of having 0.10 percent or more by weight of
alcohol in his blood and being in actual physical control of vehicle on highway or on
premises to which the public has access. Defendant appealed. The Supreme Court held that
defendant was in actual physical control of car within meaning of statute.
Affirmed.
Terri Steik Roeser, State Public Defender, Robert Morris, Deputy, and Michael K. Powell,
Chief Appellate Deputy, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; William G. Rogers, District Attorney, and
James N. Varner, Deputy, Lyon County, for Respondent.
1. Automobiles.
A person is in actual physical control of vehicle, for purposes of statute making it unlawful for anyone who has 0.10 percent or
more by weight of alcohol to be in actual physical control of vehicle on highway or on premises to which public has access, when
person has existing or present bodily restraint, directing influence, domination, or regulation of a vehicle. NRS 484.379, 484.379,
subd. 1.
2. Automobiles.
In deciding whether someone has existing or present bodily restraint, directing influence, domination, or regulation of a vehicle,
and thus, has actual physical control of vehicle while intoxicated, trier of fact must weigh number of considerations,
including where, and in what position, person is found in vehicle; whether vehicle's engine is running;
whether person is awake or asleep; whether, if person is apprehended at night, vehicle's lights are on;
location of vehicle's keys; whether person was trying to move vehicle or moved vehicle; whether property
on which vehicle is located is public or private; and whether person must, of necessity, have driven to
location where apprehended.
fact must weigh a number of considerations, including where, and in what position, person is found in vehicle; whether vehicle's
engine is running; whether person is awake or asleep; whether, if person is apprehended at night, vehicle's lights are on; location of
vehicle's keys; whether person was trying to move vehicle or moved vehicle; whether property on which vehicle is located is public or
private; and whether person must, of necessity, have driven to location where apprehended. NRS 484.379, 484.379, subd. 1.
3. Automobiles.
If defendant was sleeping when apprehended, that may be a factor that suggests that defendant was not in actual physical control
of vehicle, for purposes of statute making it unlawful for one who is under the influence to be in actual physical control of vehicle on
highway or on premises to which public has access; however, that fact is not totally dispositive evidence that actual physical control
did not exist. NRS 484.379, 484.379, subd. 1.
4. Automobiles.
Defendant was in actual physical control of vehicle for purposes of statute making it unlawful for any person who has 0.10
percent or more by weight of alcohol in his blood to be in actual physical control of vehicle on highway or on premises to which public
has access; defendant was found parked on public highway, partially in a traffic lane, and not on private property, defendant apparently
drove car to that location, vehicle's engine was running and its lights were on, and defendant, though asleep and slumped over, was
seated in driver's position, directly behind steering wheel. NRS 484.379, subd. 1.
OPINION
Per Curiam:
Just before 2:00 a.m., May 4, 1986, two Lyon County Sheriff's officers drove past a silver
Camaro parked on the edge of Highway 50, in the west-bound lane. The Camaro was parked
in the emergency lane, which was apparently about two feet wide, such that the car extended
approximately one foot into the normal traffic lane.
The officers returned to examine the vehicle. The engine was running, the transmission
apparently in neutral or park. Reserve Officer Kidd noticed that the headlights were on. The
only occupant was sleeping, slumped over the steering wheel. Officer McKibben knocked on
the window to get the driver's attention, but he did not respond. McKibben then opened the
door and identified himself. Rogers awakened and asked What? Rogers told the officers he
had stopped to sleep.
Rogers then closed the door, revved the engine, and began turning the steering wheel.
McKibben again opened the door and asked Rogers to step out and perform a field sobriety
test, i.e., recite the alphabet, perform a finger count, and do a finger-to-nose test. Rogers
successfully recited the alphabet. He had difficulty, however, with the finger count.1 On the
finger-to-nose test, Rogers correctly touched the tip of his nose with his right hand, but
touched the side of his nose with his left.
culty, however, with the finger count.
1
On the finger-to-nose test, Rogers correctly touched
the tip of his nose with his right hand, but touched the side of his nose with his left.
McKibben testified that, although Rogers did not appear unkempt, his speech was slurred and
his breath smelled of alcohol.
McKibben then arrested Rogers for driving under the influence and took him for a blood
test. His blood, drawn about two hours after the arrest, reflected an alcohol level of 0.1014
percent.
A jury convicted Rogers of violating NRS 484.379, his third such conviction. He was
sentenced to four years and fined $2,000. Rogers appeals.
DISCUSSION
This case presents one important issue for our consideration. NRS 484.379(1) provides:
It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor; or
(b) Has 0.10 percent or more by weight of alcohol in his blood, to drive or be in
actual physical control of a vehicle on a highway or on premises to which the public has
access.
As Rogers was not driving at the time he was apprehended, the issue that must be decided is
whether he was in actual physical control of the Camaro.
NRS 484.379 proscribes both driving and being in actual physical control of a vehicle
while under the influence. Accordingly, we must assume that the statute does not contain a
redundant phrase, but rather includes the term actual physical control to encompass activity
broader than or different from driving a vehicle. Moreover, use of the disjunctive or
between the term drive and the term be in actual physical control suggests that the two
terms have different meanings.
__________

1
Officer McKibben testified as to the finger count:
Q. What is the finger count?
A. Counting your fingers forwards and backwards, touching thumb to finger: one, two, three, four, five.
Five, four, three, two, one.
Q. And did you demonstrate it for him?
A. Yes I did.
Q. And did you explain for him how to do it?
A. Yes.
Q. Did he do it?
A. Made two attempts.
Q. And how did he perform on each one of those?
A. The first time, he would touch his thumb and four fingers, but he would count them out of order, and the
second time he would count out of order, not touching his thumb or his finger, just moving his fingers.
Q. Did he appear to have some difficulty with that test?
A. Yes.
Q. DidIn your opinion, did he pass the test?
A. No.
suggests that the two terms have different meanings. See State v. Webb, 274 P.2d 338, 339
(Ariz. 1954); People v. Pomeroy, 355 N.W.2d 98, 102 (Mich. 1984) (Levin J., dissenting);
Parker v. State, 424 P.2d 997, 1000 (Okla.Crim.App. 1967). Obviously, the objective in
requiring the arrest of those who are not driving but who are in actual physical control of a
vehicle, is to prevent and discourage persons from placing themselves in control of a vehicle
where they may commence or recommence driving while in an intoxicated state,
notwithstanding the fact that they are not actually driving at the time apprehended.
Many courts have considered the issue of what constitutes actual physical control of a
motor vehicle. See generally, Annotation, What Constitutes Driving, Operating, or Being in
Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93
A.L.R.3d 7 (1979). These courts have articulated several definitions of actual physical
control;
2
and courts facing situations very similar to the instant case have decided
differently. Compare Kirby v. State, Dept. of Public Safety, 262 N.W.2d 49 (S.D. 1978)
(motorist in actual physical control when sitting behind wheel of vehicle, asleep, with motor
running, parking lights on, and vehicle positioned with its left wheels on edge of traffic lane
of city street) with People v. Pomeroy, 355 N.W.2d 98 (Mich. 1984) (motorist not in actual
physical control when sitting behind wheel of vehicle, asleep, with motor running, headlights
off, and vehicle legally parked in front of a bar on a street). Not surprisingly, defense counsel
and the State have cited language and logic from those cases supporting their respective
positions.
[Headnotes 1-3]
After consideration of the many cases discussing the concept of actual physical control, the
parties' briefs, and oral argument, we conclude that a person is in actual physical control when
the person has existing or present bodily restraint, directing influence, domination, or
regulation of the vehicle.
3
In deciding whether someone has existing or present bodily
restraint, directing influence, domination, or regulation of a vehicle, the trier of fact must
weigh a number of considerations, including where, and in what position, the person is found
in the vehicle; whether the vehicle's engine is running or not; whether the occupant is awake
or asleep;4 whether, if the person is apprehended at night, the vehicle's lights are on; the
location of the vehicle's keys; whether the person was trying to move the vehicle or
moved the vehicle; whether the property on which the vehicle is located is public or
private; and whether the person must, of necessity, have driven to the location where
apprehended.5
__________

2
For a summary of the definitions courts have developed, see What Constitutes Driving, Operating, or
Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, supra, at
18-19.

3
State v. Ruona, 321 P.2d 615, 618 (Mont. 1958); City of Kansas City v. Troutner, 544 S.W.2d 295, 300
(Mo.Ct.App. 1976); Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App. 1975); Commonwealth v. Klock,
327 A.2d 375, 383 (Pa.Super.Ct. 1974); State v. Bugger, 483 P.2d 442, 443 (Utah 1971).
awake or asleep;
4
whether, if the person is apprehended at night, the vehicle's lights are on;
the location of the vehicle's keys; whether the person was trying to move the vehicle or
moved the vehicle; whether the property on which the vehicle is located is public or private;
and whether the person must, of necessity, have driven to the location where apprehended.
5

[Headnote 4]
Applying these considerations to the case at hand, we conclude that the jury correctly
found, under NRS 484.379, that Rogers was regulating, dominating, directing and influencing
the car he was in. Rogers was found parked on a public highway, partially in a traffic lane,
and not on private property. He apparently drove the car to that location. When apprehended,
the car's engine was running and its lights were on. Rogers, though asleep and slumped over,
was seated in the driver's position, directly behind the steering wheel. In this situation, Rogers
could have easily resumed driving; indeed, he took measures apparently designed for doing
so. Accordingly, we conclude that Rogers was, under NRS 484.379(1), in actual physical
control of the car.
We have fully examined the remaining issues raised by appellant and conclude that they
are without merit. Accordingly, we affirm Rogers' judgment of conviction.
__________

4
Rogers argues that a person who is asleep cannot be in actual physical control of anything, and that the use
of the modifier actual prohibits judicial interpretation of NRS 484.379 to include constructive control. He also
argues that a sleeping person cannot form the requisite criminal intent necessary for a conviction. However, as
noted in Webb:
While at the precise moment defendant was apprehended he may have been exercising no conscious
volition with regard to the vehicle, still there is a legitimate inference to be drawn that defendant had of
his own choice placed himself behind the wheel thereof, and had either started the motor or permitted it
to run. He therefore had the actual physical control of that vehicle, even though the manner in which
such control was exercised resulted in the vehicle's remaining motionless at the time of his apprehension.
274 P.2d at 340. Accordingly, if a defendant was sleeping when apprehended, this may be one factor that
suggests that he or she was not in actual physical control of a vehicle; however, it is not, as Rogers argues,
totally dispositive evidence that actual physical control did not exist.

5
For example, if, after leaving a bar, a person under the influence flopped into the back seat of his vehicle,
while the vehicle was yet in the bar's parking lot, and fell asleep without starting or driving the vehicle, the
person would not, under NRS 484.379, be in actual physical control of the vehicle. On the other hand, if an
intoxicated person started the car, drove onto a public highway, and pulled onto an emergency lane to change a
flat tire, that person would clearly be in actual physical control, notwithstanding the fact that he or she had
stopped the vehicle before the police arrived. Between the two ends of such a hypothetical spectrum lie a
multitude of factual possibilities, each of which must be determined according to its specific facts and the
considerations we have mentioned.
____________
105 Nev. 235, 235 (1989) Colley v. State
MICHAEL E. COLLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18906
May 19, 1989 773 P.2d 1229
Appeal from the district court's dismissal of petition for post-conviction relief. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Prisoner convicted of attempted murder and battery with intent to commit sexual assault
filed petition for post-conviction relief. The district court dismissed petition as untimely, and
prisoner appealed. The Supreme Court held that prisoner's pursuit of habeas corpus relief in
federal court did not constitute good cause for his failure to file petition for post-conviction
relief within one year after resolution of appeal.
Affirmed.
Herman G. Herbig, Carson City, for Appellant.
Brian McKay, Attorney General, Noel S. Waters, District Attorney, and Keith Loomis,
Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
Prisoner's pursuit of habeas corpus relief in federal court did not constitute good cause for his failure to file petition for
post-conviction relief within one year after resolution of appeal, as required by statute. NRS 177.315, subd. 3.
OPINION
Per Curiam:
This court affirmed Michael Colley's convictions for attempted murder and battery with
intent to commit sexual assault in January 1982. Subsequently, Colley filed a petition for
habeas corpus relief in the federal district court, which rejected his claim. After the Ninth
Circuit Court of Appeals upheld the district court's decision, the United States Supreme Court
denied certiorari in October 1986.
After Colley filed a petition for post-conviction relief in September 1987, the district court
dismissed the petition as untimely. Colley argues that his pursuit of habeas corpus relief in the
federal courts constituted good cause for his failure to file his petition for post-conviction
relief within the one year statutory deadline. Colley's contention lacks merit.
Colley filed his petition for post-conviction relief over five years after this court affirmed
his conviction.
105 Nev. 235, 236 (1989) Colley v. State
years after this court affirmed his conviction. According to NRS 177.315(3), a person seeking
post-conviction relief must file his petition within one year after the resolution of his appeal,
unless there is good cause shown for a delay. In this appeal, Colley argues that he had good
cause for failing to meet the one year filing deadline imposed by NRS 177.315(3). He
contends that because he was pursuing his federal habeas corpus remedy between 1982 and
1986, he appropriately refrained from filing a petition for post-conviction relief in state court
during that time. We disagree.
Generally, good cause means a substantial reason; one that affords a legal excuse.
State v. Estencion, 625 P.2d 1040, 1042 (Haw. 1981). Appellate courts will not disturb a trial
court's discretion in determining the existence of good cause except for clear cases of abuse.
Id.
At some point, we must give finality to criminal cases. Darnell v. State, 98 Nev. 518, 521,
654 P.2d 1009, 1011 (1982). Should we allow Colley's post-conviction relief proceeding to
go forward, we would encourage offenders to file groundless petitions for federal habeas
corpus relief, secure in the knowledge that a petition for post-conviction relief remained
indefinitely available to them. This situation would prejudice both the accused and the State
since the interest of both the petitioner and the government are best served if post-conviction
claims are raised while the evidence is still fresh. 28 U.S.C. 2254, Rule 9, Advisory
Committee Note (1976).
Thus, in the instant case, the necessity for the orderly administration of justice required the
district court to deny Colley's untimely petition for post-conviction relief. See Francis v.
Henderson, 425 U.S. 536, 539 (1976) (holding that in some circumstances, considerations of
comity and concerns for the orderly administration of criminal justice require a federal court
to forego the exercise of its habeas corpus power). Therefore, the district court did not abuse
its discretion when it dismissed Colley's petition. Accordingly, we affirm the district court's
decision.
____________
105 Nev. 237, 237 (1989) Ainsworth v. Combined Ins. Co.
THOMAS AINSWORTH, Appellant, v. COMBINED INSURANCE COMPANY OF
AMERICA, Respondent.
No. 17625
May 19, 1989 774 P.2d 1003
Appeal from a judgment notwithstanding the verdict. Second Judicial District Court,
Washoe County; Deborah A. Agosti, Judge. Petitions for rehearing and motions relating to
participation of Supreme Court justice in the above-entitled matter.
Insured brought action against insurer. The district court eliminated award of punitive
damages against insurer in amount of $6 million. Appeal was taken. The Supreme Court,
Gunderson, C. J., 104 Nev. 587, 763 P.2d 673 (1988) reversed. Petition was filed for
rehearing and motion was filed disqualifying former chief justice from any future
participation in matter, vacating opinion and scheduling reargument. The Supreme Court held
that defendant insurer's allegations were insufficient to show bias on part of former chief
justice who presided over appeal and did not warrant vacating prior opinion or reargument.
Petitions for rehearing denied; motions denied.
Peter Chase Neumann, Reno; Bradley & Drendel, Reno, for Appellant.
Mortimer, Sourwine, Mousel, Sloane & Knobel, Reno; Lionel Sawyer & Collins, and M.
Kristina Pickering and Steve Morris, Las Vegas, Geoffrey C. Hazard, Jr., New Haven,
Connecticut, for Respondent.
Laura FitzSimmons, Carson City, for Amicus Curiae.
Any perceived procedural errors arising out of fact that plaintiff initially raised certain contentions by allegedly procedurally
improper motion were remedied and rendered moot when plaintiff subsequently filed timely petition for rehearing of appellate decision
seeking same relief.
Given that footnote in prior opinion clearly illustrated that Supreme Court previously considered and rejected insured's contentions
on appeal respecting entitlement to interest on punitive damages award against insurer, similar contentions on rehearing constituted
improper reargument. NRAP 40(c)(1).
3. Interest.
Award of post-judgment interest on punitive damages judgment would not promote substantial justice and deter frivolous appeals
and other dilatory tactics by defendants who can afford to litigate such judgments endlessly; therefore, insured was not entitled to
post-judgment interest on punitive damages award against insurer.
Insured's legal arguments regarding entitlement to post-judgment interest on punitive damages award constituted improper
argument insofar as arguments were raised for the first time on rehearing before Supreme Court NRAP 40(c)(1).
5. Damages.
A plaintiff is never entitled to punitive damages as a matter of right.
Fact that Supreme Court's opinion in action to recover under accident policy referred to doctor's statement regarding cause of
insured's stroke as nothing more than hypothesis did not entitle insured to rehearing, although claims form contained nothing to
indicate that doctor's initial report was purely an hypothesis; doctor later testified at trial that his initial report was pure speculation and
hypothesis, and thus, court was adequately and accurately informed and no material matter was misapprehended or overlooked. NRAP
40(c).
Although Supreme Court misstated sequence of events, Supreme Court did not overlook material matter or labor under material
misapprehension in action to recover under accident policy, and therefore, rehearing was not warranted; opinion otherwise accurately
set forth substantial evidence supporting jury verdict. NRAP 40(c).
Under standard of review governing appeals from judgments notwithstanding a jury verdict, Supreme Court's main concern is with
whether jury's view of facts was supported by any substantial evidence in the record.
9. Insurance.
Where substantial evidence indicates that insurer knowingly refused payment of valid claim for urgently needed policy benefits in
bad faith, and insurer not only knows claimant was in dire need of those benefits but also has reason to know that it was probable that
claimant would suffer unjust hardship if deprived of those benefits, finding of oppression is apply justified.
10. Insurance.
Finding of bad faith on part of accident insurer, coupled with insurer's course of conduct and other evidence, supported finding of
oppression warranting punitive damages. NRS 42.010.
11. Insurance.
Punitive damages award of $6 million against insurer for failure to provide coverage under accident policies was not excessive;
award was only .4 percent of insurers total assets for the year. NRS 42.010.
12. Damages.
Financial position of defendant remains a relevant circumstance in evaluating excessiveness of punitive damages award.
Insurer's allegations that insured's counsel may have improperly orchestrated communications to insurer, prior to filing of action,
that did nothing to inform insurer that it was mistakenly denying claims under accident policies, were entirely speculative and were
insufficient to warrant rehearing of action to recover under policies. NRAP 40(c).
14. Judges.
Defendant's motions challenging former chief justice of the Supreme Court's participation in appeal was a nullity insofar as chief
justice had retired and could not lawfully participate in any decision except upon order of new chief justice specifically
assigning him temporarily in his capacity as a senior justice and no such order had been entered.
except upon order of new chief justice specifically assigning him temporarily in his capacity as a senior justice and no such order had
been entered. Const. art. 6, 3, 19, subd. 1(a), (c); SCR 10, 10, subd. 3.
15. Judges.
Defendant's allegations respecting procedural rulings and oral argument before Supreme Court did not warrant disqualification of
former chief justice from future participation in case on basis of bias or appearance of impropriety; sua sponte orders advising counsel
that appeal was jurisdictionally deficient and advising counsel how to correct deficiency were issued prior to date justice became chief
justice and were not signed by chief justice, order directing clerk to schedule oral argument on next available calendar was entered in
response to motion filed by plaintiff and such requests were rarely denied, and defendant's request for postponement of oral argument
pending decision in the United States Supreme Court was denied on basis that United States Supreme Court might not have reached
any issue that was directly relevant to case.
16. Judges.
In future consideration of motions to disqualify judge or justice, Supreme Court will deem it appropriate to substantially discount
factual allegations that are not supported by sworn statements and that are not otherwise verifiable from record.
17. Judges.
Defense counsel's statements of mere conclusions regarding conduct of former chief justice of Supreme Court in hearing case were
legally insufficient to support defendant's motion to disqualify former chief justice from any future participation; former chief justice's
remarks at oral argument, at the most, displayed his usual, well-known aggressive use of Socratic method, and although he may have
expressed strong views regarding jury finding of bad faith on part of defendant insurer, he exhibited no bias stemming from
extrajudicial source. NRS 1.225.
18. Judges.
Although former chief justice of the Supreme Court's response to defendant's accusations indicated that, after opinion in case was
issued, former chief justice's adverse judicial impressions of defendant may have been reinforced by extrajudicial, post-opinion
reading, response recited no facts supporting reasonable inference of preconceived bias against defendant stemming from extrajudicial
source at or prior to day case was decided; therefore, neither disqualification of former chief justice from any future participation in
matter, vacation of opinion, or reargument was required.
19. Judges.
Although former chief justice of the Supreme Court's response to defendant's accusations of bias acknowledged that former chief
justice harbored preconceived, negative impressions respecting legal abilities of one defense counsel, response also indicated that those
impressions were based upon his perception of counsel's prior work product and performance in court; therefore, neither
disqualification of former chief justice from any future participation in matter, vacation of opinion, or reargument was required.
20. Judges.
Generally, allegation of judge's bias in favor of or against counsel for litigant states insufficient ground for disqualification because
it is not indicative of extrajudicial bias against a party.
21. Judges.
Defendant waived right to raise issue that former chief justice of Supreme Court who presided over case was biased where
defendant did not promptly tender objection but instead remained silent and gambled on outcome of appeal.
not promptly tender objection but instead remained silent and gambled on outcome of appeal.
22. Judges.
Counsel, knowing facts assertively supportive of motion for reconsideration, recusal or vacatur based upon charges of judicial bias
and impropriety, may not lie in wait and raise those allegations in a motion after learning court's ruling on the merits.
23. Judges.
Allegation that plaintiff's counsel acted as county campaign co-chairmen in former chief justice of the Supreme Court's campaign
for re-election years before present action did not constitute legally competent grounds for recusal, vacatur or reargument under either
statutes, code of judicial conduct or due process. U.S.C.A.Const. Amends. 5, 14.
24. Judges.
Defense counsel's failure to tender prompt objection to former chief justice of the Supreme Court from presiding on appeal on
ground that counsel for plaintiff years previously had served as county campaign co-chairmen in former chief justice's campaign for
re-election prevented defendant from seeking present consideration of question on motion for rehearing and for disqualification.
25. Judges.
Objective assessment of former chief justice of the Supreme Court's prior associations with law firms representing both parties to
appeal revealed no reasonable basis upon which to conclude that he was biased in favor of counsel for plaintiff and did not warrant
disqualifying former chief justice from further participation in case, vacation of opinion, or reargument.
26. Judges.
Fact that state trial lawyers association previously honored former chief justice of the Supreme Court and both of plaintiff's
counsel were active members of association was insufficient to support vacatur of opinion or reargument. NRS 1.225.
27. Judges.
Defense counsel waived right to raise issue that former chief justice of Supreme Court presiding over appeal was biased because
he received award from state trial lawyers' association and plaintiff's counsel belonged to association where defense counsel did not
raise issue until after appeal had been decided but knew of award shortly after it was given.
28. Judges.
Fact that attorney who has signed amicus brief on plaintiff's behalf, simultaneously, in unrelated matter, represented former chief
justice of Supreme Court who was presiding over appeal did not indicate substantial and pervasive appearance of impropriety which
warranted vacatur or reargument of appellate decision.
29. Judges.
Failure of defense counsel to tender prompt objection to former chief justice of Supreme Court's presiding over appeal constituted
waiver of right to raise issue that there was an appearance of impropriety because attorney who signed amicus brief simultaneously
represented former chief justice in another unrelated matter.
30. Judges.
Allegation of undisclosed relationship between former chief justice of Supreme Court, who presided over case, with counsel for
plaintiff in unrelated litigation at time case initially came before Supreme Court was insufficient to establish
any disabling bias or reasonable inference of impropriety which required vacatur of judgment in favor of
plaintiff or reargument.
unrelated litigation at time case initially came before Supreme Court was insufficient to establish any disabling bias or reasonable
inference of impropriety which required vacatur of judgment in favor of plaintiff or reargument.
31. Judges.
Fact that wife and brother-in-law of former chief justice of the Supreme Court were involved in corporation which was formed by
counsel for plaintiff in present case was insufficient under code of judicial conduct or due process to establish that former chief justice
had any direct disqualifying interest in litigation or that his impartiality toward litigants might reasonably have been questioned where
corporation was dissolved long before appeal was docketed in the Supreme Court. NRS 1.225; U.S.C.A.Const. Amends. 5, 14.
Given that defendant's factual allegations regarding alleged bias of former chief justice of the Supreme Court who presided over
appeal presented no legally competent grounds supporting reasonable inference of bias, defendant was not entitled to evidentiary
hearing on its motion for vacatur or reargument due to judicial bias.
33. Costs.
Although manner in which defendant litigated issue of alleged judicial bias suggested that defendant attempted to misuse appellate
process for sole purpose of delaying final resolution of litigation, sanctions would be denied given substantial punitive damage award
already imposed against defendant.
OPINION
Per Curiam:
On October 26, 1988, in an opinion authored by former Chief Justice E. M. Gunderson,
1
this court unanimously concluded that substantial evidence supported the jury's assessment of
$5,939,500 in punitive damages against respondent Combined Insurance Company of
America (Combined). Accordingly, we reversed the district court's judgment notwithstanding
the jury's verdict, reinstated the jury's assessment of punitive damages against Combined, and
affirmed the district court's denial of Combined's motion for a new trial. See Ainsworth v.
Combined Ins. Co., 104 Nev. 587, 763 P.2d 673 (1988).
Pursuant to NRAP 40, both parties to this appeal subsequently filed timely petitions for
rehearing challenging different facets of this court's decision. Thereafter, on December 30,
1988, forty-six days after the time to file a petition for rehearing had expired under NRAP
40{a), and on the last judicial day preceding Chief Justice Gunderson's official retirement
as an elected justice of this court, Combined filed a motion alleging that then Chief Justice
Gunderson was disqualified from any participation in this appeal.
__________

1
After serving on this court for eighteen years, Chief Justice Gunderson did not seek re-election to a fourth
term of office. His elected term formally expired on January 2, 1989, when then Justice-elect Rose succeeded to
that office. See Nev. Const. art. 6, 3. Thus, neither Justice Rose nor former Chief Justice Gunderson
participated in the court's deliberations on the petitions for rehearing and the motions resolved in this opinion.
under NRAP 40(a), and on the last judicial day preceding Chief Justice Gunderson's official
retirement as an elected justice of this court, Combined filed a motion alleging that then Chief
Justice Gunderson was disqualified from any participation in this appeal. Combined's motion,
therefore, requests this court to issue an order (1) disqualifying former Chief Justice
Gunderson from any future participation in this matter, (2) vacating the opinion, and (3)
scheduling reargument on the merits of the appeal. On February 7, 1989, Combined also filed
a supplemental motion seeking an evidentiary hearing and discovery on certain factual
allegations relating to the issue of disqualification. Combined further supplemented its
motions with papers asserting previously unraised allegations of impropriety on February 16,
1989. Appellant Ainsworth opposes both Combined's petition for rehearing and its motions
respecting former Chief Justice Gunderson's participation in this appeal. In addition,
Ainsworth has requested this court to impose sanctions upon Combined and its counsel
pursuant to NRCP 11 and NRAP 38 for abusing the appellate processes of this court.
On February 24, 1989, former Chief Justice Gunderson filed a personal response to
Combined's allegations challenging his prior participation in this appeal. Among other things,
his response expresses the view that Combined's allegations of ethical impropriety constitute
procedurally improper, belated attempts to obfuscate the issues, delay the final resolution of
this matter, and abuse the appellate processes of this court.
2
Accordingly, former Chief
Justice Gunderson's
__________

2
In an effort to impose a degree of judicial decorum in these proceedings, and pending our consideration of
the timeliness and procedural propriety of the various documents before us, Chief Justice Young entered orders
on February 24, 1989, and March 10, 1989, directing the clerk of this court to neither receive, nor file, any
further papers in this matter unless the Chief Justice or Acting Chief Justice first has expressly granted a party
leave to file such papers. Pursuant to those directives, Combined has requested leave of Chief Justice Young to
file a reply primarily addressing former Chief Justice Gunderson's personal response of February 24, 1989. We
have carefully considered the matters set forth in Combined's latest proposed reply, and we conclude that, under
the circumstances present here, Combined's reply may be made a part of the official record of this proceeding.
See Component Systems v. District Court, 101 Nev. 76, 79 n.2, 692 P.2d 1296, 1299 (1985). Accordingly, we
hereby direct the clerk of this court to file that document.
We observe, however, that sound judicial policy underlies the absence of any provisions in our rules
permitting the filing of replies to oppositions to motions and petitions without the express leave of this court. See
NRAP 27; NRAP 40. No litigant has an unqualified right to inundate a court with motions, supplements, errata,
responses, exhibits and replies belatedly asserting arguments that it previously failed to raise. Nor do litigants
have unfettered license to utilize such methods to manipulate judicial proceedings and unreasonably delay a final
resolution of litigation. Moreover, although we have concluded that Combined's additional papers do not
necessarily
ingly, former Chief Justice Gunderson's response suggests that Combined's allegations
respecting his prior participation in this appeal warrant summary rejection.
Having carefully considered all the papers and documents tendered in this matter, and for
the reasons set forth below, we deny all the petitions and motions presently pending in this
docket, with the above-noted exception of Combined's request for leave to file its latest
proposed reply.
I. AINSWORTH'S PETITION FOR REHEARING
[Headnotes 1, 2]
In his petition for rehearing, Ainsworth requests reconsideration and clarification of
footnote 2 of the opinion so as to permit him to collect post-judgment interest on the jury's
award of punitive damages.
3
See Ainsworth v. Combined Ins. Co., 104 Nev. 587, 594, n.2,
763 P.2d 673, 677 (1988). The challenged footnote concluded that appellant was not entitled
to interest on the punitive damages award. See Ramada Inns v. Sharp, 101 Nev. 824, 711
P.2d 1 (1985). Further, it observed that Combined had previously tendered full payment of
that portion of the judgment below awarding Ainsworth approximately $210,000 in policy
benefits and compensatory damages. Thus, we held that Ainsworth was not entitled to the
payment of any interest whatsoever on the judgment. The footnote clearly illustrates that we
previously considered and rejected Ainsworth's contentions on appeal respecting his
entitlement to interest. His similar contentions on rehearing, therefore, constitute improper
reargument under NRAP 40(c)(1).
4
[Headnote 3]
__________
prejudice the opposing party or further burden this court with additional improper argument, we specifically
reject Combined's contention that it has a due process right to reply to what it characterizes as former Chief
Justice Gunderson's governmental attack. Cf. Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180 (8th Cir.
1984). At the time his response was filed in this court, former Chief Justice Gunderson had retired from his
elected position on this court, and he was performing no judicial functions related to this appeal. Therefore, his
response is not a judicial or governmental declaration; it is simply his personal response to publicly disclosed
accusations tendered against him by Combined and its counsel.

3
Ainsworth initially asserted these same arguments in a motion to amend the opinion. Combined contends
that the motion is procedurally improper. Any perceived procedural errors arising out of the fact that Ainsworth
initially raised these contentions by motion, were remedied and rendered moot when Ainsworth subsequently
filed his timely petition for rehearing seeking the same relief. Accordingly, and in light of our decision denying
Ainsworth's petition for rehearing, we also deny as moot Ainsworth's initial motion to amend.

4
NRAP 40(c) provides:
(1) Matters presented in the briefs and oral arguments may not be
[Headnote 3]
Ainsworth contends, however, that this court may have overlooked or misapprehended
case law which is arguably favorable to his position. See Buck v. Burton, 768 F.2d 285 (8th
Cir. 1985), citing Turner v. Japan Lines, Ltd., 702 F.2d 752 (9th Cir. 1983) (purpose of
awarding interest to a party recovering money judgment is to compensate the wronged person
for being deprived of the monetary value of the loss from the time of the loss to the payment
of the money judgment). Additionally, Ainsworth now proposes that awards of post-judgment
interest on judgments assessing punitive damages would promote substantial justice and deter
frivolous appeals and other dilatory tactics by defendants who can afford to litigate such
judgments endlessly. We disagree.
[Headnotes 4, 5]
First, Ainsworth has raised these particular legal arguments for the first time on rehearing.
Consequently, they constitute improper argument under NRAP 40(c)(1). Second, in Ramada
Inns v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985), we observed that the purposes underlying
compensatory and punitive damages distinguish a plaintiff's entitlement to prejudgment
interest on such awards. While compensatory damages are intended to compensate a wronged
party, punitive damages are solely designed to punish and deter fraudulent, malicious or
oppressive conduct. See also NRS 42.010. A plaintiff is therefore never entitled to punitive
damages as a matter of right. Thus, in rejecting Ainsworth's arguments on appeal respecting
his entitlement to interest, we applied our prior reasoning and holding in Ramada Inns to the
question of post-judgment interest, and concluded that the purposes and policies underlying
awards of punitive damages would not be furthered by an award of any interest in this case.
The authorities Ainsworth has cited for the first time on rehearing do not alter our conclusion
in this regard. Third, we have concluded that other more appropriate means are available to
deter frivolous litigation and dilatory tactics. See NRCP 11; NRAP 38. In sum, this court did
not misapprehend or overlook any material matters in this regard. Nor has Ainsworth
presented any persuasive reasons demonstrating that a departure from our prior holding
would promote substantial justice. Accordingly, we deny Ainsworth's petition for
rehearing. See NRAP 40(c).
__________
reargued in the petition for rehearing, and no point may be raised for the first time on rehearing.
(2) The court may consider rehearings in the following circumstances:
(i) When it appears that the court has overlooked or misapprehended a material matter in the
record or otherwise, or
(ii) In such other circumstances as will promote substantial justice.
II. COMBINED'S PETITION FOR REHEARING
[Headnote 6]
First, Combined contends that this court's opinion assumes material facts not found in the
record and misstates others that are. Specifically, Combined complains that the opinion
unfairly and inaccurately represents that, at the time Combined denied Ainsworth's first claim
for benefits, it had reason to know from its review of the initial claims form that a doctor's
statement respecting the cause of Ainsworth's stroke was nothing more than an hypothesis.
See Ainsworth, 104 Nev. at 589, 763 P.2d at 674. Combined correctly notes that the initial
doctor's report contained in the first claims form submitted by Mrs. Ainsworth simply stated
that a disease of the arteries was the cause of Ainsworth's stroke.
5
The claims form contained
nothing to indicate that the doctor's initial report was merely an hypothesis. Nonetheless, it is
undisputed that evidence was presented to Combined, after it had denied the first claim,
indicating that the doctor had since concluded the stroke was the result of an accident, not a
disease. Further, as Combined observed in its brief on appeal, the doctor himself later
testified at trial that his initial report was pure speculation and an hypothesis. Our reference to
the initial doctor's report as an hypothesis, therefore, was ultimately factually accurate.
6
Thus, this court was adequately and accurately informed, and no material matter was
misapprehended or overlooked in this regard. See NRAP 40(c). Consequently, we conclude
that this contention does not form a proper basis for rehearing.
[Headnote 7]
Combined further contends, however, that the opinion inaccurately states that Combined
sent [Mrs. Ainsworth] a third denial letter prior to receiving the results of its medical
consultant's second evaluation of the claim. See Ainsworth, 104 Nev. at 589, 763 P.2d at 674.
We concede the opinion misstates this fact, and we hasten to correct our inaccurate summary
of that sequence of events. As Combined observes, the undisputed testimony on this subject
at trial indicates that, although Combined's adjuster prepared and dated the third denial
letter prior to Combined's receipt of its medical consultant's second evaluation, the letter
was apparently not mailed to Ainsworth until after Combined's medical consultant
completed his second evaluation.
__________

5
Specifically, the doctor's report stated, Stroke occurred from disruption of atheromatous plaque during
angiogram.

6
During the oral argument of this appeal, Justice Steffen specifically focused on this issue and questioned
appellant's counsel in detail as to whether Combined's initial denial of the claim was in fact reasonably based on
the doctor's first report. As that colloquy clearly reveals, and as our opinion reflects, Combined's subsequent
failure to investigate and evaluate the claim fairly and its subsequent denials of the Ainsworths' repeated requests
for reconsideration, after it had reason to know of Ainsworth's dire need for benefits, constitute the conduct that
supports the jury's punitive damage award.
subject at trial indicates that, although Combined's adjuster prepared and dated the third
denial letter prior to Combined's receipt of its medical consultant's second evaluation, the
letter was apparently not mailed to Ainsworth until after Combined's medical consultant
completed his second evaluation.
Although the opinion does misstate this sequence of events, we are not persuaded that this
court thereby overlooked a material matter, or labored under a material misapprehension. See
NRAP 40(c). The opinion otherwise accurately sets forth substantial evidence supporting the
jury's verdict. Accordingly, this matter does not alter our consensus that the record as a whole
provides substantial support for the jury's verdict, and we therefore conclude that rehearing is
not warranted on this basis.
[Headnote 8]
Second, Combined argues that, in the opinion, this court overlooked and omitted facts
favoring Combined's position that it did not act in a manner deserving of punitive damages.
In its latest reply, Combined further complains that this court did not give appropriate
deference to the district court's view of the evidence. Specifically, Combined argues that this
court:
could only read about what the trial judge experienced in person, yet the Court
concluded she was wrong in her view of the facts and law on punitive damages. But see
Jeffers v. Bob Kaufman Machinery, 101 Nev. 684, 686-87, 707 P.2d 1153, 1154 (1985)
(in considering a district court's decision to withdraw the issue of punitive damages
from the jury, we give deference to the district court's weighing of the evidence).
Combined's contentions, however, fail to recognize that, under the well-established standard
of review governing appeals from judgments notwithstanding a jury's verdict, our primary
focus was not with each and every fact before the jury favoring Combined's position, nor was
our primary focus with the district judge's view of the facts. Rather, our main concern was
with whether the jury's view of the facts was supported by any substantial evidence in the
record. See Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984). Although in Jeffers
we gave deference to the district court's weighing of the evidence, where the district court had
withdrawn the issue of punitive damages from the jury during the trial, we also reversed the
district court's separate post-trial grant of a judgment notwithstanding the jury's verdict on the
underlying cause of action. In so doing, we explained that the standard governing our review
of an order granting a motion for judgment n.o.v. compels us to view the evidence that was
before the jury in a light most favorable to the nonmovant. We further observed that, in
reviewing a grant of a judgment n.o.v., the nonmovant must be given "'the benefit of every
reasonable inference' from any substantial evidence supporting the verdict." Jeffers, 101
Nev. at 6S5, 707 P.2d at 1154. Additionally, we have previously held that, in passing upon
a motion for judgment n.o.v., "neither the credibility of the witnesses nor the weight of
the evidence may be considered," and the district court "may only grant the motion if the
evidence was such that 'reasonable men would have necessarily reached a different
conclusion.'" See Wilkes v. Anderson, 100 Nev. 433, 434
judgment n.o.v., the nonmovant must be given the benefit of every reasonable inference'
from any substantial evidence supporting the verdict. Jeffers, 101 Nev. at 685, 707 P.2d at
1154. Additionally, we have previously held that, in passing upon a motion for judgment
n.o.v., neither the credibility of the witnesses nor the weight of the evidence may be
considered, and the district court may only grant the motion if the evidence was such that
reasonable men would have necessarily reached a different conclusion.' See Wilkes v.
Anderson, 100 Nev. 433, 434, 683 P.2d 35 (1984).
Similarly, as our opinion in Ainsworth clearly states, our review of the evidence in this
record was guided by this standard of review. See Ainsworth, 104 Nev. at 590, 763 P.2d at
675. Former Chief Justice Gunderson, therefore, quite properly confined our opinion's recital
of the facts to the substantial evidence in the record supporting the jury's verdict. Contrary to
Combined's contention, we did not thereby unfairly resolve the evidence against Combined.
We simply reviewed all the evidence in the light most favorable to Ainsworth, as we are
required to do under the pertinent standard of review. We further considered all the pertinent
facts and contentions raised by the parties before issuing our opinion reversing the district
court's order. Therefore, we conclude rehearing is unwarranted on this basis as well.
Third, Combined alleges that the opinion finds Combined guilty of oppression for having
written and interpreted the policy as it did. Combined further asserts that the case we cited
for this alleged finding did not involve punitive damages and allegedly supports
Combined's position. See Ainsworth, 104 Nev. at 592, 763 P.2d at 676, citing Catania v. State
Farm Life Ins. Co., 95 Nev. 532, 598 P.2d 631 (1979). As Ainsworth responds, however, this
court did not find Combined guilty of oppression, the jury did. We merely held that
substantial evidence supported the jury's verdict. The opinion simply does not hold that the
policy language itself was evidence of oppression. Rather, it observes that the Ainsworths
were entitled to have the policy language applied as the average man would understand it.
The Catania case is appropriate support for that proposition. Consequently, not only do
Combined's contentions in this regard misstate our primary holding and analysis, they
completely fail to demonstrate competent grounds for rehearing.
Fourth, Combined alleges that this court announced a new standard for punitive
damages and that the new standard should only be applied prospectively, if at all. Contrary
to Combined's contention, however, we announced no new standards, nor did we hold, as
Combined asserts, that proof sufficient to establish bad faith will, without more, also support
an award of punitive damages.7 Rather, in addition to the evidence supporting the jury's
finding of bad faith, which Combined did not contest on appeal, we observed that the
record also contained substantial evidence that "the Ainsworths were in desperate need
of funds, and that Combined had reason to know of their dire circumstances."
punitive damages.
7
Rather, in addition to the evidence supporting the jury's finding of bad
faith, which Combined did not contest on appeal, we observed that the record also contained
substantial evidence that the Ainsworths were in desperate need of funds, and that
Combined had reason to know of their dire circumstances. Ainsworth, 104 Nev. at 591, 763
P.2d at 676. For example, the record evidenced that Combined knew . . . Thomas Ainsworth
was a 59-year old male who had suffered a stroke and was comatose for seven days, and that
five times within eighteen months, the insured's wife requested payment, indicating clearly
that the policy benefits . . . were urgently needed. Id. at 591, 763 P.2d at 675. Moreover,
Combined's repeated statements to the Ainsworths that it had given careful consideration to
the claim were belied by substantial evidence in the record indicating that, instead, its
investigation of the claim was sadly inadequate.
[Headnotes 9, 10]
Where, as here, substantial evidence indicates that an insurer knowingly refused payment
of a valid claim for urgently needed policy benefits in bad faith, and the insurer not only knew
the claimant was in dire need of those benefits, but also had reason to know that it was
probable that the claimant would suffer unjust hardship if deprived of those benefits, in our
view, a finding of oppression is amply justified.
8
As the opinion points out, our previous
decision in Jeep Corporation v. Murray, 101 Nev. 640, 650, 70S P.2d 297, 304 {19S5),
clearly indicates that "oppression," sufficient to warrant an award of punitive damages
under NRS 42.010, "is present where the plaintiff has been subjected to 'cruel and unjust
hardship in conscious disregard of his rights.'" Ainsworth, 104 Nev. at 590-91, 763 P.2d at
675.
__________

7
It could be argued, however, that an insurer's bad faith refusal to honor claims under health, accident and
life policies is per se tantamount to oppression. People place inordinate reliance on the integrity of insurance
companies to provide them the security for which they have bargained and paid. In the instant case, the
Ainsworths had faithfully paid their premiums to Combined for thirteen years under the belief that if and when
an accident occurred, they would enjoy the financial security they expected their policy to provide them. Instead,
Combined made every effort to convince the Ainsworths that they were not entitled to their policy benefits.
Perhaps most egregiously, Combined's agents attempted to convince the Ainsworths that Combined had
diligently sought to validate and honor their claim, but could not do so because the event upon which the claim
was based was not covered by the policy. In many other instances of bad faith denials, disappointed, mistreated
insureds are no longer insurable and thus unable to obtain coverage from other, more responsible insurance
companies.

8
As our prior opinion in this matter noted, an insurer like Combined has a special relationship with its
insureds which is distinguishable from the relationship between parties to ordinary contracts. This special
relationship exists in part because, as insurers are well aware, consumers contract for insurance to gain
protection, peace of mind and security. See Fletcher v. Western National Life Insurance Co., 89 Cal.Rptr. 78, 95
(Cal.Ct.App. 1970); see also K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987). In addition to the
jury's uncontested finding that Combined intentionally refused to pay the valid policy claim in bad faith, the
record manifestly supports a legitimate inference that Combined had knowledge that its refusal
previous decision in Jeep Corporation v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304
(1985), clearly indicates that oppression, sufficient to warrant an award of punitive
damages under NRS 42.010, is present where the plaintiff has been subjected to cruel and
unjust hardship in conscious disregard of his rights.' Ainsworth, 104 Nev. at 590-91, 763
P.2d at 675. Thus, once again we observe, there was not only substantial evidence supporting
the jury's uncontested finding that Combined processed the claim in bad faith and in
conscious disregard of Ainsworth's clear right to the policy benefits, but there was also
substantial evidence supporting a finding that, in so doing, Combined consciously and
deliberately attempted to pressure the Ainsworths into abandoning their rightful claim, and,
thereby, subjected them to cruel and unjust hardship. Therefore, we applied no new
standard respecting the sufficiency of the evidence required to support awards of punitive
damages. See also Roth v. Shell Oil Company, 185 Cal.App.2d 676, 682 (Cal.App. 1960).
Accordingly, we conclude rehearing is unwarranted on this basis.
[Headnote 11]
Fifth, Combined asserts that rehearing is warranted because the amount of punitive
damages is excessive. In the papers before us, Combined frequently complains that the
punitive damage award is over six times greater than any other such award previously
affirmed by this court. Combined further objects to our consideration of the fact that the
award constitutes only .4 percent of its 1985 total assets. It argues that the award represents
more than 400 percent of the total revenues Combined derived from its operations in Nevada
in 1986, and that assessing punitive damages on the basis of its policyholder reserves . . . is
like assessing punitive damages against a bank based on total deposits, as if the depositors'
money were the bank's. Finally, Combined also criticizes the opinion's application of the
factors we previously set forth in Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987), as
appropriate guidelines upon which to assess the excessiveness of an award of punitive
damages. According to Combined, our opinion is irreconcilably inconsistent with Ace
Truck because it allegedly revives the old financial annihilation test and the shock the
conscience rule that Ace Truck allegedly rejected. We disagree.
Initially, we acknowledge that the jury's verdict of approximately $6,000,000 is
considerable. We note, however, that in spite of the considerable size of the verdict,
Combined's counsel did not seriously attempt to present on appeal a factually persuasive
or legally comprehensive argument that the verdict was so excessive as to warrant a
remand or remittitur.
__________
to pay would substantially and adversely affect Ainsworth's comfort, security, peace of mind and well-being. In
our view, the finding of bad faith, coupled with Combined's course of conduct and other evidence described in
the opinion, supports a finding of oppression.
spite of the considerable size of the verdict, Combined's counsel did not seriously attempt to
present on appeal a factually persuasive or legally comprehensive argument that the verdict
was so excessive as to warrant a remand or remittitur. To the contrary, counsel essentially
proceeded on an all or nothing theory that included no particulars concerning the
excessiveness of the punitive award. Such particulars were presented for the first time in
Combined's petition for rehearing. In any event, Combined does not now raise any concerns
that we have misapprehended or overlooked, or that we previously failed to consider
carefully.
9
NRAP 40(c).
[Headnote 12]
Additionally, the factors we considered in our evaluation of the verdict are far from
inconsistent with the guidelines set forth in Ace Truck. As we stated in Ace Truck, as well as
in our previous opinion in this case, the financial position of the defendant remains a relevant
circumstance in evaluating excessiveness. Under our holding in Ace Truck, we may still
appropriately consider any circumstances which relate to the limits of punishment and
deterrence that can be properly imposed in a given case. Ace Truck, 103 Nev. at 510, 746
P.2d at 137. Thus, we appropriately considered that the $6,000,000 verdict was only .4
percent of Combined's total 1985 assets in concluding that the verdict was not excessive.
Further, we properly evaluated whether Combined's financial position and whether the nature
of its misconduct warranted an award sufficient to cause it real concern if it was to be
deterred from similar future misconduct.
__________

9
This court issued its opinion in Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987), on November 30,
1987, six months after the Ainsworth appeal was orally argued, but nearly one year before our opinion in
Ainsworth was issued. We nonetheless considered it appropriate to analyze the size of the verdict in this case
under the standards announced in Ace Truck. Further, following the issuance of the Ace Truck opinion, the
parties were permitted to file supplemental briefs on appeal. Nonetheless, Combined still did not address in a
meaningful way the specific factors set forth in Ace Truck. As noted, we deem it of some significance that
Combined did not attempt to present a compelling, factually complete and legally tenable argument on appeal
addressing the propriety of a substantial reduction in the award. Although Combined's briefs asserted in a
superficial and cursory manner that the verdict shocked the conscience, that the jury received no proper
guidance on the question of damages, and that the jury only heard counsel's impassioned argument that
damages would be assessed as a percentage of the Combined's net worth, the major focus of Combined's
argument in its briefs on appeal was that the verdict constituted an excessive fine or a violation of due process
under the constitution. Further, Combined's briefs made only passing reference to this court's inherent authority
to issue a remittitur of the verdict in requesting such action as an alternative to reversal or remand. At oral
argument, Combined's counsel made no reference whatsoever to these issues. This court may have been much
more receptive to Combined's contentions, if they had been cogently presented on appeal rather than belatedly
asserted in a petition for rehearing.
concern if it was to be deterred from similar future misconduct. Similarly, because the shock
the conscience rule entails an evaluation of the magnitude of the award as related to the
misconduct, such an evaluation is entirely consistent with the views expressed in Ace Truck.
Id. at 507, 746 P.2d at 135. Thus, Combined's allegation that the Ainsworth opinion revives
the financial annihilation test and the shock the conscience rule that Ace Truck
rejected, indicates that Combined has misconstrued the nature of our holdings in both
cases.
Moreover, we note that because our opinion in Ace Truck was issued after this appeal was
briefed and argued, it was entirely proper for this court thoroughly to analyze the verdict in
light of the numerous guidelines announced in Ace Truck, as well as in accordance with a
more traditional analysis. In sum, we were not persuaded under any of those guidelines that
the verdict in this case was unwarranted. Combined's belated contentions on rehearing,
therefore, relate to matters that we have previously, thoroughly considerednotwithstanding
Combined's failure to focus on themand we have not altered our prior consensus.
Accordingly, we conclude that Combined's contentions in this regard state no competent
grounds for rehearing.
[Headnote 13]
Finally, Combined alleges for the first time on rehearing that Ainsworth's counsel may
have improperly orchestrated communications to Combined, prior to the filing of this action,
that did nothing to inform Combined that it was mistakenly denying the claims. Specifically,
Combined asserts that Ainsworth's counsel may have failed to identify himself and set out
his role and knowledge of the facts in an attempt to set-up a claim against Combined for
bad faith and punitive damages. Combined further asserts that Ainsworth's counsel's conduct
should be fully explored in an evidentiary hearing and that, therefore, this court's opinion
should be withdrawn and the matter remanded to the district court for further proceedings
pursuant to NRCP 60(b). We again disagree.
Combined's allegations are entirely speculative. Further, the scant factual assertions
submitted in support of these allegations were clearly known to Combined prior to or during
the course of the proceedings below. As counsel for Ainsworth observes, Combined had
every opportunity to raise these concerns in the district court during or after the trial, but
failed to do so. Moreover, it was Combined's responsibility to evaluate and pay the claim
fairly, in good faith and in a manner free of malice or oppression, not Ainsworth's counsel's
responsibility. We conclude, therefore, that Combined's contentions in this regard are not
only improperly raised for the first time on rehearing, but are also wholly insufficient to
support any reasonable inference of impropriety on the part of Ainsworth's counsel.10
insufficient to support any reasonable inference of impropriety on the part of Ainsworth's
counsel.
10

In light of the above, we hereby deny Combined's petition for rehearing. NRAP 40(c).
III. COMBINED'S MOTIONS CHALLENGING FORMER CHIEF JUSTICE
GUNDERSON'S PARTICIPATION IN THIS APPEAL
[Headnote 14]
On December 30, 1988, the last judicial day of 1988, Combined filed a motion in this
court stating in part:
This motion . . . requests Chief Justice Gunderson to disqualify himself from
participating in this appeal from this time forward. In the alternative, in the event Chief
Justice Gunderson declines to voluntarily step aside, the motion requests the Court to
disqualify him. In either event, the motion also asks the Court to vacate its opinion in
this appeal and schedule re-argument on the merits at the earliest time convenient to the
Court.
As counsel for Combined were presumably well-aware, however, on January 2, 1989, the
very next judicial day, Justice-Elect Rose officially succeeded to former Chief Justice
Gunderson's seat on the Nevada Supreme Court. See Nev. Const. art. 6, 3 (justices of
supreme court hold office . . . from and including the first Monday of January next
succeeding their election). Although upon his retirement Chief Justice Gunderson was duly
commissioned a Senior Justice of the Nevada Court System, he may not now lawfully
participate in any decision of this court except upon an order of the Chief Justice specifically
assigning him to sit temporarily in his capacity as a Senior Justice. See Nev. Const. art. 6,
19(1)(a) and 19(1)(c); SCR 10; see also Fox v. Fox, 84 Nev. 368, 441 P.2d 678 (1968)
(decree filed by a district judge after the expiration of his term was invalid); Lagrange Constr.
v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967) (judge whose term had expired had
no power or authority to perform any judicial function). Without a specific order of
assignment, Senior Justice Gunderson may perform only routine ministerial acts. SCR
10(3). No order directing Senior Justice Gunderson to participate in any judicial capacity in
this matter has been entered, and Combined has cited no authority in support of its assertion
that Senior Justice Gunderson's disqualification is presently required or necessary under
these circumstances.
__________

10
Counsel for Ainsworth denies Combined's allegations as absurd, unfounded and insulting, and has
moved to strike this particular portion of Combined's argument. In light of our conclusion that Combined's
petition for rehearing is without merit, we deny Ainsworth's motion as moot.
presently required or necessary under these circumstances. Accordingly, we conclude that
insofar as Combined's motion seeks the voluntary recusal or disqualification of Senior Justice
Gunderson from any present participation in this matter, the motion is a nullity. At the very
least, that issue does not presently present an actual controversy, and has been rendered
moot by the expiration of his elected term of office. See generally Nev. Const. art. 6, 4;
Boulet v. City of Las Vegas, 96 Nev. 611, 614 P.2d 8 (1980).
Combined also argues, however, that former Chief Justice Gunderson's participation in
these proceedings was improper and that vacatur and reargument are required because (1)
under NRS 1.225, he entertained a disqualifying bias or prejudice for and against the litigants
and their counsel; (2) under the Nevada Code of Judicial Conduct, his impartiality was
reasonably and sufficiently subject to question so as to create a disqualifying appearance of
impropriety; and (3) under the due process clause of the constitution, his alleged partiality
denied Combined its right to a fair hearing before an impartial tribunal. Combined asserts
that, under these provisions, the former Chief Justice should have disqualified himself from
any participation in this matter or disclosed certain facts to Combined's counsel prior to
taking part in this appeal. We disagree. For the reasons which follow, we conclude vacatur
and reargument are unwarranted as a matter of law because none of the factual allegations
Combined has asserted in support of these contentions constitute competent grounds for
disqualification under our statutes, our rules of judicial conduct, or the constitution.
11
See In
re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988); Goldman v. Bryan, 104
Nev. 644, 764 P.2d 1296 (1988); see also Liljeberg v. Health Services Acquisition Corp., 486
U.S. 847, 108 S.Ct. 2194 (1988); Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986).
A. Combined's allegations respecting procedural rulings, the oral argument and former
Chief Justice Gunderson's response of February 24, 1989.
[Headnote 15]
First, Combined contends that this appeal was handled in a manner that was contrary to
this court's normal procedure. Combined asserts that these procedural irregularities
evidence former Chief Justice Gunderson's bias or create a disqualifying appearance of
impropriety. Specifically, Combined complains that Ainsworth's counsel properly perfected
this appeal only after this court issued two sue sponte orders in December of 19S6,
advising counsel that the appeal was jurisdictionally deficient and advising counsel how
to correct the deficiency.
__________

11
The pertinent provisions of NRS 1.225 and the Canons of the Nevada Code of Judicial Conduct are set
forth in an appendix to this opinion.
this court issued two sue sponte orders in December of 1986, advising counsel that the appeal
was jurisdictionally deficient and advising counsel how to correct the deficiency. Next,
Combined alleges that, contrary to the court's normal procedure, the former Chief Justice
personally intervened and entered an order on April 22, 1987, directing the clerk to
schedule the appeal on the court's first available argument calendar. Combined also
complains that this court denied its subsequent motion of May 18, 1987, seeking a
postponement of the oral argument, with undue expedition. Combined's motion sought to
stay the oral argument in this matter pending the United States Supreme Court's resolution of
constitutional questions in an unrelated case that might have had a bearing on the issues
presented in this appeal. See Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 108 S.Ct.
1645 (1988).
We observe, however, that the two orders issued by this court in December of 1986, were
entered prior to the date that Justice Gunderson became Chief Justice, and were not even
signed by Justice Gunderson. Although former Chief Justice Gunderson did sign a third
order, after he became Chief Justice, allowing this appeal to proceed, such orders advising
counsel of jurisdictional defects revealed by our preliminary review of the records on appeal
are by no means contrary to this court's normal procedure. They are issued as a matter of
course to insure that this court's jurisdiction to entertain an appeal has been properly invoked,
and to insure that appeals are resolved on the merits whenever possible.
12
Further, former
Chief Justice Gunderson's order of April 22, 1987, directing the clerk to schedule oral
argument on the next available calendar, was entered in response to a motion filed by
Ainsworth requesting oral argument of this appeal. This court rarely denies such requests, and
in granting them, it is commonplace for the Chief Justice to direct the clerk to schedule oral
argument on the next available calendar. Thus, these procedural rulings were not contrary to
this court's normal procedure, nor do they demonstrate any prejudice, bias or appearance of
impropriety stemming from an extrajudicial source.
__________

12
For example, a similar order was issued by this court in April of 1988, in an unrelated appeal in which one
of Combined's present co-counsel represents the appellants as counsel of record. Like the order signed by former
Chief Justice Gunderson in this case, our order in that unrelated case advised counsel that the appeal could
proceed because counsel had properly cured a jurisdictional defect pursuant to the directives of an earlier order
in which we called that defect to counsel's attention. Further, that order stated that this court had determined that
oral argument was warranted and directed the clerk to schedule that appeal for oral argument on the court's first
available calendar. See United Fire Ins. Co. v. McClelland, Docket No. 18705 (order filed April 26, 1988).
Quite clearly, therefore, counsel for Combined recklessly failed to investigate this court's policies and
procedures before tendering the conclusory allegation that the rulings complained of were contrary to normal
procedure.
bias or appearance of impropriety stemming from an extrajudicial source. See Shepard v.
State, 756 P.2d 597 (Okl.Crim.App. 1988) (judge's honest efforts to expedite trial do not
demonstrate bias and are permissible so long as they do not operate to prejudice defendant's
rights); see also In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988)
(neither NRS 1.225, nor the code of judicial conduct will permit allegations of bias, partially
founded on a justice's performance of his official duties, to disqualify the justice; to do so
would nullify the court's authority and permit manipulation of justice, as well as the court);
United States v. Board of Sch. Com'rs, Indianapolis, Ind., 503 F.2d 68, 81 (7th Cir. 1974)
(rulings and actions of a judge during the course of official judicial proceedings do not
establish legally cognizable grounds for disqualification), cert. denied, 439 U.S. 824 (1978).
Moreover, this court's order of May 29, 1987, denying Combined's request for a
postponement of the oral argument, concluded in part that the United States Supreme Court
may not reach any issue that is directly relevant to this case. As it turns out, that was
precisely the result. See Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 108 S.Ct. 1645
(1988) (Supreme Court did not reach insurer's claims that punitive damage award violated
due process and other constitutional provisions because such claims were not raised and
passed upon in state court). Therefore, Combined has not only failed to allege any legally
cognizable grounds establishing bias or an appearance of impropriety, it has also failed to
demonstrate that it suffered any prejudice from this court's procedural rulings. Accordingly,
we conclude that Combined's contentions in this regard are entirely frivolous and warrant our
summary rejection.
13
[Headnote 16]
__________

13
Combined also complains that this court improperly filed former Chief Justice Gunderson's response of
February 24, 1989, because that document was not properly served on counsel for Combined pursuant to NRAP
25. In support of this assertion, Combined cites authorities supporting the proposition that a judge is a party to
a proceeding involving the issue of that judge's disqualification. See Harvey v. Lewis, 158 N.W.2d 809
(Mich.Ct.App. 1968). We note, however, that Combined was notified of the filing of the response and no
prejudice whatsoever to Combined's position is either alleged or apparent as a result of any failure to serve that
document. Moreover, we note that, in spite of Combined's insistence that former Chief Justice Gunderson should
be considered a party to these proceedings, counsel for Combined never served former Chief Justice
Gunderson with any of the numerous papers that it has filed with the clerk of this court after his official
retirement from his elected office. Any inference that this court has somehow unfairly treated Combined and its
counsel is, therefore, wholly unreasonable.
It should also be noted that former Chief Justice Gunderson, who responded to Combined's accusations at the
request of this court, was informed by the Clerk of the Court that service of his response was unnecessary
because he was not a party, and the Clerk would supply notice of the
[Headnote 16]
Second, Combined contends that former Chief Justice Gunderson's participation in the oral
argument of this appeal evidenced actual bias and prejudice or an appearance of bias and
prejudice against Combined and its counsel. In this initial motion and in a statement in
support of the motion,
14
counsel for Combined asserted in conclusory terms that, during the
oral argument of this matter, the former Chief Justice evidenced a partisanship inappropriate
to the appellate judicial process. Specifically, counsel complains that the former Chief
Justice (1) openly ridiculed and was uncivil and hostile to Combined and its attorney; (2)
acted not as a member of an appellate court but as an advocate for the appellant; (3)
expressed the opinion that Combined's very policy was an act of bad faith; and (4)
expressed an animus that was not confined to Combined and its counsel but seemingly
reached the insurance industry as a whole. In support of these conclusory accusations,
Combined relies upon a copy of the official reporter's audio recording of the oral argument
before this court.
[Headnote 17]
We have carefully reviewed the official reporter's master recording of the oral argument,
which constitutes the formal record of that hearing, and we conclude that counsel's
statements of mere conclusions are not only legally insufficient to support Combined's
motions, but are also belied by the tone, tenor and substance of former Chief Justice
Gunderson's remarks.
__________
filing to the parties, which she did. NRAP 25(1)(b) requires service of all papers filed by parties. This court has
not had the occasion previously to decide whether by reason of a motion to disqualify, the status of a
participating justice or judge is transmogrified to that of a party. Although we have substantial doubt that such a
change occurs, we decline to decide the issue because Combined has suffered no prejudice whatsoever from the
lack of service by or at the behest of former Chief Justice Gunderson.

14
The factual allegations in Combined's initial motion of December 30, 1988, were supported in part only by
the unsworn statement of Combined's counsel. Neither NRS 1.225 nor the Nevada Code of Judicial Conduct
presently provides that factual allegations in a motion to disqualify a supreme court justice must be made upon
affidavit. Compare NRS 1.235 (requiring the filing of supporting affidavits in motions seeking disqualification
of district judges). We take this opportunity to note, however, that in our future consideration of motions to
disqualify a judge or justice, we shall deem it appropriate to substantially discount factual allegations that are not
supported by sworn statements and that are not otherwise verifiable from the record before us. Because we have
not heretofore addressed this problem in a published decision, and because Combined's factual allegations are
otherwise legally insufficient, we do not premise any of our conclusions in this matter on counsel's initial failure
to provide his sworn supporting affidavit, nor is it necessary to address the effectiveness of counsel's subsequent
affidavit submitted in an attempt to remedy the motion's initial deficiency.
remarks. See Litinsky v. Querard, 683 P.2d 816, 818 (Colo.Ct.App. 1984) (to permit
statements of mere conclusions of the pleader respecting a judge's alleged hostility at trial
to form the basis of a legally sufficient motion to disqualify would be to permit any party
dissatisfied with the outcome of a trial to . . . create unwarranted delay and chaos). In our
view, former Chief Justice Gunderson's remarks at oral argument, at the most, displayed his
usual, well-known aggressive use of the Socratic method. Contrary to Combined's
contentions, his questions directed to Combined's counsel were no more uncivil or hostile
than those propounded to most first year law students by many of their professors. Further,
the former Chief Justice allowed counsel for Combined extra time to complete his arguments
and, contrary to normal procedure, again permitted counsel additional time for a second
rebuttal at the very end of the argument. A reasonable, objective assessment of the actions
and remarks of the former Chief Justice leads to the conclusion that he was merely attempting
to insure that the court was adequately apprised of the parties' legal contentions, and was not
acting as an advocate for appellant Ainsworth's position. His conduct of the hearing, as well
as his questioning of both counsel, were well within the acceptable boundaries of courtroom
exchange. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1316 (2nd Cir. 1988).
Additionally, former Chief Justice Gunderson's remarks simply reveal judicial familiarity
with the factual record that was before this court. Although he may have expressed strong
views regarding the jury's uncontested finding of bad faith, and regarding the separate,
additional facts in the record evidencing the oppressive nature of Combined's conduct, his
expression of those views at the oral argument exhibited no bias stemming from an
extrajudicial source. See Goldman v. Bryan, 104 Nev. 644, 653, n. 6, 764 P.2d 1296, 1301
(1988) (what a judge learns in his official capacity does not establish disqualifying bias under
NRS 1.225, or a disqualifying appearance of impropriety under the code of judicial conduct);
In re Guardianship of Styer, 536 P.2d 717 (Ariz.Ct.App. 1975) (although a judge may have a
strong opinion on merits of a cause or a strong feeling about the type of litigation involved,
the expression of such views does not establish disqualifying bias or prejudice). See also
Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820-21 (1986) (general claim of hostility
on part of state supreme court justice towards insurance companies that were dilatory in
paying just claims fell well below level of claims constituting sufficient grounds
establishing constitutional violation under due process clause); In re International Business
Machines Corp., 618 F.2d 923, 931-32 n. 11 (2nd Cir. 1980) (where, under federal provision
similar to Nevada Code of Judicial Conduct Canon 3, "occasional flareups toward counsel"
were held insufficient to establish a judge's personal prejudice against the litigant
involved, "it would be anomalous to hold" that such a claim could nonetheless satisfy
constitutional standard for recusal under the due process clause).
Nevada Code of Judicial Conduct Canon 3, occasional flareups toward counsel were held
insufficient to establish a judge's personal prejudice against the litigant involved, it would be
anomalous to hold that such a claim could nonetheless satisfy constitutional standard for
recusal under the due process clause). We conclude, therefore, that Combined's contentions
respecting former Chief Justice Gunderson's remarks at oral argument are legally insufficient
to support the relief requested under either NRS 1.225, the Nevada Code of Judicial Conduct,
or the due process clause of the constitution.
[Headnote 18]
Third, in its latest reply, Combined also asserts that former Chief Justice Gunderson's
response to Combined's accusations condemns Combined and its counsel on facts found by
the Justice outside the record of this case. Thus, Combined claims that the response on its
face disqualifies Justice Gunderson. We observe, however, that, although former Chief
Justice Gunderson's response does indicate that, after the opinion in this case issued, his
adverse judicial impressions of the respondent insurance company may have been reinforced
by extrajudicial, post-opinion reading, his response recites no facts supporting a reasonable
inference of preconceived bias against the insurance company stemming from an extrajudicial
source at or prior to the date this case was decided.
[Headnote 19]
Further, although former Chief Justice Gunderson's response candidly acknowledges that
he harbored preconceived, negative impressions respecting the legal abilities of one of
Combined's counsel, his response also indicates that those impressions were based upon his
perception of counsel's prior work product and performance in this court. Thus, those
perceptions constitute neither an extrajudicial, nor a disqualifying bias. See generally
Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296 (1988); see also In re Cooper, 821 F.2d 833,
838-42 (1st Cir. 1987) (a judge is not required to mince words respecting counsel who
appear before him; it is a judge's job to make credibility determinations, and when he does so,
he does not thereby become subject, legitimately, to charges of bias). To whatever extent
former Chief Justice Gunderson's response may evidence negative, personal impressions
about Combined's counsel, based upon counsel's prior legal associations, his performance on
the bar examination or his marital situation, those impressions were formed during the course
of his judicial and administrative duties as a Justice and Chief Justice of this court.
15
See
United States v. Conforte, 457 F.Supp. 641, 657 {D.Nev. 197S) {where origin of judge's
impressions was inextricably bound up with judicial proceedings, judge's alleged bias did
not stem from an extrajudicial source), modified on other grounds, 624 F.2d S69 {9th
Cir.), cert.
__________

15
Although we anticipated and would have much preferred a more restrained response from the former
Chief Justice, it is not difficult to
See United States v. Conforte, 457 F.Supp. 641, 657 (D.Nev. 1978) (where origin of judge's
impressions was inextricably bound up with judicial proceedings, judge's alleged bias did not
stem from an extrajudicial source), modified on other grounds, 624 F.2d 869 (9th Cir.), cert.
denied, 449 U.S. 1012 (1980).
[Headnote 20]
Additionally, those negative impressions extended only to counsel for the litigant
involved, not to the litigant itself. Generally, an allegation of bias in favor of or against
counsel for a litigant states an insufficient ground for disqualification because it is not
indicative of extrajudicial bias against the party. See In re Petition to Recall Dunleavy, 104
Nev. at 784, 769 P.2d at 1275, citing Gilbert v. City of Little Rock, Ark., 722 F.2d 1390,
1398-99 (8th Cir. 1983), cert. denied, 466 U.S. 972 (1984); see also Davis v. Board of School
Com'rs of Mobile County, 517 F.2d 1044, 1050 (5th Cir. 1975) (if a party could successfully
challenge a judge based upon allegations of bias against party's attorney, it would bid fair to
decimate the bench and lawyers, once in a controversy with a judge, would have a license
under which the judge would serve at their will), cert. denied, 425 U.S. 944 (1976).
[Headnote 21]
Lastly, if we assume that counsel for Combined has seriously tendered his allegations of
bias or prejudice arising out of former Chief Justice Gunderson's alleged hostility at oral
argument, then we must also assume that, shortly after the oral argument, counsel was on
notice of at least some of the facts asserted in support of these contentions. Counsel, however,
electing to gamble on the outcome of our decision, waited over sixteen months until the
decision was announced before tendering these contentions to this court. Similarly, counsel
was aware of the nature and circumstances surrounding the previously discussed procedural
rulings of this court, not only well in advance of the issuance of this court's decision, but also
well in advance of the oral argument.
[Headnote 22]
We have previously held that time limitations on a challenge to a district judge's
impartiality are not extended for litigants who knew or should have known the necessary facts
at an earlier date.
__________
understand why the beleaguered jurist may have been goaded to the uttermost limits of his capacity for tolerance.
While in the beginnings of recuperation from a major heart attack for which he was hospitalized, Combined filed
a supplement to its motion to disqualify the former Chief Justice that irresponsibly accused him of secret
business involvements with Ainsworth's counsel through Justice Gunderson's wife. The aforementioned
supplement will be dealt with in some detail later in this opinion.
See Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984). The statutory and code
provisions applicable in this case set forth no specific time limits. Well-reasoned authority
supports a conclusion, however, that counsel, knowing facts assertively supportive of a
motion for reconsideration, recusal or vacatur based upon charges of bias and impropriety,
may not lie in wait and raise those allegations in a motion only after learning the court's
ruling on the merits. See Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986),
cert. denied, 481 U.S. 1016 (1987). See also Delesdernier v. Porterie, 666 F.2d 116, 121 (5th
Cir.) (absence of time requirement in federal disqualification provisions does not allow
counsel to make a game of the federal judiciary's ethical obligations; judiciary should seek to
preserve the integrity of the [provisions] by discouraging bad faith manipulation of its rules
for litigious advantage), cert. denied, 459 U.S. 839 (1982).
We conclude, therefore, that the factual allegations Combined has asserted in these
respects are legally insufficient to support the relief requested. Additionally, we conclude that
Combined waived its right to raise these issues at this late date because its counsel, knowing
the subsequently asserted factual basis for these allegations, did not promptly tender an
objection to this court, but instead remained silent and gambled on the outcome of the appeal.
B. Combined's allegations respecting Ainsworth's counsel's association with former Chief
Justice Gunderson's 1982 campaign for judicial office.
[Headnote 23]
Combined disingenuously alleges that former Chief Justice Gunderson should have
disqualified himself from any participation in this appeal because he had a close and
undisclosed, political relationship with counsel for Ainsworth. Combined observes that both
counsel for Ainsworth acted as Washoe County campaign co-chairmen in the former Chief
Justice's 1982 campaign for re-election to this court.
In rejecting a similar contention as legally insufficient to support disqualification or
vacatur, we recently held:
[I]ntolerable results would . . . obtain if a litigant could disqualify a member of this
court solely because counsel for the litigant's adversary had years before contributed to
the justice's campaign. The citizens of this state have voted to retain an elected judiciary
and the Nevada Constitution specifically provides that the justices of this court shall be
elected. See Nev. Const. art. 6, 3. . . . If the mere fact that an attorney had contributed
to a judge's campaign constituted a reasonable ground for the subsequent
disqualification of that judge, upon a challenge made after the judge has ruled on
the merits of a motion, the conduct of judicial business in the courts of this state
would be severely and intolerably obstructed.
tuted a reasonable ground for the subsequent disqualification of that judge, upon a
challenge made after the judge has ruled on the merits of a motion, the conduct of
judicial business in the courts of this state would be severely and intolerably obstructed.
See In re Petition to Recall Dunleavy, 104 Nev. at 644, 769 P.2d at 1275 (1988), In Dunleavy,
we further observed:
In a small state such as Nevada, with a concomitantly limited bar membership, it is
inevitable that frequent interactions will occur between the members of the bar and the
judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice.
Id.; cf. United States v. Murphy, 768 F.2d 1518, 1537-38 (7th Cir. 1985), cert. denied, 475
U.S. 1012 (1986). Moreover, as we noted above, an allegation of bias in favor of or against an
attorney for a litigant generally states an insufficient ground for disqualification because it is
not indicative of extrajudicial bias against a party. See Dunleavy, supra.
In the instant case, we similarly conclude that counsel's associations with the campaign in
issue, years before this case came before this court, do not presently constitute legally
competent grounds for recusal, vacatur or reargument under our statutes or code of judicial
conduct. Nor do such associations establish the direct, substantial, pecuniary, and conflicting
interests which have been held to warrant recusal and vacatur under the due process clause.
See Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986). This state's constitution and
code of judicial conduct specifically compel and countenance the election of all state judges,
and leading members of the state bar play important and active roles in guiding the public's
selection of qualified jurists. Under these circumstances, it would be highly anomalous if an
attorney's prior participation in a justice's campaign could create a disqualifying interest, an
appearance of impropriety or a violation of due process sufficient to require the justice's
recusal from all cases in which that attorney might be involved.
[Headnote 24]
Additionally, we note that Combined has conspicuously refrained from addressing
opposing counsel's averments that their association with the campaign was fully disclosed in
numerous public, political advertisements and was well-known among members of the state
bar long before this appeal was ever perfected. See Adair v. Adair, 670 P.2d 1002, 1003
(Okl.Ct.App. 1983) (where counsel failed to refute opposing counsel's averment that he was
informed prior to trial of opposing counsel's public support of trial judge's campaign for
judicial office, appellate court held that "[f]ailure to timely object waived any
disqualification of the judge").
public support of trial judge's campaign for judicial office, appellate court held that [f]ailure
to timely object waived any disqualification of the judge). We conclude, therefore, that
Combined's counsel had knowledge of the factual basis for this contention well in advance of
this appeal, and Combined's failure to tender a prompt objection on this ground precludes it
from seeking our present consideration of the question. See Jacobson v. Manfredi, 100 Nev.
226, 679 P.2d 251 (1984); Phillips v. Amoco Oil Co., 799 F.2d at 1472; Delesdernier v.
Porterie, 666 F.2d at 121.
[Headnote 25]
Finally, in response to Combined's allegations, former Chief Justice Gunderson asserts that
an objective assessment of his prior associations with the law firms representing both parties
to this appeal reveals no reasonable basis upon which to conclude that he was biased in favor
of counsel for Ainsworth. Specifically, former Chief Justice Gunderson avers that the law
firm presently representing Combined in this proceeding, Lionel, Sawyer & Collins, was also
supportive of his campaign for re-election. Moreover, the response indicates that a senior
partner in that firm has not only been a friend, political ally and supporter of the former Chief
Justice, but years ago was also the former Chief Justice's law partner. The response also cites
numerous published decisions of this court in which the former Chief Justice ruled against the
positions espoused by counsel for Ainsworth in matters that had substantial monetary
significance.
16
Under these circumstances, we fully agree with former Chief Justice
Gunderson's statement that [i]t cannot seriously be contended by objective persons that on
such a record, an appearance of impropriety now exists.
C. Combined's allegations respecting the Nevada Trial Lawyers Association.
[Headnote 26]
First, Combined contends that former Chief Justice Gunderson improperly participated in
this matter because he failed to disclose that the Nevada Trial Lawyers Association (NTLA)
had previously honored [him] for his support of causes they espouse, and that it did so
again shortly before the opinion favoring Ainsworth in this appeal. Combined asserts that,
not only are both Ainsworth's counsel active members of the NTLA, but that the NTLA filed
a brief in this appeal as amicus curiae in favor of Ainsworth's position. Incredibly, Combined
also alleges
__________

16
See Sierra Pac. Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 (1983); Davies v. Butler, 95 Nev. 763,
602 P.2d 605 (1979); Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977); State v. Kallio, 92 Nev. 665, 557
P.2d 705 (1976).
that, in accepting the above-noted award, the Chief Justice is reported to have addressed the
[NTLA] as a whole and said that the Trial Lawyers were always welcome in the Court
because they were always on the right side. Counsel for Combined asserts that he has
interviewed more than one witness on [this] subject, but that [n]one of these witnesses
wishes voluntarily to supply an affidavit. Finally, Combined asserts that the NTLA's primary
orientation is anti-insurance, and that under these circumstances, former Chief Justice
Gunderson's acceptance of the award constituted a violation of the code of judicial conduct
and created an appearance of impropriety sufficient to warrant vacatur and reargument. We
disagree.
[Headnote 27]
As the responsive affidavits supplied by counsel for Ainsworth establish, in September of
1988, at the NTLA's annual convention, former Chief Justice Gunderson was presented with
a special recognition award for eighteen years of dedicated service to the People of the
State of Nevada. Contrary to Combined's contention, the award was not in recognition for any
unspecified support the former Chief Justice allegedly provided to the causes the NTLA
espouses. The special award consisted of a modest plaque entitled, Lifetime Dedication to
Nevada's Justice System Award.
17
Additionally, while attending the award ceremony, the
former Chief Justice paid for his own airfare, his own motel room and his own meals.
Further, we deem it of little significance that counsel for Ainsworth are prominent members
of the NTLA. It is our understanding that approximately one thousand members of the
Nevada Bar belong to that organization, including members of the firm presently representing
Combined on appeal, and from the affidavits submitted by Ainsworth, it appears that the
NTLA is a much more broadly based organization than Combined portrays.
__________

17
We note that several attorneys in the firm presently representing Combined in this appeal are apparently
also members of the NTLA, and, therefore, presumably had knowledge of the award at the time it was conferred.
Moreover, the award in question was disclosed and reported in newspapers throughout the state at the time. In
one such report, it was noted that former Chief Justice Gunderson had not only been honored by the NTLA, but
he had also recently received the American Judicature Society's Herbert Harley Award, as well as the
American Bar Association's annual award for excellence in judicial education. See Gunderson Cited For His
Dedication, Las Vegas Sun, September 23, 1988; see also Justice Gunderson Honored, Reno Gazette-Journal,
September 16, 1988; Nevada Trial Lawyers Honor Gunderson, Las Vegas Sun, September 16, 1988. Combined
has not refuted the averments presented by Ainsworth that its counsel knew or had reason to know of the award
prior to the issuance of this court's decision. It would appear, therefore, that Combined's counsel could have
tendered a much more timely objection to the former Chief Justice's participation, but instead, did not object on
these tenuous grounds until well after this court's
Ainsworth has also submitted the affidavits of numerous individuals who were present at
the award dinner, and who deny that the former Chief Justice made the remark attributed to
him by Combined and its anonymous, reluctant witnesses. One such affidavit characterizes
Combined's summary of the former Chief Justice's remarks as totally inaccurate and as an
unfair gross distortion. In light of these refutations, Combined's bare, unsupported allegation
is of little legal significance. See United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982)
(where charge of bias in affidavit was based upon alleged remark of trial judge that an
unnamed person allegedly overheard, court rejected the charge as wholly insufficient and
noted that justice would be severely impeded if disqualification could be premised on such
scant submissions).
In support of its assertion that the acceptance of the award constituted a violation of the
Canons of the Code of Judicial Conduct, Combined cites a quiz that appeared in the
November 1, 1988, issue of the ABA Journal and an ABA Informal Ethics Opinion which the
quiz purports to construe. See ABA Comm. on Ethics and Professional Responsibility,
Informal Op. 86-1516 (1986). These authorities suggest that a specialized bar association
which has a clearly definable litigation posture, may not ethically establish a judicial award
program which the association acknowledges could likely result in the selection of a judge
whose philosophy is similar to that of the association. Id. As noted, however, the NTLA is a
much more broadly based bar association than Combined attempts to portray. Further, as
Ainsworth has observed, numerous jurists have been similarly honored by the NTLA and its
parent organization, the Association of Trial Lawyers of America. Notably, the entire Nevada
Supreme Court was similarly honored by the NTLA in 1986. Under these circumstances, it
cannot be reasonably contended by an objective person, knowing all the facts and
circumstances, that by accepting such an award, any of these members of the judiciary,
including the former Chief Justice, lent the prestige of [their] office[s] to advance the private
interests of others. . . . Nor did they thereby convey or permit others to convey the
impression that the organization was in a special position to influence them. See Nev. Code
of Judicial Conduct Canon 2B; see also Nev. Code of Judicial Conduct Canon 5C(5)(a) (a
judge may accept a gift incident to a public testimonial to him). Accordingly, we reject these
allegations as wholly insufficient to support vacatur or reargument under NRS 1.225, the
code of judicial conduct or the due process clause.1S
__________
opinion had issued. Accordingly, Combined's failure to tender a prompt objection constitutes a waiver of its right
to raise the issue at this late date. See Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984); Phillips v.
Amoco Oil Co., 799 F.2d at 1472; Adair v. Adair, 670 P.2d at 1003.
vacatur or reargument under NRS 1.225, the code of judicial conduct or the due process
clause.
18

[Headnote 28]
Second, Combined asserts that a substantial and pervasive appearance of impropriety
exists in this case because Laura FitzSimmons, the attorney who signed the amicus brief on
behalf of the NTLA, simultaneously represented former Chief Justice Gunderson in another
unrelated matter. Combined contends that vacatur and reargument are warranted because the
former Chief Justice should have disclosed this attorney-client relationship or recused himself
from participating in this appeal. See Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th
Cir.) (judge was disqualified from case where, during the litigation before him, judge was not
only being represented in another matter by counsel for the litigant, but also had personal
business dealings with that counsel), cert. denied, 499 U.S. 820 (1980); ABA Comm. on
Ethics and Professional Responsibility, Informal Op. 1477 (1981) (a judge must recuse
himself in cases in which a litigant is represented by the judge's own attorney). We disagree.
We are persuaded by the responsive affidavits of FitzSimmons and other members of the
NTLA amicus curiae committee that FitzSimmons' involvement in Ainsworth was extremely
limited and cannot reasonably support any inference of impropriety. For example, the
affidavits establish that FitzSimmons did not author the amicus brief, but merely signed it, at
the request of the chairman of the NTLA amicus curiae committee, because she was the only
Northern Nevada member of the committee available who could do so in time to insure that
the brief was promptly filed with the clerk of this court in Carson City. Further, FitzSimmons
avers that she knew very little about the facts of the [Ainsworth] case, that she had
absolutely no motive to attempt to affect the outcome of the appeal, that she did not
participate in and only attended a portion of the oral argument, and that she never discussed
this case with Chief Justice Gunderson before his retirement from the court.
19
Moreover,
although Combined has cited authorities which suggest that a judge should not
participate in a case in which the judge's own attorney also represents a "litigant"
appearing in the case, Combined has cited no authorities establishing that an attorney's
appearance on behalf of an amicus curiae constitutes representation of a "litigant."
__________

18
Combined similarly complains that the counsel who signed the amicus brief on behalf of the NTLA in this
appeal hosted an invitation only retirement party for former Chief Justice Gunderson on January 6, 1989. We
conclude that any inference of impropriety arising out of said counsel's voluntary involvement in that event, after
the former Chief Justice's retirement from this court, is wholly unreasonable. We reject this contention as
entirely frivolous.

19
We also note that FitzSimmons' representation of former Chief Justice Gunderson in the above referenced
unrelated matter concluded in April of 1987, after the NTLA brief was filed in this case, but before this case was
orally argued, and well before the opinion was filed.
Moreover, although Combined has cited authorities which suggest that a judge should not
participate in a case in which the judge's own attorney also represents a litigant appearing in
the case, Combined has cited no authorities establishing that an attorney's appearance on
behalf of an amicus curiae constitutes representation of a litigant. In our view, it cannot be
reasonably contended that the NTLA appeared in this matter as a litigant. Rather, the
NTLA was merely allowed to file a brief in this appeal as a friend of the court. Nor can it
be reasonably inferred, under the facts cited above, that FitzSimmons' act of signing the
NTLA brief and attending a portion of the oral argument amounted to representation of a
litigant sufficient to create a disqualifying appearance of impropriety.
[Headnote 29]
Lastly in this regard, we note that FitzSimmons has averred that her husband serves on the
Board of Governors of the State Bar of Nevada with one of Combined's present co-counsel on
appeal, as well as with a member of a firm that remains one of Combined's counsel of record.
On information and belief, FitzSimmons avers that her representation of former Chief Justice
Gunderson was discussed among the members of the Board and was known to Combined's
counsel well before this appeal came before this court. Once again, however, Combined's
counsel have not refuted the averment and have conspicuously refrained from any comment
respecting when they became aware of the alleged factual basis for their complaints of
impropriety and bias. Accordingly, we conclude that Combined has not only asserted
allegations that are legally insufficient to support the relief requested under NRS 1.225, the
code of judicial conduct or the due process clause, but its failure to tender a prompt objection
constitutes a waiver of its right to raise the issue at this point in these proceedings. See
Jacobson v. Manfredi, 100 Nev. at 230, 679 P.2d at 254; Phillips v. Amoco Oil Co., 799 F.2d
at 1472; Adair v. Adair, 670 P.2d at 1003.
D. Combined's allegations respecting former Chief Justice Gunderson's involvement in
unrelated litigation.
[Headnote 30]
Combined further maintains that an appearance of impropriety exists because of former
Chief Justice Gunderson's alleged undisclosed relationship with counsel for Ainsworth and
with attorney FitzSimmons in unrelated litigation pending in the state district court at the time
this case initially came before us. See Flangas v. Manoukian, Case No. A208009, Eighth Jud.
Dist. Ct., Clark Co. (1986). The unrelated conspiracy litigation in question has a tortuous
history that has no substantive connection whatsoever with the instant matter.
whatsoever with the instant matter. See generally In re Ross, 99 Nev. 1, 656 P.2d 832, reh'g
denied, 99 Nev. 657, 668 P.2d 1089 (1983). Nonetheless, Combined attempts to relitigate and
rehash issues which have been long since formally adjudicated in proceedings that are not
even remotely connected with the instant case. In essence, however, Combined alleges that an
appearance of impropriety exists in this case because one of Ainsworth's counsel, Peter C.
Neumann, represented the plaintiff Flangas in civil litigation in the state court, and because
former Chief Justice Gunderson, represented by attorney FitzSimmons, successfully resisted
an improper attempt by the defendant in that same litigation to subpoena certain evidence
under the former Chief Justice's control.
20

More specifically, Combined speculates that (1) the former Chief Justice was allied with
attorneys Neumann and FitzSimmons in pursuit of a common goal; (2) Neumann may have
entered the Flangas case at the urging of former Chief Justice Gunderson; and (3) Neumann,
FitzSimmons and the former Chief Justice may have discussed the Ainsworth case in private,
undisclosed interviews respecting the Flangas litigation. These speculative, conclusory
allegations, however, are insufficient on their face to establish legally cognizable grounds for
recusal. See Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296 (1988).
Moreover, the allegations are refuted by the affidavits and verified responses of the
concerned parties. For example, the averments of both attorney Neumann and the former
Chief Justice indicate that they were not allied in pursuit of a common goal, and that they
did not discuss the Ainsworth case in any interviews conducted in connection with the
Flangas case. Further, the affidavits of Neumann and Flangas deny that Neumann entered the
litigation at the urging of the Chief Justice; rather, it appears that Neumann was
recommended to Flangas by an attorney in private practice.
__________

20
The subpoena in question, which the district court quashed as invalid, burdensome, and oppressive,
sought evidence that the district court concluded had been entrusted to former Chief Justice Gunderson in
custodia legis by the federal court. See Flangas v. Manoukian, Case No. A208009, Eighth Jud. Dist. Ct., Clark
Co. (orders filed November 7, 1986, and March 20, 1987). Combined argues that former Chief Justice
Gunderson was not entrusted with any evidence by the federal court in custodia legis. We may appropriately
take judicial notice of the public record of the state district court proceedings, and we have done so. See Jory v.
Bennight, 91 Nev. 763, 542 P.2d 1400 (1975); Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972). Our
review of the pertinent orders entered by the district court reveals that former Chief Justice Gunderson's recital
of his role in that litigation is fully supported by the public record of the state district court proceedings and that
the district court previously resolved this and other issues raised by Combined, respecting former Chief Justice
Gunderson's role in that litigation, adversely to the position now espoused by Combined.
private practice. Accordingly, we reject Combined's contentions in this regard as wholly
insufficient to establish any disabling bias or any reasonable inference of impropriety.
21

E. Combined's allegations respecting Mrs. Gunderson and Peavine, Inc.
[Headnote 31]
In 1985, counsel for Ainsworth, Peter C. Neumann, formed Peavine, Inc., for the purpose
of obtaining an FCC permit to operate a new television station in the Reno, Nevada area.
Neumann withdrew Peavine's application to the FCC and dissolved the corporation later that
same year when it became clear that it had little chance of successfully competing against
other applicants for the permit. Apparently, with the intention of being repaid by the
corporation if it became successful, Neumann personally paid the expenses incident to the
formation of the corporation and incurred as a result of filing the FCC application. Neumann
avers, however, that during its short-lived existence, Peavine, had no assets or liabilities, no
stock was ever issued by Peavine to any person, and no funds or monies were ever received
by the corporation or any of the individuals involved. Among others, former Chief Justice
Gunderson's wife and brother-in-law were two of the individuals involved in Peavine.
Combined alleges that Mrs. Gunderson's involvement in the Peavine venture supplies an
additional ground for disqualification of Justice Gunderson, vacatur, and rehearing in this
case. We disagree.
Combined asserts that former Chief Justice Gunderson should have disclosed his wife's
financial dealings with Neumann in this case because Nevada is a community property state
and Mrs. Gunderson's interest in an exposure to liability of the debts of Peavine would
presumptively be shared by her husband. We note, however, that Canon 6 of the Nevada
Code of Judicial Conduct only requires a judge to report extrajudicial income. Further,
Canon 6C provides that compensation or income of a judge's spouse, attributed to the judge
because of community property laws, "is not extrajudicial compensation."
__________

21
We further note that the unrelated litigation in question was highly publicized within the state and
involved, among other things, certain actions of the Board of Governors of the State Bar of Nevada. As
previously noted, one of Combined's present co-counsel on appeal, as well as a member of the firm which
represented Combined below, are members of the Board of Governors. Thus, it strains credulity to suppose that
Combined's counsel were not aware of the various individuals and attorneys involved in the Flangas case, well
in advance of the date this case was argued or decided. Under these circumstances, we are persuaded that
Combined waived its right to tender an objection on these grounds at this late date. See Jacobson v. Manfredi,
100 Nev. at 230, 679 P.2d at 254; Phillips v. Amoco Oil Co., 799 F.2d at 1472; Adair v. Adair, 670 P.2d at
1003.
community property laws, is not extrajudicial compensation. Thus, even if Mrs.
Gunderson had profited in some way from her association with Peavine, Canon 6 imposed no
obligation upon the former Chief Justice to disclose his wife's involvement. Contrary to
Combined's contentions, therefore, the Peavine venture does not establish that the former
Chief Justice violated any code provisions relating to his duties to disclose the financial
dealings of his spouse. See Nev. Code of Judicial Conduct Canon 6. Nor do Combined's
speculative allegations demonstrate that the former Chief Justice violated Canon 3C(2) by
failing to keep himself informed of the financial dealings of his spouse.
Moreover, the Peavine venture was abandoned long before this appeal was docketed in
this court. There was no business relationship in existence at the time this case came before
this court which could have been affected by the outcome of this appeal or created an
appearance of impropriety. Thus, the legal authorities cited by Combined are clearly
distinguishable from the instant situation. Cf. Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 108 S.Ct. 2194 (1988) (judge had fiduciary interest in litigation before him,
sufficient to warrant his disqualification under 28 U.S.C. 455, where, at the time of trial,
judge was trustee for university that had substantial financial interest in the outcome of the
litigation); Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986) (vacation of state
supreme court opinion required, where, at the time opinion was issued, state supreme court
justice had a direct, pecuniary interest in outcome of appeal); Potashnick v. Port City Const.
Co., 609 F.2d 1101 (5th Cir.) (judge was disqualified from case where, during the litigation
before him, judge was not only being represented in another matter by counsel for litigant, but
judge had personal business dealings with that counsel as well), cert. denied, 449 U.S. 820
(1980). Further, Combined's allegations completely fail to establish that, during his tenure on
this court, former Chief Justice Gunderson ever had any direct, ongoing pecuniary interest in
the outcome of any litigation before this court, including the Ainsworth litigation. See Nev.
Code of Judicial Conduct Canons 3C(1)(d) and 6C; NRS 1.225(2)(a). The long abandoned
business link between Neumann and Mrs. Gunderson is simply too remote in time as well as
in substance from the Ainsworth case. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307
(2nd Cir. 1988) (where party to litigation before judge had been retained by a firm under
contract with judge's wife's family to arrange financing for sale of family business, judge's
connection with party was too remote to warrant recusal even though wife was expected to
receive $30 million from the sale).
We conclude, therefore, that Combined's allegations are wholly insufficient, under NRS
1.225, the Nevada Code of Judicial Conduct, or the due process clause, to establish that
former Chief Justice Gunderson had any direct disqualifying interest in this litigation or
that his impartiality toward the litigants might reasonably be questioned.22
cial Conduct, or the due process clause, to establish that former Chief Justice Gunderson had
any direct disqualifying interest in this litigation or that his impartiality toward the litigants
might reasonably be questioned.
22

IV. COMBINED'S MOTION FOR AN EVIDENTIARY HEARING AND DISCOVERY
[Headnote 32]
Combined has moved this court for an evidentiary hearing and discovery on its factual
allegations of bias and impropriety. As discussed above, however, we have concluded that
Combined's factual allegations present no legally competent grounds supporting a reasonable
inference of bias, prejudice or impropriety under NRS 1.225, the Nevada Code of Judicial
Conduct or the due process clause of the constitution. Under such circumstances, summary
dismissal of the instant challenge is warranted as a matter of law, and no formal hearing is
required. See In re Petition of Dunleavy, 104 Nev. at 784, 769 P.2d at 1274. Further, we are
persuaded that most, if not all, of the factual allegations Combined has asserted in support of
its motions were known or should have been known to Combined's counsel well before this
court issued its opinion. Such prior notice forecloses any right Combined might have
otherwise asserted to an evidentiary hearing or discovery. Moreover, as previously noted, any
issue respecting former Chief Justice Gunderson's present disqualification has been rendered
moot by his retirement. Therefore, the hearing before unchallenged justices that is provided
under NRS 1.225{4) is inapplicable and, contrary to Combined's suggestion, summary
rejection of its factual allegations will not deny Combined any right to established
adjudicatory procedures.
__________

22
Combined also contends that Neumann's personal efforts and services on behalf of Peavine, Inc.,
constituted a gift, bequest, favor or loan to Mrs. Gunderson under Nevada Code of Judicial Conduct Canon
5C. In light of the fact that Mrs. Gunderson never received anything of any real, tangible worth as a result of her
involvement in Peavine, we conclude that Neumann's efforts on behalf of Peavine cannot be reasonably
characterized as a gift under Canon 5C, and do not establish any reasonable inference of favoritism or
impropriety. Combined also alleged that there was no public record of Mrs. Gunderson's business relationship
with Neumann and Peavine, Inc. Although there is evidence that this assertion may have been knowingly false, it
is clear from the record that such a relationship was revealed in a public notice published in Reno's largest
newspaper of general circulation on four separate occasions. Moreover, Combined's bald assertion that Mrs.
Gunderson's involvement with Neumann and Peavine, Inc., and Justice Gunderson's failure to disclose the
benefits from such involvement, constituted violations of Nevada's Judicial Code is specious. At most, Mrs.
Gunderson may have had an expectancy of value if Neumann's efforts as an attorney had borne fruit for Peavine,
Inc. They did not. Mrs. Gunderson received neither value nor liability. Whatever expectancy she may have had
did not materialize. Furthermore, if Mrs. Gunderson had received compensation in the form of stock or income
for her efforts, Justice Gunderson's community property interest in any such emoluments would not have been
reportable by him under the Judicial Code. See Canon 6C.
hearing before unchallenged justices that is provided under NRS 1.225(4) is inapplicable and,
contrary to Combined's suggestion, summary rejection of its factual allegations will not deny
Combined any right to established adjudicatory procedures.
Finally in this regard, Combined asserts that a hearing and discovery are necessary because
it has a right to inquire into the origin, history and role of the bench memo' which was
prepared before oral argument by former Chief Justice Gunderson's law clerk. Combined,
however, has established no factual circumstances or legal cause why it should have the right
to inquire into the confidential work product of this court. Nor has our independent inquiry
into the circumstances surrounding the preparation of that memorandum revealed any. Even if
the former Chief Justice did influence his law clerk's preparation of that memorandum, such
interaction between a justice and his law clerk is entirely proper. Thus, Combined has neither
alleged nor demonstrated any facts or circumstances entitling it to an evidentiary hearing on
this question. In any event, our inquiry into the matter reveals that the contents of the law
clerk's memorandum in the Ainsworth case resulted entirely from that individual's
independent research and analysis, free of any direct influence from former Chief Justice
Gunderson. Accordingly and in light of the above, we deny Combined's motion for an
evidentiary hearing or discovery.
V. AINSWORTH'S MOTION FOR SANCTIONS
[Headnote 33]
Ainsworth requests this court to impose sanctions upon Combined and its counsel for
abusing the appellate processes of this court and for knowingly filing false and frivolous
claims for the sole purpose of delay. See NRAP 38. As discussed above, we are persuaded
that counsel for Combined has tendered a number of entirely frivolous allegations. Further,
the manner in which Combined has litigated this matter in this court clearly suggests that it
has attempted to misuse the appellate processes of this court for the sole purpose of delaying
a final resolution of this litigation. Nonetheless, we have concluded that Ainsworth's motion
for sanctions should be denied.
As previously noted, the punitive damage award in this matter is the largest ever affirmed
by this court. In light of the substantial penalty that Combined has already incurred, we are
reluctant to impose further punishment against the company in the form of sanctions, and
decline to do so.
For the reasons expressed above, we hereby deny the petitions and motions presently
pending in this docket, and we direct the clerk of this court to issue the remittitur forthwith.
Mowbray, J., concurring:
This case is a simple lawsuit.
It was tried to a jury and decided by a jury. The jury heard the evidence. The district judge
properly charged the jury. At the conclusion of the presentation of the evidence the jury found
in favor of appellant Ainsworth and awarded both compensatory and punitive damages. The
evidence supports the jury's verdict.
Respondent, Combined Insurance Company of America, has presented nothing in its
petition for rehearing now before us that challenges in any way the integrity of the jury's
verdict. Therefore, I would let the jury's verdict stand and I would deny respondent's petition
for rehearing. I would also deny Ainsworth's petition for rehearing. Finally, I reject as wholly
meritless Ainsworth's request for sanctions.
APPENDIX
NRS 1.225 and the Nevada Code of Judicial Conduct provide:
1.225 Grounds and procedure for disqualifying supreme court justices.
1. A justice of the supreme court shall not act as such in an action or proceeding when he
entertains actual bias or prejudice for or against one of the parties to the action.
2. A justice of the supreme court shall not act as such in an action or proceeding when
implied bias exist in any of the following respects:
(a) When he is a party to or interested in the action or proceeding.
(b) When he is related to either party by consanguinity or affinity within the third degree.
(c) When he has been attorney or counsel for either of the parties in the particular action or
proceeding before the court.
(d) When he is related to an attorney or counselor for either of the parties by consanguinity
or affinity within the third degree.
3. A justice of the supreme court, upon his own motion, may disqualify himself from
acting in any matter upon the ground of actual or implied bias.
4. Any party to an action or proceeding seeking to disqualify a justice of the supreme
court for actual or implied bias shall file a charge in writing, specifying the facts upon which
such disqualification is sought. Hearing on such charge shall be had before the other justices
of the supreme court.
5. Upon the disqualification of a justice of the supreme court pursuant to this section, a
district judge shall be designated to sit in his place as provided in section 4 of article 6 of the
constitution of the State of Nevada.
6. No person shall be punished for contempt for making, filing or presenting a charge for
disqualification pursuant to subsection 4.
(Added to NRS by 1957, 521)
PART V. NEVADA CODE OF JUDICIAL CONDUCT
CANON 1
A judge should uphold the integrity and independence of the judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge
should participate in establishing, maintaining, and enforcing, and should himself observe,
high standards of conduct so that the integrity and independence of the judiciary may be
preserved. The provisions of this Code should be construed and applied to further that
objective without any limitation upon the supreme court in the exercise of its powers of
general superintendence, whether constitutional, statutory of inherent, in areas not delineated
in the Code.
[Added; effective July 1, 1977.]
CANON 2
A judge should avoid impropriety and the appearance of impropriety in all his
activities.
A. A judge should respect and comply with the law and should conduct himself at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.
B. A judge should not allow his family, social, or other relationships to influence his
judicial conduct or judgment. He should not lend the prestige of his office to advance the
private interests of others; nor should he convey or permit others to convey the impression
that they are in a special position to influence him. He should not testify voluntarily as a
character witness.
CANON 3
A judge should perform the duties of his office impartially and diligently.
The judicial duties of a judge take precedence over all his other activities. His judicial
duties include all the duties of his office prescribed by law. In the performance of these
duties, the following standards apply: A.
A. Adjudicative responsibilities.
(1) A judge should be faithful to the law and maintain professional competence. He
should be unswayed by partisan interest, public clamor, or fear of criticism.
(2) A judge should maintain order and decorum in proceedings before him.
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom he deals in his official capacity, and should require similar
conduct of lawyers, and of his staff, court officials, and others subject to his direction and
control.
(4) A judge should accord to every person who is legally interested in a proceeding, or
his lawyer, full right to be heard according to law, and except as authorized by law, neither
initiate nor consider ex parte or other communications intended to influence his judicial
action concerning a pending or impending proceeding. A judge, however, may obtain the
advice of a disinterested expert on the law applicable to a proceeding before him if he gives
notice to the parties of the person consulted and the substance of the advice, and affords the
parties reasonable opportunity to respond. Notice need not be given where the advice is
confined to case citations or other abstract legal references.
(5) A judge should dispose promptly of the business of the court.
(6) A judge should abstain from public comment about a pending or impending
proceeding in any court, and should require similar abstention on the part of court personnel
subject to his direction and control. This subsection does not prohibit judges from making
public statements in the course of their official duties or from explaining for public
information the procedures of the court.
(7) Proceedings in court should be conducted with fitting dignity and decorum. As
provided by law, a court during any and all court proceedings under the jurisdiction of such
court, on its own motion or on the motion of an attorney representing any interested party, or
at the request of the witness testifying under subpoena, shall prohibit by minute order any
person, firm, association or corporation from broadcasting, televising, or taking motion
pictures, or arranging for the broadcasting, televising, or taking of motion pictures of, such
proceedings. The taking of still photographs in the courtroom, during sessions of the court or
recesses between sessions, should be regulated by local rule or practice.
B. Administrative responsibilities.
(1) A judge should diligently discharge his administrative responsibilities, maintain
professional competence in judicial administration, and facilitate the performance of the
administrative responsibilities of other judges and court officials.
responsibilities, maintain professional competence in judicial administration, and facilitate
the performance of the administrative responsibilities of other judges and court officials.
(2) A judge should require his staff and court officials subject to his direction and
control to observe the standards of fidelity and diligence that apply to him.
(3) A judge should report dishonesty, or other serious unprofessional conduct of a judge
or lawyer to the appropriate disciplinary body.
(4) A judge should not make unnecessary appointments. He should exercise his power
of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not
approve compensation of appointees beyond the fair value of services rendered.
C. Disqualifications.
(1) A judge should disqualify himself in a proceeding in which his impartiality might
reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceedings;
(b) He has served as lawyer for any of the parties or has been a material witness in the
particular action or proceeding before the court; or a lawyer with whom he previously
practiced law was during such association a material witness concerning the matter;
(c) A lawyer with whom he previously practiced law served during such association as
a lawyer in the particular action or proceeding before the court;
(d) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in controversy or in a
party to the proceeding, or any other interest that could be substantially affected by the
outcome of the proceeding;
(e) He knows that he or his spouse, or a person within the third degree of relationship to
either of them:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Has an interest that could be substantially affected by the outcome of the
proceeding;
(iv) Is likely to be a material witness in the proceeding.
(2) A judge should inform himself about his personal and fiduciary financial interest,
and make a reasonable effort to inform himself about the personal financial interests of his
spouse and minor children residing in his household.
(3) For the purpose of this section: {a) The degree of relationship is calculated
according to the civil law system;
(a) The degree of relationship is calculated according to the civil law system;
(b) Fiduciary includes such relationships as executor, administrator, trustee, and
guardian;
(c) Financial interest means ownership of a legal or equitable interest, however small,
or a relationship as director, advisor, or other participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a
financial interest in such securities unless the judge participated in the management of the
fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is
not a financial interest in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, or a
depositor in a mutual savings association, or a similar proprietary interest, is a financial
interest in the organization only if the outcome of the proceeding could substantially affect
the value of the interest;
(iv) Ownership of government securities is a financial interest in the issuer only if the
outcome of the proceeding could substantially affect the value of the securities.
D. Remittal of disqualifications.
(1) A judge disqualified by the terms of Canon 3C(1)(c), Canon 3C(1)(d) or Canon
3C(1)(e) may, instead of withdrawing from the proceeding, disclose on the record the basis of
his disqualification. If, based on such disclosure, the parties and lawyers, independently of the
judge's participation, all agree in writing or on the record in open court that the judge's
relationship is immaterial or that his financial interest is insubstantial, the judge is no longer
disqualified, and may participate in the proceeding. The agreement shall be incorporated in
the record of the proceeding.
(2) Canon 3C(1)(e)(ii) shall not apply to the presentation of ex parte or uncontested
matters except in fixing attorney's fees.
CANON 4
A judge may engage in activities to improve the law, the legal system, and the
administration of justice.
As a judicial officer and person specially learned in the law, a judge is in a unique position
to contribute to the improvement of the law, the legal system, and the administration of
justice, including revision of substantive and procedural law and improvement of criminal
and juvenile justice. To the extent that his time permits, he is encouraged to do so, either
independently or through a bar association, judicial conference, or other organization
dedicated to the improvement of the law.
or through a bar association, judicial conference, or other organization dedicated to the
improvement of the law.
A judge, subject to the proper performance of his judicial duties, may engage in the
following quasi-judicial activities:
A. He may speak, write, lecture, teach, and participate in other activities concerning the
law, the legal system, and the administration of justice.
B. He may appear at a public hearing before an executive or legislative body or official on
matters concerning the law, the legal system and the administration of justice, and he may
otherwise consult with an executive or legislative body or official on such matters.
C. He may serve as a member, officer, or director of an organization or governmental
agency devoted to the improvement of the law, the legal system, or the administration of
justice. He may assist such an organization in raising funds and may participate in their
management and investment, but should not individually solicit funds. He may make
recommendations to public and private fund-granting agencies on projects and programs
concerning the law, the legal system, and the administration of justice.
[Added; effective July, 1977.]
CANON 5
A judge should regulate his extrajudicial activities tominimize the risk of conflict
withhis judicial duties.
A. Avocational activities.
A judge may write, lecture, teach and speak on nonlegal subjects, and engage in the arts,
sports, and other social and recreational activities, if such avocational activities do not detract
from the dignity of his office or interfere with the performance of his judicial duties.
B. Civic and charitable activities.
A judge may participate in civic and charitable activities that do not reflect adversely upon
his impartiality or interfere with the performance of his judicial duties. A judge may serve as
an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious,
charitable, fraternal, or civic organization subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will be engaged in
proceedings that would ordinarily come before him or will be regularly engaged in adversary
proceedings in any court.
(2) A judge should not individually solicit funds for any educational, religious,
charitable, fraternal, or civic organization, or use or permit the use of the prestige of his
office for that purpose, but he may be listed as an officer, director, or trustee of such an
organization.
educational, religious, charitable, fraternal, or civic organization, or use or permit the use of
the prestige of his office for that purpose, but he may be listed as an officer, director, or
trustee of such an organization. A judge may, however, join a general appeal on behalf of an
educational, religious, charitable, or fraternal organization, or speak on behalf of such
organization.
C. Financial activities.
(1) A judge should refrain from financial and business dealings that tend to reflect
adversely on his impartiality, interfere with the proper performance of his judicial duties, or
exploit his judicial position.
(2) A judge should not involve himself in frequent transactions with lawyers or persons
likely to come before the court on which he serves.
(3) Subject to the requirements of subsection (1), a judge may hold and manage
investments, including real estate, and engage in other remunerative activity, but should not
participate in, nor permit his name to be used in connection with, any business venture or
commercial advertising program, with or without compensation, in such a way as would
justify a reasonable inference that the power or prestige of his office is being utilized to
promote a business or commercial product. A judge should not serve as an officer, director,
manager, or employee of a business affected with a public interest including, without
limitation, a financial institution, insurance company, or public utility.
(4) A judge should manage his investments and other financial interests to minimize the
number of cases in which he is disqualified. As soon as he can do so without serious financial
detriment, he should divest himself of investments and other financial interests that require
frequent disqualifications.
(5) Neither a judge nor a member of his family residing in his household should accept
a gift, bequest, favor or loan from anyone except as follows:
(a) A judge may accept a gift incident to a public testimonial to him; books supplied by
publishers on a complimentary basis for official use; or an invitation to the judge and his
spouse to attend a function or activity devoted to the improvement of the law, the legal
system, or the administration of justice;
(b) A judge or a member of his family residing in his household may accept ordinary
social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement
gift; a loan from a lending institution in its regular course of business on the same terms
generally available to persons who are not judges; or a scholarship or fellowship awarded on
the same terms applied to other applicants; {c) A judge or a member of his family residing in
his household may accept any other gift, bequest, favor, or loan only if the donor is not a
party or other person whose interests have come or are likely to come before him, and, if
its value exceeds $250, the judge reports it in the same manner as he reports
compensation in Canon 6C.
(c) A judge or a member of his family residing in his household may accept any other
gift, bequest, favor, or loan only if the donor is not a party or other person whose interests
have come or are likely to come before him, and, if its value exceeds $250, the judge reports
it in the same manner as he reports compensation in Canon 6C.
(6) For the purposes of this section member of his family residing in his household
means any person who resides in a judge's household and who is a relative of the judge or is
treated by the judge as a member of his family.
(7) A judge is not required by the Code to disclose his income, debts, or investments,
except as provided in this Canon and Canons 3 and 6.
(8) Information acquired by a judge in his judicial capacity should not be used or
disclosed by him in financial dealings or for any other purpose not related to his judicial
duties.
D. Fiduciary activities.
A judge should not serve as the executor, administrator, trustee, guardian, or other
fiduciary, except for the estate, trust, or person of a member of his family, and then only if
such service will not interfere with the proper performance of his judicial duties. Member of
his family includes a spouse, child, grandchild, parent, grandparent, or other relative or
person with whom the judge maintains a close familial relationship. As a family fiduciary the
judge is subject subject to the following restrictions:
(1) He should not serve if it is likely that as a fiduciary he will be engaged in
proceedings that would ordinarily come before him, or if the estate, trust, or ward becomes
involved in adversary proceedings in the court on which he serves or one under its appellate
jurisdiction.
(2) While acting as a fiduciary a judge is subject to the same restrictions on financial
activities that apply to him in his personal capacity.
E. Arbitration.
A judge should not act as an arbitrator or mediator except in the performance of his
judicial duties.
F. Practice of law.
A judge should not practice law except as permitted by law.
G. Extrajudicial appointments.
A judge should not accept appointment to a governmental committee, commission, or
other position that is concerned with issues of fact or policy on matters other than the
improvement of the law, the legal system, or the administration of justice. A judge, however,
may represent his country, state or locality on ceremonial occasions or in connection with
historical, educational, cultural, and community service activities.
judge, however, may represent his country, state or locality on ceremonial occasions or in
connection with historical, educational, cultural, and community service activities.
CANON 6
A judge should regularly file reports of compensation received for quasi-judicial and
extrajudicial activities.
A judge may receive compensation and reimbursement of expenses for the quasi-judicial
and extrajudicial activities permitted by this Code, if the source of such payments does not
give the appearance of influencing the judge in his judicial duties or otherwise give the
appearance of impropriety, subject to the following restrictions:
A. Compensation.
Compensation should not exceed a reasonable amount nor should it exceed what a person
who is not a judge would receive for the same activity.
B. Expense reimbursement.
Expense reimbursement should be limited to the actual cost of travel, food, and lodging
reasonably incurred by the judge and, where appropriate to the occasion, by his spouse. Any
payment in excess of such an amount is compensation.
C. Public reports.
A judge should report the date, place and nature of any activity for which he received
compensation, and the name of the payor and the amount of compensation so received.
Compensation or income of a spouse attributed to the judge by operation of a community
property law is not extrajudicial compensation to the judge. His report should be made
annually and should be filed on or before April 30 of each year as a public document in the
office of the clerk of the supreme court.
CANON 7
A judge should refrain from political activity inappropriate to his judicial office.
A. Political conduct in general.
(1) A judge or a candidate for election to judicial office should not: {a) Act as a leader
or hold any office in a political organization;
(a) Act as a leader or hold any office in a political organization;
(b) Make speeches for a political organization or candidate or publicly endorse a
candidate for nonjudicial office;
(c) Solicit funds for a political organization or candidate;
(2) A judge should not become a candidate in an election for a nonjudicial office,
except as the constitution of Nevada permits.
B. Campaign conduct.
(1) A candidate, including an incumbent judge, for a judicial office:
(a) Should maintain the dignity appropriate to judicial office, and should encourage
members of his family to adhere to the same standards of political conduct that apply to him;
(b) Should prohibit public officials or employees subject to his direction or control from
doing for him what he is prohibited from doing under this Canon;
(c) Should not make pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office; indicate his views on pending or impending
litigation; or misrepresent his identify, qualifications, present position, or other fact. He may
campaign on the basis of his ability, experience, and record; and may answer allegations
directed against his record in office.
(2) A candidate, including an incumbent judge, for a judicial office, may solicit funds
for his campaign no earlier than 180 days before the primary election and no later than 90
days after the last election in which he participates during the election year. A candidate
should not use or permit the use of campaign contributions for purposes unrelated to the
campaign.
(3) A candidate, including an incumbent judge, shall comply with the provisions of the
Nevada Election Campaign Practices Act, as adopted in 1975 and now appearing as NRS
294A.010 et seq.
____________
105 Nev. 282, 282 (1989) Pertgen v. State
WES JOSEPH PERTGEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18060
May 22, 1989 774 P.2d 429
Appeal from convictions of first-degree murder with use of a deadly weapon, first-degree
kidnapping with use of a deadly weapon, sexual assault with use of a deadly weapon,
attempted murder with use of a deadly weapon, possession of a firearm by an ex-felon, and
from an order denying a motion for new trial. Eighth Judicial District Court, Clark County;
Myron E. Leavitt, Judge.
Defendant was convicted in the district court of first-degree murder with use of deadly
weapon, first-degree kidnapping with use of deadly weapon, sexual assault with use of deadly
weapon, attempted murder with use of deadly weapon, and possession of firearm by ex-felon
and sentenced to death. Defendant appealed. The Supreme Court held that: (1) defendant
received as much psychiatric testing as he was entitled to under Federal Constitution; (2)
anonymous telephone calls to jurors did not prejudice defendant's defense; (3) court comment
to jury about witness' truthfulness was harmless; and (4) admission of prior crime evidence
during penalty phase was harmless.
Affirmed.
Beury & Schubel, Las Vegas, for Appellant.
Tufteland, Deputy, and Daniel Seaton, Deputy, Clark County, for Respondent.
1. Costs.
Defendant received as much psychiatric testing as he was entitled to under Federal Constitution after defendant was provided
access to three psychiatrists to assist him in determining viability of insanity defense; trial counsel's failure to request State-funded
opinion of another psychiatrist did not deny defendant his right to fair trial or effective assistance of counsel and trial court was not
constitutionally obligated to order additional psychiatric testing sua sponte. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Anonymous telephone calls to three jurors in which caller offered money if they voted to acquit, but threatened to kill them if they
voted to convict defendant, did not prejudice defendant's defense, notwithstanding that jury requested permission to discuss the
reasons for three members of the jury going into the judge's chambers; trial court cured any potential prejudice that may have resulted
from curious jurors' speculation on matter when it admonished jury that interviews of individual jurors had nothing to do with the
guilt or the innocence of the defendant, and you [the jury] are not to speculate or guess or surmise as to any reasons why those
three jurors may have spent some time in the judge's chambers."
to any reasons why those three jurors may have spent some time in the judge's chambers.
3. Criminal Law.
Trial court's statement that witness . . . is going to be telling the truth. There is no question about that . . . was harmless in light
of court's subsequent explanation to jury that what he had meant was that witness . . . would be sworn under oath and would be sworn
to tell the truth, as all the witnesses would. But as to whether or not, in fact, you want to believe that testimony, it is up to you to
decide. You make the determination as regarding the credibility of any witness that testifies.
4. Criminal Law.
Admission of testimony of foreign state prosecutor during penalty phase of defendant's trial, indicating that defendant had once
faced charge of aggravated sexual assault in foreign state, while backed by arguably dubious or tenuous evidence, was harmless in
light of other evidence which overwhelmingly supported jury findings on aggravated circumstances and justified jury's imposition of
death penalty.
OPINION
Per Curiam:
On July 3, 1986, appellant Wes Pertgen brutally murdered his landlord. He then bound the
landlord's feet and mouth with duct tape and put the body in a refrigerator. The next day,
Pertgen met a woman and offered her money to engage in sexual acts with him. When the
woman refused, Pertgen beat her and sexually assaulted her. Pertgen then chained the
woman's hands and feet, wrapped her in a blanket, threw her in a drainage ditch, and covered
her with sagebrush.
Later that day, Pertgen went to a hospital emergency room, put two guns on the counter,
and asked for help. The hospital security guards took Pertgen to a holding cell in the hospital.
Before anyone questioned or even spoke to Pertgen, he announced to the security guards and
an attending police officer that he had hit a girl in the head and left her bleeding, and that he
would reveal her location in exchange for a cigarette. When that announcement provoked no
response from anyone present, Pertgen volunteered the location of the landlord's body. A
police officer arrived soon thereafter and advised Pertgen of his rights to remain silent and to
obtain the assistance of legal counsel. Pertgen then waived his rights and confessed his
crimes.
A jury found Pertgen guilty of first-degree murder with use of a deadly weapon and
sentenced him to death. The jury also found Pertgen guilty of first-degree kidnapping with
use of a deadly weapon, sexual assault with use of a deadly weapon, attempted murder with
use of a deadly weapon, and possession of a firearm by an ex-felon. For committing these
crimes, Pertgen was sentenced to a total of four consecutive life prison terms without
possibility of parole, two consecutive twenty-year prison terms, and one six-year term.
possibility of parole, two consecutive twenty-year prison terms, and one six-year term.
Pertgen now alleges that a number of errors occurred during the proceedings below which
deprived him of his right to a fair trial. We disagree.
[Headnote 1]
Pertgen first argues that his attorneys and the trial court failed to provide him access to
adequate psychiatric testing to support his insanity defense. However, the record reveals that
Pertgen received at least as much psychiatric testing as he was entitled to under the United
States Constitution. See Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985).
In Ake, the United States Supreme Court noted that one of the principle reasons a
defendant needed the assistance of a psychiatrist was to determine whether the insanity
defense is viable in the defendant's case. 470 U.S. at 82-83. The evidence in the record
reveals that Pertgen had access to three psychiatrists to assist him in determining the viability
of the insanity defense in his case.
Pertgen's attorneys hired two undisputedly competent psychiatrists to examine Pertgen.
After interviewing Pertgen, extensively reviewing his psychiatric history and his confession,
and after discussing Pertgen's case with defense counsel, both psychiatrists independently
concluded that Pertgen was sane at the time he committed the crimes and was competent to
stand trial. A State-employed psychiatrist also examined Pertgen. Although the State
psychiatrist prescribed anti-psychotic medication for Pertgen, the doctor was unwilling to
express an opinion as to Pertgen's sanity.
1

Because none of the doctors who examined Pertgen before trial supported his insanity
theory, we cannot now say that trial counsels' failure to request the State-funded opinion of
yet another psychiatrist denied Pertgen his right to a fair trial or the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Neither can we say that the trial
court was constitutionally obligated, under such circumstances, to order any additional
psychiatric testing sua sponte. See Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th Cir.
1986); Bowden v. Kemp, 767 F.2d 761 (11th Cir. 1985). Nothing in the Ake opinion suggests
that a State is constitutionally obligated to provide a defendant as many psychiatrists as it
takes to come up with one who will proclaim the defendant insane at the time of his offense.
2
[Headnote 2]
[Headnote 2]
__________

1
A psychologist at the University Medical Center also examined Pertgen on the day he confessed his crimes.
She concluded that Pertgen was sane at that time and should not be admitted to the hospital psychiatric ward.

2
Ake expressly negates the proposition that the indigent defendant has a constitutional right to choose a
psychiatrist of his own personal liking or to receive funds to hire his own. 470 U.S. at 83.
[Headnote 2]
The next issue involves an incident of jury tampering. Near the end of the trial, three jurors
received anonymous phone calls. The caller offered the jurors money if they voted to acquit,
but threatened to kill them if they voted to convict Pertgen.
3

The court and counsel questioned each juror regarding the matter. All three jurors assured
the court that they considered the call a crank call, that the call would not affect their
decision, and that they had not and would not discuss the matter with other jurors. Following
these interviews, Pertgen moved for a mistrial. The court, expressing its belief in the jurors'
assurances of impartiality, denied the motion. Pertgen now alleges this denial constitutes
error. We disagree.
In a case involving similar circumstances, we held that once the district court has stated
its satisfaction that the incident would not contaminate either the verdict or the jury
deliberations[,] . . . appellant carries the burden of showing he has been prejudiced by the
threatening telephone call. Lewis v. State, 93 Nev. 638, 640, 572 P.2d 211, 212 (1977).
Pertgen claims prejudice in the fact that the jury, at one point, requested permission to
discuss the reasons for three members of the jury going to the judge's chambers. The district
court, however, cured any potential prejudice that may have resulted from the curious jurors'
speculation on the matter when it admonished the jury that the interviews with the individual
jurors had nothing to do with the guilt or the innocence of the defendant, and you [the jury]
are not to speculate or guess or surmise as to any reasons why those three jurors may have
spent some time in the judge's chambers. We are not willing to presume that the jury failed
to follow the court's admonition. See Stickney v. State, 93 Nev. 285, 287, 564 P.2d 604, 605
(1977).
Because Pertgen does not point to any evidence in the record showing that this incident in
any way affected the verdict, we conclude that the telephone calls did not prejudice Pertgen's
defense and that the court did not abuse its discretion in denying Pertgen's motion for
mistrial. See State v. Coburn, 556 P.2d 376, 380 (Kan. 1976).
[Headnote 3]
Pertgen next argues that the district court should have declared a mistrial because it
improperly vouched for a key witness' credibility. The alleged impropriety occurred during
the jury voir dire when one of the prospective jurors, in response to a question from the court,
indicated that she knew one of the potential witnesses for the State and that she would
believe that witness' testimony.
__________

3
Although the jurors never knew who called them, it is apparent now that Pertgen himself made the calls.
witnesses for the State and that she would believe that witness' testimony. The judge then
stated:
I am not suggesting [the witness] is not going to be telling the truth because she is
going to be telling the truth. There is no question about that. But what I am saying is
she is one of the witnesses in the case. Would you put undue emphasis more on her
testimony than on somebody else's testimony?
The judge later explained to the jury that what he [m]eant to say by that statement was
that [the witness] would be sworn under oath and would be sworn to tell the truth, as all the
witnesses would. But as to whether or not, in fact, you want to believe that testimony, it is up
to you to decide. You make the determination as regarding the credibility of any witness that
testifies.
4

That judges may not comment to the jury on the credibility of witnesses is a settled matter
of Nevada constitutional law, case law, and statute. See Gordon v. Hurtado, 91 Nev. 641, 541
P.2d 533 (1975); Wheeler v. Twin Lakes Riding Stable, Inc., 88 Nev. 485, 550 P.2d 572
(1972). However, it is also established law that violations of the constitutional and statutory
prohibitions are subject to the rule of harmless error. Gordon, 91 Nev. at 645; Wheeler, 88
Nev. at 487. In light of the court's subsequent explanation and instruction to the jury
regarding the comment about the witness' truthfulness, we conclude the comment was
harmless and did not warrant a mistrial.
[Headnote 4]
Pertgen next argues that the court erred in admitting certain prior crime evidence during
the penalty phase of his trial. The allegedly improper evidence consisted of the testimony of a
New Jersey prosecutor indicating that Pertgen had once faced a charge of aggravated sexual
assault in New Jersey, but that the jury in that case was unable to reach a verdict on that
charge.
5
Although the evidence backing the New Jersey charge was arguably dubious or
tenuous,
6
its admission in this case was harmless beyond a reasonable doubt. Other
evidence overwhelmingly supports the jury findings on aggravating circumstances and
justifies the jury's imposition of the death penalty in this case.7
__________

4
The court offered this clarification before Pertgen ever called for a mistrial on this issue.

5
The jury in that same New Jersey proceeding found Pertgen guilty of criminal restraint and not guilty of
two other sexual assault charges. The court in this case properly admitted the conviction evidence as evidence of
a statutory aggravating circumstance. See NRS 200.033. The district court was also correct in precluding the
New Jersey prosecutor from discussing the two charges resulting in not guilty verdicts.

6
See Crump v. State, 102 Nev. 158, 161, 716 P.2d 1387, 1389 (1986) (prior crime evidence is inadmissible
if dubious or tenuous).
ports the jury findings on aggravating circumstances and justifies the jury's imposition of the
death penalty in this case.
7

Finally, Pertgen alleges prosecutorial misconduct, improper substitution of counsel,
improper admission of confession evidence, and an abuse of the district court's discretion in
reopening the case for more witness testimony. We have considered these contentions and
conclude that each lacks merit. Accordingly, we affirm each of Pertgen's convictions and the
corresponding sentences.
Young, C. J., Steffen, Springer and Rose, JJ., and Recanzone, D. J.,
8
concur.
____________
105 Nev. 287, 287 (1989) NEC Corp. v. Benbow
NEC CORPORATION, a Nevada Corporation, Appellant, v. DONNA BENBOW, WILLIAM
PEARCE, KATHLEEN PEARCE, JIM CLARKSON, SHIRLEY CLARKSON,
PHILLIP MASON, SHERRY DEMENT, SAMUEL GOODMAN, MILDRED
GOODMAN, BOB WINCHURCH, and JENNY WINCHURCH, Respondents.
No. 18641
May 23, 1989 774 P.2d 1033
Appeal from an order of the district court granting judgment notwithstanding the verdict.
Second Judicial District Court, Washoe County; Robin Anne Wright, Judge.
Landlord brought action against tenants for unlawful detainer and back rent. Tenants
counterclaimed for breach of contract, harassment, trespass, and punitive damages. The
district court granted tenants judgment notwithstanding verdict. Landlord appealed. The
Supreme Court held that whether enforceable contracts existed and whether landlord
breached such contracts were questions for jury.
Reversed.
Digesti & Peck, Reno for Appellant.
__________

7
The jury found as aggravating circumstances that the murder involved torture and depravity of mind. The
jury found no mitigating circumstances.

8
The Honorable Mario G. Recanzone, Judge of the Third Judicial District, was designated by the Governor
to sit in the place of The Honorable John Mowbray, Justice. Nev. Const., art. 6, 4.
Lionel Sawyer & Collins and Richard W. Horton, Reno, for Respondents.
Whether enforceable contracts existed between landlord and tenants was question for jury in landlord's action for back rent.
Whether alleged contracts between landlord and tenants were breached by landlord was question for jury in landlord's action for
unlawful detainer.
OPINION
Per Curiam:
Appellant, NEC Corporation (NEC), appeals the district court's order granting judgment
n.o.v. and an addendum to that order. NEC sued respondents, Donna Benbow, William
Pearce, Kathleen Pearce, Jim Clarkson, Shirley Clarkson, Phillip Mason, Sherry Dement,
Samuel Goodman, Mildred Goodman, Bob Winchurch and Jenny Winchurch, eleven tenants
of a manufactured home subdivision, for unlawful detainer and back rent. The tenants
counterclaimed for breach of contract, harassment, trespass and punitive damages. The jury
returned a unanimous verdict finding that (1) NEC had not breached any contracts and was
entitled to back rent, and that (2) the tenants were entitled to compensatory damages for
harassment. The district court granted the tenants judgment n.o.v. and eliminated the jury's
award of back rent. The district court issued an addendum to the judgment allowing the
tenants to remain on their lots at reduced rents until NEC performed its contracts. On appeal,
NEC contends that the district court erred in granting the tenants judgment n.o.v. and that the
district court's addendum is void. We agree.
In 1973 and 1974, Dr. Clyde Emery and his wife (the Emerys) constructed a mobile
home rental park known as Glen Meadows on unimproved real property they owned on the
Truckee River near Verdi. The Emerys originally operated the park under the fictitious name
of IDM Enterprises and later transferred the park to NEC, a corporation owned and controlled
by them. During 1981 the Emerys decided to convert the park into a mobile home
subdivision.
The Emerys hired several people to assist in the conversion, including an engineering firm,
land planners and a public relations firm, Brodeur-Martin. A Brodeur-Martin representative
held meetings with the park tenants to explain the conversion process. It was represented to
the tenants that there would be no rent increases until the conversion was complete and that
they would have the option of purchasing their lots or continuing to rent.
Brodeur-Martin mailed all tenants a letter regarding the proposed conversion. Several
commitments regarding lot prices, financing and control of the homeowners' association were
made to the tenants to obtain their support for the conversion. Respondents, Samuel and
Mildred Goodman, Bob and Jerry Winchurch and Phillip Mason (the long-term tenants),
claim rights based upon these commitments.
1

Respondents, Donna Benbow, William and Kathleen Pearce, Jim and Shirley Clarkson and
Sherry Dement (the newer tenants), purchased homes from the Emerys during the conversion
process and became tenants under separate agreements, which set their lot rents and
established either set prices or not to exceed prices for their respective lots.
Approval to convert the park was obtained in April, 1984, and offers of sale were mailed
to the tenants. The offers were mailed on a Wednesday and received by most tenants on the
following Friday. The offers gave the tenants until the following Monday to deposit
$1,000.00 in escrow to secure the offer. Each tenant was also given a copy of the subdivision
covenants, codes and regulations (CC&R's).
The long-term tenants asserted that the offers did not conform to the commitments made to
them in the Brodeur-Martin letter. The newer tenants asserted that the offers did not comply
with their agreements. New offers were made to the tenants in November, 1984, which were
at or below the prices offered in April. The tenants maintained that the offers did not comply
with their agreements because the CC&R's were unreasonable and the lot prices were based
on a disputable appraisal.
In January of 1985, the Emerys through NEC sent new leases to the tenants increasing
their monthly rent. The tenants did not sign the leases and continued to pay their lot rent
under their expired leases. The Emerys, through NEC, served notices to pay rent or quit the
premises.
In July, 1985, this action was filed against the tenants for unlawful detainer and back rent.
The tenants answered and by counterclaim and a third-party complaint sought specific
performance of the contract to sell the lots, and damages for trespass and breach of their right
to quiet enjoyment.
2
During the jury trial the tenants testified concerning representations
made to them and the Emerys' harassment of them by barricading roadways, shutting off
water and serving multiple legal notices. NEC presented testimony concerning negotiations to
sell the lots, that roads were only barricaded to divert traffic to the sales office, that water was
only shut off to vacant homes, and that the legal notices sent were required.
__________

1
Phillip Mason died before trial and his estate succeeded to his rights.

2
The tenants subsequently stipulated to a dismissal of their claim for specific performance.
only shut off to vacant homes, and that the legal notices sent were required. Conflicting
testimony was presented regarding the CC&R's and the validity of the appraisal used in
setting lot prices for the November offers.
The jury returned a unanimous verdict finding that (1) the Emerys had not breached any
contracts and were entitled to $75,683.26 in back rent, and that (2) the tenants had been
harassed and were entitled to $94,300.00 compensatory damages, the exact amount that it
would cost them to remove their homes from the subdivision. The jury declined to award
punitive damages.
The district court concluded that reasonable people could not have concluded that
contracts did not exist with the tenants or that proper offers had been made to the tenants in
accordance with those contracts. The district court questioned the jury's verdict as internally
inconsistent, concluding that the finding of constructive ouster (harassment) was inconsistent
with the award of back rent stemming from legitimate offers and holdover. The district court
granted the tenants judgment n.o.v. by eliminating the jury's award for back rent. The district
court filed an addendum the next day declaring that the tenants could remain in possession of
their lots at their present rental rates until the Emerys made offers in accordance with the
contracts. This appeal followed.
NEC contends that the district court erred in granting the tenants judgment n.o.v.
Specifically, NEC contends that the district court second-guessed the jury with respect to the
existence of enforceable contracts or Emerys' breach of any contracts and thereby ignored
substantial evidence that supported the jury's contrary conclusions. We agree.
The standard for review of a judgment n.o.v. is whether the evidence is such that
reasonable men would have necessarily reached a different conclusion. Drummond v.
Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975); Wilkes v. Anderson, 100 Nev. 433,
683 P.2d 35 (1984). When considering a motion for judgment n.o.v., the evidence must be
viewed in a light most favorable to the nonmovant, and that party must be given the benefit of
every reasonable inference from any substantial evidence supporting the verdict. Jeffers v.
Kaufman Machinery, 101 Nev. 684, 707 P.2d 1153 (1985). Neither the credibility of the
witnesses nor the weight of the evidence may be considered. Wilkes v. Anderson, supra.
Judgment n.o.v. should be granted when there is only one reasonable conclusion without
weighing the evidence. See Bates v. Chronister, 100 Nev. 675, 691 P.2d 865 (1984); Trustees,
Carpenters v. Better Building Co., 101 Nev. 742, 710 P.2d 1379 (1985). If there is conflicting
evidence or if the evidence is insufficient for a one-way verdict, judgment n.o.v. should not
be granted. Bates, supra.
[Headnotes 1, 2]
The district court erred in granting the tenants a judgment n.o.v. because reasonable men
could have reached different conclusions based upon the evidence presented. Although a
different verdict might have been reached, more than one reasonable conclusion existed. The
evidence presented was conflicting and insufficient for a one-way verdict. The jury could
have reasonably concluded from the evidence that enforceable contracts did not exist between
the parties or that any existing contracts had been fulfilled. Therefore, the district court erred
in granting the tenants a judgment n.o.v. Accordingly, the district court's grant of judgment
n.o.v., as well as the addendum, is reversed and the jury's verdict is reinstated.
Steffen, A. C. J., Springer, Mowbray and Rose, JJ., and Gamble, D. J.,
3
concur.
____________
105 Nev. 291, 291 (1989) Wiltsie v. Baby Grand Corp.
JERRY WILTSIE, Appellant, v. BABY GRAND CORPORATION d/b/a MAXIM HOTEL
& CASINO, Respondent.
No. 19265
May 26, 1989 774 P.2d 432
Appeal from an order of the district court granting respondent's motion for summary
judgment in a wrongful termination case. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Terminated employee brought action for retaliatory discharge. The district court granted
summary judgment for employer, and appeal was taken. The Supreme Court held that: (1) tort
for retaliatory discharge exists, and (2) because employee chose to report activity to employer
rather than appropriate authorities, he was merely acting in private or proprietary manner.
Affirmed.
Richard Segerblom, Las Vegas, for Appellant.
Moran & Weinstock, Las Vegas, for Respondent.
1. Master and Servant.
Firing of at-will employee for reporting illegal conduct of his employer violates established public policy of Nevada, and gives rise
to cause of action for retaliatory discharge, so long as employee's action was not merely private or
proprietary but instead sought to further public good.
__________

3
The Honorable David R. Gamble, Judge of the Ninth Judicial District, was designated by the Governor to
sit in the place of The Honorable Cliff Young, Chief Justice, who voluntarily disqualified himself. Nev. Const.,
art. 6, 4.
cause of action for retaliatory discharge, so long as employee's action was not merely private or proprietary but instead sought to
further public good.
At-will employee allegedly discharged for reporting illegal activity of his supervisor to employer could not recover for retaliatory
discharge; because employee chose to report activity to employer rather than appropriate authorities, he was merely acting in private or
proprietary manner.
OPINION
Per Curiam:
Respondent, Baby Grand Corporation d/b/a/ Maxim Hotel & Casino hired appellant, Jerry
Wiltsie as a poker room manager. Subsequently, respondent terminated appellant. Appellant
filed a complaint against respondent alleging that he had been terminated after he reported
illegal conduct of his supervisor to respondent. Respondent filed its answer to the complaint
denying appellant's allegation and setting forth several affirmative defenses. Subsequently,
respondent filed a motion for summary judgment on the grounds that appellant had failed to
state a claim upon which relief could be granted. Appellant maintained that he had a cause of
action for wrongful termination in violation of public policy and requested additional time in
which to conduct discovery pursuant to NRCP 56(f). The district court granted respondent
summary judgment. This appeal followed.
Appellant contends that the district court erred in granting summary judgment because he
has a cause of action for retaliatory discharge. Appellant first contends that this court should
recognize the tort of retaliatory discharge where an employee is terminated for reporting
illegal conduct of his employer. Secondly, appellant contends, if such a tort is recognized,
that a genuine issue of material fact exists as to whether he was fired in retaliation for
reporting illegal conduct on the part of his supervisor.
Summary judgment is appropriate only when the moving party is entitled to judgment as a
matter of law, and no genuine issue of material fact remains for trial. NRCP 56(c); Morrow v.
Barger, 103 Nev. 247, 737 P.2d 1153 (1987). In determining whether summary judgment is
proper, the nonmoving party is entitled to have the evidence and all reasonable inferences
accepted as true. See Johnson v. Steel, Inc., 100 Nev. 181, 678 P.2d 676 (1984).
[Headnotes 1, 2]
In order to recognize the tort of retaliatory discharge, this court must find that firing an
at-will employee for reporting illegal conduct of his employer violates an established public
policy of this state.
conduct of his employer violates an established public policy of this state. See Hanson v.
Harrah's, 100 Nev. 60, 675 P.2d 394 (1984). Other courts have recognized that public policy
protects workers who report illegal activity in their jurisdictions. See Harless v. First Nat'l
Bank in Fairmont, 246 S.E.2d 270 (W.Va. 1978); Petrik v. Monarch Printing Corp., 444
N.E.2d 588 (Ill.App. 1982); Brown v. Physicians Mut. Ins. Co., 679 S.W.2d 836 (Ky.App.
1984).
No public policy is more basic than the enforcement of our gaming laws. We believe that
whistleblowing activity which serves a public purpose should be protected. So long as
employees' actions are not merely private or proprietary, but instead seek to further the public
good, the decision to expose illegal or unsafe practices should be encouraged. Wagner v.
City of Globe, 722 P.2d 250, 257 (Ariz. 1986). In this case appellant alleged that he was
discharged for reporting illegal activity to his supervisor. Because appellant chose to report
the activity to his supervisor rather than the appropriate authorities, he was merely acting in a
private or proprietary manner. Cf. Zaniecki v. P. A. Bergner & Co., 493 N.E.2d 419 (Ill.App.
1986) (reporting suspected illegal activity to a supervisor is a purely private action). Thus,
even accepting appellant's allegations as true, he is not protected in this case. Therefore, the
district court did not err in granting summary judgment.
1
Accordingly, the judgment of the
district court is affirmed.
____________
105 Nev. 293, 293 (1989) State v. Smith
THE STATE OF NEVADA, Appellant, v. KATHERINE L. SMITH, Respondent.
No. 18955
June 1, 1989 774 P.2d 1037
Appeal from the district court's decision granting defendant's motions to suppress the
results of a chemical sobriety test and a prior conviction for driving while intoxicated. Second
Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
__________

1
Appellant also suggests that the district court abused its discretion by granting summary judgment at this
stage of the proceedings because he had asked for additional time in which to conduct discovery. This court has
held that it is an abuse of discretion for a district court to grant summary judgment where a request for discovery
is made early in the proceedings. See Halimi v. Blacketor, 105 Nev. 105, 770 P.2d 531 (1989); Harrison v.
Falcon Products, 103 Nev. 558, 746 P.2d 642 (1987). However, because appellant has no cause of action in this
case, additional discovery would be of no use. Therefore, the district court did not abuse its discretion by
granting summary judgment.
105 Nev. 293, 294 (1989) State v. Smith
State appealed from orders of the district court which suppressed results of chemical
sobriety test and prior conviction for driving while intoxicated. The Supreme Court held that:
(1) fact that defendant had not been properly Mirandized did not require suppression of
breath samples; (2) defendant's consent to breath test was voluntarily given; but (3)
defendant's prior conviction, based on guilty plea, for first offense drunk driving could not be
used to convict defendant of third offense drunk driving even though the prior conviction
was, in fact, based on her second offense.
[Rehearing denied September 28, 1989]
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Sandra A.
Unsworth, Deputy District Attorney, and Larry Guy Sage, Deputy District Attorney, Washoe
Houston & Freeman, Reno, for Respondent.
1. Criminal Law.
Defendant was entitled to Miranda warnings after officer stopped her, administered field sobriety test, and placed her under arrest.
2. Criminal Law.
All but routine discussion between officer and defendant should have ceased once defendant asked to speak to her attorney.
3. Automobiles.
Police officer's failure to Mirandize defendant could not serve as a basis for suppressing results of her breath samples.
4. Automobiles.
Fourth Amendment did not require that officer obtain search warrant before administering breath test. U.S.C.A.Const. Amend 4.
5. Criminal Law.
Administration of chemical sobriety test is not a critical stage within Sixth Amendment right to counsel analysis. U.S.C.A.Const.
Amend. 6.
6. Automobiles.
Implied consent laws are liberally construed in order to further legislative policy of removing intoxicated drivers from the
highways. NRS 484.384, subds. 1, 2.
7. Automobiles.
Motorist's consent to chemical sobriety test was not rendered invalid because of officer's statements concerning possible harsher
consequences if she did not cooperate by taking the test. NRS 484.384, subds. 1, 2.
8. Criminal Law.
State may use prior misdemeanor convictions for driving under the influence to enhance penalties for subsequent driving while
under the influence convictions. NRS 484.3792, subd. 1.
9. Criminal Law.
Defendant's prior conviction for first offense drunk driving, entered pursuant to plea bargain, could not be used to enhance
subsequent offense to a third time felony offense, even though the prior offense had been her second where
defendant was not advised at the time that she pled guilty to first offense drunk driving that the conviction
could thereafter revert to second offense drunk driving in the event of a further drunk driving conviction.
105 Nev. 293, 295 (1989) State v. Smith
offense to a third time felony offense, even though the prior offense had been her second where defendant was not advised at the time
that she pled guilty to first offense drunk driving that the conviction could thereafter revert to second offense drunk driving in the event
of a further drunk driving conviction. NRS 484.3792, subd. 1.
OPINION
Per Curiam:
Respondent Katherine Smith was arrested in 1987 for driving under the influence of
alcohol for the third time. Although Smith initially told Gary Quam, the arresting officer, that
she would not submit to a chemical sobriety test, after some discussion with the officer, she
eventually changed her mind and agreed to take a breath test. Prior to trial, Smith filed a
motion to suppress the results of this test, and the district court granted the motion.
In 1986, after her second arrest for drunk-driving, Smith pleaded guilty to a charge of
first-offense driving under the influence. After her 1987 arrest, Smith also filed a motion to
suppress this conviction, arguing that the State could not use the 1986 conviction to enhance
her 1987 charge into a third-time, felony offense. The district court granted this motion as
well.
The State appeals on the grounds that the district court abused its discretion by granting
Smith's motions to suppress. The State correctly argues that the district court abused its
discretion when it suppressed the results of Smith's breath test. However, the district court
properly suppressed Smith's 1986 conviction.
Smith was under arrest when Quam began to question her during the ride to the police
station. At no time did Quam read the Miranda warnings to Smith. Moreover, before the ride
began, Smith, under her own volition, demanded to speak to her attorney.
However, during the drive to the jail, Officer Quam continued to question Ms. Smith, who
was visibly upset. Quam asked Smith if she had any prior drunk-driving convictions, and
Smith responded that she had one prior conviction. Quam responded that a second
drunk-driving conviction was not that big a deal in Nevada, and encouraged Smith to take a
breath test. Quam informed Smith that for her second drunk-driving offense, she would only
receive a maximum six months imprisonment and a $500 fine.
Smith testified that as Quam continued to question her, she became more upset and
confused. Smith believed that she would receive harsher treatment if she continued to refuse
to submit to the chemical sobriety test. When they reached the jail, Quam asked Smith again
whether she wanted to take a breath test. This time, Smith agreed to take the test. In its order
granting Smith's motion to suppress the results of her breath test, the district court
concluded that because Officer Quam's "coercive conduct" vitiated Smith's consent to the
test, the police obtained her breath sample illegally.
105 Nev. 293, 296 (1989) State v. Smith
motion to suppress the results of her breath test, the district court concluded that because
Officer Quam's coercive conduct vitiated Smith's consent to the test, the police obtained her
breath sample illegally.
[Headnotes 1, 2]
Smith was entitled to the Miranda warnings after Quam stopped her, administered the
field sobriety tests, and placed her under arrest. Berkemer v. McCarty, 468 U.S. 420, 434
(1984). Moreover, once Smith asked to speak to her attorney, all but routine discussion
between Quam and Smith should have ceased. Miranda v. Arizona, 384 U.S. 436, 474
(1966). Therefore, Officer Quam's performance fell below the standard for proper police
procedures.
[Headnote 3]
However, the district court correctly observed that violations of the Miranda procedures
result only in the suppression of compelled testimonial evidence. Schmerber v. California,
384 U.S. 757, 764 (1966); McCharles v. State, Dep't of Mtr. Vehicles, 99 Nev. 831, 834, 673
P.2d 488, 490 (1983). The Fifth Amendment does not bar the forced production of real or
physical evidence, such as blood or breath samples. McCharles, 99 Nev. at 834, 673 P.2d at
490. Therefore, Officer Quam's failure to Mirandize Smith cannot serve as a basis for
suppressing the results of her breath samples. Id.
[Headnotes 4, 5]
Moreover, although Quam did not first obtain a warrant before administering the breath
test, the Fourth Amendment does not prohibit such warrantless seizures because evidence
such as breath samples may be lost if not immediately seized. Schmerber, 384 U.S. at
770-772. Since the court could not base the suppression of the breath test results on Fourth,
Fifth or Sixth Amendment violations,
1
it used the language of Nevada's Implied Consent
Laws, as well as case law, to support its conclusions.
The district court suppressed the breath test results because, in its opinion, Officer Quam's
coercive conduct vitiated Smith's eventual consent to the test. According to NRS
484.383(8), if a driver detained under suspicion of operating a vehicle while under the
influence of alcohol refuses to consent to a chemical sobriety test, "none may be given."
__________

1
Smith did not speak to her attorney before submitting to the breath test. However, the administration of a
chemical sobriety test is not a critical stage within Sixth Amendment right to counsel analysis because the
absence of the accused's attorney should not affect his or her right to a fair trial. McCharles, 99 Nev. at 833-834,
673 P.2d at 489. Therefore, the State did not abrogate Smith's Sixth Amendment right to counsel when it
administered the breath test before she consulted her attorney. Id.
105 Nev. 293, 297 (1989) State v. Smith
sobriety test, none may be given. The district court reasonably suggested that this restraint
on a police officer's ability to forcibly administer a sobriety test furthers the legislature's
desire to avoid physical confrontations between law enforcement officers and drivers
suspected of being intoxicated. To serve that end, the law recognizes the driver's right to
refuse his consent, but penalizes him for exercising that right by revoking his license. NRS
484.384(1), (2). The fact of his refusal can be introduced against him in an administrative or
criminal proceeding. NRS 484.389(1). By striking this balance, the statute motivates drivers
to take the test, but does so without resorting to physical compulsion. State v. Hitchens, 294
N.W.2d 686, 688 (Iowa 1980).
Thus, the district court held that the legislature gave Nevada motorists the statutory right to
withdraw their consent to chemical sobriety tests after being informed of the Implied Consent
Law. To be valid, consent must be voluntary, and not the product of coercion. Davis v. State,
99 Nev. 25, 27, 656 P.2d 855, 856 (1983). [V]oluntariness is a question of fact to be
determined from the totality of the surrounding circumstances. Id.
The district court ruled that the State failed to meet its burden of proving the voluntariness
of Smith's eventual consent by clear and convincing evidence. Sparkman v. State, 95 Nev. 76,
79, 590 P.2d 151, 154 (1979). Specifically, the court held that Officer Quam, through guile
and psychological coercion, pressured Smith into changing her mind. The court found that
Smith's consent germinated from implied threats of harsher consequences if she did not
cooperate by taking the test, a misapprehension of the law created by Quam. Therefore, it
concluded that Smith's consent was a product of trickery and subtle coercion, not free will.
We disagree.
[Headnotes 6, 7]
We construe Nevada's Implied Consent Laws liberally in order to further the legislative
policy of removing intoxicated drivers from our highways. Davis, 99 Nev. at 27, 656 P.2d at
856. In Davis, the appellant was injured, intoxicated, and distraught when he expressed his
consent to a blood alcohol test. Nevertheless, we held that Davis' consent was freely and
voluntarily given. Id. at 28, 656 P.2d at 857. In the instant case, we do not find that Officer
Quam's conversation with Smith following her arrest was so onerous as to be coercive.
Accordingly, substantial evidence does not support the district court's holding that Smith's
consent to the chemical sobriety test was involuntarily given. Therefore, the district court
abused its discretion when it suppressed the results of Smith's test.
The State argues that the district court erred when it ordered the suppression of Smith's
19S6 Nevada drunk-driving conviction for the purpose of elevating her 19S7 charge to a
felony.
105 Nev. 293, 298 (1989) State v. Smith
the suppression of Smith's 1986 Nevada drunk-driving conviction for the purpose of elevating
her 1987 charge to a felony. The State contends that, since Smith's 1986 conviction was in
fact her second offense, it may properly use the 1986 conviction to enhance the most recent
offense to felony status. We disagree.
When determining whether the State fulfilled its part of a plea bargain, we hold the State
to the most meticulous standards of promise and performance. Van Buskirk v. State, 102
Nev. 241, 243, 720 P.2d 1215, 1216 (1986). Any violation of the terms or the spirit of the
plea bargain demands reversal. Id.
When Smith pleaded guilty to driving under the influence in 1986, the Reno city attorney
informed the district court judge that the defendant is going to be changing her plea to guilty
to first-time DUI. The district court accepted her plea and based on the negotiations had
between the attorneys, imposed a sentence commensurate with that indicated for first-time
drunk-driving offenders by NRS 484.3792(1).
2

[Headnotes 8, 9]
The State may use prior misdemeanor convictions for driving under the influence to
enhance the penalties established by NRS 484.3792. Koenig v. State, 99 Nev. 780, 784, 672
P.2d 37, 40 (1983). However, the record indicates that Smith understood that the State would
treat her as a first offender in connection with the 1986 charge. The spirit of constitutional
principles does not support the subsequent use of the 1986 conviction for enhancement
purposes without appropriate clarification and warning on the occasion of the 1986 plea
bargain.
Nothing in the record indicates that, in 1986, the State advised Smith that after receiving
treatment as a first-offender, the 1986 conviction would thereafter revert to a second offense
in the event of further drunk-driving convictions. Moreover, we assume that Smith's 1986
guilty plea was induced, at least in part, by the knowledge that a first-time offense, for
purposes of minimizing criminal penalties for future drunk-driving convictions, was
preferable to a second offense. [W]hen 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. Santobello v. New York, 404 U.S. 257, 262
(1971).
Courts specifically enforce plea bargains when enforcement will implement the reasonable
expectations of the parties without binding the trial judge to an unsuitable disposition. Van
Buskirk, 102 Nev. at 244, 720 P.2d at 1216-1217.
__________

2
Since Smith's counsel advised her of her constitutional rights at that time, the record indicates that Smith's
1986 guilty plea comported with the spirit of constitutional principles, and therefore, was valid. Koenig v.
State, 99 Nev. 780, 789, 672 P.2d 37, 43 (1983).
105 Nev. 293, 299 (1989) State v. Smith
102 Nev. at 244, 720 P.2d at 1216-1217. In this case, because it was reasonable for the parties
to expect that Smith's 1986 conviction would be treated as a first offense in all respects,
including penalty enhancement for future drunk-driving convictions, enforcement of the plea
agreement is appropriate.
Thus, the use of Smith's 1986 drunk-driving conviction in order to enhance her 1987
charge to felony status would violate the spirit of the plea bargain entered into in 1986
between Smith and the Reno city attorney. See Van Buskirk, 102 Nev. at 243, 720 P.2d at
1216. Therefore, the district court properly suppressed the 1986 conviction.
Accordingly, we reverse the district court's suppression of the results of Smith's
breathalyzer test. We affirm the trial court's suppression of the use of Smith's 1986 conviction
as a penalty enhancer.
____________
105 Nev. 299, 299 (1989) State v. Washoe Co. Public Defender
THE STATE OF NEVADA, RENO POLICE DEPARTMENT AND ROBERT
BRADSHAW, Appellants, v. WASHOE COUNTY PUBLIC DEFENDER, Respondent.
No. 19090
June 1, 1989 775 P.2d 217
Appeal from order of the district court granting respondent's petition for writ of
mandamus. Second Judicial District Court, Washoe County; Jerry C. Whitehead, Judge.
Appeal was taken from order of the district court requiring police department to allow
court services officer to interview detainee during judicial hours. The Supreme Court held
that: (1) petition was justiciable; (2) judge's interpretation of governing statute was proper;
and (3) writ issued by trial judge was appropriate.
Affirmed.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Larry Sage,
Deputy District Attorney, Washoe County, for Appellants.
David Parraguirre, Public Defender, Jane McKenna, Deputy Public Defender, Washoe
1. Mandamus.
Petition for writ of mandamus raising issue of public defender's right to have access to detainee between his arrest and his
appearance before magistrate was not moot, because activity complained of was capable of repetition yet evading view.
capable of repetition yet evading view. NRS 171.178, subd. 3, 260.050, subd 1.
2. Criminal Law.
Statute providing that [t]he public defender may, before being designated as counsel for that person . . . interview an indigent
person when he has been arrested and confined for a public offense or for questioning on suspicion of having committed a public
offense requires that public defender be allowed to interview indigent detainee prior to being designated as counsel for that person;
word interview is not limited to a discussion of detainee's status as an indigent. U.S.C.A.Const. Amend. 6; NRS 171.188, 260.050,
subd. 1.
3. Mandamus.
Trial judge, in issuing writ of mandamus to require police department to comply with statute requiring public defender to be
allowed to interview indigent detainee prior to being designated as counsel for that person, properly required police department to
allow court services officers to make determinations of indigency prior to public defender's interview, as the first step toward assuring
compliance. NRS 260.050, subd. 1.
OPINION
Per Curiam:
The State of Nevada, Reno Police Department and Robert Bradshaw (State) appeal from
the trial court's order granting respondent Washoe County Public Defender's petition for a
writ of mandamus. The trial judge issued a writ of mandamus ordering the Reno Police
Department to comply with NRS 260.050(1). Pursuant to the trial judge's interpretation of the
statute, the police department is required to allow a court services officer to interview a
detainee during judicial hours. If the indicia of indigency is present, then the police
department must further allow a representative of the public defender's office to interview the
indigent detainee prior to court appointment of the public defender as counsel for the
individual. The State appeals the trial judge's order on the basis of mootness and asserts that
the trial judge has improperly interpreted and applied the statute. Because the State's
arguments on appeal are without merit, we affirm the trial judge's order.
[Headnote 1]
The trial judge properly ruled that the public defender's petition for the writ was not moot
because the type of activity complained of was that which is capable of repetition, yet
evading review. The trial judge's rationale is well received. This case presents a prime
example of the type of situation which is capable of repetition yet evades review because
under normal circumstances the time that elapses between a suspect's arrest and his
appearance before a magistrate, at which time the public defender is officially appointed,
does not exceed seventy-two hours.
defender is officially appointed, does not exceed seventy-two hours. See NRS 171.178(3). At
issue is the public defender's right to have access to detainees during this very abbreviated
time period. The question of whether NRS 260.050(1) guarantees such access evades review
because the indigent's initial appearance is likely to occur before the denial of access by the
public defender can be challenged. Additionally, the situation complained of repeated itself
on prior occasions and was likely to continue until the court issued the writ.
The capable of repetition, yet evading review doctrine has previously been looked upon
with favor by this court (see Cirac v. Lander, 95 Nev. 723, 734, 602 P.2d 1012, 1019 (1979)),
though, until now, it has not yet been explicitly recognized (see NCAA v. University of
Nevada, 97 Nev. 58, 60, 624 P.2d 11, 12 (1981)). The usefulness of this doctrine is clearly
evidenced in situations such as the one presented by this case where, in the absence of such a
rule, an important question of law could never be decided because of the nature of its timing.
We hold that the trial judge properly relied upon the capable of repetition, yet evading
review doctrine in ruling that the public defender's petition for a writ of mandamus was
justiciable.
[Headnote 2]
The State next asserts that the trial judge misinterpreted the intent of NRS 260.050(1).
That statute provides in full that [t]he public defender may, before being designated as
counsel for that person pursuant to NRS 171.188,
1
interview an indigent person when he has
been arrested and confined for a public offense or for questioning on suspicion of having
committed a public offense. The intent of this statute is clear on its face. The trial judge
properly interpreted NRS 260.050(1) to require that the public defender be allowed to
interview an indigent detainee prior to being designated as counsel for that person. Because
the intent of the statute is clear on its face, this court may not go beyond the words of the
statute to determine the legislature's intent. Thompson v. District Court, 100 Nev. 352, 354,
683 P.2d 17, 19 (1984).
Despite the State's urging, there is no persuasive reason for this court to hold that the word
interview, as used in the statute, was intended to be limited to a discussion of the detainee's
status as an indigent. The plain words of the statute belie the State's interpretation since the
statute permits the public defender to interview an indigent person, implying that the status
of indigency has already been determined. Likewise, we are not inclined to agree with the
State's assertion that the sixth amendment right to counsel should influence the
interpretation of this statute.
__________

1
NRS 171.188 outlines the procedure for appointing an attorney for an indigent defendant.
inclined to agree with the State's assertion that the sixth amendment right to counsel should
influence the interpretation of this statute. NRS 260.050(1) conveys discretion upon the
public defender to interview detainees; it is wholly unrelated to the right held by a defendant
under the sixth amendment to receive counsel.
[Headnote 3]
Finally, we find no merit in the State's argument that the trial judge's writ is erroneous
because it requires the police department to allow court services officers to make
determinations of indigency prior to the public defender's interview. The State asserts that this
requirement is improper because it treats indigent persons in Reno Township different [sic]
than indigent persons where there are no court services officers. The State's point is
unpersuasive. Reno happens to employ court services officers to make the indigency
investigation. Since NRS 260.050(1) allows the public defender access to indigent detainees,
in order to comply with the spirit of the statute, the detainee's status as a probable indigent
must be determined prior to the public defender's interview. The trial judge's writ, requiring
that court services officers be allowed to interview a detainee during judicial hours is, in light
of Washoe County's established system of investigating indigency, the first step toward
assuring compliance with NRS 260.050(1). Contrary to the State's assertion, the writ
facilitates the equal treatment of detainees at the Reno Police Department with detainees in
other jurisdictions by assuring that the opportunity to make a determination of probable
indigent status is afforded in a timely manner. This is an integral component of facilitating
compliance with NRS 260.050(1) since, pursuant to that statute, only after this determination
is made may the public defender interview a detainee.
We are satisfied that the public defender's petition was justiciable, that the trial judge's
interpretation of NRS 260.050(1) was proper, and further, that the writ of mandamus which
he issued was appropriate. We, therefore, affirm the order of the trial court.
____________
105 Nev. 303, 303 (1989) Vogt v. Dennett
LOUIS B. VOGT and SHIRLEY JENKINS, Appellants, v. DONALD DENNETT, DANIEL
DENNETT, R. J. McCORMICK, aka and called MAC McCORMICK, FRED KNOBEL,
and ZANE GREEN, Respondents.
No. 19218
June 1, 1989 774 P.2d 1036
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Creditors who foreclosed on security brought action against guarantors of promissory
notes for difference between sale price of property and amount due on loan. The district court
held that action was barred as not being timely filed. Creditors appealed. The Supreme Court
held that Supreme Court decision in First Interstate Bank v. Shields, holding that deficiency
statutes enacted to protect debtors from creditors who had sold property held as security and
then sued debtors for deficiency should also protect guarantors, did not apply retroactively to
the extent of requiring compliance with requirement that deficiency action be filed within
three months of foreclosure.
Reversed.
Denton & Denton, Las Vegas, for Appellants.
Callister & Reynolds, Las Vegas, for Respondents Dennett and Dennett.
William L. McGimsey, Las Vegas, for Respondent McCormick.
Schreck, Jones, Bernhard, Woloson & Godfrey, Las Vegas, for Respondent Knobel.
Sper & Creel, Las Vegas, for Respondent Green.
Courts.
Supreme Court decision in First Interstate Bank v. Shields, holding that deficiency statutes enacted to protect debtors from
creditors who had sold property held as security and then sued debtors for deficiency should also protect guarantors, did not apply
retroactively to the extent of requiring compliance with requirement that deficiency judgment be filed within three months of
foreclosure sale. NRS 40.455-40.459.
OPINION
Per Curiam:
Affordable Living Homes, Inc. executed two promissory notes in favor of appellants
Louis B.
in favor of appellants Louis B. Vogt and Shirley Jenkins (Vogt and Jenkins) secured by real
property and guaranteed by the five respondents (Guarantors) and by Coulter Homes, Inc.
Affordable Living defaulted on the notes, and Vogt and Jenkins brought an action against the
Guarantors for the amount due. Subsequently, Vogt and Jenkins foreclosed on the security on
July 30, 1984, and they brought an action against the Guarantors for the difference between
the sale price of the property and the amount due on the loan. However, this deficiency action
was commenced in March 1988, almost four years after the foreclosure sale.
After the foreclosure sale, but before Vogt and Jenkins commenced the deficiency action,
this court overruled previous case law and held that the deficiency statutes enacted to protect
debtors from creditors who had sold property held as security and then sued the debtors for
the deficiency should also protect guarantors. First Interstate Bank v. Shields, 102 Nev. 616,
730 P.2d 429 (1986). The deficiency statutes provide a three-month limitation for applying
for a deficiency judgment after the foreclosure sale and a limitation of the amount the creditor
could obtain from the debtor. See NRS 40.455-.459.
Applying our Shields decision retroactively, the trial court found that Vogt and Jenkins
failed to apply for the deficiency judgment within the three-month limitation. The sole basis
for the court's grant of summary judgment was that Vogt and Jenkins had not applied for a
deficiency judgment within the statutory time allowed under NRS 40.455. Vogt and Jenkins
now contend that Shields should not have been applied retroactively, and we agree.
In a decision published since the district court entered its summary judgment in this case,
we decided that the procedural aspect of Shields would not have retroactive effect. Nevis v.
Fidelity New York, 104 Nev. 576, 763 P.2d 345 (1988). In Nevis, the creditor foreclosed on
the property held as security. More than three months after the foreclosure sale, the creditor
brought an action against the guarantor for the difference between the fair market value of the
property sold by the trustee and the amount due on the loan. The court gave the creditor
judgment for that amount. The guarantor appealed, claiming that any recovery should have
been barred by application of the deficiency statutes pursuant to Shields, but we held that the
decision in Shields did not apply retroactively to the extent of requiring compliance with the
three month filing provision. Id.
Although our holding in Nevis did not give retroactive effect only to the three-month
limitation for filing deficiency actions, that narrow holding is dispositive of this case. As
explained above, the sole basis given by the trial court for its grant of the summary judgment
to the Guarantors was the fact that Vogt and Jenkins failed to initiate a deficiency action
within three months as mandated by a retroactive application of Shields.
Jenkins failed to initiate a deficiency action within three months as mandated by a retroactive
application of Shields. However, we reaffirm our holding in Nevis. We will not give
retroactive effect to our decision in Shields to the extent of requiring compliance with the
three month filing provision. We therefore reverse the summary judgment and remand this
case for further action on Vogt and Jenkins' deficiency application.
____________
105 Nev. 305, 305 (1989) Ferreira v. P.C.H. Inc.
LORIE FERREIRA and CARLO FERREIRA, Appellants, v. P.C.H. INC., a Nevada
Corporation dba RENT-A-VETTE, Respondent.
No. 19411
June 1, 1989 774 P.2d 1041
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
Automobile lessor sued lessee and her husband for damages to leased vehicle occurring
when it was driven by an unauthorized driver. The district court entered summary judgment
in favor of lessor, and lessee and husband appealed. The Supreme Court held that: (1)
summary judgment against lessee was proper, and (2) trial court erred in granting summary
judgment against husband.
Affirmed in part; reversed in part and remanded.
Zervas & Evans, Las Vegas, for Appellants.
John W. Boyer, Las Vegas, for Respondent.
1. Judgment.
When motion for summary judgment is made and supported by evidence and affidavits, an adverse party may not rest on mere
allegations and denials of its pleading, but must set forth specific facts showing that there is genuine issue for trial. NRCP 56(e).
2. Judgment.
Allegations by lessee of automobile, that she had insurance and was out of town at relevant time, did not constitute sufficient
opposition to bar entry of summary judgment in case brought by lessor of automobile to recover damages arising out of accident when
leased vehicle was driven by unauthorized driver.
3. Automobiles.
Lessor of automobile was entitled to judgment against lessee as a matter of law, when lessee breached requirement that only
authorized person could drive vehicle, accident occurred at time vehicle was being driven by unauthorized driver, and lessee did not
allege that she had not given permission for unauthorized driver to use vehicle.
4. Automobiles.
Automobile lessee's purchase of collision/theft damage waiver from lessor did not preclude liability for damage inflicted on
vehicle when driven by unauthorized driver, as contract provided that collision damage waiver was not insurance and conspicuously
stated that collision damage waiver did not apply if lessee allowed unauthorized driver to drive.
5. Automobiles.
Statute permitting third party to provide for support of wife and recover value from husband did not form basis for automobile
lessor's action against husband of lessee to recover damages from accident incurred when leased automobile was driven by
unauthorized driver. NRS 123.090.
6. Trover and Conversion.
Based on record of case, which did not show tortious act, husband of lessee of automobile did not convert vehicle when he gave
keys to unauthorized driver.
OPINION
Per Curiam:
This is an appeal from a summary judgment. Appellant Lorie Ferreira rented an
automobile from respondent P.C.H., Inc., a Nevada corporation doing business as
Rent-a-vette. While being driven by an unauthorized driver, the automobile was involved in a
one-car accident. Rent-a-vette sued Lorie and her husband Carlo Ferreira. The district court
granted summary judgment in favor of Rent-a-vette against both Lorie and Carlo in the
amount of $11,068.31 plus attorney's fees, costs and interests.
[Headnote 1]
Summary judgment is appropriate only when no genuine issue of fact remains for trial and
one party is entitled to judgment as a matter of law. See Pacific Pools Constr. v. McClain's
Concrete, 101 Nev. 557, 706 P.2d 849 (1985). Further, in deciding whether summary
judgment is appropriate, the evidence must be viewed in the light most favorable to the party
against whom summary judgment is sought, and the factual allegations of that party must be
presumed correct. Id. Nevertheless, when a motion is made and supported by evidence and
affidavits, an adverse party may not rest on the mere allegations and denials of his pleadings,
but must set forth specific facts showing that there is a genuine issue for trial. See NRCP
56(e); Clauson v. Lloyd, 103 Nev. 432, 743 P.2d 631 (1987).
[Headnote 2]
In this case, Lorie did not provide any specific opposition to the motion for summary
judgment. She filed no affidavit on her own behalf, and her only arguments against granting
summary judgment were that she had insurance and was out of town.
judgment were that she had insurance and was out of town. These arguments are legally
insufficient to preclude liability. Therefore, Lorie rested on her pleadings and general denials
in the face of a documented motion for summary judgment, and she failed to raise in the
district court a genuine issue of fact.
[Headnote 3]
Further, Rent-a-vette established in the district court that it was entitled to judgment
against Lorie as a matter of law. The rental agreement provided in bold capital letters that
only persons listed on the contract were authorized to drive the vehicle. The only person
authorized to drive the vehicle was Lorie. It is undisputed that Carlo's brother-in-law,
Anthony Tyler, drove the car. Further, Lorie never alleged that she did not give Carlo or Tyler
permission to drive the car. Therefore, whether Lorie gave the keys to Carlo or Tyler, she
breached the contract.
[Headnote 4]
Lorie claims, nevertheless, that she purchased collision insurance from Rent-a-vette and is
therefore not liable for the damages that resulted from the accident. The protection Lorie
purchased is labeled in the contract collision/theft damage waiver. Paragraph 4(3) of the
contract provides in all capital letters that collision damage waiver is not insurance.
Paragraph 4 also provides in all capital letters that the collision damage waiver does not apply
if the renter allows an unauthorized driver to drive the automobile. Because an unauthorized
driver was driving the automobile at the time of the accident, the collision damage waiver
provision of the contract does not absolve Lorie of liability. We conclude, therefore, that
Rent-a-vette was entitled as a matter of law to judgment against Lorie, and we affirm the
district court's judgment in this respect.
Similarly, Carlo's opposition to Rent-a-vette's motion for summary judgment failed to raise
a genuine issue of fact for trial. Nevertheless, Rent-a-vette failed to establish in the district
court that it was entitled to a judgment as a matter of law against Carlo.
Rent-a-vette asserts that Carlo is liable for the damages to the automobile because he is the
husband of Lorie. In its brief, Rent-a-vette suggests two theories for holding Carlo liable for
the debt of his wife. Neither of these theories was presented to the district court below, and
thus they are not properly before this court in this appeal. See Old Aztec Mine, Inc. v. Brown,
97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (a point not raised in the district court cannot be
raised for the first time on appeal). Further, these theories are insufficient as a matter of law
to support the district court's judgment against Carlo.
[Headnote 5]
First, Rent-a-vette contends that NRS 123.090 provides a basis for holding a husband
liable for the debts of his wife.1 Rent-a-vette argues that the automobile is a necessity it
provided to Lorie.
for holding a husband liable for the debts of his wife.
1
Rent-a-vette argues that the
automobile is a necessity it provided to Lorie. We disagree. There has been no allegation that
Carlo neglected to make adequate provision for the support of Lorie. Further, this was not an
action to recover the reasonable value of supplied necessities. Also, the judgment is against
Carlo personally, and there is no provision that the community property of the parties must be
first used to satisfy the debt. Finally, although a rental car may be a necessity in today's world,
Rent-a-vette did not argue below that Lorie was destitute or without transportation or that
Rent-a-vette provided the car because of Lorie's necessity. NRS 123.090 simply does not
apply to this case, and provides no basis for the award against Carlo.
[Headnote 6]
Second, Rent-a-vette contends that Carlo converted the automobile when he gave the keys
to the unauthorized driver, thus making him liable to Rent-a-vette for the value of the car. We
disagree.
A conversion is defined as a distinct act of dominion wrongfully exerted over another's
personal property in denial of, or inconsistent with his title or rights therein or in derogation,
exclusion, or defiance of such title or rights. . . . Moreover, an act, to be a conversion, must
be essentially tortious; a conversion imports an unlawful act, or an act which cannot be
justified or excused in law'. Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958)
(citations omitted); see also Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980).
Rent-a-vette has not suggested exactly what tortious act Carlo allegedly committed.
Further, it is not clear from any of the affidavits that Carlo knowingly acted in derogation,
exclusion or defiance of the rights of Rent-a-vette, or exercised dominion and control, to the
exclusion of Rent-a-vette, over the car. Further, the conversion theory was never asserted
below against Carlo, and has not been developed in this appeal in any coherent manner.
2
Given more facts, it may be possible for Rent-a-vette to prove below that Carlo converted
their car.
__________

1
If the husband neglects to make adequate provision for the support of his wife, any other person may
in good faith supply her with articles necessary for her support, and recover the reasonable value thereof
from the husband. The separate property of the husband is liable for the cost of such necessities if the
community property of the spouses is not sufficient to satisfy such debt.

2
In the complaint, Rent-a-vette alleged that Lorie had made false representations when renting the car which
amounted to a conversion of the car. This cause of action cannot be read to allege a conversion by Carlo.
Further, the complaint does not allege a conversion as a result of giving the keys to the unauthorized driver, the
only act with which Carlo has been charged by Rent-a-vette.
prove below that Carlo converted their car. On the record before this court, however,
Rent-a-vette has failed to establish as a matter of law that Carlo converted Rent-a-vette's
automobile.
Finally, in the complaint, Rent-a-vette asserted that Lorie rented the car for a community
purpose with the knowledge and consent of Carlo. The thrust of this argument in the
complaint was to prove fraud and misrepresentation on the part of Lorie, possibly participated
in by Carlo. Rent-a-vette did not, however, pursue any theory in the district court based on
fraud or misrepresentation. The motion for summary judgment was entirely based on a claim
of breach of contract, i.e., the contract was breached when an unauthorized driver drove the
car. Rent-a-vette never attempted to establish that a community purpose for the rental existed
or to argue that Carlo's liability could be based on the existence of such a purpose. Further,
Rent-a-vette has not argued in this court that a community purpose is a basis for liability, nor
is the judgment against the community. Thus, this argument does not provide an adequate
basis for the district court's summary judgment.
We conclude, therefore, that Rent-a-vette did not establish liability on the part of Carlo as
a matter of law in the proceedings below. Accordingly, we reverse the district court's
summary judgment with respect to Carlo only, and we remand this matter to the district court
for further proceedings consistent with this opinion.
____________
105 Nev. 309, 309 (1989) Silver State Disposal v. Shelley
SILVER STATE DISPOSAL COMPANY and HERBERT TAYLOR, Appellants, v.
LORENZO SHELLEY and GEORGIA SCOTT, THE SPECIAL ADMINISTRATOR OF
THE ESTATE OF VERNON SCOTT, Respondents.
No. 19402
June 1, 1989 774 P.2d 1044
Appeal from a judgment entered upon jury verdict. Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Occupants of automobile injured during collision with waste disposal truck sued owner
and driver for injuries and lost wages. The district court entered judgment on jury verdict in
favor of occupants, and owner and driver appealed. The Supreme Court held that: (1) jury
instruction on mitigation of damages was not required, and (2) trial court did not err in
permitting voir dire questioning as to potential juror's ownership interest in any casualty
insurance company.
Affirmed.
Baker, Gillock, Koning, Brown & Earley and Jerry S. Busby, Las Vegas, for Appellants.
Sabbath & Christensen, Las Vegas, for Respondents.
1. Damages.
Instruction that person who had been damaged by wrongful act of another was bound to exercise reasonable care and diligence to
minimize damages was not required in motor vehicle accident case, as no testimony was elicited to establish that injured parties could
be retrained for other, less strenuous work.
2. Damages.
Proffered jury instruction, that person damaged by alleged wrongful act of another is bound to exercise reasonable care and
diligence to avoid loss or minimize damage, was validly excluded in automobile accident case as it misled by failing to allocate
appropriate burden of proof and in suggesting that injured parties were duty bound to prove they mitigated their damages.
3. Jury.
In personal injury case good faith voir dire examination of potential jurors is permitted, to ascertain interest in, or connections
with, casualty insurance companies; good faith means questioning for purpose of ascertaining qualifications of prospective jurors
and for ferreting out bias and prejudice and not for purpose of informing them there is insurance in case.
4. Jury.
Voir dire questioning of prospective jurors as to ownership interest in casualty insurance companies was proper good-faith inquiry
into insurance matters in automobile negligence case, and was not done for purpose of informing jury that there was insurance in case.
OPINION
Per Curiam:
Injured when a Silver State Disposal truck driven by Herbert Taylor collided with a
vehicle they occupied, Shelley and Scott sought damages for their injuries and lost wages.
Following a jury verdict and judgment entered in respondents' favor and an order denying
remittitur, Silver State and Taylor have appealed, urging that the district court erred. We
disagree.
[Headnote 1]
Appellants first argue that the trial court committed reversible error by refusing appellants'
proffered jury instruction, D-1, on respondents' duty to mitigate damages.
1
As a general rule,
a party is entitled to have the jury instructed on all of his case theories that are supported
by the evidence.
__________

1
D-1 reads as follows:
A person who has been damaged by the wrongful act of another is bound to exercise reasonable care and
diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have
been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.
As a general rule, a party is entitled to have the jury instructed on all of his case theories
that are supported by the evidence. Jeep Corp. v. Murray, 101 Nev. 640, 649, 708 P.2d 297,
303 (1985). A review of the record is required to see whether the evidence that was presented
required the giving of an instruction on a plaintiff's duty to mitigate damages. We conclude
that such an instruction was not required.
The thrust of Silver State's defense on the damage issue was that any of respondents'
injuries were the result of pre-existing medical conditions or that any disability to work lasted
only a relatively short period of time after the accident. On the latter point, the evidence was
clearly conflicting.
The respondents' treating physician and two orthopedic surgeons testified that the
respondents were able to return to their work as laborers prior to the trial that commenced
two years after the accident. In stark contrast, the respondents' subsequent treating
chiropractor testified that the respondents were still unable to return to work and would be
unable to perform work as laborers indefinitely. However, he did testify that these individuals
might benefit from vocational rehabilitation to prepare for another type of work. The
respondents claimed that they were unable to return to work and had not looked for any other
type of employment.
No testimony was elicited to establish that either Shelley or Scott could secure or be
retrained for other, less strenuous work. Had this testimony been elicited along with the
conflicting testimony as to the duration of the medical disability, then the instruction on
mitigation of damages would have been required. See Southern Pac. Transp. Co. v.
Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234 (1978).
A review of the record convinces us that an instruction on mitigation of damages was not
essential because the jury was adequately instructed on the recovery for lost wages and future
lost wages (reduced earning capacity). From the substantial amounts of the verdicts, it
appears that the jury agreed with the chiropractor and rejected the physicians' opinions that
the respondents were able to return to work.
[Headnote 2]
Even assuming the appellants' proffered instruction was supported by the evidence, it must
also be consistent with existing law. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271
(1983). Furthermore, even though it might embody a correct rule of law, the trial court may
still refuse it if it has a tendency to mislead the jury. See Zelavin v. Tonopah Belmont, 39
Nev. 1, 7-8, 149 P. 188, 189 (1915).
Appellants' proposed instruction, while arguably stating a correct principle of law, tended
to mislead the jury. Specifically, [i]t is unquestioned that an injured person cannot recover
for damages which could have been avoided by the exercise of reasonable care."
damages which could have been avoided by the exercise of reasonable care. Automatic
Merchandisers, Inc. v. Ward, 98 Nev. 282, 284, 646 P.2d 553, 554 (1982). See also Southern
Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978). However, it is
equally true that the burden of proving failure to mitigate is upon the party whose wrongful
act caused the damages. Cobb v. Osman, 83 Nev. 415, 422, 433 P.2d 259, 263 (1967).
Appellants' proposed instruction was consistent with general mitigation principles, but was
misleading because it did not allocate the appropriate burden of proof and suggested that
respondents were duty bound to prove that they had mitigated their damages. See Churning v.
Staples, 628 P.2d 180, 182 (Colo.App. 1981); Sutton v. Shufelberger, 643 P.2d 920, 923
(Wash.App. 1982). Hence, it was proper to refuse appellants' proffered mitigation instruction.
[Headnote 3]
Appellants next argue that the district court committed reversible error by allowing
respondents' counsel to question the venire during voir dire examination with regard to their
interest in, or connection to, casualty insurance companies. Specifically, prior to voir dire,
respondents indicated to the trial court that they intended to question potential jurors as to any
ownership interests in casualty insurance companies. Respondents explained that they had a
right to inquire and to flush out any prejudicial bias in favor of insurance companies.
Appellants objected and argued that any mention of insurance would prejudice them and
produce a tainted verdict. The district court overruled the objection and permitted the
interrogation. Appellants maintain that the lower court committed prejudicial error. This is an
issue of first impression in this jurisdiction.
At the outset, we note that the purpose of voir dire examination is to facilitate the
identification and removal from the venire of individuals who, because of bias or prejudice,
cannot serve as fair and impartial jurors. See Oglesby v. Conger, 507 P.2d 883, 885
(Colo.App. 1973); Borkoski v. Yost, 594 P.2d 688, 690 (Mont. 1979). In the context of
insurance voir dire questioning, we must strike a balance between the potential for prejudice
to plaintiffs if someone sympathetic to insurance companies remains on the jury and the
possible prejudice to defendants resulting from considerations of insurance coverage rather
than a fair assessment of liability. See Langley v. Turner's Express, Incorporated, 375 F.2d
296, 297 (4th Cir. 1967).
In striking this balance, we conclude, consistent with a majority of sister jurisdictions,
2
that the proper approach in voir dire involving personal injury cases is to allow "good faith"
questioning of the venire concerning interests in, or connections with, casualty insurance
companies.
__________

2
See, e.g., Duff v. Page, 249 F.2d 137 (9th Cir. 1957); City of Kotzebue v. Ipalook, 462 P.2d 75 (Alaska
1969); Tomblinson v. Nobile, 229 P.2d 97
involving personal injury cases is to allow good faith questioning of the venire concerning
interests in, or connections with, casualty insurance companies. By good faith, we mean
questioning for the purpose of ascertaining the qualifications of perspective jurors and for
ferreting out bias and prejudice, and not for the purpose of informing them that there is
insurance in the case.
In so holding, we are not unmindful of the interests and concerns of personal injury
defendants. On the contrary and as suggested above, an examination of the nature approved
herein is not without limits both in terms of the scope and manner of questioning. Obviously,
there must be limits that have due regard for the interests of fairness to both parties.
3
Borkoski v. Yost, 594 P.2d 688, 690 (Mont. 1979). However, in an age of mandatory
automobile insurance,
4
we recognize that even unsophisticated jurors are often aware of the
fact that insurance coverage may exist and thus, some prejudice may be unavoidable.
[Headnote 4]
Applying the foregoing to the facts of this case, we conclude that the district court properly
allowed voir dire questions on the subject of insurance company affiliation.
5

We have carefully considered appellants' remaining contentions and conclude that they
lack merit. Accordingly, we affirm the judgment entered below.
__________
(Cal. 1951); Oglesby v. Conger, 507 P.2d 883 (Colo.App. 1972); Owen v. Burcham, 599 P.2d 1012 (Idaho
1979); Borkoski v. Yost, 594 P.2d 688, 694 (Mont. 1979); Canter v. Lowrey, 364 P.2d 140 (N.M. 1961); 47
Am.Jur.2d Jury 333 (1969); Annotation, Showing As To Liability Insurance, 4 A.L.R.2d 761, 792 (1949).

3
We do not consider whether the time has come to forthrightly inform juries of the existence of insurance
coverage in terms designed to produce fair deliberations on behalf of plaintiffs, defendants and insurers. It is
conceivable, however, that in doing so with appropriate candor and sensitivity, the resulting enlightenment may
serve to produce greater fairness to defendants and insurers, if not injured plaintiffs, than the existing speculation
that permeates the current deliberations of our juries.

4
See, e.g., NRS 485.185.

5
Appellants also contend that the respondents failed to act in good faith. However, this contention was not
raised in the court below and will not be considered on appeal. See Tupper v. Kroc, 88 Nev. 146, 151, 494 P.2d
1275, 1278 (1975).
____________
105 Nev. 314, 314 (1989) Johnson v. Director, Dep't Prisons
RICHARD HARRIS JOHNSON, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF
PRISONS, George W. Sumner, Respondent.
No. 19366
June 1, 1989 774 P.2d 1047
Appeal from denial of post-conviction petition for writ of habeas corpus. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Prisoner sought habeas corpus. The district court denied relief when prisoner appealed.
The Supreme Court held that: (1) Supreme Court decision that primary sentence and
enhancement sentence for the use of deadly weapon must be treated as separate sentences for
all purposes can have no effect on sentences that were legally expired before the date that the
opinion was issued, and (2) prisoner has no due process right to recalculation of his sentence
under that decision.
Affirmed.
Terri Steik Roeser, State Public Defender, Jeffrey M. Evans, Deputy, Carson City, for
Appellant.
Brian McKay, Attorney General, Arthur G. Noxon, Deputy, Carson City, for Respondent.
1. Courts.
Supreme Court determination that primary sentence and enhancement sentence for the use of a deadly weapon must be treated as
separate sentences for all purposes could have no effect on sentences which were legally expired before the date that it was issued.
2. Criminal Law.
When defendant expired his sentences, any question as to the method of computing those sentences was rendered moot.
No prisoner had due process right to recalculation of his sentence in accordance with Supreme Court determination that primary
sentence and enhancement sentence for the use of a deadly weapon must be treated as separate sentences for all purposes.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's post-conviction
petition for a writ of habeas corpus.
On June 2, 1976, appellant was convicted of one count of robbery with the use of a deadly
weapon. Appellant was sentenced to seven years for the robbery and to a consecutive seven
years for the use of a deadly weapon. See NRS 193.165 (person who uses a deadly weapon
in the commission of a crime shall be punished by an additional term in prison equal in
length and consecutive to the term of imprisonment for the primary offense).
who uses a deadly weapon in the commission of a crime shall be punished by an additional
term in prison equal in length and consecutive to the term of imprisonment for the primary
offense). On April 11, 1978, appellant received an institutional parole from his first
seven-year sentence to his consecutive seven-year sentence. In May of 1979, appellant was
paroled to the street.
Appellant immediately violated his parole by committing another robbery. Consequently,
the parole board revoked appellant's parole.
1
Appellant was convicted of the second robbery
and was sentenced to fifteen years for the robbery and a consecutive fifteen years for the use
of a deadly weapon in the commission of the robbery. Appellant is presently serving his
sentence for the second robbery.
In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979), and Director, Prisons v. Biffath,
97 Nev. 18, 621 P.2d 1113 (1981), this court held that a sentence for a primary offense and
the enhancement sentence for the use of a deadly weapon in the commission of the primary
offense should be treated as a single sentence for purposes of computing good time credits
and parole eligibility. Appellant's sentences were recomputed pursuant to these opinions.
Thereafter, the parole board and prison officials treated appellant's two consecutive sentences
for the first robbery as a single term of imprisonment for all purposes.
2

__________

1
The parole board executed a form document entitled certification of action; parole violation hearings.
The preparer of this document placed a check mark in the blank space next to the pre-printed words: parole
revoked. Because the parole board did not expressly indicate that it was revoking both of appellant's paroles,
appellant speculates that the parole board revoked only his parole from his second sentence, leaving his first
parole in effect. The state contends that the parole board did not expressly revoke both of appellant's paroles
because the state was treating appellant's two sentences as one pursuant to opinions issued by this court. The
state's argument appears to be factually incorrect because appellant's parole was revoked on February 28, 1980,
almost one year prior to this court's opinion in Director, Prisons v. Biffath, 97 Nev. 18, 621 P.2d 1113 (1981).
Prior to 1981, the parole board and prison officials continued to treat such sentences as separate for purposes of
computing parole eligibility. See Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697 (1987). The
record in this case does not affirmatively indicate the date on which prison officials began treating appellant's
two sentences as one as required by this court's Biffath opinions, as discussed in the text, infra. From the record,
it seems likely that the parole board did not revoke appellant's institutional parole on February 28, 1980, and
considered that parole to be in effect until the time appellant's sentences were recalculated pursuant to this
court's Biffath opinions, at which time the parole board and prison officials simply ignored the institutional
parole as a nullity. Nevertheless, in light of our disposition of this case, it is unnecessary to resolve this issue.

2
The record does not reveal how appellant's sentences for the second robbery have been affected by this
court's Biffath opinions and the later reversal of those opinions in Nevada Dep't Prisons v. Bowen, 103 Nev. 477,
745 P.2d 697 (1987). The point, however, is not pertinent in the context of this appeal.
Appellant was paroled from his combined sentences for his first robbery conviction on
August 4, 1984, and began serving his sentences for the second robbery conviction. On
February 13, 1986, petitioner expired his combined sentences for his first robbery conviction.
On November 20, 1987, almost two years after appellant expired his sentences for the first
robbery conviction, this court overruled the Biffath opinions and held that a primary sentence
and an enhancement sentence for the use of a deadly weapon must be treated as separate
sentences for all purposes. See Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697
(1987).
Appellant speculates that he would have expired his sentences for the first robbery at an
earlier date had his sentences been treated as separate sentences pursuant to Bowen rather
than as one sentence under the Biffath opinions.
3
Appellant contends, therefore, that his
sentences for the first robbery should be recalculated pursuant to Bowen, and the excess time
he served illegally on those sentences should be credited to the sentences he is presently
serving. We disagree.
[Headnotes 1, 2]
Although we indicated that our opinion in Bowen should be applied retroactively to the
extent possible, that opinion can have no effect on sentences that were legally expired before
the date it was issued. In Bowen, we did not declare the method employed by prison officials
in computing sentences under the Biffath opinions to be illegal or improper. Instead, we
merely instructed the Department of Prisons to calculate the sentences differently for
purposes of determining good time credits, when a prisoner is eligible for parole, and when a
sentence is expired. Niergarth v. Warden, 105 Nev. 26, 27, 768 P.2d 882, 883 (1989). Prison
officials acted entirely properly in computing appellant's sentences according to the law as it
existed at the time appellant expired his sentences for his first robbery conviction. Further,
when appellant expired his sentences, any question as to the method of computing those
sentences was rendered moot.
4
[Headnote 3]
__________

3
This argument is, of course, based on the assumption that appellant would necessarily have been paroled at
the earliest possible date. In light of appellant's record as a parole violator, this assumption may not be correct.

4
Appellant contends that the issue of the computation of his sentences for the first robbery is not moot
because he has been continuously incarcerated and any credit resulting from a new computation of the time
served pursuant to the sentences for the first robbery could be applied to the sentences he is presently serving for
the second robbery conviction. We disagree. Appellant properly expired his sentences on the first conviction and
was discharged as to those sentences. No recomputation of the time served on those sentences could properly be
made at this time.
[Headnote 3]
Appellant also contends that he was denied due process of law when his two seven-year
sentences were aggregated under the Biffath opinions, and that prison officials are presently
violating his due process rights by refusing to recalculate his prior sentences pursuant to
Bowen. We disagree. We have expressly rejected the argument that any prisoner has a due
process right to a recalculation of his sentence under Bowen. See Niergarth v. Warden, 105
Nev. 26, 27, 768 P.2d 882, 883 (1989) (the method of determining how a statutory grant of
clemency will be administered does not implicate a constitutionally protected interest); see
also Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369 (1980) (a prisoner has no
protectible expectation of release before he has completed his sentence). Appellant's
contention, therefore, lacks merit.
In light of the foregoing, we find it unnecessary to address the remaining contentions
raised by appellant. We conclude that the district court properly denied appellant's petition for
a writ of habeas corpus, and we affirm that decision.
____________
105 Nev. 317, 317 (1989) Lyons v. State
HAROLD TRAVIS LYONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18503
June 1, 1989 775 P.2d 219
Appeal from judgment of conviction pursuant to a guilty plea of one count of attempting to
obtain money by false pretenses. Ninth Judicial District Court, Douglas County; David R.
Gamble, Judge.
Defendant pled guilty to one count of attempting to obtain money by false pretenses. The
district court entered judgment of conviction, and defendant appealed. The Supreme Court,
Steffen, J., held that: (1) defendant was not required to challenge the validity of his guilty plea
before the district court before raising the issue on appeal from judgment of conviction; (2)
anticheating statute was unconstitutionally vague as applied to slot machine handle
manipulation; and (3) defendant's Alford plea was constitutionally infirm as manipulation of
slot machine handles did not constitute criminal conduct.
Reversed.
Mowbray, J., and Young, C. J., dissented.
Terri Steik Roeser, State Public Defender, and Jeffrey M. Evans, Deputy, Carson City, for
Appellant.
105 Nev. 317, 318 (1989) Lyons v. State
Brian McKay, Attorney General, Carson City, and Brent T. Kolvet, District Attorney, and
Michael P. Gibbons, Deputy, Douglas County, for Respondent.
1. Criminal Law.
Defendant, who pled guilty to crime of attempting to obtain money by false pretenses based on defendant's manipulation of slot
machine handles, was not required to challenge the validity of his guilty plea before the district court before being permitted to do so
on appeal from judgment of conviction, where the Supreme Court was no less able to consider the validity of the underpinnings of the
plea than the district court, and no basis existed for further prosecution of defendant under the original charges. NRS 34.360, 177.315.
2. Criminal Law.
Statutes providing criminal sanctions must reflect a higher standard of certainty than civil statutes.
3. Criminal Law.
Persons are deemed to have been given fair notice of a criminal offense if the statutorily proscribed conduct has been described
with sufficient clarity to be understood by individuals of ordinary intelligence.
4. Criminal Law.
Criminal statutes challenged for vagueness are evaluated on an as-applied basis where First Amendment interests are not
implicated U.S.C.A.Const. Amend. 1.
5. Gaming.
Anticheating statute was unconstitutionally vague as applied to slot machine handle manipulation by defendant who did not
damage or mechanically alter the slot machines.
6. Criminal Law.
Defendant's Alford plea was constitutionally infirm, as defendant's action of manipulation of slot machine handles did not
constitute criminal conduct, and thus the record before the sentencing judge contained no evidence of actual guilt of criminal conduct.
OPINION
This appeal raises the issue of whether the State may induce an accused to plead guilty to a
non-committed crime by unwittingly convincing the accused that the non-criminal conduct
for which he was arrested constituted a criminal offense. The issue, thus stated, represents an
accurate but somewhat convoluted distillate of appellant's complaint. It also explains why
appellant's conviction must be reversed.
Lyons who is no stranger to the criminal justice system in general and to gaming crimes in
particular, was charged with cheating at gambling, conspiracy to cheat at gambling,
1
and
being an habitual criminal.
__________

1
The conspiracy charge was dismissed at the preliminary hearing.
105 Nev. 317, 319 (1989) Lyons v. State
an habitual criminal. The underlying conduct leading to Lyons' arrest involved what has come
to be known as handle popping a slot machine. The term refers to a process of handle
manipulation that enables a player to exploit mechanically vulnerable slot machines.
Lyons was apprehended as a result of his handle popping activities at Harrah's Tahoe
Casino. Subsequent to his preliminary hearing, Lyons assented to a plea bargain that allowed
him to enter an Alford
2
plea to the non-committed crime of attempting to obtain money by
false pretenses. The original charges were dropped in exchange for entry of the plea.
Lyons raises four issues on appeal, only one of which requires discussion because it is
dispositive of the entire manner.
[Headnote 1]
Before discussing the dispositive substantive issue, it is necessary to address a threshold
procedural problem implicated by our decision in Bryant v. State, 102 Nev. 268, 721 P.2d
364 (1986). Lyons has not challenged the validity of his guilty plea in the district court. In
Bryant, we determined that we would no longer entertain initial challenges to the validity of
guilty pleas on direct appeal from judgments of conviction; in lieu thereof, a defendant must
raise the challenge first in the district court by either a motion to withdraw the plea or a
petition for post-conviction relief pursuant to NRS 34.360 or NRS 177.315. See Bryant, 102
Nev. at 272, 721 P.2d at 367-368. We do not now recede from our position in Bryant.
However, there are compelling reasons for treating the instant appeal as an exception to our
ruling in Bryant.
The usual challenges to the validity of guilty pleas stem from allegations of infirmity in the
plea canvas, ineffective assistance of counsel or some form of coercion in the bargaining
process. Ordinarily, the district court is in the best position to determine whether facts and
circumstances exist that warrant relief from the effects of a plea. Moreover, if the district
court grants a request for plea withdrawal, the State is usually in a position to proceed with
the prosecution. In the instant case, we are no less able to consider the validity of the
underpinnings of the plea than the district court. Additionally, because of the unique
circumstances that compel our intervention, no basis for further prosecution under the
original charges exists. We therefore conclude that despite Lyons' failure to challenge the
validity of his guilty plea before the district court, he will be permitted to do so via this appeal
from his judgment of conviction. In so ruling, we satisfy the demands of judicial economy
and basic fairness.
__________

2
North Carolina v. Alford, 400 U.S. 25 (1970).
105 Nev. 317, 320 (1989) Lyons v. State
Turning to the paramount substantive issue, Lyons contends that NRS 465.015, which
defines cheating at gambling, is unconstitutionally vague as applied to slot machine handle
manipulation. We are convinced that he is correct. In United States v. Harriss, 347 U.S. 612,
617 (1954), the United States Supreme Court declared:
The Constitutional requirement of definiteness is violated by a criminal statute that fails
to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute. The underlying principle is that no man shall be held
criminally responsible for conduct which he could not reasonably understand to be
proscribed. (Footnote omitted.)
[Headnote 2]
In analyzing the clarity of definition and notice supplied by NRS 465.015 as applied to
handle popping, we also recognize that statutes providing criminal sanctions must reflect a
higher standard of certainty than civil statutes. Winters v. New York, 333 U.S. 507, 515
(1948).
This court has previously declared NRS 465.015 constitutionally acceptable on its face and
as applied to the practice of card crimping. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634
(1983). However, we have never had the occasion to consider the constitutional validity of
NRS 465.015 as applied to the practice of handle popping or handle manipulation of a slot
machine. We are constrained to do so now, as the State has seen fit to use handle
manipulation as a basis for charging Lyons with the commission of a felony, thereby inducing
him to plead to a crime not committed, but otherwise free of controversy.
[Headnote 3, 4]
As previously noted in Harriss, persons are deemed to have been given fair notice of a
criminal offense if the statutorily proscribed conduct has been described with sufficient
clarity to be understood by individuals of ordinary intelligence. 347 U.S. at 617. See also
United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir. 1985). And statutes challenged for
vagueness are evaluated on an as-applied basis where, as here, first amendment interests are
not implicated. Maynard v. Cartwright, 108 S.Ct. 1853, 1858 (1988).
[Headnote 5]
Turning now to an analysis of NRS 465.015 as applied to handle popping, it will be seen
that the statute fails to address such conduct in terms that would alert persons of ordinary
intelligence that they were committing a crime.
The obvious purpose of NRS 465.015 is to prevent persons from taking unlawful
advantage of Nevada's gaming industry by cheating.
105 Nev. 317, 321 (1989) Lyons v. State
from taking unlawful advantage of Nevada's gaming industry by cheating. In specific terms,
the statute declares:
1. Cheat 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 statute thus addresses knowing, purposeful, unlawful conduct designed to alter the
criteria that determines the outcome of any lawful gambling activity. Thus, in Martin, we held
that the statute had clear application to one who attempted to enhance his chances of winning
by crimping cards. Having thus made it possible to identify certain cards, Martin was able to
supplant elements of chance with actual knowledge that substantially altered both the nature
of the game and the criteria for winning. The statute clearly proscribed such conduct.
Similarly, those who, by resorting to mirrors, confederates, electronic equipment, magnets,
tools or other devices, alter the play of a game or machine to increase their prospects of
winning, would have no difficulty understanding that they are cheating within the definition
of the statute.
In contrast, consider the gaming patrons who are specially gifted and can increase the odds
in their favor by card counting. Or perhaps the patron who notices and takes advantage of a
dealer's habit of play that will occasionally provide an unintended view of the dealer's cards.
Unquestionably, neither category of patron would be subject to prosecution under the statute,
although casino management may take measures to deny them the right to play. In both cases,
the players simply exploit what their skills and the play of the game will afford them. And
yet, they are altering the usual criteria, i.e., the characteristic complex or standard of play that
determines the frequency of payment.
Because handle popping neither damages nor mechanically alters a slot machine, the
innocent novice may stumble across the technique and use it as effectively as the
professional who adroitly identifies and depletes the mechanically deficient machines.
3
See
El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 633, 691 P.2d 436, 444 {19S4) {Steffen, J.,
dissenting).
__________

3
At Lyons' preliminary hearing, a percipient witness described Lyons' play as pulling the handle slowly
down about two-thirds of the way with his right hand then hitting it very slightly with his left hand. By this
method, Lyons was able to cause both the first and second reels of the slot machine to remain stationary with two
consecutive pulls of the handle; only an additional insertion of coins intervened between the first pull of the
handle, which held the first reel, and the second pull, which held the second reel as well. By this method of play,
Lyons was able to greatly increase his prospects of winning. Interestingly, in El Dorado Hotel, a Nevada
Gaming Control Board agent testified that no person would be subject to arrest under Nevada law if he or she
continued to play a slot machine that malfunctioned to the player's advantage under a normal pull of the
handle. There is no Nevada statute or regulation defining a normal pull.
105 Nev. 317, 322 (1989) Lyons v. State
633, 691 P.2d 436, 444 (1984) (Steffen, J., dissenting). Players engaging in handle
manipulation do nothing more than take advantage of what the slot machines will give them,
just as card players may exploit a dealer's unintended revelation of his cards. In a sense, slot
machine handle manipulators are analogous to all slot machine patrons who shuffle from
machine to machine and casino to casino in the hope of favorably changing their luck. In the
one case, such hope is manifested by varying the motion by which the handle is pulled; in the
other, by a move to another machine or environment. In either case, the desire is to somehow
change the odds in favor of the player.
In Sheriff v. Martin, 99 Nev. at 341, 662 P.2d at 638, we recognized the requirement of
fraudulent intent as an element of cheating. Moreover, we also observed that 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. Id.; 662 P.2d at 638. Games in the form of slot
machines have established physical characteristics that are not altered by handle popping.
Furthermore, we are unaware of any rules, written or otherwise, directing slot machine
patrons to pull the handles in a specific manner. Certain gaming sophisticatessuch as
Lyonswould undoubtedly manipulate handles with a form of scienter because of their
awareness that the procedure forms a basis for criminal prosecution in Nevada. Others, like
Coolidge Brown (see El Dorado v. Brown), who stumble across a more favorable method of
play, will handle pop without an intent to cheat or defraud. It is clear, however, that crime
categories do not materialize or disappear on an ad hoc basis because of the presence or
absence of scienter. Public offenses are defined by statute, ordinance or the common law. See
NRS 193.050.
Because varying the pull of a slot machine handle has never been expressly proscribed by
Nevada statute or ordinance or the common law of England, the status of handle popping as a
public offense is entirely dependent upon its fair inclusion in the language of NRS 465.015.
Fairly read, we do not perceive a description of handle popping within the statutory language.
The physical characteristics and potential pay offs of slot machines are not altered by handle
manipulators. They are, therefore, similar to card counters who, without altering the physical
characteristics or payment potential of card games do, by their skillful play, increase the
frequency of payments. Such activities do not constitute criminal conduct under existing law
in Nevada.
The dissenting opinion concludes that Lyons has entered a plea of guilty that vitiates his
right to complain of events preceding the plea. Moreover, the dissent would hold Lyons to his
plea because he thereby avoided facing one to ten years imprisonment for the cheating at
gambling offense, and either life with or without the possibility of parole on the habitual
criminal offense." Our dissenting brethren then conclude that having received the benefit
of the State's dismissal of the greater charges, Lyons should content himself with the
benefit of his bargain, i.e., "only a five year sentence."
105 Nev. 317, 323 (1989) Lyons v. State
cheating at gambling offense, and either life with or without the possibility of parole on the
habitual criminal offense. Our dissenting brethren then conclude that having received the
benefit of the State's dismissal of the greater charges, Lyons should content himself with the
benefit of his bargain, i.e., only a five year sentence.
[Headnote 6]
With due respect to our dissenting colleagues, a five-year prison sentence arising out of
conduct that is lawful is hardly a bargain. Because there was no constitutional basis for
prosecuting Lyons as a result of his handle popping activities, Lyons received no
consideration whatsoever in exchange for his Alford plea to a crime he did not commit. It
would be an affront to justice and due process to hold Lyons to his plea when the conduct
upon which the plea was entered did not occur and when the underlying conduct upon which
the original charges were based was not criminal.
Our reading of North Carolina v. Alford also leads us to conclude that the judgment of
conviction entered pursuant to Lyons' plea was constitutionally infirm. In Alford, the Court
held that a plea containing a protestation of innocence was constitutionally acceptable when
a defendant intelligently concludes that his interests require entry of a guilty plea and the
record before the judge contains strong evidence of actual guilt. 400 U.S. at 37 (emphasis
added). In the instant case, there was, of course, no evidence of actual guilt of the crime of
attempting to obtain money by false pretenses, as the sentencing judge and the State knew
Lyons had no involvement in such a crime. Moreover, because we have now held that handle
popping a slot machine is not a criminal act in Nevada, it is clear that no evidence of actual
guilt existed on any underlying criminal conduct that may have justified accepting Lyons'
plea. We therefore hold that Lyons did not waive his right to complain of the acceptance of an
unconstitutional plea.
If the State and the gaming industry desire to make handle popping or handle manipulation
of slot machines a crime in Nevada, it will be necessary to do so in clearly expressed, specific
statutory terms. Moreover, given the fact that innocent, well-intentioned patrons may so
easily adopt various methods of handle manipulation in an attempt to change their fortune, it
will be necessary to provide conspicuous notices on or about the machines to inform patrons
which methods of handle pulling are lawful and which methods are felonious. In lieu of
criminal sanctions, it should be apparent that gaming establishments will be able to curtail
handle popping losses by promptly retiring and repairing or replacing machines vulnerable to
such manipulation.
For the reasons stated above, we hold that NRS 465.015 is unconstitutional as applied to
handle popping or handle manipulation of slot machines that does not damage the
machines.
105 Nev. 317, 324 (1989) Lyons v. State
unconstitutional as applied to handle popping or handle manipulation of slot machines that
does not damage the machines. Accordingly, the judgment of conviction entered pursuant to
Lyons' Alford plea is vacated, and if Lyons remains in custody pursuant to the instant
conviction, he is to be released immediately.
5

Springer, J., and Zenoff, Sr. J., concur.
Mowbray, J., with whom Young, C. J., agrees, dissenting:
Respectfully, I dissent.
The bottom line issue in this appeal is whether Nevada's anticheating statute, NRS
465.015,
1
is unconstitutionally vague as applied to slot machine manipulation commonly
called cheating by handle popping. My learned brethren of the majority have held the
statute constitutionally infirm because it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by statute; or that a reasonable man of
ordinary intelligence would not understand that slot machine handle popping was proscribed.
I disagree.
It is difficult to draft a definition to cover all cases of cheating in the gaming industry. The
legislature in its wisdom has come forward with the best possible definition that covers the
problem, a definition that can be understood by those who wish to understand it.
NRS 465.015 is not a trap for the unwary, uninitiated novice who seeks to play the slots. I
do not believe it is necessary at this juncture to post in blueprint detail in and about and
around the slot machines warnings to the uninformed neophytes how to pull the handle of a
slot machine. However, the professional popper, as in the instant case, comes to the casino
well trained in how to jerk, wrench, wrack and otherwise abuse the slot machines in order to
alter the selection of the criteria proscribed in NRS 465.015.
2
I conclude that people of
ordinary intelligence would understand that a method of play which permits only one reel
of a slot machine to spin as the "popper" does alter the selection of criteria which
determines the result of the game.
__________

5
The Honorable David Zenoff, Senior Justice, participated in this appeal in the place of then Chief Justice E.
M. Gunderson, pursuant to this court's general order of assignment filed September 14, 1988.

1
NRS 465.015, provides in relevant part:
1. Cheat means to alter the selection of criteria which determine:
(a) The result of a game; or
(b) The amount of frequency of payment in a game.

2
Mr. Lyons, the appellant, has incurred at least seven arrests in Nevada and one arrest in New Jersey for slot
machine cheating. He was indicted by a grand jury in Clark County, Nevada for (1) racketeering, (2) conspiracy
to manufacture methamphetamines, (3) possession of ephedrine for sale, (4) attempt to manufacture
methamphetamine, (5) trafficking in methamphetamine, and (6) possession of cocaine.
The Nevada Gaming Commission has entered Mr. Lyons' name in their
105 Nev. 317, 325 (1989) Lyons v. State
I conclude that people of ordinary intelligence would understand that a method of play
which permits only one reel of a slot machine to spin as the popper does alter the selection
of criteria which determines the result of the game. Therefore, I would hold NRS 465.015
constitutional in the instant case.
Lyons was charged with (1) cheating at gambling, (2) conspiracy to cheat at gambling, and
(3) being an habitual criminal. After his preliminary hearing, Lyons assented to a plea bargain
that allowed him to enter an Alford plea to the crime of obtaining money under false
pretenses. All remaining charges were dropped by the State.
It is my opinion that Lyons was dealt with lightly. He should have been held to the original
charges. He is an habitual criminal and deserves to be behind bars.
Lyons now seeks reversal of the one charge to which he pleaded guilty: obtaining money
under false pretenses.
The record shows that Lyons made a knowing and intelligent choice when he pleaded
guilty to obtaining money under false pretenses in order to avoid the possibility of a harsher
penalty. North Carolina v. Alford, 400 U.S. 25 (1970); Tiger v. State, 98 Nev. 555, 654 P.2d
1031 (1982). Lyons faced one to ten years imprisonment for the cheating at gambling offense,
and either life with or without the possibility of parole on the habitual criminal charge. See
NRS 207.010(2); NRS 465.088(1)(b). In return for pleading guilty to the false pretense
offense, the State of Nevada dropped the cheating and habitual criminal charge. Lyons
received a five year sentence. Because Lyons knowingly and willingly made his bargain and
received the benefit therefrom, I would not reverse. Therefore, I would affirm Lyons'
judgment of conviction.
__________
Black Book excluding him from licensed gaming establishments in the State of Nevada. The Commission
noted therein that [o]ver the past 35 years there have been few time periods when Lyons was not either a
fugitive from justice, facing criminal prosecution, or incarcerated in a correctional facility. He has been arrested
in excess of thirty (30) times, and has numerous felony and misdemeanor convictions.
____________
105 Nev. 326, 326 (1989) Bullock v. State, Dep't Motor Vehicles
DEAN NEVIN BULLOCK, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES, Respondent.
No. 18556
June 2, 1989 775 P.2d 225
Appeal from an order of the district court affirming the revocation of appellant's driver's
license. Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Driver petitioned for review of administrative decision revoking his driving privileges for
driving under influence of intoxicating liquor. The district court affirmed. Driver appealed.
The Supreme Court, Rose, J., held that driver was not in actual physical control of his vehicle
when observed by officer.
Reversed.
Steffen and Mowbray, JJ., dissented.
Longton & Kilburn, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Cheryl A. Lau, Deputy Attorney General,
Carson City, for Respondent.
Automobiles.
Intoxicated driver was not in actual physical control of his vehicle at time officer observed him, as required for revocation of
driver's license for driving under influence of intoxicating liquor; officer's testimony established driver was asleep in reclined position
when discovered, his hands were in his jacket pockets, and his eyes were closed, rendering him a passive occupant, and there was no
indication he had driven to location at which he was discovered. NRS 484.379, subd. 1.
OPINION
At approximately 6:40 a.m., on January 10, 1987, Reno Police Officer Jeff Bond was
patrolling in East Grove Street when he observed a Plymouth van in the parking lot of the
Grand Ballroom. The vehicle's engine was running as evidenced by its exhaust; its parking
lights were on. Curious, Officer Bond approached the vehicle, and observed appellant Dean
Nevin Bullock seated in the driver's position. The driver's chair was in a reclined position and
Bullock lay motionless, with his hands in his jacket pockets and his eyes closed.
Officer Bond entered the vehicle from the passenger door and turned off the ignition. After
repeated attempts, he succeeded in awakening Bullock.
awakening Bullock. Bond detected an odor of an intoxicating beverage upon Bullock's breath,
and observed that Bullock's eyes were watery and bloodshot. When Bullock failed to perform
a field sobriety test satisfactorily, Officer Bond placed him under arrest for driving under the
influence of intoxicating liquor (DUI) in violation of Reno Municipal Code 6.06.335(a).
1
Subsequent breathalyzer tests measured Bullock's blood alcohol level as .18 percent/.19
percent. Pursuant to NRS 484.385, Officer Bond served upon Bullock a notice of revocation
of driver's license. Bullock timely sought administrative review of the revocation of his
driving privilege.
2

An administrative hearing was held on February 18, 1987, before a hearing officer of the
Department of Motor Vehicles and Public Safety (DMV). At the hearing, Bullock's primary
contention was that he had not been in actual physical control of his vehicle when Officer
Bond observed him. Bullock testified that he had been drinking while at a tavern with some
friends and, between 2:30 and 3:00 a.m., returned to his vehicle to sleep. As the weather was
cold, he started the vehicle and turned on the heater.
3
He testified further that the driver's
chair was reclined at a 45 degree angle, rather than 80 degrees as Officer Bond had testified.
In addition, Bullock explained that he had turned on the vehicle's parking lights to signal his
location to his friends and as a precautionary measure.
The DMV hearing officer affirmed the order revoking Bullock's driving privileges.
Thereafter, Bullock petitioned the district court for review of the administrative decision. On
September 16, 1987, the district court entered its decision affirming the revocation. This
appeal followed.
We have recently determined what actual physical control means as used in NRS
484.379(1).
__________

1
Reno Municipal Code 6.06.335(a) provides:
It is unlawful for any person who: (1) is under the influence of intoxicating liquor; or (2) has
ten-hundredths (0.10) percent or more by weight of alcohol in his blood, to drive or be in actual physical
control of any vehicle or to ride any animal, within the city, on a street, highway, alley or premises to
which the public has access.
RMC 6.06.335(a) was derived from NRS 484.379. As the portions of the two statutes relevant to the
disposition of this case are identical, all references hereinafter will be to NRS 484.379.

2
On February 20, 1987, Bullock moved to dismiss the criminal charges against him. A municipal court
judge granted Bullock's motion, and all criminal charges were dropped.

3
According to Bullock's testimony at the revocation hearing, the National Weather Service reported the
temperature that morning as 8 F.
We conclude that a person is in actual physical control when the person has existing or
present bodily restraint, directing influence, domination, or regulation of the vehicle. In
deciding whether someone has existing or present bodily restraint, directing influence,
domination, or regulation of a vehicle, the trier of fact must weigh a number of
considerations, including where, and in what position, the person is found in the
vehicle; whether the vehicle's engine is running or not; whether the occupant is awake
or asleep; whether, if the person is apprehended at night, the vehicle's lights are on; the
location of the vehicle's keys; whether the person was trying to move the vehicle or
moved the vehicle; whether the property on which the vehicle is located is public or
private; and whether the person must, of necessity, have driven to the location where
apprehended.
Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989).
Applying the foregoing considerations to the facts of this case, we conclude that Bullock
was not in actual physical control of his vehicle when Officer Bond first observed him.
Officer Bond's own testimony established that Bullock was asleep in a reclined position when
discovered. Bullock's hands were in his jacket pockets; his eyes were closed. So situated, he
had become a passive occupant. The vehicle was parked in a private parking lot a substantial
distance from the highway. When awakened, Bullock did not attempt to operate his vehicle.
There is no indication that he had driven to the location that morning.
Under these facts, the district court erred in affirming the decision of the DMV hearing
officer. Accordingly, we reverse the district court's decision and remand this matter to that
court with instructions to order appellant Dean Nevin Bullock's driving privileges reinstated.
4

Young, C. J., and Springer, J., concur.
Steffen, J., joined by Mowbray, J., dissenting:
I dissent.
In my view, the majority have misperceived the thrust of the actual physical control
provision contained in NRS 484.379. Both the hearing officer and the district court judge
understood, correctly I submit, that the legislature sought by that language to discourage
intoxicated persons from entering their vehicles in the capacity of operators in areas
accessible to the public.
I agree with the hearing officer's conclusion that although it is commendable for an
individual not to drive his vehicle once he is incapable of safely operating his vehicle in his
condition, the purpose of the 'physical control provision' is preventative in nature and
designed to discourage drivers from testing their diminished driving ability.
__________

4
The Honorable Robert E. Rose, Justice, participated in the decision of this appeal upon the record, briefs
and recording of the oral argument.
incapable of safely operating his vehicle in his condition, the purpose of the physical control
provision' is preventative in nature and designed to discourage drivers from testing their
diminished driving ability. A person sleeping it off is considered to be a continuing threat to
public safety, as there is no assurance that the intoxicated individual will [not] awaken and
believe himself to be allright and operate his vehicle while still impaired.
The majority's decision is contrary to the prevailing view that actual physical control
includes constructive control of a vehicle. See, e.g., City of Cincinnati v. Kelley, 351
N.E.2d 85 (Ohio 1976); City of Toledo v. Voyles, 471 N.E.2d 823 (Ohio App. 1984); Hughes
v. State, 535 P.2d 1023 (Okla.Crim.App. 1975); Adams v. State, 697 P.2d 622 (Wyo. 1985).
In Adams, 697 P.2d at 623-624, the court noted that the defendant was parked about twenty
feet off the side of the highway, the engine was not running, no lights were on, the keys were
in the ignition, but in the off position, and the defendant was unconscious in the driver's
seat behind the steering wheel. In affirming defendant's conviction, the court held that [a]s
long as a person is physically or bodily able to assert dominion in the sense of movement by
starting the car and driving away, then he has substantially as much control over the vehicle
as he would if he were actually driving it. Id. at 625 (citing State v. Webb, 274 P.2d 338
(Ariz. 1954)).
In the instant case, it is beyond cavil that Bullock had domination and actual physical
control of his vehicle. He alone was in the vehicle, he was the owner of the car and he alone
would have determined when to drive away and whether his faculties were sufficiently free
from the influence of alcohol. Moreover, the vehicle was parked partially within the travel
lane of the parking lot of the Grand Ball Room. Furthermore, the arresting officer testified,
contrarily to Bullock, that Bullock was directly behind the steering wheel in an upright
position. The engine was running and the parking lights were on. Although asleep, Bullock
was poised to simply drive away at his own command, however impaired. I believe it was
precisely that risk that the legislature sought to discourage by the enactment of the actual
physical control provision of NRS 484.379.
Under Nevada's public policy, intoxicated persons are to refrain from entering vehicles as
drivers or potential drivers if the vehicles are located in areas accessible to the public. Thus,
intoxicated persons having access to such vehicles should enter them only as passengers. I
respectfully suggest that the majority have diminished the efficacy of Nevada's statutory
scheme by today's ruling. I therefore dissent.
____________
105 Nev. 330, 330 (1989) Techtow v. North Las Vegas City Council
PAUL S. TECHTOW, Petitioner, v. CITY COUNCIL OF NORTH LAS VEGAS; and
THERON GOYNES, MARY KINCAID, PAUL MAY and WILLIAM ROBINSON,
in their capacity as Councilmen for the City of North Las Vegas, Nevada; and JAMES
SEASTRAND, in his capacity as Mayor of the City of North Las Vegas, Nevada,
Respondents.
No. 16498
June 2, 1989 775 P.2d 227
Appeal from declaratory judgment sustaining the constitutional validity of a city ordinance
regulating massage parlors. Eighth Judicial District Court, Clark County; Miriam Shearing,
Judge.
Massage parlor operator brought a challenge to a city ordinance regulating massage
parlors. The district court held that the entire ordinance was valid, and operator appealed. The
Supreme Court, Steffen, J., held that: (1) the limitation of the hours of operation was not a
violation of operator's right to equal protection; (2) the requirement of a window in a door of
any room in which massage or bath was or could be provided violated the right to privacy;
and (3) the portion of the ordinance prohibiting a person of one sex from massaging a person
of the opposite sex was not a denial of equal protection.
Goodman, Terry, Stein & Quintana, Las Vegas, for Petitioner.
Roy A. Woofter, City Attorney, and Terrance P. Marren, Deputy City Attorney, North Las
Vegas, for Respondents.
1. Constitutional Law; Licenses.
City ordinance which applied to any person and every person desiring to conduct massage parlor business did not single out
massage parlor owner or purport to punish him without judicial process, and thus, ordinance was not bill of attainder.
2. Constitutional Law; Municipal Corporations.
Generally, overbreadth challenge to validity of statute or ordinance has application only if First Amendment rights are implicated.
3. Licenses.
Ordinance which permitted operation of legitimate, nonsexual massage services and excluded operations that overtly or covertly
pandered to sexual interests was not overbroard.
Provision of ordinance which limited hours of massage parlor operation was not violation of operator's right to equal protection;
there were valid reasons for restricting hours of operation to coincide with optimum periods of policing availability. U.S.C.A.Const.
Amend. 14.
Provision of ordinance which required window in door of any room in which massage or bath was to be provided violated right to
privacy.
Portion of ordinance which prohibited person of one sex from massaging person of opposite sex did not constitute denial of equal
protection. U.S.C.A.Const. Amend. 14.
7. Constitutional Law; Municipal Corporations.
Portion of ordinance which required that massage parlors keep records of names and other information concerning services
rendered to patrons and make such records available for inspection impermissibly invaded right of privacy and freedom of association.
OPINION
This appeal primarily challenges a declaratory judgment constitutionally validating the
entirety of a City of North Las Vegas ordinance regulating massage parlors. We hold that all
but two of the provisions in the ordinance are constitutional. We thus affirm in part and
reverse in part the district court's ruling.
Respondent City Council of North Las Vegas (Council) licensed appellant Paul Techtow
to operate a massage parlor. The Council enacted Ordinance No. 811, Chapter 3.60, of the
North Las Vegas Municipal Code (the ordinance), which regulated massage parlors. The
district court determined that the ordinance is constitutional. This appeal followed.
[Headnote 1]
Techtow initially attacks the ordinance as a bill of attainder. The ordinance, which applies
to any person and every person desiring to conduct or conducting a massage parlor
business, does not single out Techtow or purport to punish him without judicial process and
is therefore not a bill of attainder. Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348 (1977).
Techtow next contends that the ordinance is constitutionally defective because of certain
provisions that are assertedly overbroad and vague. In reviewing the definitional and
licensing sections of the ordinance herein at issue, we have concluded that they are neither
vague nor overbroad.
[Headnotes 2, 3]
Generally, an overbreadth challenge to the validity of a statute or ordinance has application
only if First Amendment rights are implicated. State v. Glusman, 98 Nev. 412, 422, 651 P.2d
639, 646 (1982), appeal dismissed, 459 U.S. 1192 (1983). Here, no such rights are involved.
The operation of a massage parlor is a privilege conferred by governmental authority after
appropriate qualification and licensure.
qualification and licensure. The ordinance under question impairs none of Techtow's First
Amendment freedoms.
If First Amendment freedoms are unimpinged by the statute or ordinance, a challenge for
vagueness may succeed only if the enactment is vague in all of its applications. Id. at 98 Nev.
420, 421, 651 P.2d 644, 645. Techtow has not persuaded us that the ordinance is vague either
as to him or as applied to others.
Techtow also argues that the restriction on advertising is unreasonable. We disagree. It is
decidedly within the police power of the City of North Las Vegas to assure that licensed
massage parlors advertise only services that are within the purview of the law. Manifestly, the
ordinance seeks to permit the operation of legitimate, non-sexual massage services and to
exclude operations that overtly or covertly pander to sexual interests. In other words, the
ordinance supports those who qualify to practice the healing art of massage, and outlaws
those who would use a massage parlor as a front for illicit sexual activities. The ordinance
permits advertising that accurately reflects the former and prohibits advertising that would
attract customers seeking the latter. See MRM, Inc. v. City of Davenport, 290 N.W.2d 338
(Iowa 1980).
[Headnote 4]
Additionally, we conclude that the district court was correct in finding that section
3.60.110, the limitation of hours of operation, was not in violation of Techtow's right to equal
protection. Owens v. City of Signal Hill, 201 Cal.Rptr. 70, 74 (Cal.Ct.App. 1984); Hilbers v.
Municipality of Anchorage, 611 P.2d 31, 40-42 (Alaska 1980); Harper v. Lindsay, 616 F.2d
849, 855 (5th Cir. 1984); cf. Pentco, Inc. v. Moodys, 474 F.Supp. 1001, 1008 (S.D. Ohio
1978). There are valid reasons for restricting the hours of operation to coincide with optimum
periods of policing availability. It is unreasonable to compel the public to divert limited law
enforcement resources to massage parlor operations when they are critically needed for more
serious concerns elsewhere.
[Headnote 5]
Techtow contends that the provision in the ordinance requiring a window in a door of any
room in which a massage or bath is or may be provided (section 3.60.080(11)) violates the
right to privacy. We are constrained to agree. The ordinance prohibits interior doors capable
of being locked, a prohibition which serves to protect the government's interest in
discouraging prostitution or other illicit conduct by permitting ease of inspection. See Myrick
v. Board Board of Pierce County Comm'rs, 677 P.2d 140 (Wash. 1984); Harper v. Lindsay,
supra, 616 F.2d at 855. A well-intentioned customer of a legitimate massage parlor is likely
to expect and demand a reasonable amount of privacy during a massage.
to expect and demand a reasonable amount of privacy during a massage. The window
requirement subjects a customer to exposure to all who pass by, yet fails to materially serve
any rational state interest beyond that served by the prohibition against locks on doors to any
rooms in which a massage or bath may be provided.
In invalidating a similar window requirement, the court in Myrick v. Board of Pierce
County Comm'rs, supra, 677 P.2d at 140, noted:
[s]uch a condition would . . . have a devastating impact upon society's legitimate and
ever-increasing quest for physical fitness and upon the operation of legitimate massage
businesses. Few persons, if any, would be willing to have an audience during a full
body massage, however innocent and legitimate. Were we to find this requirement
reasonable, there would exist no barrier to the imposition of similar requirements in
wholly innocent family exercise studios, fitness centers, motel rooms or other
traditionally private places.
We . . . note that privacy existslike secrecy, security, or tranquilityby virtue of
habits of life appropriate to its existence [citations omitted]. Persons habitually have
sought massages in private settings. Any regulation which is so broad in scope as to
require public view of a massage would have a chilling effect upon individual privacy.
This would not only infringe upon the rights of legitimate massagists to pursue a
chosen occupation, [citation omitted] but would also pose an impermissible threat to
those persons seeking such services [citations omitted].
[Headnote 6]
Techtow next contends that the provisions of the ordinance prohibiting a person of one sex
from massaging a person of the opposite sex (sections 3.60.230(b) and 3.60.294(2)) constitute
a denial of equal protection. We do not agree. Although it may now be questioned whether
society's interest in protecting the general welfare against illicit sexual activities and diseases
is better served by facilitating same-sex massages at the exclusion of massages by members
of the opposite sex, it is not within our prerogatives to invalidate an ordinance, or part
thereof, simply because we might question the wisdom or necessity of the provision under
scrutiny. As observed by the Utah Supreme Court in Redwood Gym v. Salt Lake City
Comm'n, 624 P.2d 1138, 1146 (1981), it has been established to a certainty . . . that an
ordinance such as the one in question here [opposite-sex massages] does no violence to
federal guarantees of equal protection. See, e.g., Ex Parte Maki, 133 P.2d 64 (Cal.Ct.App.
1943); Smith v. Keaton, 203 S.E.2d 411 (N.C.Ct.App.), aff'd, 206 S.E.2d 203, appeal
dismissed, 419 U.S. 1043 (1974); Rubenstein v. Township of Cherry Hill, No. 10,027, slip
op. (N.J., Jan. 29, 1974), appeal dismissed, 417 U.S. 963 (1974); Patterson v. City of Dallas,
355 S.W.2d 838 (Tex.Civ.App. 1962), appeal dismissed, 372 U.S. 251 (1963); Kisley v. City
of Falls Church, 187 S.E.2d 168 (Va.). appeal dismissed, 409 U.S. 907 (1972); Tomlinson v.
Mayor, 543 F.2d 570 (5th Cir. 1976); Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975), cert.
denied, 428 U.S. 913 (1976).
The Tomlinson and Hogge cases merely relied on stare decisis in upholding the
constitutional validity of ordinances banning massages by members of the opposite sex, citing
the precedential effect of dismissals of appeals by the United States Supreme Court.
Dismissal is, in fact, an adjudication of the merits. Hicks v. Miranda, 422 U.S. 332 (1975).
Our holding with respect to the prohibition against performing massage on members of the
opposite sex also disposes of the challenge to the requirement that apprentice massage
technicians obtain letters of sponsorship from certified massage technicians of the same sex
(sections 3.60.224(A) and (B)).
[Headnote 7]
Techtow also argues that the requirement that massage parlors keep records of names and
other information concerning the services rendered to patrons and make such records
available for inspection (section 3.60.090) is unconstitutional. We agree that the record
keeping requirement impermissibly invades the right of privacy and freedom of association.
Myrick v. Board of Pierce County Comm'rs, supra, 677 P.2d at 144-45; Pentco, Inc. v.
Moody, supra, 474 F.Supp at 1001 (record keeping requirement violated equal protection).
The court in Myrick stated, in invalidating a similar requirement:
Because of this requirement entirely innocent persons would be reticent to patronize
establishments which uniformly supply records of visits for police inspection. . . . This
deterrence was found to be contrary to NAACP v. Alabama, 357 U.S. 499 (1958). . . . It
is one thing for persons to willingly supply names and addresses to businesses; it is
quite another for a governing body to require disclosure. . . .
Appellant's right of freedom of association is in no way diminished because the issue
arises in an economic matter. The United States Supreme Court has recognized the
vital relationship between freedom to associate and privacy in one's associations.
[Citations omitted.] Because of the importance of these tightly intertwined rights that
Court has refused to draw a line excluding those engaged in business activities" from
the reach of the First Amendment.
activities from the reach of the First Amendment. Thomas v. Collins, 323 U.S. 516,
531. . . . We likewise refuse to do so and hold that compulsory disclosure of the names
of persons frequenting these commercial establishments would constitute an
impermissible abridgment of such rights.
Id. at 144-45. The record keeping requirement presents a strong prospect of deterring law
abiding individuals from receiving massages. On balance, we conclude the regulation
infringes too far on the rights of privacy and association.
Section five of the ordinance provides that if any provision of the ordinance is held
invalid, the invalidity shall in no way affect remaining provisions of the ordinance.
Consequently, we hold the two sections specified above invalid, without disturbing the
remaining provisions of the ordinance.
Techtow's other contentions are without merit. Accordingly, the judgment of the district
court is reversed only with respect to the two provisions specified and discussed above. In all
other respects, the judgment is affirmed.
I do not think that it is constitutionally permissible for a municipality to prohibit a male
massagist from massaging a female client or to prohibit a female massagist from massaging a
male client.
I can understand why the city wishes to prevent illicit sexual acts from being performed
under the guise of massage; but this legitimate purpose does not justify a blanket
prohibition of all inter-gender massage. Certainly male prostitution is not the concern here,
and the apparent reason for the inclusion in the ordinance of a prohibition against males'
massaging females is to give the ordinance the appearance of gender equality by including the
acts of both sexes. There is nothing that I can see that would support an ordinance which
prohibits men from massaging women, and it does not seem reasonable to me that a man
choosing to engage in this occupation should be restricted to massaging clients of his own
sex.
It is quite obvious from this record that the real underlying purpose of the ordinance is to
control female prostitution under the guise of massage. This is, of course, a legitimate
legislative purpose. As stated, I object only to the means by which this ordinance attempts to
carry out this purpose, by a total prohibition of inter-gender massage.
As in the case of the prohibition of men massaging women, I see no justification for a
blanket prohibition that prevents a woman from giving a massage to a man. As commented in
J.S.K.
Enterprises, Inc. v. City of Lacey, 492 P.2d 600 (Wash.App. 1971), [m]assage is one of the
oldest forms of therapy. When properly administered in an appropriate case, it can be one of
the most useful forms of therapy. . . . Not only is this discrimination as to both sexes of
massagists but it would deny people who need their services this opportunity to select the best
qualified massagist available to them. 492 P.2d at 607.
To deny all massagists the right to practice their profession upon both sexes because
some individuals utilize a sauna massage parlor as a subterfuge to perform lewd acts for
compensation would require stereotyping of the worst kind. It is saying, in effect, that
because some women perform lewd acts in sauna parlors that all massagists can be
judged to be lewd if given the opportunity and therefore they cannot massage members
of the opposite sex.
Id. at 607.
It makes no sense to me to prohibit a person of one sex from giving a massage to a person
of the opposite sex. The assumption that women who give massages are a danger to the
public morals is, as stated in City of Lacey, stereotyping of the worst kind and could be
taken as an insult by women who have chosen massage as their profession.
It seems to me that the City of North Las Vegas could achieve its desired purpose by
enacting an ordinance that does not interfere with the livelihood of legitimate massagists.
Without the blanket prohibition against inter-gender massage the public would still be
protected by provisions in the present ordinance which require licensing and background
checks of all massagists. Other kinds of permissible protections are afforded in this regulatory
ordinance. Hours of operation and employee dress are regulated, and massage of sexual areas
of the body is prohibited. Licenses can be revoked for violation of these provisions. Because
total prohibition of inter-gender massage is unnecessary to the accomplishment of the purpose
of the ordinance and because the ordinance places undue restrictions upon those who take up
massage as their chosen means of livelihood, I would strike that portion of the ordinance
which prohibits massage of one sex by the other.
____________
105 Nev. 337, 337 (1989) Jimenez v. State
VICTOR MAXIMILLIAN JIMENEZ, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 18957
June 7, 1989 775 P.2d 694
Appeal from judgment of conviction for burglary, robbery with the use of a deadly
weapon, and two counts of first degree murder and of the death sentence. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Defendant, who was convicted after jury trial in the district court of burglary, robbery with
use of deadly weapon, and two counts of first degree murder, received death sentence, and
defendant appealed. The Supreme Court held that: (1) failure to tape record defendant's
statements to police officers did not render statements inadmissible; (2) stabbing of two
victims with two knives did not constitute aggravating circumstance of knowingly creating
grave risk of death to more than one person by means of weapon which would normally be
hazardous to lives of more than one person; and (3) aggravating circumstance that murder
was committed by defendant to prevent lawful arrest or escape from custody was not
supported by evidence.
Moran & Weinstock, Las Vegas, for Appellant.
1. Criminal Law.
Failure to tape record defendant's statements to police officers did not render statements inadmissible in murder prosecution.
2. Homicide.
Stabbing of two victims with two knives did not constitute aggravating circumstance of knowingly creating grave risk of death to
more than one person by means of weapon which would normally be hazardous to lives of more than one person. NRS 200.033, subd.
3.
3. Homicide.
Aggravating circumstance that murder was committed by defendant to prevent lawful arrest or escape from custody was not
supported by evidence; there was no evidence that deed was done with regard to arrest or escape of any kind. NRS 200.033, subd. 5.
OPINION
Per Curiam:
A jury convicted Victor Maximillian Jimenez of burglary, robbery with use of a deadly
weapon, and two counts of first degree murder.
robbery with use of a deadly weapon, and two counts of first degree murder. After a penalty
hearing, the jury found that aggravating circumstances outweighed mitigating circumstances
sufficiently to impose the death penalty. On appeal, Jimenez challenges the admissibility of
some of the evidence, the sufficiency of the evidence, and the imposition of the death penalty.
Facts
Jimenez and an acquaintance, Leandrew Domingo, went to Gabe's Bar on the evening of
January 9, 1987. They drank until the bartender asked them to leave because Domingo kept
falling asleep. Out of money, they went out the back door of the bar to where Richard Warner
had parked his truck. Jimenez and Domingo broke into the cab of the truck by pushing in the
wing window and took a transistor radio. They also opened a large tool box in the back of the
truck and took from it a smaller tool box. Among the tools that Warner reported missing were
carpet knives, sheetrock knives, a dagger, a sheetrock ax, and a drywall pouch. Jimenez took
the tool box to his residence a short distance away and returned to Domingo with ten dollars.
The next morning the North Las Vegas Police were dispatched to Gabe's Bar. They found
two bodies on the floor, victims of multiple stab wounds. One of the victims, John Mynheir,
had been the bartender on duty, while the other victim, Antonio Velasquez, was a customer at
the bar. Although no weapons were ever found, an expert testified at trial that the victims'
wounds were consistent with wounds that could be inflicted by a carpet knife and a dagger.
The investigation at the scene revealed bloody footprints made by tennis shoes and
approximately $350.00 missing from the bar's slot bank and jukebox money.
On January 22, 1987, Detective Harry received information regarding the killings at
Gabe's Bar. As a result of the information, he and Detective Scroggin went to Jimenez'
residence. They advised Jimenez that they wanted to talk to him about a truck burglary, and
Jimenez accompanied them to the police station. At the station, Jimenez was advised of his
constitutional rights, but he invoked neither his right to remain silent nor his right to have an
attorney. He then admitted to burglarizing the truck. He also stated that he had been in a fight
outside the Guadalajara Bar (next to Gabe's Bar) the night of the killings. He claimed that
someone had stabbed him in the toe and that he had thrown the tennis shoes away that he had
been wearing.
The detectives then told Jimenez that they were investigating the murders at Gabe's Bar.
Detective Harry asked Jimenez whether he or Domingo had been involved. Jimenez did not
immediately respond, so Detective Harry repeated the question.
Jimenez responded, Why, what happen to me if I did? The detective said that it would
depend on what happened. Jimenez asked if he would be executed, and the detective said that
he could get the death penalty or life imprisonment.
Detective Harry asked him if he wanted to talk about it, and Jimenez was silent for a few
seconds but then asked whether it would be easier on him if there had been two people
involved. Again, the detective responded that it would depend on what happened. The
detective temporarily ended the interview and went to Jimenez' residence where Jimenez'
father gave the detective the tool box, which was later identified as Warner's, and some of
Jimenez' clothes. Blood was identified on Jimenez' jacket and on a pair of pants by using a
luminol test. The blood was later identified as human blood, but it could not be typed.
The detective readvised Jimenez of his rights and informed him that blood had been found
on his clothing. Jimenez then responded, Okay, you got me. He asked the detectives if they
thought more than one person had done it, and Detective Harry said that they did not know.
Jimenez asked, What if I told you I did it myself? And the detective asked him to tell them.
Jimenez then said, No, I can't. My family will be in danger. The interview then concluded.
On January 27, 1987, Jimenez' parents were contacted for the purpose of obtaining a
statement. They agreed and went to the police station. They were interviewed for a short time
and then they asked to see their son. They talked to their son for about thirty minutes, and the
police then took formal statements from both parents. Mr. and Mrs. Jimenez both later
testified that the police had told them they would be blamed for the murders if they did not
answer the police's questions. However, the detectives denied that they had made any threats.
After Jimenez had spoken with his parents, Detective Scroggin went into the interview
room with Jimenez. Jimenez was very quiet and subdued and appeared sad. The detective
escorted Jimenez to the elevator to take him back to his cell. Jimenez' head was hung, and he
began to cry. Detective Scroggin asked him what was wrong, and Jimenez replied that it just
felt better to tell someone.
While Jimenez and Domingo were in custody in the North Las Vegas Jail, Jimenez told
Domingo that he had bought the tool box for himself. Later, on their way to court, Jimenez
said to Domingo that they were going to be locked up for a long time.
Billy Ray Thomas was incarcerated in the North Las Vegas Jail at the same time as
Jimenez. Thomas was present in the cell block with Jimenez and several other inmates on
January 28 when another inmate posed several questions to Jimenez. There was some
discussion regarding a jacket, and one of the inmates asked Jimenez if it was his jacket.
some discussion regarding a jacket, and one of the inmates asked Jimenez if it was his jacket.
Jimenez said that it was. Then the inmate asked Jimenez, if he did not kill the guy, how did
blood get on the jacket. Jimenez did not answer. The inmate then asked why he did not get rid
of it, and Jimenez said that he did not think about it at the time.
That same evening, a telephone was brought to the cell for inmate use. Jimenez used the
phone for quite a while. Thomas wanted to use the phone, so he tapped Jimenez on the
shoulder. Jimenez brushed him off and told him to wait. Thomas sat down next to Jimenez.
Jimenez turned his body away from Thomas, dropped his head a little and covered his mouth.
Thomas then heard Jimenez say, They got me dad. I stabbed the guy.
Admissibility of Evidence
Jimenez first argues that the trial court erred in allowing his mother to testify. Mrs.
Jimenez, on two different occasions, repeatedly refused to testify concerning the events of
which she had knowledge. The prosecutor called her to testify, and she testified concerning
some inconsequential matters, then refused to go on. On the next day, defense counsel
cross-examined her, and the prosecution again tried to get her to answer questions which she
refused to do, except for some questions on further inconsequential matters. In the end, she
gave very little testimony, and the court remanded her to custody for refusing to answer the
prosecution's questions.
Jimenez claims he was prejudiced by Mrs. Jimenez' refusal to testify because of what the
jury might have inferred from what Mrs. Jimenez did not say. We reject this argument as
overly speculative. We also reject Jimenez' arguments that we should apply a parent/child
privilege or that the court's failure to allow defense counsel to recross-examine Mrs. Jimenez
violated Jimenez' right to confront and cross-examine.
Second, Jimenez claims that his admissions to the detectives and within the hearing of his
cell mates should not have been admitted. He states that the testimony of Billy Ray Thomas
and Leandrew Domingo concerning statements he made while in jail should have been
excluded because he had already invoked his right to remain silent. This basis for excluding
the testimony of Thomas and Domingo was not raised at trial and may not be raised now on
appeal. Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988); Geer v. State, 92 Nev. 221,
224, 548 P.2d 946, 947 (1976). Furthermore, even if we could consider it, Jimenez cannot
show that Thomas and Domingo were acting as agents of the police in violation of the fifth
amendment when they heard Jimenez' admissions.
Jimenez' admissions. See Thompson v. State, 105 Nev. 151, 771 P.2d 592 (1989); U.S. v.
Malik, 680 F.2d 1162, 1165 (7th Cir. 1982).
[Headnote 1]
Jimenez also made incriminating statements to Detectives Harry and Scroggin. He
maintains that the credibility of the detectives is suspect because the statements were neither
tape recorded nor transcribed.
1
The Alaska Supreme Court has imposed on the police a duty
to record the statements of suspects whenever feasible. The penalty for not making the
recording is suppression of the statements for violation of the due process clause of the
Alaska Constitution. Stephan v. State, 711 P.2d 1156 (Alaska 1985). The Model Code of
Pre-Arraignment Procedure, section 130.4, also requires that a defendant's statement must be
recorded along with Miranda warnings and a warning that the statement is being taped.
While requiring recordings of statements would alleviate the problems of credibility of
police officers who claim a defendant made incriminating statements, the concern is with the
reliability of the testimony of the detectives, not with some unconstitutional action. Defense
counsel elicited testimony at trial concerning the failure to tape record the interrogation and
made the point to the jury that this failure served to call into question the reliability of the
detectives' testimony. The jury then had the opportunity to decide on whether to believe the
detectives. The jury's determination that the detectives' testimony was truthful is sufficient to
quiet concerns of reliability. Thus, we decline Jimenez' invitation that we adopt a rule
requiring the tape recording of defendants' statements.
Sufficiency of the Evidence
Jimenez claims that there was insufficient evidence to support any of his convictions.
Where there is substantial evidence in the record to support the verdict of the jury, it will not
be overturned by an appellate court. Williams v. State, 87 Nev. 230, 231, 484 P.2d 1088
(1971). To affirm, we must find sufficient facts from which reasonable inferences could be
drawn to prove each element of the crime. Id.
First, Jimenez argues that holding one's hand over the bed of a truck cannot constitute
entering under the burglary statute. See Smith v. District Court, 75 Nev. 526, 347 P.2d 526
(1959). While this is correct, Jimenez did more than just hold his hand over the bed of the
truck.
__________

1
Unlike his failure to move the court to suppress the testimony of Thomas and Domingo, defense counsel
properly moved to suppress Jimenez' statements to the detectives.
over the bed of the truck. In addition to stealing the tool box from the bed of the truck, he
broke into the cab and stole a radio.
Jimenez also contends that there was insufficient evidence that he was involved in the
robbery and murders or that the robbery was committed in connection with the murders. In
making this contention, Jimenez ignores the circumstantial evidence against him and, most
notably, his own incriminating statements. The evidence showed human blood stains on
Jimenez' clothing; his own incriminating remarks about being caught, stabbing someone and
about going to jail for a long time; his absence from home during the time of the killings; the
wound to his toe; his admitted burglary of the truck and access to carpentry knives; the fact
that knives were missing from the tool box when it was recovered; the evidence that stab
wounds to the victims were consistent with the type of knife missing from the tool box; and
the money missing from the bar. The record contains substantial evidence of his guilt for all
the convictions.
Penalty
[Headnote 2]
Two of the four aggravating circumstances found by the jury to exist in this case have no
basis in fact. The first aggravating circumstance found by the jury was that the stabbing of
these two victims with two different knives constituted the aggravated circumstance on the
part of Jimenez of knowingly creating a great risk of death to more than one person by means
of a weapon, device or course of action which would normally be hazardous to the lives of
more than one person. This aggravating circumstance contemplates the use of a weapon or
device that, by its nature or the circumstances of its use, would normally be hazardous to the
lives of more than one person. NRS 200.033(3). Stabbing two persons with two different
knives, even if Jimenez did both stabbings, does not make either knife a weapon or device
that is normally dangerous to a multiplicity of persons. Finally, even if, conceivably, a knife
could be used under circumstances that would endanger the lives of more than one person in a
single course of action, such was not the case here. Jimenez, if acting alone, would have had
to stab one victim and then turn his attention to stabbing another. Under such a scenario, even
a rock could have been used to kill both victims and thus improperly claimed to constitute a
basis for an aggravating circumstance under NRS 200.033(3). Our cases reflect the view that
the employment of a weapon, device or course of action that is intrinsically hazardous to
more than one life is a necessary predicate to a finding under NRS 200.033(3). Thus, in
Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987), we concluded that firing a gun in an
apartment with only the victim present, and no other persons known by the perpetrator
to be in close proximity to the crime scene, did not constitute an aggravating
circumstance under NRS 200.033{3).
firing a gun in an apartment with only the victim present, and no other persons known by the
perpetrator to be in close proximity to the crime scene, did not constitute an aggravating
circumstance under NRS 200.033(3). However, we also held in Moran that firing a gun at the
victim with another person nearby did satisfy the requirements of the statute. Again, in
Nevius v. State, 101 Nev. 238, 669 P.2d 1053 (1985), we upheld the invocation of NRS
200.033(3) when the defendant fired a shot at the victim with the victim's wife in the same
room. However, the interpretation thus placed on the statute does not constitute support for a
finding of an aggravating circumstance under NRS 200.033(3) in the instant case, and we so
hold.
[Headnote 3]
Another aggravating circumstance relied on by the jury is that the murder was committed
by Jimenez to prevent a lawful arrest or to escape from custody. NRS 200.033(5). However,
we have no evidence that these deeds were done with regard to arrest or escape of any kind.
The only arguably sustainable aggravating circumstances presented to the jury were that
Jimenez acted with depravity of mind (NRS 200.033(8)) and that he committed the
murders during a robbery (NRS 200.033(4)).
Since the jury considered and found that Jimenez knowingly created a great risk of death
to more than one person and that he committed the murders to prevent a lawful arrest or to
escape even though there was no basis in fact for finding these aggravating circumstances, the
penalty phase was flawed by reversible error. It is therefore necessary to remand to the district
court so that a jury can consider only aggravating circumstances that are grounded in fact and
weigh those aggravating circumstances against the mitigating circumstances in a new penalty
hearing.
Conclusion
In addition to those issues we have already discussed, we also considered Jimenez'
remaining assignments of error, and we find them to be without merit. Accordingly, we
affirm all of the convictions against Jimenez and remand to the district court for a new
penalty hearing.
Young, C. J., Steffen, Springer and Rose, JJ., and Breen, D. J.,
2
concur.
__________

2
The Honorable Bob Miller, Governor, designated the Honorable Peter I. Breen, District Judge of the
Second Judicial District, to sit in this case in place of The Honorable John Mowbray, Justice, who voluntarily
disqualified himself. Nev. Const., art. 6, 4.
____________
105 Nev. 344, 344 (1989) Black & Decker v. Essex Group
BLACK & DECKER (U.S.), INC., Appellant, v. ESSEX GROUP, INC., Respondent.
No. 19032
June 22, 1989 775 P.2d 698
Appeal from a judgment of the district court awarding $650,000 to an individual who
received an electric shock while using an electric drill with a defective plug, and apportioning
liability between the drill manufacturer and the plug manufacturer. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Appeal was taken from a judgment of the district court awarding damages to worker who
received electric shock while using electric drill with defective plug and apportioning liability
between drill manufacturer and plug manufacturer. The Supreme Court held that drill
manufacturer was entitled to indemnity from plug manufacturer since drill manufacturer's
failure to spot plug's latent defect during its assembly process was at worst passive
negligence, and implied warranty of merchantability owed by plug manufacturer to drill
manufacturer created duty which established plug manufacturer as primary tortfeasor.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for Appellant.
Rawlings, Olson & Cannon, Las Vegas, for Respondent.
1. Indemnity.
When one party is subject to liability, which, as between that party and another, the other should bear, the first party is entitled to
full indemnity.
2. Indemnity.
Right of indemnity rests upon difference between primary (active) and secondary (passive) liability of two persons, each of whom
is made responsible by law to injured party; difference between primary and secondary liability depends on difference in character or
kind of wrongs that cause injury and in nature of legal obligation owed by each of wrongdoers to injured party.
3. Indemnity.
Evidence of only passive negligence or strict liability is insufficient to establish active wrongdoing by party seeking indemnity.
4. Indemnity.
Manufacturer of electric drill was entitled to indemnity from manufacturer of defective plug which drill manufacturer incorporated
into drill during assembly process to extent that drill manufacturer was held liable under strict products liability theory for personal
injuries suffered by worker when he attempted to plug drill in; warranty of merchantability owed by plug manufacturer to drill
manufacturer created duty which established plug manufacturer as primary tortfeasor, and drill manufacturer's
failure to spot plug's latent defect during assembly process was at worst passive negligence.
established plug manufacturer as primary tortfeasor, and drill manufacturer's failure to spot plug's latent defect during assembly process
was at worst passive negligence.
OPINION
Per Curiam:
A jury found both appellant Black & Decker (U.S.), Inc. and respondent Essex Group, Inc.
liable under a strict products liability theory for personal injuries suffered by Willard Larson
when he attempted to plug in an electric drill manufactured by Black & Decker. Essex
manufactured and supplied a defective plug which Black & Decker incorporated into the drill
during the assembly process. The jury's verdict apportioned seventy-five percent of the fault
to Essex and twenty-five percent of the fault to Black & Decker, without specifically
addressing a cross-claim for indemnity or contribution filed by Black & Decker against
Essex.
Black & Decker argues that indemnity is an all or nothing concept, and thus, Essex
should completely reimburse it for any losses suffered due to Larson's personal injury action.
Therefore, Black & Decker argues that the district court erred by denying it indemnity on its
cross-claim. We agree.
[Headnotes 1, 2]
When one party is subject to liability, which, as between that party and another, the other
should bear, the first party is entitled to full indemnity. Silver v. Telerent Leasing, 105 Nev.
30, 768 P.2d 879, 881 (1989). The right of indemnity rests upon a difference between the
primary [active] and the secondary [passive] liability of two persons, each of whom is made
responsible by the law to an injured party. Tromza v. Tecumseh Products Company, 378
F.2d 601, 605 (3rd Cir. 1967) (citation omitted). The difference between primary and
secondary liability depends on a difference in the character or kind of wrongs that cause the
injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured
person. Id.
[Headnotes 3, 4]
Evidence of only passive negligence or strict liability is insufficient to establish active
wrongdoing by a party seeking indemnity. Piedmont Equip. Co. v. Eberhard Mfg., 99 Nev.
523, 527, 665 P.2d 256, 259 (1983). Thus, the fact that the jury found Black & Decker strictly
liable for a portion of Larson's injuries should not serve as a bar to appellant's claim for
indemnity against Essex. Id. Moreover, Black & Decker's failure to spot the plug's latent
defect during its assembly process was at worst passive negligence.
Although indemnity is not usually available between joint tortfeasors, an exception arises
when a legal relationship or duty supports the claim of indemnity. Ringsby Truck Lines, Inc.
v. Bradfield, 563 P.2d 939, 943 (Colo. 1977). In order for one tortfeasor to be in a position of
secondary responsibility vis-a-vis another tortfeasor, and thus be entitled to indemnification,
there must be a preexisting legal relation between them, or some duty on the part of the
primary tortfeasor to protect the secondary tortfeasor. Id. at 942. In this case, the implied
warranty of merchantability owed by Essex to Black & Decker created a duty which
establishes Essex as the primary tortfeasor, and supports appellant's claim for indemnity.
1

The weight of authority supports Black & Decker's claim for indemnification. Silver v.
Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989); Piedmont Equip. Co. v. Eberhard Mfg.,
99 Nev. 523, 665 P.2d 256 (1983). Therefore, the district court erred by denying Black &
Decker's claim for indemnity. Accordingly, we remand the case to the district court for
proceedings consistent with this opinion.
____________
105 Nev. 346, 346 (1989) Shawn M., A Minor v. State
IN THE MATTER OF SHAWN M., a Minor, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 19704
June 22, 1989 775 P.2d 700
Appeal from a juvenile court order adjudging appellant a delinquent child and committing
him to the custody of the State. Ninth Judicial District Court, Douglas County; Norman C.
Robison, Judge.
Juvenile was adjudged delinquent child by the district court and juvenile appealed. The
Supreme Court held that juvenile had constitutional right to present closing argument in
juvenile proceeding.
__________

1
In Central Telephone Co. v. Fixtures Mfg., 103 Nev. 298, 300, 738 P.2d 510, 512 (1987), this court held
that indemnity is not available in a case involving joint tortfeasors having no legal relation to one another, and
each owing a duty of care to a third party. However, in the case at hand, although the jury found Black & Decker
and Essex to be joint tortfeasors, as buyer and seller, the two defendants had a legal relation to one another.
Therefore, our decision in Central Telephone will not bar Black & Decker's claim for indemnity.
Terri Steik Roeser, State Public Defender, Jeffrey M. Evans, Deputy State Public
Defender, and John C. Lambrose, Deputy State Public Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, and
Harold Kuehn, Deputy District Attorney, Douglas County, for Respondent.
1. Infants.
Juvenile had constitutional right to present closing argument in juvenile proceeding in which juvenile was adjudged delinquent
child.
2. Infants.
Presentation of closing argument by defense counsel based upon evidence introduced at adjudicatory hearing is integral part of
juvenile's right to effective assistance of counsel in juvenile proceeding. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Judge's belief that he or she would not benefit from closing argument is not constitutionally sufficient reason for denying any
summation at all.
OPINION
Per Curiam:
[Headnote 1]
The juvenile court found that appellant Shawn M., a minor, committed battery, and the
court adjudged him a delinquent child. However, at the adjudicatory hearing, the juvenile
court refused to hear Shawn's counsel in summation. On appeal, Shawn contends that he had
a constitutional right to present closing argument in the juvenile proceeding. We agree.
The United States Supreme Court's seminal case on due process requirements in juvenile
proceedings supports Shawn's position. In re Gault, 387 U.S. 1 (1967). The court observed
that, regarding the right to counsel, no material difference exists between adult criminal
proceedings and juvenile proceedings in which adjudication of delinquency is sought. Id. at
36. Thus, the court held that the assistance of counsel is essential for the determination of
delinquency. Id.
Subsequently, the United States Supreme Court held that a criminal defendant has a
constitutional right to present closing argument, even in a nonjury trial. Herring v. New York,
422 U.S. 853, 859 (1975). The court reasoned that the Sixth Amendment right to the
assistance of counsel ensures the criminal defense the opportunity to participate fully and
fairly in the adversary factfinding process. Id. at 858. Since closing argument is a basic
element in that process, the court concluded that the district court has no discretion to deny
the accused such right. Id. at S5S-S60.
the district court has no discretion to deny the accused such right. Id. at 858-860.
[Headnote 2]
We hold that presentation of closing argument by defense counsel based upon the evidence
introduced at an adjudicatory hearing is an integral part of a juvenile's right to effective
assistance of counsel. In re A. C., 357 A.2d 536, 538 (Vt. 1976); E. V. R. v. State, 342 So.2d
93, 94 (Fla.Dist.Ct.App. 1977). Summation serves to sharpen and clarify the issues, a
particularly useful process in light of the complex procedures outlined in the juvenile statutes.
In re A. C., 357 A.2d 538. Consequently, the juvenile court had no discretion to deny Shawn's
counsel the opportunity to present closing argument.
[Headnote 3]
Moreover, Shawn's counsel did not waive this right. Rather, he specifically advised the
court that he wished to argue self-defense. The juvenile judge responded that he didn't need
it. However, a judge's belief that he or she would not benefit from closing argument is not a
constitutionally sufficient reason for denying any summation at all. Herring, 422 U.S. at 863.
Accordingly, the juvenile court's outright refusal to hear closing argument constituted
reversible error. Therefore, we reverse the district court's order and remand the case for an
adjudicatory proceeding consistent with this opinion.
____________
105 Nev. 348, 348 (1989) Oehler v. Humana, Inc.
BEVERLY OEHLER and CHARLES OEHLER, Appellants, v. HUMANA, INC., dba
HUMANA HOSPITAL SUNRISE, Respondent.
No. 18971
June 22, 1989 775 P.2d 1271
judgment. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Physician brought medical malpractice action against hospital and nonemployee physician
to recover for allegedly negligent treatment of medical problems. The district court entered
summary judgment in favor of hospital. Patient appealed. The Supreme Court held that: (1)
hospital had duty to monitor and supervise treatment of patient by physician; (2) patient's
complaint stated cause of action for negligent supervision; and (3) patient failed to establish
that physician was agent of hospital.
Affirmed in part; Reversed and Remanded in part.
E. Sue Saunders, Reno, for Appellants.
Barker, Gillock, Koning, Brown & Earley and Jerry S. Busby, Las Vegas, for Respondent.
1. Hospitals.
Hospital had duty under corporate negligence theory of liability to monitor and supervise treatment of patient by nonemployee
physician.
2. Hospitals.
Allegations arising out of nonemployee physician's operation on patient at hospital stated claim against hospital for negligent
supervision; complaint alleged that hospital agreed to and did provide medical care to patient, that hospital was negligent, and that
negligence proximately caused injuries; and it adequately stated that hospital had knowledge of operation and aided and assisted in
operation.
3. Judgment.
Questions of fact precluded summary judgment whether hospital negligently supervised nonemployee physician who operated on
patient.
4. Evidence.
Qualified nurse may testify regarding national standard of care for hospital.
5. Hospitals.
Hospital is not vicariously liable for acts of physicians who are neither employees nor agents of hospital.
6. Hospitals.
Physician's rental of office space in building controlled by hospital and newspaper article indicating hospital's subsidization of rent
of some physicians in building did not establish that physician was hospital's agent.
OPINION
Per Curiam:
On November 12, 1974, Dr. Don. L. Christensen performed surgery on appellant Beverly
Oehler at respondent Humana, Inc., dba Humana Hospital Sunrise. Beverly continued to have
health problems. On October 19, 1982, Dr. Christensen performed gall bladder surgery upon
Beverly at respondent hospital. Dr. Christensen had staff privileges with respondent, was
chief of staff there in 1974 and vice chief of staff in 1982. Beverly continued to have health
problems and had surgery again on December 16, 1983, at Valley Hospital where a mass was
removed from her abdomen.
On September 30, 1985, appellants, Charles and Beverly Oehler, filed a complaint against
respondent and numerous physicians, including Dr. Christensen, alleging that they had
negligently treated her medical problems. Respondent answered the complaint denying
liability. Both parties conducted discovery. On July 30, 1987, respondent filed a motion for
summary judgment. The district court granted respondent's motion for summary judgment
and certified the judgment pursuant to NRCP 54{b).
judgment and certified the judgment pursuant to NRCP 54(b). This appeal followed.
Appellants contend that the district court erred by granting respondent summary judgment
because respondent was not entitled to judgment as a matter of law and genuine issues of fact
exist for trial.
NRCP 56(c) provides:
The judgment [summary judgment] sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
A genuine issue of material fact exists when the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986).
[Headnote 1]
First, appellants contend that a hospital can be held liable for negligently supervising a
nonemployee physician with medical staff privileges under the corporate negligence theory of
liability.
The concept of corporate responsibility for the quality of medical care was forcibly
advanced in Darling v. Charleston Community Memorial Hosp., 211 N.E.2d 253 (Ill.
1965), wherein the Illinois Supreme Court held that hospitals and their governing
bodies may be held liable for injuries resulting from imprudent or careless supervision
of members of their medical staffs.
Moore v. Board of Trustees, 88 Nev. 207, 212, 495 P.2d 605, 608 (1972).
Appellants alleged that respondent breached its duty to supervise the quality of care
Beverly received by not requiring Dr. Christensen to file reports concerning his treatment of
Beverly pursuant to its own rules and regulations. Respondent argues that a hospital's duty to
monitor and supervise the treatment of patients should apply only to physicians who are
employees of the hospital. We disagree.
The corporate theory of liability arose in part because it was difficult for patients to
recover from hospitals under the theory of respondeat superior as physicians were generally
considered independent contractors. See Pedroza v. Bryant, 677 P.2d 166 (Wash. 1984).
Limiting a hospital's duty to supervise the treatment of patients to physicians who are
employees of the hospital is directly opposed to the rationale creating the corporate theory of
liability. Therefore, a hospital may be liable for the negligent supervision of a nonemployee
physician who has staff privileges under the corporate negligence theory of liability.
supervision of a nonemployee physician who has staff privileges under the corporate
negligence theory of liability.
[Headnote 2]
Furthermore, appellants' complaint was sufficient to put respondent on notice of the nature
of the claim and relief sought. A complaint is sufficient to state a cause of action for negligent
supervision where it alleges that the operation was performed at the hospital with its
knowledge, aid and assistance and that the negligence of the defendants was the proximate
cause of the injuries. See Ferdina v. Evans, 622 P.2d 463 (Ariz. 1980). The complaint alleges
that the defendants agreed to and did provide medical care and treatment to Beverly. The
complaint alleges that the defendants were negligent in their care and treatment of Beverly
and that she was injured as a direct and proximate result of their negligence. Thus the
complaint alleged that respondent had knowledge of Beverly's operation, aided and assisted in
that operation and that respondent's negligence proximately caused her injuries. Therefore,
the complaint was sufficient to state a cause of action for negligent supervision.
[Headnotes 3, 4]
Second, appellants contend that genuine issues of material fact remain for trial regarding
whether respondent negligently supervised Dr. Christensen. We agree. Appellants submitted
affidavits from two medical expertsa nurse administrator and a doctor. A qualified nurse
may testify regarding the national standard of care for a hospital. See Wickliffe v. Sunrise
Hospital, 101 Nev. 542, 706 P.2d 1383 (1985). The affidavits contained statements which, if
true, would allow a reasonable jury to return a verdict in favor of appellants. Therefore,
genuine issues of material fact exist regarding respondent's liability for negligent supervision.
See Anderson, 477 U.S. 242.
[Headnotes 5, 6]
Finally, appellants contend that genuine issues of material fact exist for trial regarding
whether respondent was vicariously liable. A hospital is not vicariously liable for acts of
physicians who are neither employees nor agents of the hospital. Gasbarra v. St. James
Hospital, 406 N.E.2d 544 (Ill.App. 1980); Cooper v. Curry, 589 P.2d 201 (N.M.Ct.App.
1978). Appellants presented evidence that Dr. Christensen rented office space in a building
controlled by respondent and a newspaper article suggesting that respondent subsidized the
rent of some physicians in the building. This evidence is merely colorable and not sufficient
for a jury to find that Dr. Christensen was respondent's agent. See Anderson, 477 U.S. at
249-250 (evidence that is merely colorable or not significantly probative is not sufficient to
preclude summary judgment).
ment). Therefore, summary judgment was appropriate on the issue of vicarious liability.
Accordingly, the decision of the district court is reversed on the issue of negligent
supervision, affirmed on the issue of vicarious liability and the case remanded for trial on the
issue of negligent supervision.
____________
105 Nev. 352, 352 (1989) Bell v. State
KERRY VAN BELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18975
June 22, 1989 775 P.2d 1273
Appeal from a judgment of conviction of attempted sexual assault. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of attempted sexual assault. Defendant
appealed. The Supreme Court held that defendant committed attempted sexual assault when
he drove toward the apartment in which female child was allegedly waiting and purchased
lubricant for sexual intercourse, even though child was unavailable.
Affirmed.
Morgan D. Harris, Public Defender, and David T. Wall, Deputy Public Defender, Clark
Tufteland, Deputy District Attorney, and Eric G. Jorgenson, Deputy District Attorney, Clark
1. Rape.
Unavailability of female child did not bar conviction for attempted sexual assault after defendant offered $150 to undercover
officer to have child furnished to him, selected child from collection of photographs supplied by officer, and prepared for sexual
intercourse with her; defendant stipulated that he intended to commit sexual assault upon girl whose photograph he selected. NRS.
193.330.
2. Rape.
To prove attempted sexual assault, prosecution must establish that defendant intended to commit sexual assault, defendant
performed some act toward commission of crime, and defendant failed to consummate its commission. NRS. 193.330.
3. Criminal Law.
Mere preparation to commit crime is insufficient to constitute attempt.
105 Nev. 352, 353 (1989) Bell v. State
4. Rape.
Driving toward apartment in which female child was allegedly waiting and purchasing lubricant for sexual intercourse constituted
attempted sexual assault; defendant stipulated that he intended to commit sexual assault upon child whose photograph was selected
from collection supplied to him by undercover officer. NRS 193.330.
OPINION
Per Curiam:
An indictment charged appellant Kerry Van Bell with attempted sexual assault. The
indictment alleged that appellant committed the following acts: paid a woman a $100 finder's
fee to procure a young girl for sexual intercourse; negotiated with an undercover officer for
the purchase of a young girl; offered the undercover officer $150 to have a child furnished to
him; chose a young girl, represented to be five or six years of age, from a collection of
photographs supplied by the undercover officer; and prepared for sexual intercourse with the
young girl by arranging for a room and purchasing vaseline to use as a lubricant. The
testimony adduced at trial mirrored the allegations set forth in the indictment.
A jury found appellant guilty of attempted sexual assault. The trial judge sentenced him to
a term of eighteen years, running concurrently with a sentence imposed by the superior court
in California.
Appellant raises three allegations of error on appeal. He contends that the indictment
alleged insufficient facts to constitute the offense of attempted sexual assault. He also claims
that the district court erred in denying his motion for an advisory verdict of acquittal and that
the prosecution presented insufficient evidence to support the jury's verdict.
[Headnote 1]
Preliminarily, we restate our position regarding the doctrines of legal and factual
impossibility first set forth in Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976).
1
In
Darnell, we declined to distinguish between physical and legal impossibility, focusing instead
on the specific intent to commit the substantive offense. Darnell, 92 Nev. at 682, 558 P.2d at
625. Thus, we extended the criminality of attempts. Applying Darnell to the instant case, the
fact that no child was available does not, in itself, bar appellant's conviction for attempted
sexual assault.
__________

1
Darnell involved receipt of stolen firearms which had lost their stolen status when the police recaptured
them. We upheld a jury conviction of attempted possession of stolen property because under the circumstances,
as the defendant reasonably viewed them, he did the acts necessary to commit the substantive crime. Darnell, 92
Nev. at 681-682, 558 P.2d at 625. Specifically, the defendant intended to and received goods which he believed
were stolen. Id. at 682, 558 P.2d at 626.
105 Nev. 352, 354 (1989) Bell v. State
fact that no child was available does not, in itself, bar appellant's conviction for attempted
sexual assault. Rather, appellant stipulated that he intended to commit sexual assault upon the
five or six-year-old girl whose photograph he selected.
[Headnote 2]
An attempt to commit a crime is an act done with intent to commit that crime, and tending
but failing to accomplish it. NRS 193.330. Specifically, to prove attempted sexual assault, the
prosecution must establish that (1) appellant intended to commit sexual assault; (2) appellant
performed some act toward the commission of the crime; and (3) appellant failed to
consummate its commission. See Larsen v. State, 86 Nev. 451, 453, 470 P.2d 417, 418 (1970)
(stating the elements of an attempt in general).
As already stated, appellant stipulated that he intended to commit sexual assault upon the
young girl whom he picked from a collection of photographs and who he believed was five or
six years of age. Nevertheless, he did not accomplish this crime. Therefore, this appeal
focuses on whether appellant's acts sufficed for attempt liability.
[Headnote 3]
This court previously held that [m]ere indecent advances, solicitations, or importunities
do not amount to an attempt [to rape]. State v. Pierpoint, 38 Nev. 173, 174, 147 P. 214
(1915). (Citation omitted.) Likewise, mere preparation to commit a crime is insufficient to
constitute an attempt. State v. Verganadis, 50 Nev. 1, 4, 248 P. 900, 901 (1926). However, we
also held that when the design of a person to commit a crime is clearly shown, slight acts
done in furtherance of that crime will constitute an attempt. Larsen, 86 Nev. at 454, 470 P.2d
at 419.
[Headnote 4]
Appellant argues that Nevada law applies a proximity approach in determining what acts
will suffice for attempt liability. He maintains that all the cases in which this court concluded
that an attempt occurred involved the element of proximity not present in the instant case.
Consequently, he claims that his acts of solicitation and preparation, made at a distance from
the place where the substantive offense was to be committed, did not constitute an attempt.
We disagree.
Admittedly, most cases upholding attempt convictions do involve situations in which there
was a physical or dangerous proximity to successfully committing the crime. Moreover, under
the circumstances as appellant reasonably viewed them, he was both physically and
temporally close to committing sexual assault on the young girl. At the time of appellant's
arrest, appellant and the undercover agent had started driving to the apartment where
appellant would engage in sex with the young girl.
105 Nev. 352, 355 (1989) Bell v. State
appellant would engage in sex with the young girl. Thus, the facts in the instant case compare
to those in Stephens v. Sheriff, 93 Nev. 338, 565 P.2d 1007 (1977).
In Stephens, a case involving an attempted contract killing, this court discussed the
difference between preparation and an overt action toward the accomplishment of the crime.
The evidence established that the defendant arranged with two undercover officers to murder
a specified individual. The defendant met with the officers and related to them the proposed
victim's identity, residence and daily habits. They also discussed the method of murder and
the disposal of the body. In addition to these preparatory steps, the defendant subsequently
transported the proposed victim to the place where the hit men were to commit the murder.
Consequently, this court concluded that the conveyance and delivery of the proposed victim
to the feigned killers stood as an adequate act in perpetration of the crime, elevating the
defendant's behavior to that of attempted murder. Id. at 339, 565 P.2d at 1008.
Additionally, in our review of the elements of an attempt offense, we emphasize the
inverse relationship which exists between the defendant's intent to commit the crime and the
performance of an overt act toward the commission of the crime. See People v. Dillon, 668
P.2d 697 (Cal. 1983) (concluding that the plainer the intent to commit the offense, the more
likely that steps taken in the early stages of the commission of crime will satisfy the overt act
requirement); see also Larsen v. State, 86 Nev. 451, 470 P.2d 417 (1970) (holding that when
the defendant's intent to commit the crime is clearly shown, slight acts done in furtherance of
that crime constitute attempt).
In the present case, we have the clearest evidence of appellant's intent to commit sexual
assault on the young girl. He stipulated that this was his intent. Given the unequivocal
evidence of appellant's intent to commit the crime, we hold that his acts of driving toward the
apartment where the girl was allegedly waiting and purchasing vaseline to use as a lubricant
sufficed for attempt liability.
Therefore, the prosecution alleged sufficient facts to support the indictment, and the trial
court did not err in refusing appellant's motion for an advisory verdict of acquittal. Moreover,
we will neither disturb a jury's verdict nor set aside the judgment when substantial evidence
exists in support of the verdict. Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981).
Since the record contains ample evidence of appellant's guilt, we affirm the judgment of
conviction of attempted sexual assault.
____________
105 Nev. 356, 356 (1989) Barrett v. State
JOSEPH ABRIHAM BARRETT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18981
June 22, 1989 776 P.2d 538
Appeal from a judgment of conviction, following a jury trial, of one count each of murder
in the first degree with the use of a deadly weapon, kidnapping in the second degree with the
use of a deadly weapon, and grand larceny auto. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Defendant was convicted in the district court of murder with the use of a deadly weapon,
kidnapping with the use of a deadly weapon, and grand larceny auto, and defendant appealed.
The Supreme Court held that: (1) evidence of State's witness' truthful character, including
specific acts of truthfulness, was admissible; (2) defendant was not entitled to the admission
of the entire transcript of State's witness' testimony from his preliminary hearing; and (3) the
court did not impermissibly comment on the evidence.
Affirmed.
[Rehearing denied December 28, 1989]
Morgan D. Harris, Public Defender and Marcus D. Cooper, Deputy Public Defender,
Clark County, for Appellant.
Tufteland, and Ronald Bloxham, Deputy District Attorneys, Clark County, for Respondent.
1. Witnesses.
Mere contradiction of witness' version of facts does not constitute attack on truthfulness that would justify admission of evidence
of general reputation for truthfulness. NRS 50.085, subd. 1(b).
2. Witnesses.
Court correctly concluded that defendant's attack on State's witness' character was whole thrust of defendant's case; thus, State
was entitled to present witnesses who testified that, in their opinion, witness was truthful person. NRS 50.085, subd. 1(b).
3. Witnesses.
Defendant's inquiries on cross-examination regarding basis of State's witness' opinion that other State's witness was truthful person
opened door to questions, on redirect, about specific acts that would show latter State's witness' truthful character. NRS 50.085, subd.
3.
4. Witnesses.
Witness may use redirect examination to explain or clarify testimony elicited during cross-examination. NRS 50.085, subd. 3.
5. Witnesses.
Portions of transcript of State's witness' testimony at preliminary hearing which differed from witness' trial testimony
were admissible after witness reviewed transcript to refresh her memory prior to trial; however, court did
not abuse its discretion by refusing to admit into evidence entire transcript.
hearing which differed from witness' trial testimony were admissible after witness reviewed transcript to refresh her memory prior to
trial; however, court did not abuse its discretion by refusing to admit into evidence entire transcript. NRS 50.125, subd. 1(d).
6. Criminal Law.
Court's statement that witness' opinion answer, to which State's objection was sustained, was unsupported by any facts witness had
volunteered, was not impermissible comment on evidence. Const. Art. 6, 12; NRS 3.230.
OPINION
Per Curiam:
A jury convicted Joseph Barrett (Barrett) of murder with the use of a deadly weapon,
kidnapping with the use of a deadly weapon, and grand larceny auto. The district court
sentenced Barrett to serve consecutively, two life terms without the possibility of parole, two
terms of twelve years, and one term of eight years for the murder, kidnapping and grand
larceny auto, respectively. On appeal, Barrett contends: (1) that the district court erred in
admitting evidence of his ex-wife's truthful character; (2) that the district court erred in
admitting evidence of specific acts to show his ex-wife's character; (3) that the district court
abused its discretion in denying his request to admit the entire transcript of his ex-wife's
testimony from his preliminary hearing; (4) that the district court committed reversible error
by commenting on the evidence; and (5) that the evidence used to convict him was
insufficient.
The jury convicted Barrett of murdering his ex-mother-in-law. At trial, the State relied
substantially on the testimony of Barrett's ex-wife, Carolyn Barrett (Carolyn). Barrett's theory
of defense was that Carolyn committed the crime and that he was protecting her when he
confessed the murder to his daughter. Throughout the trial, Barrett attempted to impeach
Carolyn's testimony and place her character in issue. Barrett's counsel questioned Carolyn at
length regarding inconsistencies between her initial statement to police and her trial
testimony, and he attempted to characterize Carolyn as someone who could fake her
emotions. Barrett's counsel intimated that Carolyn stood to inherit a large sum of money from
her mother's death. He asked one of the State's witnesses, a police officer, if Carolyn had lied
and if the officer had any concerns about who actually committed the murder. In addition,
defense witnesses presented testimony which, if believed, would have contradicted Carolyn's
testimony.
Barrett's closing argument summed up his theory of the case:
The prosecutor has, in essence, said, Believe Carolyn Barrett. Believe Carolyn
Barrett. But he makes no attempt to try and explain the inconsistencies in her
statement.
to try and explain the inconsistencies in her statement. You know, it kind of reminds
me of Pinnochio, the little wooden puppet who told all the lies. And every time he told
a lie, his nose grew. You know, its often said that the more often you lie, the more you
lie. It's difficult to keep a lie straight. You know, especially when you have a tendency
to talk a lot and you want to tell everybody what happened. You know, one lie leads to
another and another . . . and another. You know she talked to her neighbors about it. . . .
She had all the answers though. Any time it appeared that her credibility was being
called into question, she always had an answer for it.
The State presented two witnesses in rebuttal who testified that, in their opinion, Carolyn was
a truthful person. See NRS 50.085.
1
On redirect examination, one of the witnesses testified
to specific acts of Carolyn's truthfulness. The district court admitted this testimony over
Barrett's objection.
Barrett now contends that he did not introduce opinion evidence of untruthfulness or any
other evidence impugning Carolyn's character, and that the district court erred by permitting
the State to introduce character evidence to rehabilitate her. Moreover, Barrett claims that the
district court improperly allowed the State to introduce specific acts to establish Carolyn's
truthful character. We disagree.
[Headnote 1]
As Barrett correctly points out, merely contradicting a witness' version of the facts does
not constitute an attack on truthfulness that would justify admission of evidence of general
reputation for truthfulness. Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983). However,
Barrett directly and indirectly referred to Carolyn's truthful character throughout the trial. See
Beard v. Mitchell, 604 F.2d 485, 503 (7th Cir. 1979) (use of prior inconsistent statements
constitutes attack on truthfulness); State v. Petrich, 683 F.2d 173, 179 (Wash. 1984)
(credibility attacked where witness' character is an inevitable central issue). The trial court
correctly recognized that Barrett's attack on Carolyn's character was the whole thrust of
defendant's case.
__________

1
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.
(Emphasis added.)
[Headnote 2]
NRS 50.085(1)(b) permits [o]pinions of truthful character . . . after the introduction of
opinion evidence of untruthfulness or other evidence impugning [the witness'] character for
truthfulness. (Emphasis added.) From our review of the record, we are convinced that
Barrett introduced evidence intended solely to attack Carolyn's character, and that the district
court properly admitted the State's witnesses' opinions.
[Headnote 3]
We also disagree with Barrett's contention that the district court erred in permitting
testimony of specific acts that demonstrated Carolyn's character for truthfulness. In pertinent
part, NRS 50.085(3) provides:
3. Specific instances of the conduct of a witness, for the purpose of attacking or
supporting his credibility, other than conviction of crime, may not be proved by
extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on
cross-examination of the witness himself or on cross-examination of a witness who
testifies to an opinion of his character for truthfulness or untruthfulness, subject to the
general limitations upon relevant evidence and the limitations upon interrogation and
subject to the provisions of NRS 50.090.
In cross-examining one of the State's rebuttal witnesses, Barrett asked, Would you proceed
in telling me what your opinion of her truthfulness is based on? Subsequently, on redirect,
the State asked the witness, Was there any specific instances at Furrs which would cause you
to trust Carolyn? Barrett objected to the introduction of specific acts to prove Carolyn's
character for truthfulness. The district court overruled the objection, indicating that Barrett
opened the door to this question during cross-examination. The witness testified to a specific
work related instance where he and Carolyn worked together to discover the identity of a
fellow employee, who had been stealing tips.
[Headnote 4]
A witness may use redirect examination to explain or clarify testimony elicited during
cross-examination. Russell v. State, 89 Nev. 37, 505 P.2d 599 (1973). Barrett's inquiries on
cross-examination regarding the basis of the rebuttal witness' opinion opened the door to
questions about specific acts that would show Carolyn's truthful character. We conclude,
therefore, that the district court did not err by permitting this testimony. This court will not
disturb a district court's ruling in the absence of a showing of manifest abuse.
showing of manifest abuse. Thompson v. State, 102 Nev. 348, 721 P.2d 1290 (1986).
[Headnote 5]
Barrett also contends that the district court abused its discretion by refusing to admit into
evidence the transcript of Carolyn's testimony at his preliminary hearing. At trial, Barrett
sought to impeach Carolyn by showing that portions of her trial testimony were dissimilar
from that which she gave at his preliminary hearing. When asked, Carolyn testified that prior
to trial she had refreshed her memory by reading the preliminary hearing transcript of her
testimony. Thereafter, Barrett moved, pursuant to NRS 50.125,
2
for admission of the entire
transcript of Carolyn's testimony. The district court refused to permit introduction of the
entire transcript of Carolyn's testimony, but indicated that it would allow the introduction of
those portions that were relevant to her credibility.
Barrett maintains that the district court abused its discretion in denying his motion. In his
view, the entire transcript was admissible because it affected Carolyn's credibility. Again, we
disagree. The plain language of NRS 50.125(1)(d) provides that those portions [of a writing
used to refresh memory] which related to the testimony of the witness for the purpose of
affecting his credibility may be introduced into evidence. NRS 50.125(1)(d) (emphasis
added). In attempting to impeach Carolyn's trial testimony, Barrett pointed to only three areas
where her preliminary hearing testimony differed. There was no reason to admit the entire
transcript of her preliminary hearing testimony, and the district court did not abuse its
discretion in so ruling.
[Headnote 6]
Barrett next contends that the district judge impermissibly commented on the evidence. A
defense witness testified regarding an incident during which Carolyn sat and stared at the spot
where her mother had been killed and, in an apparent emotional frenzy, repeatedly exclaimed,
I wish I wouldn't of did it. On cross-examination, the prosecution asked if the witness knew
what Carolyn wished she had not done. Barrett objected to the question; however, before the
court could rule the witness blurted out, "I think she was talking about the murder."
__________

2
1. If a witness uses a writing to refresh his memory, either before or while testifying, an adverse party
is entitled:
(a) To have it produced at the hearing;
(b) To inspect it;
(c) To cross-examine the witness thereon; and
(d) To introduce in evidence those portions which relate to the testimony of the witness for the
purpose of affecting his credibility.
(Emphasis added.)
tion; however, before the court could rule the witness blurted out, I think she was talking
about the murder. The court then stated, The objection is sustained. But I don't know if
we're going to be able to erase the obvious conclusion that is unsupported by any facts of
what this witness has volunteered.
Article 6, 12 of the Nevada State Constitution provides: Judges shall not charge juries
in respect to matters of fact, but may state the testimony and declare the law. See also NRS
3.230.
3
First, in making the comment, the district judge was not charg[ing] the jury. Thus,
we do not believe that either Article 6, 12 or NRS 3.230 is applicable. Second, apart from
making this assignment of error, Barrett has failed to demonstrate any prejudice. Accordingly,
even if the district judge erred in making the comment, the error was nonetheless harmless.
Gordon v. Hurtado, 91 Nev. 641, 541 P.2d 533 (1975) (violations of constitutional and
statutory prohibitions against judges commenting on evidence are subject to the rule of
harmless error).
Finally, Barrett contends that the evidence adduced at trial was insufficient to sustain his
conviction. This contention is without merit. The record reveals that sufficient evidence was
presented from which a jury could conclude appellant was guilty beyond a reasonable doubt.
Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
Based on the foregoing, we conclude that Barrett was fairly tried and convicted below.
____________
KENNETH DON BARRETT, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17905
June 22, 1989 775 P.2d 1276
Appeal from judgments of conviction by jury of two counts of burglary, one count of
robbery with the use of a deadly weapon, one count of robbery with the use of a deadly
weapon, victim 65 years of age or older, two counts of grand larceny auto, and one count of
attempted murder with the use of a deadly weapon.
__________

3
NRS 3.230 provides:
District judges shall not charge juries upon matters of fact but may state the evidence and declare the law.
In stating the evidence, the judge should not comment upon the probability or improbability of its truth
nor the credibility thereof. If the judge state [sic] the evidence, he must also inform the jury that they are
not to be governed by his statement upon matters of fact.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of burglary, robbery, grand larceny auto, and
attempted murder. Defendant appealed. The Supreme Court held that: (1) defendant did not
establish cotenancy in another's apartment so as to require his consent for search; (2) evidence
supported separate convictions for burglary, robbery, and grand larceny auto; (3) one
judgment of conviction should have resulted where two separate informations had been
consolidated before trial; and (4) remand was required where Supreme Court was unable to
determine upon what statute district court relied when enhancing sentence.
Affirmed with modifications.
Clark County, for Appellant.
Tufteland and Alexandra C. Chrysanthis, Deputy District Attorneys, Clark County, for
Respondent.
1. Searches and Seizures.
Defendant did not establish cotenancy in another's apartment so as to require his consent to search by his periodic presence and
single payment of expenses.
There is no expectation of privacy in apartment of another.
Warrant to search storage area rented in name of defendant's deceased brother was based on sufficient probable cause provided by
confidential informant's information.
4. Burglary.
Burglary victim's initial consent to entry by defendant was no defense where defendant was shown to have acquired entry with
felonious intent.
5. Burglary; Larceny; Robbery.
Evidence that defendant entered victim's house with intent to rob her, robbed her of her jewelry and cash after spraying mace in
her eyes and tying her up, and drove away in victim's car supported his separate convictions for burglary, robbery, and grand larceny
auto. NRS 200.380, 205.060, 205.220.
6. Criminal Law.
One judgment of conviction, rather than two, should have resulted following defendant's conviction on two separate informations
which had been consolidated at commencement of trial.
7. Criminal Law.
Sentencing court may enhance each primary offense pursuant to one enhancement statute, but imposition of consecutive
enhancements applied to a primary offense is inconsistent with the application of habitual offender statute and
the permissible uses of enhancement.
applied to a primary offense is inconsistent with the application of habitual offender statute and the permissible uses of enhancement.
NRS 193.165, 193.167.
8. Criminal Law.
Remand for resentencing was required where Supreme Court was unable to determine upon what statute district court relied on
when enhancing sentence.
OPINION
Per Curiam:
Kenneth Don Barrett, Jr. was charged with seven counts in two separate informations,
which were consolidated for trial. After hearing the evidence, the jury convicted Barrett on all
seven counts. At sentencing, Barrett was adjudged an habitual criminal. The district court
sentenced Barrett for each conviction, and enhanced the sentences pursuant to NRS 193.165,
use of a deadly weapon, NRS 193.167, victim over age 65, and NRS 207.010, habitual
criminal.
[Headnote 1]
Barrett first contends that the district court committed prejudicial error when denying his
motion to suppress evidence discovered in the search of the Slonigers' apartment and the
storage facility. Barrett submits that his periodic presence at the apartment, and single
payment to the Slonigers, to help with expenses, established his co-tenancy in the apartment.
Barrett argues that as co-tenant he had a reasonable expectation of privacy in the apartment.
Therefore, Dean Sloniger's consent to the warrantless search was invalid as to the areas in the
apartment where his belongings were kept. Following a lengthy evidentiary hearing, the
district court found Barrett to be a guest of the lessee, and on that basis denied his motion to
suppress. Barrett stayed at the apartment for about ten days. The lease, naming the Slonigers,
was for six months. Dean Sloniger was an ex-felon on probation, and precluded from
associating with Barrett, as Barrett was an ex-felon himself. Although Barrett paid the
Slonigers some money, it was not a specific amount. The money was offered to help out with
expenses, and cannot be construed as rent. Barrett's behavior did not establish co-tenancy of a
residence.
[Headnote 2]
There is no expectation of privacy in the apartment of another. See Hicks v. State, 96 Nev.
82, 605 P.2d 210 (1980); see also Roberts v. State, 95 Nev. 288, 593 P.2d 57 (1979).
Additionally, Dean Sloniger's premises were subject to a search clause pursuant to his
probation, and the Slonigers consented to the search of their apartment.
their apartment. The district court properly denied Barrett's motion to suppress evidence
discovered in the Sloniger's apartment.
[Headnote 3]
The warrant to search the storage area rented in the name of Eric Barrett, appellant's
deceased brother, was based on sufficient probable cause. The information provided by the
confidential informant satisfied the totality of circumstances test as enunciated in Illinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). The police were not dishonest or reckless in the
preparation of their affidavits to support issuance of the warrant, and the facts supported an
objective reasonable belief in the existence of probable cause. Point v. State, 102 Nev. 143,
717 P.2d 39 (1986); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).
[Headnote 4]
Barrett next contends that he should have been convicted of burglary, robbery, or grand
larceny auto, but not all three. Barrett's contention is totally without merit. Barrett committed
the offense of burglary when he entered Mrs. Baca's house with the intent to rob her. Sheriff
v. Stevens, 97 Nev. 316, 317-318, 630 P.2d 256, 257 (1981); NRS 205.060. Mrs. Baca's
initial consent to the entry by Barrett is not a defense to burglary since Barrett was shown to
have acquired the entry with felonious intent. Thomas v. State, 94 Nev. 605, 610, 584 P.2d
674, 677 (1978).
[Headnote 5]
Barrett robbed Mrs. Baca of her jewelry and cash. Barrett sprayed mace in her eyes and
tied her up, and thus took personal property by means of force or violence. NRS 200.380.
Barrett committed grand larceny auto when he drove away in Mrs. Baca's car. NRS 205.220.
Grand larceny auto is a separate and distinct offense from robbery. Barrett was properly
charged and convicted of the separate offenses of burglary, robbery, and grand larceny auto.
Sheriff v. Stevens, 97 Nev. at 318, 630 P.2d at 257.
[Headnote 6]
Originally Barrett was charged with seven counts in two separate informations. The
separate informations were consolidated at the commencement of trial. The trial court
sentenced Barrett in two separate judgments, according to the original informations. Because
the informations were consolidated to constitute one action, tried before one jury, one
judgment of conviction should result.
The sentence imposed for the offense of robbery with the use of a deadly weapon, victim
over age 65, appears to have been enhanced consecutively by NRS 193.165, use of a deadly
weapon, or NRS 193.167, victim over age 65, and NRS 207.010, habitual criminal.
enhanced consecutively by NRS 193.165, use of a deadly weapon, or NRS 193.167, victim
over age 65, and NRS 207.010, habitual criminal.
[Headnote 7]
The record is unclear regarding the issue of sentencing. Specifically, it is unclear upon
what statute the district court relied when enhancing Barrett's sentence. In Carter v. State, 98
Nev. 331, 335, 647 P.2d 374, 377 (1982), this court held that a sentencing court may not
impose consecutive enhancements under NRS 193.165 and NRS 193.167 for the same
primary offense. Further, this court has held:
[W]hen a defendant is convicted of a principal crime with the use of a deadly weapon
and is adjudged an habitual criminal, the sentencing court may either enhance the
sentence for the primary offense pursuant to NRS 193.165 for the use of a deadly
weapon, or, alternatively, the court may enhance the sentence under the habitual
criminal statute.
A district court may not enhance a primary offense under both NRS 193.165 and
NRS 207.010.
Odoms v. State, 102 Nev. 27, 34, 714 P.2d 568, 572 (1986). The sentencing court may
enhance each primary offense pursuant to one enhancement statute. Imposition of consecutive
enhancements applied to a primary offense is inconsistent with the application of the habitual
offender statute and the permissible uses of enhancement under NRS 193.165 and NRS
193.167.
[Headnote 8]
The sentence was imposed in two separate judgments even though the informations were
consolidated. A single judgment of conviction should result when a defendant is charged by
one information. Additionally, we are unable to determine upon what statute the district court
relied when enhancing Barrett's sentence. Accordingly, we remand this case to the district
court for consolidation of the judgments, and clarification of sentencing in accordance with
this opinion. McCall v. State, 97 Nev. 514, 517, 634 P.2d 1210, 1212 (1981).
The jury convictions are affirmed. The sentencing order is remanded for clarification.
1

__________

1
____________
105 Nev. 366, 366 (1989) Valley Bank v. Marble
VALLEY BANK OF NEVADA, SUCCESSOR IN INTEREST TO SECURITY BANK OF
NEVADA, Appellant, v. ROBERT R. MARBLE AS TRUSTEE UNDER THE WILL
OF ROBERT EMERSON MARBLE, Respondent.
No. 19445
June 22, 1989 775 P.2d 1278
Appeal from an order of the district court granting partial summary judgment. Second
Judicial District Court, Washoe County; Robert Schouweiler, Judge.
After corporation owned by trustee defaulted on loan, lender brought action against trustee
in his capacity as trustee/guarantor. The district court granted trustee's motion for summary
judgment, and lender appealed. The Supreme Court held that material fact issues existed as to
trustee's power to guarantee loans in his capacity as trustee, precluding summary judgment.
Reversed and Remanded.
Beasley & Holden, Reno, for Appellant.
Lionel, Sawyer & Collins and Bert Goldwater, Reno, for Respondent.
Judgment.
Genuine issues of material fact existed as to trustee's power as trustee to guarantee loans made to his own corporation where he
was also trust beneficiary and where loans were intended to make leasehold improvements in building owned by trust and leased by
corporation, precluding summary judgment for trustee in lender's action to recover corporation's debt.
OPINION
Per Curiam:
On June 26, 1973, Robert Emerson Marble executed his Last Will and Testament.
Pursuant to that Will, two trusts were created upon his death, one for each of his two
surviving children, Julia Marble Fishbacker and Robert R. Marble. Robert's trust provided
that Robert was entitled to the annual net income of the trust plus a discretionary
noncumulative amount of $5,000.00 or 5 percent of the trust's value at the end of each
calendar year. Upon Robert's death, the remainder of the trust is to be paid to his children,
and, if there are none, then to Julia's trust. Julia's trust has similar provisions in favor of Julia,
her children and Robert's trust. Julia and Robert were co-trustees of the trusts.
the trusts. On January 23, 1978, they each resigned as co-trustees of the other's trust.
On February 15, 1985, and again on October 11, 1985, Robert R. Marble, Inc., a California
corporation, borrowed money from Security Bank of Nevada (now Valley Bank of Nevada)
and executed promissory notes in favor of Security Bank in the amounts of $375,000 and
$309,100. Robert R. Marble guaranteed the loans both individually and in his capacity as
trustee of the Robert Trust.
In April of 1986, Robert R. Marble, Inc. defaulted on the notes. Security Bank demanded
payment from Robert R. Marble, Inc. and the guarantors. When no payments were made
Security Bank sued the company and the guarantors. Robert R. Marble, Inc. and Robert R.
Marble individually admitted liability for the loans. A judgment was entered against Robert
R. Marble, Inc., and Robert R. Marble individually. However, Robert R. Marble as trustee of
the Robert Trust moved for partial summary judgment based upon the premise that his act of
guaranteeing the loans was beyond his authority and therefore void. Security Bank's
successor-in-interest, Valley Bank, opposed the motion on the grounds of merger, estoppel
and that genuine issues of material fact remained for trial. The district court determined that
no genuine issues of material fact existed and that Robert R. Marble, as trustee, was entitled
to judgment as a matter of law. This appeal followed.
Valley Bank contends that the district court erred in granting summary judgment because
genuine issues of fact existed regarding whether Robert, as trustee, had the power to
guarantee the debts of his own corporation. This contention has merit. Summary judgment is
appropriate where no genuine issues of material fact remain for trial and the moving party is
entitled to a judgment as a matter of law. NRCP 56. A genuine issue of material fact exists
where the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Robert, as trustee, had the
power to borrow money and to encumber or hypothecate trust property by mortgage, deed of
trust, pledge, or otherwise in order to carry out the purposes of the trust. The purpose of the
trust was to provide Robert with the net income of the trust for life with the remainder to his
children or Julia's trust.
It is contended that the loan proceeds were to make leasehold improvements in a building
owned by the Robert Trust and leased to Robert's corporation. If the improvements benefited
the trust, then guaranteeing the loans would have helped maintain assets of the trust and
accomplish its purpose. Under these circumstances, a reasonable jury could have concluded
that the loan guarantees were within Robert's powers as trustee.
were within Robert's powers as trustee. Therefore, genuine issues of material fact exist
regarding Robert's power to guarantee the loans and the district court erred by granting
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242. We have considered
Valley Bank's other contentions and have determined that they are without merit.
Accordingly, the judgment of the district court is reversed and the case remanded for further
proceedings.
____________
105 Nev. 368, 368 (1989) Builders Ass'n v. City of Reno
BUILDERS ASSOCIATION OF NORTHERN NEVADA, Appellant, v. CITY OF RENO,
NEVADA, Respondent.
No. 19425
June 22, 1989 776 P.2d 1234
Appeal from a district court order dismissing appellant's complaint for declaratory relief
and damages. Second Judicial District Court, Washoe County; William N. Forman, Judge.
Builders association brought action against city for declaratory relief in connection with
city's decision to increase building permit fees, park fees and plan check fees. The district
court dismissed. Association appealed. The Supreme Court held that the Local Government
Budget Act did not provide private cause of action to remedy violation of statute imposing
duty and proscription on local governments to obtain revenues from various fees only within
certain limits.
Affirmed.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Karen Peterson, Carson City,
for Appellant.
Patricia A. Lynch, Reno City Attorney, and Madelyn Shipman, Chief Deputy City
Attorney, Reno, for Respondent.
1. Declaratory Judgment.
The Uniform Declaratory Judgments Act does not establish new cause of action or grant jurisdiction to court when it would not
otherwise exist; instead, the Act merely authorizes new form of relief, which in some cases will provide fuller and more adequate
remedy than that which existed under common law. NRS 30.010 et seq.
2. Action.
If statute expressly provides remedy, courts should be cautious in reading other remedies into the statute; conversely, absence of
any express remedial provisions suggests that legislature intended that courts imply appropriate remedy.
The Local Government Budget Act does not provide private cause of action to remedy violations of statute imposing duty and
proscription on local governments to obtain revenues from various fees only within certain limits; the Act contained remedial
procedure by which statute was to be enforced when it delegated enforcement duty to the department of taxation and, if necessary, the
attorney general. NRS 354.5989, 354.6245.
OPINION
Per Curiam:
Appellant Builders Association of Northern Nevada sought declaratory relief against
respondent City of Reno, requesting the district court to declare that Reno violated NRS
354.5989 by increasing building permit fees, park fees and plan check fees in contravention
of the statute. The district court concluded that the plain language of NRS 354.5989 weighs
against any implication of a private remedy and that the sole means of enforcing the statute is
the procedure outlined under NRS 354.6245. Consequently, the district court granted Reno's
motion to dismiss the complaint.
On appeal, the Builders Association contends that the district court erred when it
determined that: (1) appellant failed to make a claim for declaratory relief; and (2) NRS
354.5989 does not imply a private cause of action. We disagree.
[Headnote 1]
The Uniform Declaratory Judgments Act does not establish a new cause of action or grant
jurisdiction to the court when it would not otherwise exist. Jenkins v. Swan, 675 P.2d 1145,
1148 (Utah 1983). Instead, the Act merely authorizes a new form of relief, which in some
cases will provide a fuller and more adequate remedy than that which existed under common
law. Id. Accordingly, the Builders Association's complaint does not properly state a claim for
relief unless the Local Government Budget Act (LGBA) expressly provides or implies a
private cause of action to remedy violations of NRS 354.5989.
The parties agree that the LGBA does not provide an express private cause of action.
Consequently, if we are to find a private cause of action exists, we must imply it from the
provisions of the LGBA.
The Builders Association argues that contrary to the district court's holding, the LGBA
does not establish legislative intent to preclude a private cause of action for the enforcement
of NRS 354.5989. Moreover, it maintains that the LGBA does not specify that the procedure
outlined in NRS 354.6245 provides the sole means of enforcing NRS 354.5989. In fact, it
asserts that because the procedure established in NRS 354.6245 deals only with review of
annual audits submitted by local governments, the provisions do not relate to NRS
354.59S9.
the procedure established in NRS 354.6245 deals only with review of annual audits submitted
by local governments, the provisions do not relate to NRS 354.5989.
Reno admits that in enacting NRS 354.5989, the legislature imposed a duty and
proscription on local governments to obtain revenues from various fees only within certain
limits. However, Reno contends that the legislature further provided the procedure by which
the law was to be enforced when, in NRS 354.6245, it delegated the enforcement duty to the
department of taxation and, if necessary, the attorney general.
NRS 354.6245 provides that the department of taxation shall review the annual audits
submitted by local governments. The department's review of the annual audits shall identify
all violations of statute and regulation reported therein. NRS 354.6245(2) (emphasis added).
The local government must then advise the department of its proposed plan of correction to
prevent further violations of law or regulation. NRS 354.6245(2). If the local government
fails to submit a proposed plan of correction or fails to comply with the established plan, the
statute empowers the attorney general to seek a writ compelling compliance. NRS
354.6245(3). Therefore, the district court correctly concluded that NRS 354.6245 provides
the means of enforcing the LGBA, including NRS 354.5989.
[Headnotes 2, 3]
If a statute expressly provides a remedy, courts should be cautious in reading other
remedies into the statute. Student Coalition for Peace v. Lower Merion School, 776 F.2d 431,
440 (3d Cir. 1985); Holter v. Moore and Co., 681 P.2d 962, 965 (Colo.Ct.App. 1983).
Conversely, the absence of any express remedial provisions suggests that the legislature
intended that the courts imply an appropriate remedy. Student Coalition for Peace, 776 P.2d
at 440. In the instant case, the remedial procedure established by NRS 354.6245 supports the
trial court's conclusion that the LGBA creates no private cause of action to remedy violations
of NRS 354.5989.
Furthermore, the purpose of the LGBA is to regulate the local government budgeting
process. NRS 354.472(1). In enacting the LGBA, the legislative history fails to indicate that
the legislature intended to subject local governments to a potential barrage of lawsuits that,
either individually or collectively, could disrupt local governments' daily activity or cause
uncertainty in local government fiscal affairs.
Therefore, the district court properly granted Reno's motion dismissing the Builders
Association's complaint for declaratory judgment. Accordingly, we affirm the district court's
decision.
____________
105 Nev. 371, 371 (1989) Div. Occupational Safety v. Pabco Gypsum
ADMINISTRATOR OF THE DIVISION OF OCCUPATIONAL SAFETY AND HEALTH,
Appellant, v. PABCO GYPSUM, Respondent.
No. 18822
June 26, 1989 775 P.2d 701
Appeal from an order of the district court reversing a decision of the Nevada Occupational
Safety and Health Review Board. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
Owner appealed determination of Nevada Occupational Safety and Health Review Board
that it had violated Nevada's general duty clause because it failed to properly construct
building which collapsed injuring two workers. The district court reversed, and appeal was
taken. The Supreme Court held that builder's knowledge of deviations from standard building
practices could be imputed to owner.
Reversed.
John W. Aebi, Associate Division Counsel, Carson City, Attorney for Appellant.
Waldman, Gordon & Silver and Martha Karp and Joseph S. Kistler, Las Vegas, Attorneys
for Respondent.
Labor Relations.
Builder's knowledge of deviations from standard building practices was properly imputed to owner, which was not itself in
construction business and which undertook construction project relying totally upon builder's knowledge and skill, for purpose of
determining whether owner had violated Nevada's general duty clause by failing to provide safe working place when building
collapsed. NRS 618.375, 618.625, subd. 2.
OPINION
Per Curiam:
The Nevada Occupational Safety and Health Review Board (Board) determined that
respondent, Pabco Gypsum (Pabco), violated Nevada's general duty clause because it failed
to properly construct a building which collapsed injuring two workers. The district court
reversed the Board's decision. The district court held that the Board's decision was erroneous
as a matter of law. Appellant, the Administrator of the Division of Occupational Safety and
Health (DOSH), contends on appeal that the district court erroneously overturned the
Board's decision because it is supported by substantial evidence. We agree.
Pabco is a mining and manufacturing business located in Clark County, Nevada. Pabco
mines gypsum and manufactures wallboard at its plant in Henderson. In 1986, Pabco began
constructing a prefabricated steel building next to its Henderson plant. Pabco hired a
temporary crew to construct the building and William Redden to supervise the project.
Construction began in November 1986. On December 2, 1986, the building collapsed injuring
two employees. On December 3, 1986, a DOSH representative, Holly Jensen inspected the
collapsed structure. Jensen issued a citation to Pabco for violating NRS 618.375(1), (2) and
(5) and assessed a $560.00 fine. DOSH the filed a complaint with the Board.
In a decision filed May 1, 1987, the Board concluded that Pabco had violated NRS
618.375 and that the fine of $560.00 was reasonable. The Board noted that the building had
not been constructed according to its plans. In addition, the Board noted that Redden had
failed to obtain a building permit. Pabco appealed the Board's decision to the district court.
The district court decided the matter upon briefs filed by the parties. The district court
determined that Pabco had no knowledge of any incompetence on the part of Redden and that
Pabco did not fail to properly supervise him. The district court concluded it was improper for
the Board to impute Redden's mistakes to Pabco. This appeal followed.
DOSH contends that the district court erred by reversing the Board's decision because it is
supported by substantial evidence. We agree. The Board found that Pabco had committed a
serious violation of Nevada's general duty clause because it failed to provide a safe working
place. See NRS 618.375; NRS 618.625(2). To prove a serious violation DOSH had to
demonstrate that a substantial probability of death or serious injury existed as a result of a
condition arising at the workplace, which the employer was aware of or could have been
aware of with the exercise of reasonable diligence. See NRS 618.625(2).
The record on appeal reveals that there is sufficient evidence to support the Board's
decision. Pabco's own witness testified that a building should be constructed according to
plans. Evidence was presented that certain braces called for in the plan were not installed. In
addition, the evidence presented to the Board demonstrated that contrary to the building plans
there were gaps between the supporting columns and the foundation. Moreover, DOSH
presented testimony that the standard construction procedure was that each bay of the
building was to be erected and made rigid before erecting the subsequent bays. Evidence was
presented that this practice was not followed. There was also testimony that failure to comply
with recognized building plans or practices such as those mentioned above would indicate
the existence of a hazard which could cause death or serious bodily injury.
practices such as those mentioned above would indicate the existence of a hazard which
could cause death or serious bodily injury.
Furthermore, Pabco could have been aware of the condition with the exercise of
reasonable diligence. Pabco hired Redden to supervise the construction of the building. Pabco
is not in the construction business. Its business is mining and manufacturing. Yet Pabco
undertook the construction project relying upon Redden whom Pabco believed would safely
complete the project. Pabco relied totally upon Redden's knowledge and skill. Under these
circumstances the Board correctly imputed Redden's knowledge of the deviations from
standard building practices to Pabco. See NRS 618.095 (employer includes any management
official having direction or custody of any employment or employee); cf. H. E. Wiese, Inc.,
1982 O.S.H. Dec. (CCH) Para. 25,985 (March 31, 1982) (the actions and knowledge of
supervisory personnel are generally imputable to their employers). Furthermore, there is
nothing in the record to indicate that Pabco instructed Redden on the safe erection of the
building or attempted to ascertain that Redden was complying with safe building practices.
See Todd Shipyards, Corp., 1984-1985 O.S.H. Dec. (CCH) Para. 27,001 (August 3, 1984)
(employer can rebut imputation by demonstrating employee misconduct). Accordingly, the
decision of the district court is reversed and the Board's decision is reinstated.
____________
105 Nev. 373, 373 (1989) King v. State
GEORGANNA KING, now Known as GEORGANNA LAGEN, and PAULA
MARTINEAU, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 18561
June 28, 1989 784 P.2d 942
Joint appeal from judgments of conviction of involuntary manslaughter and felony child
abuse. Eighth Judicial District Court, Clark County; William P. Beko, Judge.
Defendants were convicted in the district court of involuntary manslaughter and felony
child abuse, and they appealed. The Supreme Court held that: (1) evidence was insufficient to
support involuntary manslaughter conviction, but (2) evidence supported convictions for
felony child abuse.
[Rehearing denied December 28, 1989] Greenman, Goldberg & Raby, Las Vegas, for
Appellant Lagen.
105 Nev. 373, 374 (1989) King v. State
Greenman, Goldberg & Raby, Las Vegas, for Appellant Lagen.
Thomas D. Beatty, Las Vegas, for Appellant Martineau.
Brian McKay, Attorney General, and John Cary, Deputy Attorney General, Carson City,
for Respondent.
1. Criminal Law.
Medical testimony indicating that injuries suffered by twenty-seven-month old child were due to shaking and deliberate blows was
sufficient to support finding that child's death was caused by criminal act of another, despite testimony by defense expert indicating
that child had suffered injury in fall.
2. Criminal Law.
Whenever parties present conflicting testimony, jury must determine weight and credibility to give to that testimony.
3. Homicide.
Evidence that child was in custody of both defendants at time of her fatal head injury was insufficient to support defendants'
involuntary manslaughter convictions, absent evidence that both defendants caused injury or that one defendant aided and abetted
other in injuring child. NRS 200.070.
4. Infants.
Evidence that child who suffered fatal head injuries was in custody of defendants and that defendants delayed in obtaining medical
treatment for her was sufficient to support conviction for felony child abuse. NRS 200.508, 200.508, subds. 1, 1(b).
OPINION
Per Curiam:
A grand jury returned an indictment charging appellants Georganna King, now known as
Georganna Lagen, and Paula Martineau with murder, aiding and abetting murder, and child
abuse and neglect. These charges arose out of the death of King's twenty-seven-month old
daughter, Michelle. On July 19, 1984, Michelle suffered multiple head injuries while under
appellants' care and custody. She died on July 23, 1984.
At trial, the prosecution's case against appellants rested primarily upon circumstantial
evidence. A jury found both appellants guilty of involuntary manslaughter and felony child
abuse. The trial court sentenced each of them to concurrent terms of twenty years for felony
child abuse and six years for involuntary manslaughter. On appeal, King and Martineau claim
numerous sources of error.
[Headnote 1]
Appellants contend that the jury failed to follow the district court's instructions requiring
that guilt be established beyond a reasonable doubt.
105 Nev. 373, 375 (1989) King v. State
court's instructions requiring that guilt be established beyond a reasonable doubt. They argue
that the evidence showed extensive disagreement among the medical experts as to what
caused Michelle's coma and death. The experts' opinions ranged from that of appellants'
expert, Dr. Petty, who testified that Michelle suffered a simple, unwitnessed fall with a blow
to her head, to that of prosecution witness, Dr. Carlile, who opined that Michelle's injuries
were due to a shaking and a deliberate blow. Thus, appellants submit that the diverse opinions
created a reasonable doubt as to whether they committed a crime.
[Headnote 2]
Whenever the parties present conflicting testimony, the jury must determine the weight
and credibility to give to that testimony. Allen v. State, 99 Nev. 485, 487, 665 P.2d 238, 240
(1983). In Allen, we held that jurors can accept or reject expert testimony as they see fit. Id. at
488, 665 P.2d at 240. Therefore, accepting Dr. Carlile's opinions and the testimony of other
experts with similar opinions, the jury had substantial evidence with which to find that
Michelle's death was caused by the criminal act of another.
[Headnote 3]
Appellants also claim that the prosecution introduced no evidence which would allow the
jury to determine which appellant did the act that caused Michelle's death. They argue that if
the jury could not determine which appellant performed the fatal act, both were entitled to
acquittal.
The State responds that it was not necessary to determine which appellant committed the
particular act which caused Michelle's death, even assuming that it was a single act. Michelle
was in the custody of both appellants at the time of her injury. Moreover, assuming that only
one of the appellants actually struck Michelle, the State maintains that the only possible
inference from the evidence is that the other aided and abetted in causing the injury. Finally,
the State contends that evidence in the record indicated that both failed to seek prompt
medical care.
We agree with appellants that the evidence created a reasonable doubt whether both
appellants were guilty of involuntary manslaughter. NRS 175.211(1).
1
However, our review
of the record reveals sufficient evidence for a jury, acting reasonably, to find appellants
guilty, beyond a reasonable doubt, of felony child abuse.
__________

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.
105 Nev. 373, 376 (1989) King v. State
reveals sufficient evidence for a jury, acting reasonably, to find appellants guilty, beyond a
reasonable doubt, of felony child abuse. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309
(1980) (holding that the circumstantial evidence was sufficient to convince a jury, acting
reasonably, that defendant was guilty, beyond a reasonable doubt, of second degree murder).
Nevada law defines involuntary manslaughter as the killing of a human being, without
any intent to do so, in the commission of an unlawful act, or a lawful act which probably
might produce such a consequence in an unlawful manner. NRS 200.070. In order to find
appellants guilty of involuntary manslaughter, beyond a reasonable doubt, the evidence must
establish that each appellant committed acts resulting in Michelle's death, see Com. v. Colvin,
489 P.2d 1378 (Pa.Super.Ct. 1985) (statute prohibiting involuntary manslaughter requires that
death be a result of defendant's act); cf. Earlywine v. Sheriff, 94 Nev. 100, 575 P.2d 599
(1978) (holding that an information charging defendant with involuntary manslaughter must
specify the acts of criminal negligence upon which the State relies), or the evidence must
demonstrate that one appellant knowingly and intentionally aided and abetted the other
appellant in the act which resulted in death. State v. Swingler, 632 S.W.2d 267 (Mo.Ct.App.
1982); cf. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983) (holding that an indictment
alleging that defendant aided and abetted commission of a crime must provide information as
to the acts performed by defendant).
Appellants claim that they have no idea how Michelle's injury occurred. During police
questioning, both maintained their innocence. At trial, the parties introduced no eyewitness
testimony as to what happened to Michelle. King testified that she did not know what caused
Michelle's injury. Martineau did not testify. Therefore, no evidence exists that both appellants
committed the fatal act. Likewise, no evidence exists that one of the appellants aided and
abetted the other in shaking Michelle or fracturing her skull. The fact that both of the
appellants were in the home at the time of Michelle's injury does not suffice to prove one
aided and abetted the other. Consequently, we reverse appellants' convictions for involuntary
manslaughter.
[Headnote 4]
Nevada's child abuse statute encompasses acts of omission as well as acts of commission.
NRS 200.508.
2
Other jurisdictions uphold convictions of parents who failed to
immediately seek or attempt to obtain proper medical treatment after finding the child in
need of medical attention.
__________

2
1. Any adult person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or
mental suffering as a result of abuse or
105 Nev. 373, 377 (1989) King v. State
uphold convictions of parents who failed to immediately seek or attempt to obtain proper
medical treatment after finding the child in need of medical attention. State v. Scott, 400
So.2d 627 (La. 1981); Priego v. State, 658 S.W.2d 655 (Tex.Ct.App. 1983).
In the instant case, both appellants were responsible for the safety or welfare of
[Michelle].
3
NRS 200.508(1)(b). Further, Dr. Carlile testified that Michelle might have
survived if brought to the hospital sooner. Consequently, appellants allowed Michelle to
suffer unjustifiable physical pain when they delayed in obtaining medical treatment for her.
Id. Therefore, sufficient evidence exists to convince a jury, acting reasonably, of appellants'
guilt beyond a reasonable doubt of felony child abuse. See Wilkins v. State, 96 Nev. 367, 609
P.2d 309 (1980).
After further review of the record, we conclude that appellants' other contentions lack
merit. Accordingly, we affirm the convictions for felony child abuse and reverse the
convictions for involuntary manslaughter.
Young, C. J., Steffen, Springer and Mowbray, JJ., and Zenoff, Sr. J.,
4
concur.
__________
neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the
result of abuse or neglect; or
(b) Is responsible for the safety or welfare of a child and who permits or allows that child to suffer
unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation
where the child may suffer physical pain or mental suffering as the result of abuse or neglect, is guilty of
a gross misdemeanor unless a more severe penalty is prescribed by law for an act or omission which
brings about the abuse, neglect or danger.

3
Although appellants do not raise this issue on appeal, we note that the record provides sufficient evidence
to prove that Martineau exercised care and control over Michelle. See State v. Healey, 562 S.W.2d 118
(Mo.Ct.App. 1978) (holding that evidence that defendant lived with the boy and his mother for over a year
before the mistreatment occurred and voluntarily assumed the role of a parent was sufficient to prove that
defendant had care and control of the child).

4
The Honorable David Zenoff, Senior Justice, participated in this appeal pursuant to this court's general
order of assignment filed September 14, 1988.
____________
105 Nev. 378, 378 (1989) Moore v. State
VALERIE MOORE, EILEEN RENE CUNNINGHAM, and JAMES RAYMOND
MAYFIELD, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 18740
June 30, 1989 776 P.2d 1235
Joint appeal from judgments of conviction of second degree murder with the use of a
deadly weapon. Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Defendants were convicted in district court of second degree murder with the use of a
deadly weapon. Defendants appealed. The Supreme Court held that: (1) child witnesses were
competent to testify; (2) rock thrown at victim was used as deadly weapon; (3) evidence
supported jury finding that one defendant had constructive possession of rock; and (4) failure
to give requested instruction on accessory after the fact required reversal of one defendant's
conviction.
David Parraguirre, Public Defender, and Jane McKenna and Bert George, Deputy Public
Defenders, Washoe County, for Appellant Moore.
Richard Legarza, Reno, for Appellant Cunningham.
Ohlson & Edmiston, Reno, for Appellant Mayfield.
1. Witnesses.
Child witnesses were competent to testify, as demonstrated by voir dire examinations and testimony, although detective testified
that one child was disjointed in her thoughts and did not comprehend time very well, despite good recall and consistency; children's
testimony was clear, relevant, and coherent.
2. Criminal Law.
Determination of whether instrument is deadly weapon for enhancement of sentence for second degree murder is based on
functional test considering how instrument was used and facts and circumstances of its use. NRS 193.165.
3. Criminal Law.
Rock thrown at victim was used as deadly weapon for purposes of enhancement of sentence for second degree murder. NRS
193.165.
4. Criminal Law.
Evidence supported jury finding that defendant had constructive possession of rock used as deadly weapon, for purposes of
enhanced sentence for second degree murder; there was evidence that defendant knew rock was picked up
by codefendant, and that defendant had ability to exercise control of rock, even if only to verbally deter
codefendant's throwing of rock.
105 Nev. 378, 379 (1989) Moore v. State
sentence for second degree murder; there was evidence that defendant knew rock was picked up by codefendant, and that defendant
had ability to exercise control of rock, even if only to verbally deter codefendant's throwing of rock.
5. Criminal Law.
Jury should receive instruction on lesser related offense when the lesser offense is closely related to the offense charged, when
defendant's theory of defense is consistent with conviction for related offense, and when evidence of lesser offense exists.
6. Criminal Law.
Evidence supported defendant's requested instruction for accessory after fact as lesser included offense of second degree murder
with deadly weapon.
OPINION
Per Curiam:
The Reno police discovered the body of Kathleen Kennedy, lying face down in an alley.
Kennedy had suffered numerous injuries, but died as a result of a laceration to her face and
bleeding inside the skull. A jury convicted the three appellants, Valerie Moore, Eileen
Cunningham and James Mayfield, of second degree murder with the use of a deadly weapon,
namely a large stone or a tree stump. For the reasons expressed below, we affirm the
convictions of Moore and Cunningham, and we reverse Mayfield's conviction.
On the afternoon of February 27, 1987, Kennedy, the victim, was drinking with appellants
and other acquaintances who lived on Elko Avenue in Reno. Four of the women, Kennedy,
Moore, Cunningham and Kim Parks, went next door to Parks' apartment. While at the
apartment, they continued to drink. Parks put Cunningham's daughters, Rene and Stephanie
Winston, in the bedroom to watch television.
At trial, four eyewitnesses, namely Moore, Parks, Rene and Stephanie, testified regarding
the events which led to Kennedy's death. They discussed a fight in the apartment involving
the four women. Although testimony differed on the particulars of the fight and what
subsequently occurred, the jury evidently believed the following testimony.
Rene and Stephanie testified that once the fight ended, all of them left Parks' apartment.
Rene and Stephanie stated that they saw their mother and Moore carry Kennedy to a nearby
common area where a pickup truck and tree stump were located. They testified that Moore
picked up a large rock and threw it at Kennedy. However, neither girl said that she saw the
rock strike Kennedy.
Subsequently, the four eyewitnesses and Cunningham walked to a nearby convenience
store.
105 Nev. 378, 380 (1989) Moore v. State
to a nearby convenience store. All four eyewitnesses testified that shortly after they returned
from the store, Mayfield arrived. Parks further testified that Mayfield asked Cunningham
where Kennedy was. Mayfield and Cunningham left for a moment and returned with
Mayfield dragging Kennedy by the feet and Cunningham kicking her. According to Parks,
when they stopped by the front steps, both Cunningham and Mayfield kicked Kennedy
several times, just thumping her all over.
Parks stated that she heard the others make the following comments. Mayfield said to
Cunningham: I love you, and I don't mind doing 20 years for you. Cunningham replied:
We might as well finish the bitch off. Moore chimed in: You might as well kill the bitch.
Parks testified that Mayfield and Cunningham then dragged Kennedy to the back area.
However, Parks did not know what happened back there.
The physical evidence supported this version of the events. When the police investigated
the crime scene, they discovered a pool of blood around the body. Additionally, they found a
large amount of blood around the tree stump in the common area. They also found blood
spattered on the pickup truck and on and about the rock, both located near the tree stump.
Finally, the police traced drag marks and a blood trail which ended in a pool of blood directly
in front of the steps to Parks' apartment.
On appeal, Moore argues that the district court erred in finding Cunningham's daughters,
Stephanie and Rene Winston, competent to testify. Specifically, Moore states that at the time
of the murder, Stephanie was six years old and Rene was eight years old. According to
Moore, the voir dire and testimony of the girls reveal serious deficiencies in their ability to
receive just impressions of events and truthfully relate them. We disagree.
The standard of competence of a child witness is that the child must have the capacity to
receive just impressions and possess the ability to relate them truthfully. Smith v. State, 100
Nev. 570, 573, 688 P.2d 326, 328 (1984). (Citation omitted.) This court will not disturb a trial
court's finding of competency to testify absent a clear abuse of discretion. Id. On appeal, we
are not confined to a review of the voir dire examination. Wilson v. State, 96 Nev. 422, 423,
610 P.2d 184, 185 (1980). Rather, we may also look to subsequent testimony which may
support a finding of competence if clear, relevant and coherent. Id. (Citation omitted.)
[Headnote 1]
Having reviewed the voir dire examinations of Stephanie and Rene and their subsequent
testimony, we conclude that both witnesses were competent to testify. A detective
interviewed the girls on three occasions.
105 Nev. 378, 381 (1989) Moore v. State
girls on three occasions. He testified that Stephanie was disjointed in her thoughts in that she
did not comprehend time very well. However, the detective also stated that Stephanie had
very good recall, and in all three interviews, Stephanie's recollections were consistent.
Stephanie's trial testimony, which was generally clear and relevant, further supports the
district court's finding of competence.
The majority of Rene's trial testimony was coherent and lucid, even though she could not
remember some of her grand jury testimony. However, the grand jury testimony that she
could not recall concerned incriminating actions taken by her mother and Mayfield. Thus,
these omissions raised an issue as to Rene's credibility, not her competency. Accordingly, the
district court correctly admitted the testimony of Stephanie and Rene Winston.
Cunningham contends that the legislature never intended the deadly weapon enhancement
provision to apply to murders committed with a large stone or tree stump. Rather, she
maintains that deadly weapons should refer only to instruments which by their very nature
are deadly as a matter of law. Cunningham also argues that insufficient evidence exists to
support a finding that she used a deadly weapon to murder Kennedy. We disagree.
[Headnote 2]
When the legislature enacted NRS 193.165, the deadly weapon enhancement provision, it
declined to define deadly weapon, leaving this task to the judiciary. Recently, we adopted a
functional approach to determine whether an instrument was a deadly weapon. Clem v.
State, 104 Nev. 351, 357, 760 P.2d 103, 106-107 (1988). Applying the functional test, the
court considers how an instrument was used and the facts and circumstances of its use. Id.
In Clem, we held that a red-hot table fork and a heated electric iron were deadly weapons.
Id. at 357, 760 P.2d at 107. Both instruments can cause serious bodily injury or death, as
evidenced by the victim's burns. Id. Moreover, the evidence at trial clearly indicated the
defendant's intent to injure and disfigure with the iron and fork. Id. Therefore, we concluded
that defendant's sentences were properly enhanced. Id.
[Headnote 3]
Consequently, Clem refutes Cunningham's contention that we should limit deadly
weapons to those instruments that are inherently deadly. As with Clem's use of the heated
table fork and iron, Moore's use of the large stone demonstrated an intent to injure Kennedy.
Accordingly, the rock was a deadly weapon.
Additionally, Cunningham correctly asserts that all testimony concerning the rock
involved Moore's use or possible use of a rock.
105 Nev. 378, 382 (1989) Moore v. State
rock. Further, she argues that the record fails to show that she was close enough to Moore
when Moore had the rock to be aware of Moore's possession or use of the rock. Finally,
Cunningham contends that the parties presented no evidence that she had the ability to
exercise control over the rock.
In Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979), we stated our position as to what
constitutes possession in cases involving crimes committed with a deadly weapon.
Therefore, in our view, the possession necessary to justify statutory enhancement may
be actual or constructive; it may be exclusive or joint. Constructive or joint possession
may occur only when the unarmed participant has knowledge of the other offender's
being armed, and where the unarmed offender has, as here, the ability to exercise
control over the firearm.
Id. at 630, P.2d at 244.
Respondent stresses the testimony of Cunningham's daughters, Rene and Stephanie, who
stated that Cunningham and Moore carried Kennedy away from the apartment to the area
immediately next to the tree stump. At this point, Moore picked up a rock and threw it at
Kennedy. According to Rene's testimony, Cunningham did not try to stop Moore from
throwing the rock.
When reviewing the evidence supporting a jury's verdict, the question is not whether this
court should find guilt beyond a reasonable doubt, but whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could find guilt to that
certitude. Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984).
[Headnote 4]
In the instant case, the prosecution presented sufficient evidence for a rational jury to find,
beyond a reasonable doubt, that Cunningham had constructive possession of the rock. Id.
Once Moore picked up the rock, Cunningham had knowledge of Moore's possession of a
deadly weapon. Moreover, Cunningham had the ability to exercise control, even if only to
verbally deter Moore from throwing the rock. Anderson, 95 Nev. at 630, 600 P.2d at 244.
Thus, the jury properly convicted Cunningham of second degree murder with the use of a
deadly weapon.
Mayfield contends that we should extend defendant's right to jury instructions to cases
involving lesser related offenses. Presently, Nevada law requires jury instructions on
defendant's theory of the case when the theory involves a defense or a lesser included offense.
E.g., Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983); Allen v. State, 97 Nev. 394, 632
P.2d 1153 (1981). However, the rationale for allowing defendant's theory of the case
instructions also applies to instructions on lesser offenses related to that charged.
105 Nev. 378, 383 (1989) Moore v. State
case instructions also applies to instructions on lesser offenses related to that charged.
Consequently, we agree with Mayfield's contention.
In People v. Geiger, 674 P.2d 1303 (Cal. 1984), the California Supreme Court observed
that
[i]nstructions on lesser offenses are required because a procedure which affords the trier
of fact no option other than conviction or acquittal when the evidence shows that the
defendant is guilty of some crime but not necessarily the one charged, increases the risk
that the defendant may be convicted notwithstanding the obligation to acquit if guilt is
not proven beyond a reasonable doubt. The pressures which create that risk thus affect
the reliability of the fact finding process and thereby undermine the reasonable doubt
standard.
Id. at 1307-1308. Likewise, we conclude that fairness to the defendant requires instructions
on related but not necessarily included offenses. Moreover, we determine that the benefit of
instructions on related offenses serves the interest of the State. Such an instruction permits
conviction of a defendant who is clearly guilty of a lesser related offense, and avoids acquittal
because the prosecution fails to prove the charged offense.
[Headnote 5]
Preliminarily, we note that a defendant has no general right to have the jury presented with
a shopping list of alternatives to the crimes charged by the prosecution. However, we hold
that the jury should receive instruction on a lesser-related offense when three conditions are
satisfied: (1) the lesser offense is closely related to the offense charged; (2) defendant's theory
of defense is consistent with a conviction for the related offense; and (3) evidence of the
lesser offense exists. Geiger, 674 P.2d at 1304.
[Headnote 6]
Applying the three prerequisites to the facts of this case, we conclude that the jury should
have had the opportunity to find Mayfield guilty of the lesser related offense of accessory
after the fact. First, the lesser offense is closely related to the offense charged. Whether
Kennedy was alive at the time Mayfield returned to Elko Avenue determines his guilt of the
lesser offense, accessory after the fact, or the charged offense, murder.
Next, Mayfield's theory of defense is consistent with the offered instruction concerning the
related offense. In his counsel's opening statement, he alleged that Mayfield took the corpse
of Kennedy by the legs and attempted to hide and dispose of the corpse.
105 Nev. 378, 384 (1989) Moore v. State
Finally, evidence exists that Mayfield committed the lesser offense. Dr. Lawrie, the State's
witness, testified that Kennedy received an extensive laceration to the forehead which tore the
skin and scalp away from the bone. He further testified that such an injury required
considerable force, inflicted in a glancing manner by a blunt object. Dr. Salvadorini, called as
a witness by Mayfield, testified that Kennedy would have died within five to eight minutes
after receiving such a blow.
Rene and Stephanie presented testimony that before going to the store, Moore struck
Kennedy with a large rock. The testimony of all four eyewitnesses indicated that Moore,
Parks, Cunningham, and her two children walked to the store to buy some beer and some
food, and they walked back. All testified that Mayfield did not arrive at Elko Avenue until
after everyone returned from the store. Thus, the above testimony provides some evidence
that Mayfield committed the lesser offense of being an accessory after the fact.
Accordingly, the district court's failure to give the requested instruction of accessory after
the fact requires reversal of Mayfield's conviction. Therefore, we reverse and remand the case
for a new trial as to Mayfield. However, we affirm the convictions of Moore and Cunningham
of second degree murder with the use of a deadly weapon.
____________
105 Nev. 384, 384 (1989) Taylor v. Taylor
MARION DEWITT TAYLOR, Appellant, v. KATHLEEN VIRGINIA TAYLOR,
Respondent.
No. 19316
JESSE GLENN CAMPBELL, Appellant, v. WANDA CAMPBELL, Respondent.
No. 19437
June 30, 1989 775 P.2d 703
Appeal from judgments dividing military retirement benefits after divorce; Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge (No. 19316), Joseph S.
Pavlikowski, Judge (No. 19437).
Former wives brought petitions to partition military retirement benefits of former
husbands. The district court entered judgment for wives and husbands appealed. The
Supreme Court held that: (1) statute repealing statute relied upon by trial court in granting
partition applied to case, and (2) there was no common law right to seek partition of such
benefits if they had not been divided in property agreement accompanying divorce.
to seek partition of such benefits if they had not been divided in property agreement
accompanying divorce.
Reversed.
[Rehearing denied August 22, 1989]
Graves, Leavitt & Koch, Las Vegas, for appellants Taylor and Campbell.
LePome, Willick & Gorman, Las Vegas, for Respondents Taylor and Campbell.
1. Divorce.
Statute which repealed statute permitting spouses to sue for partition of military retirement benefits applied to all cases pending
before the court at time law was signed by governor, including those awaiting consideration by Supreme Court. NRS 125.161
(Repealed).
2. Divorce.
Former spouse did not have common law right to bring new cause of action to partition retirement benefits after property
agreement had become judgment of court, absent extrinsic fraud.
OPINION
1

Per Curiam:
[Headnote 1]
In 1987, the legislature passed NRS 125.161 which gave ex-spouses of military retirement
benefit recipients the right to partition the retirement benefits according to the time spent in
military service during the marriage if the retirement proceeds had not been divided in the
property agreement accompanying the divorce.
2
This statute in effect reversed our decision
in Tomlinson v. Tomlinson, 102 Nev. 652, 729 P.2d 1363 (1986), that post-divorce partition
of military retirements benefits is barred by res judicata.
The wives in these cases (respondents) each brought an action based on NRS 125.161 to
partition the husbands' (appellants') military retirement benefits in the district court after
the legislature had passed NRS 125.161.
__________

1
We have consolidated these cases for disposition on appeal because they involve identical issues of law.

2
NRS 125.161 provided, in pertinent part, as follows:
If a decree of divorce does not provide for the disposition of military retirement benefits, the former
spouse of a member of the Armed Forces of the United States who has received such a decree may bring
an action in the district court for the partition of benefits to which the member spouse is or may be
entitled, other than benefits for disability.
military retirement benefits in the district court after the legislature had passed NRS 125.161.
Following the provisions of NRS 125.161, the district court entered judgment in favor of
respondents and partitioned the military retirement benefits.
On March 20, 1989, after respondents had prevailed in the district court, the governor
signed Senate Bill 11 into law, to take effect immediately, repealing NRS 125.161. Senate
Bill 11 also provided that the courts would immediately lose jurisdiction over any action
brought under NRS 125.161 that had been appealed but not yet affirmed by this court.
3
From
the language of Senate Bill 11 it is apparent that the legislature intended to prevent all Nevada
courts, including this court, from giving the benefit of the statutory partition of retirement
proceeds to the nonmember spouse in any case that was still pending before the courts when
the governor signed the act.
[Headnote 2]
Respondents argue that, even though the legislature has taken away the statutory cause of
action to divide the military retirement benefits, we may still affirm the trial court based on
common law principles of community property. While we agree that Senate Bill 11 had the
effect of voiding any legislative intervention into the subject of post-divorce partition of
military retirement benefits and that common law again governs, we do not agree that
common law dictates an affirmance of the district court's partition.
The decisional law in this state prior to the enactment of NRS 125.161 held that, absent
extrinsic fraud on the part of the party opposing post-divorce partition of retirement benefits,
ex-spouses
__________

3
Senate Bill 11, as enacted, provides as follows, in pertinent part:
Section 1. NRS 125.161 is hereby repealed.
Sec. 2. 1. Except as otherwise provided in subsection 2, the provisions of section 1 of this act:
(a) Terminate the jurisdiction of the district court over any action brought pursuant to NRS 125.161
that is pending on the effective date of this act.
(b) Do not impair or destroy any right or obligation arising from any:
. . . .
(3) . . . [J]udgment entered . . ., if the judgment is a final judgment.
. . . .
3. As used in this section, final judgment means any order or judgment that is subject to appeal but
which, as of the effective date of this act:
(a) Has not been appealed within the time allowed by Rule 4(a) of Nevada Rules of Appellate
Procedure, if that time has expired; or
(b) Has been appealed and affirmed on appeal.
Sec. 3. This act becomes effective upon passage and approval.
1989 Nev. Stat. ch. 34.
may not bring a new cause of action to partition retirement benefits after the property
agreement has become a judgment of the court.
4
As stated above, we reached this conclusion
based on res judicata. See Tomlinson, 102 Nev. 652, 729 P.2d 1363. We do not recognize a
common law cause of action to partition retirement benefits not distributed as part of the
property agreement at the time of divorce.
Since the legislature has taken away respondents' statutory cause of action and since we do
not allow a common law cause of action for partition of an ex-spouse's retirement benefits
after judgment has been entered on the property agreement, we reverse the judgment of the
district court which partitioned the retirement benefits and, instead, instruct the district court
to enter judgment in favor of appellants.
____________
105 Nev. 387, 387 (1989) State, Tax Comm'n v. Indep. Sheet Metal
STATE OF NEVADA, EX REL NEVADA TAX COMMISSION, a Public Agency of the
State of Nevada, Appellant, v. INDEPENDENT SHEET METAL, INC., a Nevada
Corporation, Respondent.
No. 19452
June 30, 1989 776 P.2d 541
Appeal from an order determining that the state may not collect interest on deficient taxes
before a deficiency determination. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Tax Commission affirmed hearing officer's decision regarding the assessment of interest
on corporation's deficient taxes. Corporation petitioned for judicial review. The district court
found that the statutes governing interest on deficiency taxes did not authorize collection of
interest from the original due date of the taxes. On appeal, the Supreme Court held that the
due date referred to in former statute repealed in 1987 referred to the date on which the taxes
were originally due.
Reversed.
__________

4
Although there is no evidence of fraud in these cases, counsel for respondents has intimated that this rule
will allow a party to hide the retirement benefits from the other party and the court and avoid having them
divided as part of the property agreement as long as the other party does not discover the retirement benefits
within the six-month period provided for by NRCP 60(b) for obtaining relief from a judgment. On the contrary,
such conduct would most likely constitute a fraud on the court, and NRCP 60(b) specifically provides that it
does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . for
fraud on the court.
Brian McKay, Attorney General, John S. Bartlett and Despina M. Hatton, Deputy
Attorneys General, Carson City, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen Peterson, Carson City,
for Respondent.
1. Statutes.
Statutory provisions should be rendered compatible whenever possible.
2. Taxation.
Due date referred to in former statute governing interest charges on deficient taxes referred to date on which taxes were originally
due, rather than to due date following deficiency determination. NRS 360.310 (Repealed); NRS 360.400, 360.417, 372.410.
OPINION
Per Curiam:
This case concerns whether the statutory scheme in effect in 1986 gave the State of
Nevada the authority to charge interest on deficient taxes from the time the taxes originally
came due.
1
Independent Sheet Metal claims, and the district court held, that the statutes only
give authority to charge interest after a deficiency determination has been made. However, the
Department of Taxation (state) asserts that the legislature did give authority to collect interest
from the time the taxes should have been returned. We conclude that NRS 360.310 provided
for interest from the time the taxes originally came due, and we therefore reverse.
Facts
The state initially made an arbitrary assessment against Independent Sheet Metal in the
amount of $412,712.03 in deficient sales and use taxes, penalties and interest on December
30, 1985. Independent Sheet Metal petitioned for a redetermination on January 20, 1986, and
the state agreed to re-audit Independent Sheet Metal in return for Independent Sheet Metal's
cooperation in producing the necessary documentation.
__________

1
In 1987, the legislature amended the statutory scheme for determining deficiencies. Within that new
structure, NRS 360.417 makes it clear that interest on a tax deficiency accrues from the time the tax should have
been paid. However, NRS 360.417 was enacted after the events relevant to this case took place, and we therefore
cannot apply it.
As a result of the re-audit, the state determined that while all sales and use tax returns had
been filed during the audit period, Independent Sheet Metal had failed to collect sales tax on
some items or to pay use tax on others. The state revised the deficiency amount on September
10, 1986, which came to $51,612.70, consisting of $32,989.29 in tax, $3,298.94 in penalties,
and $15,324.47 in accrued interest. Independent Sheet Metal filed a petition for
redetermination of this audit deficiency seeking to be relieved of the penalty and interest
portions of the deficiency determination. After a hearing before the department's hearing
officer, the hearing officer rendered a decision relieving Independent Sheet Metal of the
penalties, but upholding the imposition of interest.
Independent Sheet Metal appealed the hearing officer's decision regarding the assessment
of interest to the Nevada Tax Commission, and, after a hearing, the tax commission affirmed
the hearing officer's decision and order. Thereafter, Independent Sheet Metal filed a petition
for judicial review of the decision of the hearing officer and the tax commission. The district
court determined that the statutes did not authorize the state to collect interest from the
original due date of the taxes, and he ordered that the portion of the deficiency determination
imposing interest be stricken.
Discussion
The parties do not dispute that the former NRS 360.310 governs in this case.
2
At the time
relevant to this action, NRS 360.310 provided for interest payable by the taxpayer when the
state had made a deficiency determination: The amount of the determination exclusive of
penalties, bears interest at the rate of 1.5 percent per month from the date on which such
amount, or any portion thereof, became due until the date of payment. The state determined
that the date on which such amount . . . became due referred to the date the tax should have
originally been paid and, accordingly, charged interest from that date. However, the district
court did not agree and determined that the date on which such amount . . . became due
referred to the due date following the deficiency determination and held that Independent
Sheet Metal need not pay any interest on the tax deficiency.
__________

2
NRS 360.310 was repealed in 1987 and replaced by NRS 360.417 as authorization for the state to charge
interest on deficient taxes. See, note 1, above.
[Headnotes 1, 2]
When read with the accompanying provisions, NRS 360.310 allowed the state to recover
interest from the original due date of the taxes. Other statutes implied that interest from the
time of the original tax due date would be included in any deficiency determination. For
example, NRS 372.410 provided that any interest on underpayment of taxes should be offset
by overpayments and interest on overpayments when making the deficiency determination:
In making a determination the department may offset overpayments . . . together with the
interest on overpayments, against underpayments . . . and against interest on the
underpayments. (Emphasis added.) If the state had no authority to charge interest until after
the taxpayer had failed to pay on the deficiency determination, as Independent Sheet Metal
asserts, then there could be no interest on underpayments to be used to offset overpayments.
Statutory provisions should be rendered compatible whenever possible. See Weston v.
County of Lincoln, 98 Nev. 183, 634 P.2d 1227 (1982).
The tense of the verbs in the tax deficiency determination statutes concerning interest is
also instructive. NRS 360.400 referred in the present tense to the date when interest starts to
accrue in the event a taxpayer fails to pay after a deficiency determination has become final:
Interest shall accrue from the time when the determination becomes due and payable. NRS
360.400 (emphasis added). However, in NRS 360.310, which both parties agree controls in
this case, the legislature referred to that date on which interest begins to accrue in the past
tense: The amount . . . bears interest . . . from the date on which such amount . . . became
due until the date of the payment. NRS 360.310 (emphasis added). These statutes were both
found in the section entitled Determination of Deficient Payment. If Independent Sheet
Metal's assertion that both of these due dates refer to the date on which the deficiency
determination became final is correct, then the legislature should have used the same verb
tense. The legislature, however, used the past tense in NRS 360.310 which implied that the
date referred to in that statute was to precede the date referred to in NRS 360.400. The only
logical, preceding date would be the date on which the original tax was due, as the state
asserts.
We conclude that the due date referred to in former NRS 360.310 referred to the date on
which the taxes were originally due. Although the statute may have been ambiguous in
referring to the date on which such amount . . . became due, viewed in its statutory context,
that date could only be the date that Independent Sheet Metal should have originally paid the
tax. Accordingly, we reverse the district court's determination that the state did not have
statutory authority to charge Independent Sheet Metal interest, accruing from the
original due date, for the taxes which it should have paid.
ingly, we reverse the district court's determination that the state did not have statutory
authority to charge Independent Sheet Metal interest, accruing from the original due date, for
the taxes which it should have paid.
____________
105 Nev. 391, 391 (1989) Isom v. State
LEANETTE JEAN ISOM, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17519
June 30, 1989 776 P.2d 543
Appeal from judgment of conviction for third offense (felony) driving under the influence
of alcohol. First Judicial District Court, Carson City; Michael E. Fondi, District Judge.
Defendant was convicted of driving under the influence for the third time within seven
years, following trial in the district court and defendant appealed. The Supreme Court,
Mowbray, J., held that: (1) defendant was in actual physical control of her automobile when
she was asleep in the driver's seat while parked on private property with engine running, and
(2) State presented sufficient evidence to prove that defendant had been charged and
convicted of two prior DUI offenses within seven years of the new offense.
Affirmed.
Rose, J., dissented.
Terri Steik Roeser, State Public Defender and Michael K. Powell, Chief Appellate Deputy,
Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Noel S. Waters, District Attorney and Keith
Loomis, Deputy District Attorney, Carson City, for Respondent.
1. Automobiles.
Defendant found by police officer asleep and in the driver's seat of automobile with the engine running was in actual physical
control of the automobile under statute governing driving under the influence of alcohol, although the automobile was parked at closed
gas station on private property, as defendant had driven to that location on a public highway and could have returned to the highway at
any moment. NRS 484.379, 484.379, subd. 1.
2. Automobiles.
Defendant's two prior driving under the influence offenses were proven at the time of her sentencing for third such offense, under
statute providing that a person's third or subsequent conviction for driving under the influence within seven
years is punishable as a felony, by the defendant's citation for the first charge and her plea of nolo
contendere, and by the complaint of defendant's second offense and her guilty plea and her sentence.
105 Nev. 391, 392 (1989) Isom v. State
providing that a person's third or subsequent conviction for driving under the influence within seven years is punishable as a felony, by
the defendant's citation for the first charge and her plea of nolo contendere, and by the complaint of defendant's second offense and her
guilty plea and her sentence. NRS 484.3792, 484.3792, subd. 2.
OPINION
By the Court, Mowbray, J.:
Appellant Leanette Isom appeals her third conviction for driving under the influence of
alcohol (DUI) within seven years. Isom argues that she was not in actual physical control of
her vehicle and is thus immune from prosecution for DUI. Isom also contends that she cannot
be charged with felony DUI because the State failed to present evidence of her prior offenses.
We disagree with Isom's claims and affirm her conviction.
On August 15, 1985, at approximately 11:30 p.m., a Carson City sheriff's deputy noticed a
parked car near an empty telephone booth at a closed gas station. Suspecting a burglary, the
deputy investigated and found Isom in the car behind the steering wheel slumped toward the
passenger seat. The vehicle's headlights were out but its engine was running. Isom did not
respond to the deputy's tapping on the window, so the deputy opened the door, turned off the
engine and shook Isom until she awoke. Isom attempted to start the car and told the deputy
she wanted to go home. The deputy smelled alcohol on Isom's breath and noticed a number of
unopened cans of beer in the back seat and two open cans of beer beside Isom. The deputy
arrested Isom when she failed four field sobriety tests. Isom's breathalizer test established a
blood alcohol level of 0.24 percent, well over the statutory limit of 0.10 percent. NRS
484.379.
Isom was convicted of driving under the influence. At her sentencing hearing the State
presented evidence that Isom had two prior DUI convictions but did not present evidence of
the formal judgments of conviction. The State presented evidence that Isom pleaded nolo
contendere to a DUI charge in 1982. As evidence of the 1982 conviction, the State presented
the citation, Isom's signed statement in which she admitted that she had driven while
intoxicated, and the testimony of the justice of the peace who accepted her plea. The State
also presented evidence that Isom pleaded guilty to a charge of DUI in 1984. As evidence of
that conviction, the State presented the complaint, Isom's guilty plea, and the sentence she
received. The district court sentenced Isom for felony DUI. This appeal followed.
105 Nev. 391, 393 (1989) Isom v. State
[Headnote 1]
Isom contends that the State failed to prove she was in actual physical control of her car
pursuant to NRS 484.379(1).
1
Specifically, Isom contends that she could not have been in
actual physical control of her car because she was asleep.
For purposes of NRS 484.379 a person has actual physical control of a vehicle when the
person has existing or present bodily restraint, directing influence, domination, or regulation
of the vehicle. Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989). In Rogers, we provided
several standards that triers of fact must consider in determining whether a driver was in
actual physical control. See Rogers, 105 Nev. at 234, 773 P.2d at 1228.
Applying those standards, we hold that Isom was in actual physical control of her car. In
particular, we note that the deputy found Isom asleep and in the driver's seat with the engine
running. Although Isom managed to leave the highway and reached private property, she had
driven there on a public highway. Furthermore, she could have returned to the highway at any
moment. In fact, when the deputy awakened Isom, she attempted to restart her car and drive
off. Therefore, we conclude that the judge correctly found that Isom was in actual physical
control of her car. NRS 484.379.
2
[Headnote 2]
__________

1
It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor; or
(b) Has a 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical
control of a vehicle on a highway or on premises to which the public has access.

2
There are at least two policies implicated in the instant case. The first, which we believe to be the policy
currently implemented by Nevada law, places emphasis on not driving or placing oneself in a position to drive a
vehicle while under the influence of alcohol. This policy is succinctly reflected in the highly publicized
admonition, If you drink, don't drive! The second policy addresses the problem of the drinker who, while
operating a vehicle, realizes that his driving ability is impaired. Such a policy provides incentive for intoxicated
motorists to pull safely off the highway without fear of being arrested. See Wash. Rev. Code 46.61.504 (1985)
(No person may be convicted under this section [DUI] if, prior to being pursued by a law enforcement officer,
he has moved the vehicle safely off the roadway.) See also State v. Zavela, 666 P.2d 456, 459 (Ariz. 1983) (it
is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn
the key off and sleep until he is sober, without fear of being arrested for being in control.)
Any change or modification of the existing policy in favor of more lenient treatment for intoxicated motorists
who voluntarily pull off the roads and highways prior to coming under the scrutiny of law enforcement
authorities should be addressed by the legislature.
105 Nev. 391, 394 (1989) Isom v. State
[Headnote 2]
Isom also contends that the district court erred in sentencing her for felony DUI.
Specifically, Isom contends that the State failed to present sufficient evidence of her prior
DUI convictions pursuant to NRS 484.3792.
A person's third or subsequent conviction for DUI within seven years is punishable as a
felony. See NRS 484.3792(2).
3
NRS 484.3792(2) provides that a prior offense is one that
occurred within seven years of the principal offense. NRS 484.3792(2) requires that the facts
concerning the prior offenses must be proven at the time of sentencing.
The State presented evidence that Isom had been charged and convicted of DUI offenses in
1982 and 1984. As evidence of these prior offenses the State presented the citation Isom
received for the 1982 charge and her plea of nolo contendere; as evidence of the 1984 charge,
the State presented the complaint, Isom's guilty plea and her sentence. This evidence was
sufficient to establish that Isom had been convicted of two prior DUI violations within seven
years of the principal offense. Accordingly, we affirm Isom's conviction for third offense
(felony) DUI.
Young, C. J., and Steffen, J., concur.
Springer, J., concurring:
I agree with the dissent's saying that a person who is fast asleep, lying across the front
seat of a car parked in a vacant parking lot cannot be in actual physical control of a motor
vehicle. However, I think it is a valid inference to say that Isom, arrested in a very drunken
condition, was probably intoxicated when she drove her vehicle on a public highway to the
place where she pulled off, fell asleep and lay across the front seat. I think a trier of fact could
properly find that Isom had been, on the evening in question, in actual physical control of
her vehicle in an intoxicated condition.
__________

3
(1) Any person who violates the provisions of NRS 484.379:
. . . .
(c) For a third or subsequent offense within 7 years, 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. . . .
2. Any offense which occurred within 7 years immediately preceding the date of the principal offense
or after the principal offense constitutes a prior offense for the purposes of this section when evidenced
by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a
prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or
proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a
felony, must also be shown at the preliminary examination or presented to the grand jury.
105 Nev. 391, 395 (1989) Isom v. State
evening in question, in actual physical control of her vehicle in an intoxicated condition. The
time sequence, the high blood alcohol content, the presence of alcohol in her car and the
circumstances surrounding her arrest all lead to this conclusion. Further, at the time of her
arrest, when Isom tried to start her car and announced to the deputy that she intended to drive
home, she was, in my mind, exercising some degree of actual physical control over the
vehicle, such control as to subject her to prosecution and conviction.
Insofar as the policy choices mentioned in the dissent are concerned, I agree with the
majority that these matters are better left to the legislative branch of government.
Rose, J., dissenting:
The criteria set forth in Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989), for
determining whether a person is in actual physical control of a parked vehicle and the
standards as were applied in Bullock v. State, 105 Nev. 326, 775 P.2d 225 (1989), coupled
with a reasonable consideration of the two major policy considerations stated by the majority,
lead me to conclude that Isom was not in actual physical control of her vehicle. Someone fast
asleep, lying across the front seat of a car parked in a vacant parking lot should not be
considered to be in actual physical control of the vehicle. I believe this to be so even if the
vehicle's headlights were on and the motor was running.
Isom's car was parked in the lot of a closed garage. When officers observed the vehicle, it
appeared that no one was in it. Upon approaching the vehicle, the officers observed Isom
lying on her side across the seat. According to the officers, most of her left side was in
contact with the seat. She was very difficult to awaken. To her discredit, when awakened she
attempted to start the vehicle and stated she wanted to go home.
I see no real difference from the facts of this case and those presented in Bullock. In
Bullock, the vehicle was parked in the parking lot of a bar that apparently was open for
business; and Bullock was in the driver's seat in a reclined position. Here, Isom was lying
across the front seat of a vehicle that was parked in a vacant parking lot of a closed business.
Bullock did not attempt to drive his vehicle when awakened, but Isom did.
If there is a difference between Bullock and this case it is that Isom stated that she had
driven her vehicle to the location that night. There is no evidence, however, to establish when
she drove the vehicle to the vacant lot, or whether she was intoxicated when she did so. It
could be that Isom realized she was too intoxicated to drive and pulled into the lot to remove
her vehicle from the highway and to get some sleep. It also could be that she was not legally
intoxicated when she pulled into the vacant lot, but thereafter proceeded to drink the
beers at the location while in the vehicle.
105 Nev. 391, 396 (1989) Isom v. State
legally intoxicated when she pulled into the vacant lot, but thereafter proceeded to drink the
beers at the location while in the vehicle. All of the foregoing, however, is mere speculation.
Other courts have warned against such speculation in cases involving whether an
intoxicated person was in actual physical control of the vehicle. See, e.g., Thomas v. State,
353 A.2d 256 (Md. 1976); State v. Stanford, 108 A.2d 516 (Vt. 1954). In each case, we are
reminded that these are criminal cases, that the State has the burden of proving guilt beyond a
reasonable doubt, and that nothing is to be presumed about the conduct of the accused.
The majority opinion here clearly identifies two policy considerations that arise in cases
such as this. The first is that if you drink and drive, there will be substantial criminal
sanctions. The second is to encourage those people who realize their driving is impaired to
pull from the roadway. The latter policy consideration is promoted by not imposing criminal
sanctions on such conduct. When, however, such conduct is not encouraged to some degree,
many will elect not to pull over, and will instead make a dash for home, hoping to be lucky in
not having an accident or an encounter with law enforcement. While both policies are
commendable, the majority opinion accepts the first but refuses to recognize the second.
I believe there should be equal recognition of both policies and the facts of each case
should be analyzed accordingly. In this case, it is significant that Isom pulled off the highway
and shoulder of the road and parked her vehicle in a vacant private lot. In that position, she
had removed herself as a threat to the traveling public. Despite her commendable action, she
is now punished.
For the reasons stated, I believe that Leanette Isom, sound asleep on the front seat of a
vehicle parked in a vacant lot of a closed business, was not in actual physical control of the
vehicle when arrested. Accordingly, I dissent from the majority's opinion.
1

__________

1
The Honorable Robert E. Rose, Justice, participated in the decision of this matter on the record, briefs and
recording of the oral argument.
____________
105 Nev. 397, 397 (1989) Hale v. State
MICHAEL J. HALE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18688
June 30, 1989 776 P.2d 547
Appeal from judgment of conviction, following a jury verdict, for sale of a controlled
substance. Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Defendant was convicted of the sale of a controlled substance, following jury trial in the
district court and defendant appealed. The Supreme Court held that admission of evidence of
defendant's predisposition to commit the crime charged was improper and necessitated new
trial, as defendant did not raise the affirmative defense of entrapment.
Frederick B. Lee, Public Defender, Elko County, for Appellant.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney and
John S. McGimsey, Deputy, Elko County, for Respondent.
1. Criminal Law.
Evidence of defendant's predisposition to commit crime of sale of a controlled substance was irrelevant where defendant chose not
to raise affirmative defense of entrapment even though undercover agent was involved.
2. Criminal Law.
To be entitled to jury instruction on entrapment, defendant must indicate in some fashion that he intends to use entrapment
defense, in time for the State to present rebuttal evidence.
3. Criminal Law.
Erroneously admitted evidence of defendant's predisposition to commit crime charged, in the absence of affirmative defense of
entrapment, was detrimental and entitled defendant to reversal for a new trial.
OPINION
Per Curiam:
On November 1, 1986, undercover agent Jack Davis of the Nevada Division of
Investigations purchased marijuana from appellant Michael Hale. The police subsequently
arrested Hale and charged him with sale of a controlled substance. At trial, the district court
admitted hearsay evidence of Hale's predisposition to sell drugs.
105 Nev. 397, 398 (1989) Hale v. State
district court admitted hearsay evidence of Hale's predisposition to sell drugs. Hale objected
on relevancy grounds, contending that predisposition evidence was irrelevant because he had
not raised the affirmative defense of entrapment. The district court held that the evidence was
admissible under Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985).
1

The jury found Hale guilty of sale of a controlled substance, and the district court
sentenced Hale to four years imprisonment, which it suspended, and placed Hale on probation
for a term not to exceed three years.
Hale now contends that the district court erred by admitting predisposition evidence.
Specifically, Hale contends that the district court mistakenly relied upon Shrader. We agree.
[Headnotes 1-3]
The district judge perceived that our holding in Shrader required the State to present
predisposition evidence whenever the police utilize an undercover agent. In Shrader, we were
concerned with the indiscriminate encouragement of crime by the police. Shrader was led
astray by an overzealous police informant who had no reason to believe that Shrader was
predisposed to sell marijuana. Id. at 502, 706 P.2d at 836. To prevent the police from
ensnaring the innocent, we created a prophylactic rule: if the police wish to use undercover
agents to ferret out crime, they must have particularized suspicion that the person targeted is
predisposed to commit the crime. Id. at 501, 502, 706 P.2d at 836. Thus, in Shrader we were
not confronted with the question of under what circumstances a trial court should admit
evidence of predisposition. We did not intend to say in Shrader that the admissibility of this
type of highly prejudicial evidence is governed by the tactics the police choose to use in
uncovering crime. The admissibility of such evidence should be determined by the principles
of relevancy. Evidence of a defendant's predisposition is relevant only after a defendant in
some way raises the affirmative defense of entrapment. If a criminal defendant chooses not to
raise the affirmative defense of entrapment, evidence of predisposition is irrelevant and
inadmissible.
2
Townsend v. State, 418 N.E.2d 554 (Ind.App. 1981), cert. denied, 455 U.S.
992 (1982); State v. Amodei, 563 P.2d 440 {Kan.
__________

1
Hale also contends that the district court erred when it overruled his hearsay objection. Because Hale's first
contention is dispositive of the entire matter, we do not need to reach this issue.

2
However, to be entitled to a jury instruction on entrapment, a defendant must indicate in some fashion that
he intends to use this defense in time for the State to present rebuttal evidence. Townsend v. State, 418 N.E.2d
554 (Ind.App. 1981), cert. denied, 455 U.S. 992 (1982).
105 Nev. 397, 399 (1989) Hale v. State
State v. Amodei, 563 P.2d 440 (Kan. 1977). Moreover, we cannot say without reservation
that the verdict would have been the same absent evidence which the district court termed
very detrimental.
Accordingly, we conclude that the judgment of conviction must be reversed and remanded
for a new trial.
____________
105 Nev. 399, 399 (1989) Crane v. Continental Telephone
RICHARD P. CRANE, Jr., CHARLES R. ADKISSON, JEFF D. McCOLL, Jr., JACK
STAFFORD, VINCENT M. HELM, JOE JAY, Trustees of the Southern Nevada
Culinary and Bartenders Pension Trust, Appellants, v. CONTINENTAL
TELEPHONE COMPANY OF CALIFORNIA dba Continental Telephone Company
of Nevada, Respondent.
No. 19083
June 30, 1989 775 P.2d 705
Appeal from an order of the district court dismissing appellants' complaint with prejudice.
Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
On appeal from order of the district court dismissing with prejudice complaint filed more
than six months after Public Service Commission order, the Supreme Court, Mowbray, J.,
held that district court lacked jurisdiction over complaint, as complainant should have filed
petition for judicial review within 90 days of Commission order.
Affirmed.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks and Timothy E. Rowe, Reno, for
Appellants.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Respondent.
Courts have no inherent appellate jurisdiction over official acts of administrative agencies except where legislature has made some
statutory provision for judicial review.
When legislature creates specific procedure for review of administrative agency decision, that procedure is controlling.
3. Administrative Law and Procedure; Telecommunications.
District court lacked jurisdiction over complaint against telephone company filed more than six months after Public Service
Commission order; complainant should have filed petition for judicial review of that order within 90 days from its service. NRS
703.373.
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order of the district court dismissing appellants' complaint with
prejudice. Respondent Continental Telephone Company (Continental) and the Southern
Nevada Culinary and Bartenders Pension Trust's investment manager (Pension Trust)
entered into two contracts. Pursuant to these contracts, Continental agreed to install
underground telephone cables at a development in Gardnerville. Subsequently, disputes arose
between the parties regarding costs and refunds under the contract. Pension Trust filed a
written complaint with the Public Service Commission (PSC) by letter dated May 21, 1985.
The PSC's staff reviewed the complaint and found that Pension Trust's claims were meritless.
Pension Trust appealed the decision to the PSC. The PSC heard the matter on November 25,
1985. On December 17, 1985, the PSC issued an order dismissing Pension Trust's complaint.
The PSC concluded that no probable cause existed for the complaint because Continental had
not violated the terms of the contracts. Rather than seeking judicial review of the PSC
decision within ninety days pursuant to NRS 703.373,
1
Pension Trust filed a complaint in
district court on June 25, 1986, more than six months after the PSC's order was filed. On
October 19, 1987, Continental filed a motion for summary judgment. In an order filed April
4, 1988, the district court held that Pension Trust had failed to satisfy the procedural and time
requirements of NRS 703.373, and dismissed Pension Trust's complaint with prejudice,
concluding that Continental's motion for summary judgment was moot. This appeal followed.
__________

1
NRS 703.373 provides, in relevant part:
1. Any party of record to a proceeding before the commission is entitled to judicial review of the
final decision.
2. Proceedings for review may be instituted by filing a petition in the district court in and for Carson
City, in and for the county in which the party resides, or in and for the county where the act on which the
proceeding is based occurred. A petition must be filed within 90 days after the service of the final
decision of the commission or, if a rehearing is held, within 30 days after the decision thereon. Copies of
the petition must be served upon the commission and all other parties of record.
[Headnotes 1-3]
Pension Trust contends that the district court erred by holding its complaint was barred by
res judicata. This contention is meritless. The district court found it unnecessary to determine
whether Pension Trust was barred by res judicata. The district court dismissed Pension Trust's
complaint because Pension Trust failed to satisfy the procedural and time requirements of
NRS 703.373.
Pension Trust contends that the procedure used by the PSC denied it due process. Even
assuming arguendo that the PSC denied Pension Trust due process, this contention lacks
merit. Pension Trust filed a complaint in the district court, rather than a timely petition for
judicial review. Courts have no inherent appellate jurisdiction over official acts of
administrative agencies except where the legislature has made some statutory provision for
judicial review. Lakeview Village, Inc. v. Bd. of Cty. Comm'rs, 659 P.2d 187 (Kan. 1983).
NRS 703.373 specifies the procedure for seeking judicial review of a PSC order. It requires
an aggrieved party to file a timely petition for judicial review. See NRS 703.373. When the
legislature creates a specific procedure for review of administrative agency decisions, such
procedure is controlling. Aleutian Homes v. Fischer, 418 P.2d 769 (Alaska 1966). Instead of
filing a petition for judicial review of the PSC's order, Pension Trust filed a new complaint.
Therefore, the district court lacked jurisdiction and properly dismissed Pension Trust's
complaint. Furthermore, Pension Trust's complaint was untimely because it was filed on June
25, 1986, long after ninety days from the service of the PSC's order. Pension Trust's failure to
file a petition for judicial review within ninety days of service of the PSC's order deprived the
district court of jurisdiction. See NRS 703.373; Mirin v. Checker Inc., 85 Nev. 569, 459 P.2d
774 (1969) (decision based on former similar statute); Enriquez v. Merit System Council, 589
P.2d 492 (Colo. 1979). The time for taking an administrative appeal, as prescribed by
statute, is jurisdictional and delay beyond the statutory time is fatal. Lakeview Village, Inc.,
659 P.2d 187, 193. Therefore, the district court did not err when it dismissed Pension Trust's
complaint for want of jurisdiction.
Appellants' other contentions lacking merit, we hereby affirm the judgment of the district
court.
2

Young, C. J., Steffen and Springer, JJ., concur.
__________

2
____________
105 Nev. 402, 402 (1989) Washoe County v. Golden Road Motor Inn
COUNTY OF WASHOE, STATE OF NEVADA, Their Respective Boards of Equalization
and NEVADA TAX COMMISSION, Appellants, v. GOLDEN ROAD MOTOR INN,
INC., dba Travelodge Reno Convention Center, Respondent.
No. 19345
June 30, 1989 777 P.2d 358
Appeal from an amended judgment of the district court modifying the state board of
equalization's valuation of respondent's property. Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
Taxpayer appealed a decision of state board of equalization regarding fair market value of
taxpayer's property. The district court modified board's valuation. Appeal was taken. The
Supreme Court held that: (1) district court lacked subject matter jurisdiction to review
assessment of property for 1986-87 tax year, and (2) board properly assessed value of
property.
Reversed.
Brian McKay, Attorney General, and John S. Bartlett, Deputy Attorney General, Carson
City, for Appellant.
Stephen Mollath, Reno, for Respondent.
1. Administrative Law and Procedure; Taxation.
Taxpayers must exhaust administrative remedies before seeking judicial review.
2. Taxation.
If statutory procedure exists either for recovery of taxes collected erroneously or for disputing excessive assessment, that procedure
must be followed.
3. Taxation.
Taxpayer failed to comply with statutory procedure for protest to fair market value of property for tax purposes and, accordingly,
district court was without subject matter jurisdiction to review assessment; taxpayer failed to file any protest with county treasurer.
NRS 361.420, subds. 1, 2.
4. Taxation.
Determinations of state board of equalization are presumed valid.
5. Taxation.
To prevail on petition for judicial review of state board of equalization's assessment of fair market value of property for tax
purposes, taxpayer must show by clear and convincing evidence that tax valuation established by board is unjust and inequitable.
6. Taxation.
Taxpayer assessing value of its property does not meet burden of showing by clear and convincing evidence that tax valuation
established by state board of equalization is unjust and inequitable unless court finds that board applied
fundamentally wrong principle or refused to exercise its best judgment or assessment was so excessive as
to create implication of fraud and bad faith.
by state board of equalization is unjust and inequitable unless court finds that board applied fundamentally wrong principle or refused
to exercise its best judgment or assessment was so excessive as to create implication of fraud and bad faith.
7. Taxation.
State board of equalization did not apply fundamentally wrong principle when, instead of using recent sale price of property in
assessing fair market value for tax purposes, it chose to determine value of property using its estimate of full cash value of parcel;
board's method was an appropriate method of valuation under statute. NRS 361.227.
OPINION
Per Curiam:
The state board of equalization refused to accept the recent sale price of respondent
Golden Road Motor Inn's property (parcel No. 020-254-13) as reflective of its fair market
value for tax purposes. The state board observed that the property was developed and had
frontage on a busy Reno intersection, and heard evidence that, when sold, the parcel was
encumbered by a long-term, below-market lease.
The district court reversed the state board's decision, holding that the recent sale price was
prima facie evidence of the property's taxable value. Accordingly, the court modified the
assessment determined by the state board for the 1986-87 and 1987-88 tax years. On appeal,
the State argues that the district court lacked subject matter jurisdiction to review the
assessment of Golden Road's property for the 1986-87 tax year. Moreover, the State contends
that the district court's reversal and modification was in error, and that the state board
properly assessed the value of the property. We agree, and therefore reverse the decision of
the district court.
[Headnote 1]
Taxpayers must exhaust their administrative remedies before seeking judicial relief. First
Am. Title Co. v. State of Nevada, 91 Nev. 804, 806, 543 P.2d 1344, 1345 (1975). Any
property owner who believes that his tax assessment is excessive may pay each installment
of taxes as it becomes due under protest in writing. The protest must be in triplicate and filed
with the county treasurer at the time of the payment of the installment of taxes. NRS
361.420(1). 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. . . . NRS 361.420(2). (Emphasis added.)
In the instant case, the record contains evidence of only one protest filed by Golden Road
with the Washoe County treasurer. On August 4, 1987, Golden Road sent a letter to the
treasurer regarding the parcel at issue in this case. The letter informed the treasurer that:
The assessment of taxes on the above parcel are presently on appeal to the State Board
of Equalization.
In accordance with NRS 361.420(1) the installments of taxes paid on the above parcel
are paid under protest.
Since the protest of August 4, 1987 would only apply to installments paid for the 1987-88
tax year, the record indicates that Golden Road filed no protests with its tax payments for the
1986-87 tax year. Thus, Golden Road failed to comply with NRS 361.420(1) and (2) before
filing a petition for judicial review in October 1986 challenging the state board's
determination of the property value for the 1986-87 tax year.
[Headnote 2]
The district court found that for the tax year 1986-87, Golden Road complied with the
required protest procedure via its appeal through the county and state boards of equalization.
However, [i]f a statutory procedure exists either for recovery of taxes collected erroneously
or for disputing an excessive assessment, that procedure must be followed. Lovelace Center
for Health Sciences v. Beach, 606 P.2d 203, 206 (N.M.Ct.App. 1980). (Emphasis added.)
[Headnote 3]
NRS 361.420(1) and (2) direct taxpayers to protest the payment of their taxes with the
county treasurer and seek relief from the state board of equalization before commencing suit
in the district court. Since Golden Road failed to file any protests with the Washoe County
treasurer concerning its tax payments for the 1986-87 tax year, the district court erred when it
found that Golden Road complied with the protest procedure for that tax year. See Upper
Peninsula Generating Co. v. City of Marquette, 171 N.W.2d 572, 573 (Mich.Ct.App. 1969)
(holding that because the taxpayer failed to file protests with his payments of 1965 and 1966
taxes as required by statute, the taxpayer could not recover excess taxes paid in those years).
Accordingly, the district court lacked subject matter jurisdiction to hear Golden Road's claim
for the 1986-87 tax year. See Omnibus Financial Corp. v. United States, 566 F.2d 1097,
1101-1102 (9th Cir. 1977) (finding that, by failing to claim a refund, the taxpayer failed to
comply with the jurisdictional prerequisite of 26 U.S.C. 7422).
[Headnotes 4-6]
Determinations of the state board are presumed valid. Washoe Co. v. John A. Dermody,
Inc., 99 Nev. 608, 611, 668 P.2d 280, 282 (1983). To prevail on a petition for judicial review,
the taxpayer, Golden Road, must show by clear and convincing evidence that the tax
valuation established by the state board is unjust and inequitable. Weiss v. State of Nevada,
96 Nev. 465, 467, 611 P.2d 212, 214 (1980). NRS 361.430.
1
The taxpayer does not meet this
burden unless the court finds that the state board applied a fundamentally wrong principle or
refused to exercise its best judgment, or that the assessment was so excessive as to create an
implication of fraud and bad faith. 96 Nev. at 467, 611 P.2d at 214.
The State argues that the district court erred by finding that the actual sales price paid for
Golden Road's parcel in June 1987 constituted prima facie evidence of the property's full cash
value for the 1986-87 and 1987-88 tax years. We believe that the State's argument has merit.
According to NRS 361.227(5), an assessor, when determining the taxable value of
property, may consider (a) comparative sales; (b) a summation of the estimated full cash
value of the land and improvements; and (c) capitalization of the fair economic expectancy or
fair economic rent. The statute does not compel the use of any sale, including a sale of the
subject property, as the measure of the full cash value. Moreover, Nevada precedent supports
the state board's decision to reject the sale price of Golden Road's property as representative
of the parcel's full cash value.
In Weiss, the taxpayer challenged the ruling of the district court affirming the decision of
the state board. The taxpayer owned a large group of apartments. He purchased several
contiguous buildings, which were identical to his existing buildings, for $300,000. 96 Nev. at
466, 611 P.2d at 213. Six days later, the assessor determined that the new units had a tax
value of $373,000, and the assessor used this value to reassess the original buildings. Id. As
in the instant case, the taxpayer contended that the recent purchase price conclusively
established the fair cash value for tax purposes. Id.
This court refused to accept the recent purchase price as conclusive evidence of full cash
value for tax purposes. Id. at 467-46S, 611 P.2d at 214.
__________

1
Burden of proof on plaintiff in action brought under NRS 361.420. In every action brought under the
provisions of NRS 361.420, the burden of proof shall be upon the plaintiff to show by clear and
satisfactory evidence that any valuation established by the Nevada tax commission or the county assessor
or equalized by the county board of equalization or the state board of equalization is unjust and
inequitable.
conclusive evidence of full cash value for tax purposes. Id. at 467-468, 611 P.2d at 214. We
held that when evaluating the taxpayer's property, the state board was not required to accept
the purchase price of identical property as the sole indicator of value, but was required to
compute the taxable value by using the cost, market and income approaches discussed in
NRS 361.227. Id.
In the case at hand, Golden Road argued to the state board that its June 1987 purchase of
parcel no. 020-254-13 plus four contiguous acres demonstrated that the taxable value of the
land was the sale price, i.e. $1,323,135, or an average of $7.54 per square foot. However, the
Washoe County assessor argued that a pro rata determination of the land value over the entire
eight acre purchase was misleading because the four acres in dispute are located at the heavily
traveled corner of Virginia and Peckham Lane, while the contiguous four acre property
received less exposure to traffic. Thus, the assessor contended that the four acre parcel no.
020-254-13 deserved a higher valuation than the other less prominent four acres.
[Headnote 7]
When the state board voted to uphold the assessor's valuation of parcel no. 020-254-13 at
$12.75 per square foot, at least one member observed that the corner piece has got to be
worth more than the overall average. Thus, the state board apparently considered what it felt
to be the estimated full cash value of the land when it made its decision. Since this was an
appropriate method of valuation pursuant to NRS 361.227, the state board properly refused to
apply the sale price of $7.54 per square foot. Weiss, 96 Nev. at 467-468, 611 P.2d at 214.
The state board did not apply a fundamentally wrong principle when, instead of using the
recent sale price, it chose to determine the value of the property using its estimate of the full
cash value of the parcel. Accordingly, Golden Road has not shown by clear and convincing
evidence that the tax valuation established by the state board was unjust and inequitable.
Thus, the district court erred when it reversed the state board's decision and modified the
assessment of Golden Road's property for the 1986-87 and 1987-88 tax years. Id. at 467, 611
P.2d at 214. Therefore, we reverse the district court's judgment and reinstate the decision of
the state board of equalization.
____________
105 Nev. 407, 407 (1989) State Farm Mutual v. Knauss
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. LYNN
KNAUSS and CORY KNAUSS, Husband and Wife, Respondents.
No. 19433
June 30, 1989 775 P.2d 707
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
Insured under automobile policy challenged validity of anti-stacking provision. The district
court granted summary judgment for insured, and insurer appealed. The Supreme Court held
that anti-stacking provisions in automobile policies were invalid.
Affirmed.
Pearson & Patton, Las Vegas, for Appellant.
Albert D. Massi and Allen A. Cap, Las Vegas, for Respondents.
1. Insurance.
Insurance policy anti-stacking provisions are valid limits on stacking of medical payments coverage only to extent that they
conform to statutory requirements of clarity and prominence. NRS 687B.145, subd. 1.
2. Insurance.
Anti-stacking provisions in automobile policies were invalid, thereby entitling insured who was injured in accident involving
insured vehicle to medical payments coverage under policies covering each of her insured vehicles, where stacking restrictions
consisted of five separate provisions, none of which standing alone suggested to insured that her medical coverage was not stackable;
policies did not satisfy statutory requirements of clear and prominently displayed stacking limitations. NRS 687B.145, subd. 1.
OPINION
Per Curiam:
On December 29, 1986, Lynn Knauss, while driving a 1976 Cadillac, was involved in an
automobile accident. As a result of the accident, Knauss incurred medical expenses in excess
of $5,000.
At the time of the accident, Knauss owned three State Farm automobile insurance policies.
One policy covered the Cadillac; the other two policies covered separate Knauss family
vehicles. Each policy provided for up to $5,000 in medical payments coverage.
Knauss' three State Farm policies contain language which purport to preclude Knauss from
recovering medical benefits under any policy other than the one covering the particular car in
which she suffered an injury. Knauss maintains, however, that these anti-stacking provisions
are invalid and that she is entitled to medical payments coverage under all three of her State
Farm policies. We agree.
[Headnote 1]
NRS 687B.145(1) allows insurance companies to prohibit the stacking of uninsured
motorist or other casualty insurance coverage only when such limiting provisions are in
clear language and are prominently displayed in the policy.
1
First party medical payments
coverage is among the types of other casualty insurance contemplated by this statutory
provision. See NRS 681A.020.
2
Thus, insurance policy anti-stacking provisions are valid
limits on the stacking of medical payments coverage only to the extent that they conform to
the statute's clarity and prominence requirements.
[Headnote 2]
The stacking restrictions in Knauss' State Farm policies consist of a series of five
provisions. However, none of the five provisions standing alone suggests to the insured that
her medical coverage is not stackable. It is only after piecing together these five provisions
{each from a
__________

1
NRS 687B.145(1) provides:
Any policy of insurance or endorsement providing coverage under the provisions of NRS 690B.020
or other policy of casualty insurance may provide that if the insured has coverage available to him under
more than one policy or provision of coverage, any recovery or benefits may equal but not exceed the
higher of the applicable limits of the respective coverages, and the recovery or benefits must be prorated
between the applicable coverages in proportion that their respective limits bear to the aggregate of their
limits. Any provision which limits benefits pursuant to this section must be in clear language and be
prominently displayed in the policy, binder or endorsement. Any limiting provision is void if the named
insured has purchased separate coverage on the same risk and has paid a premium calculated for full
reimbursement under that coverage.

2
Although casualty insurance, as defined in NRS 681A.020, includes any medical benefits incident to a
vehicle insurance policy, we have previously concluded that NRS 687B.145(1) is applicable only to those
types of casualty insurance provisions which afford first party coverage or are otherwise stackable. See
Wood v. State Farm Mut. Ins., 104 Nev. 735, 766 P.2d 269 (Adv. Op. No. 122, December 27, 1988) (third party
liability coverage is not stackable and, thus, is not subject to NRS 687B.145(1)); Beeny v. California State Auto.
Ass'n, 104 Nev. 1, 752 P.2d 756 (Adv. Op. No. 1, March 30, 1988) (Third party medical payments coverage is
not stackable).
five provisions (each from a separate page of the policy) that the insured can understand that
the medical payments coverage in each separate policy is available only for injuries sustained
in the particular car listed on the front of that policy.
The five-part conundrum does not satisfy the statutory requirements of clear and
prominently displayed stacking limitations. Accordingly, State Farm's attempt to prevent the
stacking of medical payments coverage must fail. See Neumann v. Standard Fire Ins. Co., 101
Nev. 206, 699 P.2d 101 (1985).
For the foregoing reasons, we affirm the district court's grant of summary judgment.
____________
105 Nev. 409, 409 (1989) Brown v. F.S.L.I.C.
JACK BROWN and RESORT DEVELOPERS INTERNATIONAL, LTD., Appellants, v.
FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, Receiver for
State Savings and Loan Association, Clovis, New Mexico, Respondent.
No. 18969
June 30, 1989 777 P.2d 361
Appeal from jury verdict and from trial court judgment arising from equitable issues.
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Federal Savings and Loan Insurance Corporation filed a lawsuit in its capacity as receiver
for savings and loan association against twelve defendants alleging defendants conspired to
illegally gain control of savings and loan and participated in various wrongdoings including
fraud, forgery and racketeering. Following jury trial, the district court tripled the jury's
$100,000 damages award against each defendant and imposed a constructive trust on one
defendant's funds, awarding it to plaintiff. Defendants appealed. The Supreme Court held
that: (1) appellants failed to properly preserve issue of trial judge's refusal to recuse himself;
(2) trial judge's equitable imposition of constructive trust was erroneous, as it was in direct
conflict with the jury's verdict; and (3) trial court erred in denying defendants' motion for
judgment notwithstanding the verdict, as the verdict was not supported by the evidence.
Reversed.
[Rehearing denied August 22, 1989] Ed Bernard, Carson City; Glen L.
105 Nev. 409, 410 (1989) Brown v. F.S.L.I.C.
Ed Bernard, Carson City; Glen L. Houston, Hobbs, New Mexico, for Appellants.
Lionel Sawyer & Collins and Paul R. Hejmanowski and Linda Sue Mabry, Las Vegas, for
Respondent.
Appellants failed to preserve issue of trial judge's refusal to recuse himself on ground of bias in favor of Federal Savings and Loan
Insurance Corporation and on ground that trial judge's daughter was employed as summer law clerk at the firm representing the
corporation, as appellants did not join in the motion for recusal which was brought at the trial level, and record revealed that provisions
had been made by corporation's counsel to screen trial judge's daughter from any matters before, or likely to come before, her father.
NRS 1.235, subds. 1, 2.
2. Judges.
Failure to comply timely with the statutory requirements for seeking recusal results in a waiver of the issue. NRS 1.235, subds. 1,
2.
3. Trial.
Trial court's finding that defendant company was not a bona fide purchaser without notice of fraud at the time the company
purchased notes from codefendants was precluded by jury's special verdict finding that defendant company was not liable on the claims
of fraud, misrepresentation, conspiracy, and money had and received, as such verdict revealed that jury rejected all of plaintiff's
theories that defendant company had imputed knowledge of the alleged fraud and, thus, trial court's equitable imposition of
constructive trust setting aside fraudulent conveyance was erroneous. NRS 112.140 et seq.
4. Extortion and Threats.
There was not sufficient evidence presented at trial to support jury verdict that plaintiff corporation sustained damages as a
proximate result of the defendants' alleged racketeering activities, where evidence indicated that alleged perjury of defendant occurred
at a time subsequent to when plaintiff corporation had purchased time share contracts, and that the alleged forgery also occurred after
the last time share contracts were purchased by plaintiff corporation, and jury award of $100,000 against each defendant appeared to
be a sort of fine, rather than an assessment of actual damages sustained as a result of defendants' alleged racketeering activities. NRS
207.360, subds. 13, 27, 207.390, 207.470, subd. 1.
OPINION
Per Curiam:
This is an appeal from the trial court's imposition of a constructive trust over funds in
appellant's bank account and from the jury's verdict awarding RICO (Racketeering Influenced
Corrupt Organization) damages. The judgment was the result of a four-and-one-half month
long trial involving multiple defendants and numerous financial transactions.
105 Nev. 409, 411 (1989) Brown v. F.S.L.I.C.
On November 7, 1983, respondent Federal Savings and Loan Insurance Corporation
(FSLIC) filed a lawsuit in its capacity as receiver for State Savings and Loan Association
(State Savings), a New Mexico corporation. Soon thereafter, FSLIC filed a second amended
complaint asserting nine causes of action against twelve defendants, including appellants Jack
Brown (Brown) and Resort Developers International, Ltd. (RDIL). The complaint alleged that
the defendants conspired to gain illegally control of State Savings and that the defendants
participated in various wrongdoings including fraud, forgery, theft, misappropriation of
funds, breach of contract, conversion and racketeering.
1
The complaint sought compensatory
damages in excess of $27 million and punitive damages in excess of $10 million. It also
sought equitable relief in the form of an injunction and the imposition of a constructive trust,
and an equitable lien and declaratory judgment setting aside certain conveyances.
At the conclusion of the trial, the jury returned a special verdict on twenty-four questions
submitted to it by the court. With relevance to this appeal, the jury awarded $100,000.00 in
RICO damages against each appellant. The trial judge tripled the $100,000.00 award; and,
additionally, he imposed a constructive trust on $1.3 million of RDIL's funds and awarded it
to FSLIC.
2

Brown and RDIL now appeal the judgments against them, alleging the following four
points of error: (1) the trial court erred by denying appellants' motion to dismiss pursuant to
NRCP 41(a)(1); (2) the trial judge refused to recuse himself, constituting prejudicial error; (3)
the trial judge erred by imposing a constructive trust on RDIL's $1.3 million and awarding the
funds to FSLIC; and (4) the trial judge erred by refusing to grant appellant's motion for
judgment notwithstanding the verdict (JNOV) to strike down the jury's award of $100,000.00
in RICO damages to FSLIC. Based upon the third and fourth points of error raised above, we
reverse the trial court's judgment.
__________

1
Generally, the alleged wrongdoing pertinent to this appeal revolved around the sale, at an inflated price, of
solar notes from co-defendant Randolph Shipley (Shipley was eventually dismissed by the trial court) to
co-defendants Joe Boyd/Credit Plan Corporation. Boyd then sold the solar notes to State Savings. $1.3 million
of the money that Boyd received from State Savings for the solar notes transaction was paid by Boyd to
appellant RDIL for the purchase of $1.7 million in timeshare contracts. The $1.3 million was traced to RDIL's
account in Valley Bank of Nevada.

2
In addition, FSLIC obtained awards against some of the other defendants below: FSLIC was awarded over
$12 million against defendants W. W. Taylor and Southwest Mortgage Services Corporation, and over $23
million against defendants Boyd and Credit Plan Corporation. These judgments were not appealed.
105 Nev. 409, 412 (1989) Brown v. F.S.L.I.C.
Motion to Dismiss Pursuant to NRCP 41(a)(1)
The trial court did not err by denying the motion made on appellants' behalf to dismiss
pursuant to NRCP 41(a)(1). Appellants assert that the action below was barred by the two
dismissal rule embodied in NRCP 41(a)(1). We do not agree. The record does not support
appellants' contention that they have been twice dismissed from actions based upon or
including the same claim.
The suit which appellants claim served as their first dismissal was filed by the FSLIC in
the federal court in Missouri. Although that suit arose based upon the same facts which
support the present case, appellants were not named as parties to that action. Since no liability
could have accrued to appellants as a direct result of the Missouri action, we are not
persuaded by appellants' assertion that the dismissal of that action served as a dismissal with
regard to appellants. The record reveals that appellants have been dismissed but once, in the
California action wherein appellants were named defendants. This single dismissal does not
support adequately appellants' motion to dismiss pursuant to the two dismissal rule embodied
in NRCP 41(a)(1), and, therefore, the trial judge properly denied appellants' motion to
dismiss.
Judicial Recusal
Appellants next assert that the trial judge erred by refusing to recuse himself because he
was generally biased in favor of FSLIC and because the trial judge's daughter was employed
as a summer law clerk at the firm representing FSLIC. We cannot agree.
[Headnotes 1, 2]
Appellants failed to preserve properly this issue for appeal since appellants did not join in
the motion for recusal which was brought below. Failure to comply timely with the
requirements for seeking recusal provided in NRS 1.235(1) and (2) results in a waiver of the
issue. State ex rel. Dep't Welfare v. District Ct., 85 Nev. 642, 646, 462 P.2d 37, 39-40 (1969);
A Minor v. State, 86 Nev. 691, 694, 475 P.2d 11, 13 (1970).
Furthermore, the motion for recusal which was brought by other co-defendants during the
proceedings below was already considered and denied. We see no reason to upset that ruling.
The record reveals that provisions had been made by FSLIC's counsel to screen the trial
judge's daughter from any matters before, or likely to come before, her father. Under such
circumstances there was no need to disqualify the trial judge. See United States ex rel.
Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978)
(Fifth Circuit refused to disqualify trial judge where judge's son was an associate at a firm
representing a party before that judge, but son had not worked on the case).
105 Nev. 409, 413 (1989) Brown v. F.S.L.I.C.
ing a party before that judge, but son had not worked on the case).
Constructive Trust
Appellants assert that the trial judge erred when he circumvented the jury verdict by
awarding equitable relief in the form of a constructive trust upon appellants' funds in the
amount of $1.3 million, to be held in favor of FSLIC. The equitable relief was granted
following these events:
At the close of trial, the jury was instructed on the subjects of constructive trust and bona
fide purchaser, vicarious responsibility, conspiracy, agency, alter ego and fraud. The jury
returned special verdicts in which it found specifically that appellants did not commit
intentional fraud, negligent misrepresentation, nor conspiracy, and found further that FSLIC
did not prove its claims for money had and received, but that both Brown and RDIL engaged
in racketeering activities which proximately caused damage to State Savings. The jury found
Brown and RDIL each liable for $100,000.00 in damages, excluding punitive damages, due to
the racketeering activities.
Eight days after the jury verdict FSLIC filed a motion for equitable relief. FSLIC sought a
constructive trust over $1.3 million in RDIL's account at Valley Bank. FSLIC's theory in
support of the constructive trust was that co-defendant Boyd (not a party to this appeal) was
the alter ego of RDIL, and that through Boyd, RDIL had knowledge of State Savings'
insolvency at the time certain funds were conveyed, thus giving rise to a fraudulent
conveyance and providing the basis upon which to impose a constructive trust over certain
money which was traced to RDIL's bank account. FSLIC's motion for equitable relief was
opposed by appellants on the bases that the alter ego theory was not supported by the
evidence adduced at trial and that there was no evidence presented that Brown of RDIL had
knowledge that the notes were sold to State Savings for less than fair consideration. The trial
judge granted the constructive trust as requested by FSLIC based upon the conclusion that
appellants did not acquire the $1.3 million as bona fide purchasers for value without
knowledge. We hold that the trial court's judgment is improper because it conflicts with the
jury's decision on the issue of imputed knowledge.
NRS Chapter 112 requires the following criteria to be met before a creditor can have a
fraudulent conveyance set aside: (1) the conveyance must be made by a person who is
insolvent or who will be rendered insolvent by it; (2) there was not fair consideration for the
conveyance; and (3) the purchaser was not a bona fide purchaser for value without notice of
the fraud at the time of the purchase.
105 Nev. 409, 414 (1989) Brown v. F.S.L.I.C.
bona fide purchaser for value without notice of the fraud at the time of the purchase.
[Headnote 3]
It is undisputed that the $1.3 million in RDIL's account has its origin in the solar note
transaction between Boyd/Credit Plan and State Savings. It is also undisputed that State
Savings was insolvent at the time it conveyed the solar note funds to Boyd. Additionally, the
record contains ample evidence to support a finding that the conveyances of the solar notes
from co-defendants Boyd/Credit Plan to State Savings were without fair consideration.
Accordingly, the first two prerequisites required by NRS Chapter 112 for imposing a
constructive trust have been satisfied. At issue then is the third criterion: whether RDIL was a
bona fide purchaser for value without notice of the alleged fraud at the time of the purchase.
We are of the opinion that the trial judge's finding that RDIL was not a bona fide purchaser
without notice of the fraud at the time of the purchase is precluded by the jury's special
verdict. The record reflects that at trial FSLIC vigorously argued the theory that RDIL had
imputed knowledge of the alleged fraud through Boyd and that the jury rejected that theory.
FSLIC specifically argued that Boyd was a control person over RDIL, that RDIL was
Boyd's alter ego, that Boyd's knowledge should be imputed to RDIL and that a constructive
trust should be placed over the $1.3 million in RDIL's bank account. However, the jury's
verdict, finding that RDIL was not liable on the claims of fraud, misrepresentation,
conspiracy, and money had and received reveals that the jury rejected all of FSLIC's theories
of imputed knowledge.
When deciding whether to grant equitable relief . . ., the district court [is] prohibited from
reconsidering any issues necessarily and actually decided by the jury. Hussein v. Oshkosh
Motor Truck Co., 816 F.2d 348, 355 (7th Cir. 1987). Thus, the jury's rejection of FSLIC's
proposed theories imputing knowledge from Boyd to RDIL precludes the trial judge from
incorporating the theory of imputed knowledge into his equitable judgment.
The $1.3 million at issue was money paid by Boyd to RDIL for the purchase of timeshare
contracts valued at $1.7 million. On its face, it appears that the transaction between Boyd and
RDIL constituted a bona fide purchase for value. Knowledge that the solar note conveyance
between Boyd and State Savings was fraudulent must then be imputed to RDIL in order to
impose properly a constructive trust over the funds traced from that transaction. The jury's
verdict precludes the trial judge from finding that Boyd was an alter ego of RDIL or that
Boyd's knowledge was somehow imputed to RDIL since the jury necessarily rejected
those theories when considering whether RDIL was liable under several of the other
causes of action alleged in the complaint.
105 Nev. 409, 415 (1989) Brown v. F.S.L.I.C.
finding that Boyd was an alter ego of RDIL or that Boyd's knowledge was somehow imputed
to RDIL since the jury necessarily rejected those theories when considering whether RDIL
was liable under several of the other causes of action alleged in the complaint. Absent the
ability to impute Boyd's knowledge of the solar note fraud to RDIL, RDIL stands in the
position of a bona fide purchaser for value, and the constructive trust cannot properly be
placed over RDIL's receipts from the sale of the timeshare contracts to Boyd.
Our review of the record does not reveal adequate evidentiary support for any theory, nor
has FSLIC suggested to this court any plausible theory, other than imputed knowledge, by
which the trial judge could have decided that RDIL was not a bona fide purchaser for value
taking without knowledge of the alleged fraud. Accordingly, the trial judge's equitable
imposition of the constructive trust is erroneous, since it is in direct conflict with the jury's
verdict. We, therefore, reverse the trial court's equitable judgment and order that the
constructive trust which was placed over RDIL's $1.3 million be removed.
RICO Award
[Headnote 4]
Finally, we hold that the trial judge erred in denying appellants' motion for judgment
notwithstanding the verdict (JNOV) because the jury verdict awarding $100,000.00 in RICO
damages against Brown and RDIL was not supported by the evidence. In order to be liable for
participating in racketeering activity one must engage
in at least two crimes related to racketeering that have the same or similar pattern,
intents, results, accomplices, victims or methods of commission, or are otherwise
interrelated by distinguishing characteristics and are not isolated incidents, if at least
one of the incidents occurred after July 1, 1983, and the last of the incidents occurred
within 5 years after a prior commission of a crime related to racketeering.
NRS 207.390. At trial, FSLIC suggested to the jury that the two racketeering-related crimes
in which Brown and RDIL participated were forgery and perjury. See NRS 207.360(13) and
(27). FSLIC asserts on appeal, for the first time, that the jury may have found also that
Brown's alleged mutilation of a proposed trial exhibit by deleting certain information on ten
RDIL transmittal documents constituted perjury or forgery.
The jury's special verdict found that both Brown and RDIL engage[d] in racketeering
activities prohibited by Nevada law which proximately caused damage to State Savings."
105 Nev. 409, 416 (1989) Brown v. F.S.L.I.C.
which proximately caused damage to State Savings. The amount of damages, excluding
punitive damages, that the jury found was sustained by State Savings and Loan Association
as a proximate result of each such defendant's prohibited racketeering activities, was
$100,000.00 for Brown and $100,000.00 for RDIL. Appellants moved for a JNOV or a new
trial, but the motions were denied. Appellants now allege that the trial court erred by refusing
to grant appellants' motion for JNOV.
A JNOV is permissible only when all reasonable inferences from the facts presented to
the jury favor the moving party. Skeeketski v. Bortoli, 86 Nev. 704, 706, 475 P.2d 675, 676
(1970). Appellants persuasively argue on appeal that there was not sufficient evidence
presented at trial to support the jury verdict that State Savings sustained damages as a
proximate result of the appellants' alleged racketeering activities. We agree. A review of the
record confirms that the alleged perjury and forgery by Brown could not have proximately
caused State Savings' damages.
With regard to the racketeering-related perjury, appellants admit that Brown testified in a
deposition that original timeshare contracts had been in his possession when they actually
were not. This perjury took place during a deposition for a lawsuit not involving State
Savings, at a time subsequent to when State Savings had purchased its timeshare contracts.
Thus, the perjury was not a proximate cause of State Savings damages and cannot support the
jury's finding that State Savings' damages were a proximate result of the appellants'
racketeering activities. The same analysis may be applied to discount FSLIC's assertion that
the jury may have found that Brown's alleged altering of trial exhibits was a proximate cause
of damage to State Savings.
Similarly, the alleged forgery occurred when Brown and his staff typed and signed
duplicates of original timeshare contracts to show to an independent third party. The record
reflects that the last timeshare contracts purchased by State Savings were purchased prior to
the time that the forgery was committed. Thus, since State Savings did not purchase any
timeshare contracts subsequent to the forgery it is unclear how State Savings was damaged by
this event.
Rather than reflecting the amount of the damages sustained by State Savings as a
proximate result of [appellants'] prohibited racketeering activities, it appears that the jury's
$100,000.00 awards under the RICO cause of action were an attempt by the jury to punish
Brown for perceived wrongdoings involving the timeshare contracts. This conclusion is
bolstered by the fact that although FSLIC argued to the jury that the proper amount of
damages to be awarded under the RICO cause of action was $36 million, the jury awarded
only $100,000.00 against each appellant.
105 Nev. 409, 417 (1989) Brown v. F.S.L.I.C.
million, the jury awarded only $100,000.00 against each appellant. It is entirely unclear from
what evidence the jury could have determined that State Savings was damaged in the amount
of $100,000.00 by each of the appellants' alleged racketeering-related crimes. This tends to
make the award appear to be a sort of fine, imposed by the jury, rather than an assessment of
actual damages sustained, as required under NRS 207.470(1).
The jury's verdict, finding that State Savings was damaged in the amount of $100,000.00
by each appellant as a proximate result of each [appellants'] prohibited racketeering
activities is not supported by the reasonable inferences which may be drawn from the facts
surrounding the alleged instances of perjury and forgery committed by Brown. The trial judge
therefore erred by denying appellants' motion for JNOV. We now reverse the trial court's
award of treble RICO damages in the amount of $300,000.00 against Brown and RDIL.
By reversing the trial court's judgment, we are not condoning some rather clearly
underhanded activities which contributed to State Savings insolvency. Rather, we are ruling
that, as a matter of law, the judgments against appellants Brown and RDIL cannot be
affirmed. The record below does not support these judgments. We, therefore, dissolve the
constructive trust upon RDIL's $1.3 million and set aside the jury's award of RICO damages.
____________
105 Nev. 417, 417 (1989) Vancheri v. GNLV Corp.
ALFONSO VANCHERI, Appellant, v. GNLV CORP., dba GOLDEN NUGGET HOTEL
AND CASINO, Respondent.
No. 18899
June 30, 1989 777 P.2d 366
Appeal from an order of the district court dismissing the action pursuant to NRCP 41(b),
and an order denying a motion for a new trial. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Former employee brought action against former employer alleging wrongful termination,
breach of express and implied oral contract of employment, and breach of implied covenant
of good faith and fair dealing. The district court dismissed action. Former employee appealed.
The Supreme Court held that: (1) employer's general expressions of long-term employment or
job advancement did not convert at-will employment contract into termination only for cause
contract, and (2) employer's establishment of standard disciplinary procedures for employees
was insufficient to convert at-will employee to employee who could be fired only for
cause.
to convert at-will employee to employee who could be fired only for cause.
Affirmed.
Barker, Gillock, Koning, Brown & Earley, and James P. Chrisman, and Robert E. Estes,
Las Vegas, for Appellant.
Hunterton & Naylor, and William Carl Carrico, Las Vegas, for Respondent.
1. Trial.
Involuntary dismissal is properly granted when plaintiff fails to prove sufficient case based on facts and law before court. NRCP
41(b).
2. Appeal and Error; Trial.
In ruling upon motion for involuntary dismissal, plaintiff's evidence must be accepted as true and both trial court and Supreme
Court must draw all permissible inferences in plaintiff's favor and not pass upon credibility of witnesses nor weigh evidence. NRCP
41(b).
3. Evidence.
Question of sufficiency of evidence does not turn on whether trier of fact will make desired finding; therefore, witness credibility
and weight of evidence are not of consequence in presentation of prima facie case.
4. Evidence.
When recognized, presumption not only fixes burden of going forward with evidence, but it also shifts burden of proof.
Employment at will is a contractual relationship governed by contract law.
Employer can dismiss at-will employee with or without cause, so long as dismissal does not offend public policy of state.
7. Estoppel.
Doctrine of promissory estoppel, which embraces concept of detrimental reliance, is intended as substitute for consideration, and
not as substitute or agreement between parties.
Contracts of employment cannot be created by employee's subjective expectations.
9. Estoppel.
General expressions of long-term employment or job advancement did not convert at-will employment contract into termination
only for cause contract based on a theory of promissory estoppel.
Employer's establishment of standard disciplinary procedures for employees was not, in and of itself, sufficient to convert at-will
employee to employee who could be fired only for cause.
11. Civil Rights.
At-will employee failed to present sufficient evidence to establish a prima facie case that he was terminated due to his age so as to
render the termination in violation of public policy of state. NRS 233.010, subd. 1, 613.330, subd. 1(a).
OPINION
Per Curiam:
Alfonso Vancheri (Vancheri) was Food and Beverage Manager at the Fremont Hotel and
Casino. Vancheri resigned his position at the Fremont after being recruited for a managing
maitre d' position at the Golden Nugget Hotel and Casino's (GNLV) new gourmet restaurant.
The maitre d' position salary paid roughly one half the salary Vancheri was making at the
Fremont; however, as maitre d', Vancheri could substantially augment his salary with
gratuities. Vancheri was not employed under a written employment contract, but when he
came to work at GNLV, he was told by members of executive management that he would
have a long and successful association with the GNLV family.
As manager, Vancheri had authority to discipline the employees working in the gourmet
room. GNLV had an established disciplinary procedure whereby a verbal warning was given
first, followed by a written warning, if the conduct necessitating discipline continued. If the
unacceptable conduct continued, the employee was warned in writing again, and was subject
to a two week suspension from work. If the conduct continued beyond the third warning, the
employee was subject to termination.
1

Following the established disciplinary procedures, Vancheri placed a waiter, Mark Kaiser,
on a two week suspension. Kaiser was related to a GNLV upper level management employee.
Upon being notified that he was being suspended for two weeks, Kaiser told Vancheri, This
will never happen. I will see about this . . . you won't last to see this. Within forty-eight
hours Vancheri was summoned to the office of Robert Goldstein, Senior Vice President of
Operations for GNLV. Goldstein told Vancheri that word came down that it would be best if
[Vancheri would] resign voluntarily. Vancheri did resign.
Vancheri sued GNLV for wrongful termination, alleging breach of an express and implied
oral contract of employment, and breach of the implied covenant of good faith and fair
dealing. This action was tried before a jury, where Vancheri offered evidence in order to rebut
the presumption of at-will employment. At the conclusion of Vancheri's case in chief, GNLV
moved for dismissal of the action pursuant to NRCP 41{b).
__________

1
Linda Horn, GNLV Employee Relations Manager, testified that GNLV's policy was to give employees
written notices for violations of hotel policy and regulations before they were terminated. She also testified that
she processed at least one hundred such warnings per week, and that GNLV terminated one hundred employees
per month for violations of policy and rules.
moved for dismissal of the action pursuant to NRCP 41(b). The district court granted the
motion to dismiss, finding that Vancheri failed to present any evidence that would provide a
basis for finding an express or implied employment contract. Vancheri moved for a new trial
pursuant to NRCP 59(a), alleging that the district court erred when ruling on the NRCP 41(b)
motion by considering the weight of the evidence and the credibility of the witnesses. The
district court denied the motion.
Vancheri contends that the district court erred by dismissing his claim. He asserts that he
presented a prima facie case in rebuttal of the at-will presumption, and therefore was entitled
to have the case go to the jury for determination.
[Headnotes 1, 2]
In Nevada, involuntary dismissal pursuant to NRCP 41(b) is properly granted when the
plaintiff fails to prove a sufficient case based on the facts and law before the court. Bates v.
Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968). In ruling upon a
motion for involuntary dismissal under NRCP 41(b), plaintiff's evidence must be accepted as
true, both the trial court and this court must draw all permissible inferences in his favor and
not pass upon the credibility of witnesses nor weigh the evidence. Id., 441 P.2d at 624; Cf.
Roche v. Schwartz, 82 Nev. 409, 412, 419 P.2d 779, 781 (1966) (judge not to weigh or
compare inferences in favor of one party and against other, conflicting inferences from known
facts for jury determination).
[Headnote 3]
Vancheri's burden below was to introduce sufficient evidence to establish a prima facie
case rebutting the at-will presumption. Hernandez v. City of Reno, 97 Nev. 429, 433, 634
P.2d 668, 671 (1981). A prima facie case is defined as sufficiency of evidence in order to
send the question to the jury. 9 Wigmore, Evidence, 2494 (Chadbourn rev. 1981). The
question of sufficiency of the evidence does not turn on whether the trier of fact will make the
desired finding. Therefore, a witness's credibility and the weight of the evidence are not of
consequence in the presentation of a prima facie case. Id.
[Headnote 4]
The at-will presumption is not enumerated in NRS 47.250 as a disputable presumption.
This court has held, however, that NRS 47.250 is illustrative and not exclusive. Privette v.
Faulkner, 92 Nev. 353, 357, 550 P.2d 404, 406 (1976). Nevada courts have consistently
employed the at-will presumption as a civil disputable presumption. Smith v. Cladianos, 104
Nev. 67, 752 P.2d 333 (1988); K Mart v. Ponsock, 103 Nev. 39, 732 P.2d 1364 {19S7).
(1987). Once recognized, a presumption not only fixes the burden of going forward with
evidence, but it also shifts the burden of proof. Faulkner, 92 Nev. at 359, 550 P.2d at 408.
[Headnotes 5, 6]
Employment at-will is a contractual relationship and thus governed by contract law.
Smith v. Cladianos, 104 Nev. 67, 752 P.2d 233. An employer can dismiss an at-will
employee with or without cause, so long as the dismissal does not offend a public policy of
this state. Ponsock, 103 Nev. at 47, 732 P.2d at 1369. Vancheri maintains that he presented
evidence to support three alternative theories to rebut the at-will presumption: promissory
estoppel, existence of an established procedure for termination, and a violation of public
policy.
Vancheri contends that a contract not to terminate but for cause existed in view of the
parties' statements and conduct. He testified that GNLV management told him that he would
have a great future, and that there was potential for advancement within the hotel. The
president of GNLV welcomed Vancheri to the family, and told Vancheri that he had a great
future with the business. Vancheri indicated that he relied, to his detriment, on the statements
of GNLV management by leaving his job at the Fremont for a lower paying job at the Golden
Nugget.
[Headnote 7]
The doctrine of promissory estoppel, which embraces the concept of detrimental reliance,
is intended as a substitute for consideration, and not as a substitute for an agreement between
the parties. Kruse v. Bank of America, 248 Cal.Rptr. 217 (Ct.App. 1988), cert denied, 109
S.Ct. 869, 870 (Cal. 1989); Smith v. Boise Kenworth Sales, 625 P.2d 417, 422 (Idaho 1981);
Restatement (Second) of Contracts 90(1) (1973). Accordingly, the first prerequisite of the
agreement is a promise. Irwin Concrete, Inc. v. Sun Coast Properties, Inc., 653 P.2d 1331,
1337 (Wash.Ct.App. 1982). In order for GNLV to be held liable based upon promissory
estoppel, Vancheri must have shown that GNLV's conduct expressed an intention to create
something other than an at-will employee relationship.
[Headnote 8]
Vancheri testified that it was his understanding that the employment was for a fixed
period. He failed, however, to offer any independent evidence indicating the terms of an
employment contract. Contracts of employment cannot be created by the subjective
expectations of an employee. Roberts v. Atlantic Richfield Co., 568 P.2d 764, 769 (Wash.
1977); Schwartz v. Michigan Sugar Co., 308 N.W.2d 459, 462 (Mich.Ct.App. 1981).
[Headnote 9]
Vancheri was never told that his employment would be terminated only for cause or that
he would have employment for life or a specified period of time. General expressions of long
term employment or job advancement do not convert an at-will employment contract to a
termination only for cause contract. Having not shown that a definitive promise was made to
him, Vancheri failed to establish a primary element of promissory estoppel.
[Headnote 10]
Next, Vancheri contends that his status as an at-will employee was modified to a
termination only for cause employee by GNLV's established disciplinary procedure. There
was uncontroverted evidence that GNLV had a disciplinary procedure in place at the time
Vancheri was fired, but it was not followed in his discharge.
2
It is not clear, however,
whether this disciplinary procedure applied to Vancheri in his capacity as a manager.
Standardized disciplinary procedures are generally positive additions to a business. They
provide employers a method of cautioning employees, and afford employees an opportunity
to improve job performance in order to retain employment. They also create a general
consistency and security in the work place. If we were to hold that the establishment of
standard disciplinary procedures for employees is, in and of itself, sufficient to convert an
at-will employee to an employee who can be fired only for cause, employers would be
reluctant to continue to establish them.
Based upon the law and policy considerations, we hold that general expressions of job
longevity and advancement, and the established disciplinary procedure as described in this
case, are not, as a matter of law, sufficient to establish a prima facie case rebutting the at-will
employment presumption.
[Headnote 11]
Vancheri's third theory is based on public policy. Vancheri claims that he was terminated
due to his age, and, therefore, his termination was discriminatory and in violation of the law
and public policy of this state. This court has recognized that the at-will employment rule is
subject to limited exceptions founded on strong public policy.
__________

2
The disciplinary procedure was not set forth in an employee handbook or express employment contract.
Vancheri testified that the disciplinary procedure was explained to him, and that he followed it, with
management's support, in the discipline of other employees working under his supervision. Vancheri offered an
inter-company memo, from the personnel department to the gift shop, that outlined the disciplinary procedure as
established by testimony.
strong public policy. Hansen v. Harrah's, 100 Nev. 60, 63 675 P.2d 394, 396 (1984); Ponsock,
103 Nev. at 47, 732 P.2d at 1369. Age based discrimination is prohibited by statute. See NRS
233.010(1); NRS 613.330(1)(a). Without determining whether such an exception should be
recognized for age discrimination, we agree with the district court that Vancheri failed to
present sufficient evidence to establish a prima facie case of age based discrimination.
Vancheri did not offer evidence of his age at trial. Additionally, GNLV offered evidence
showing that Vancheri's replacement was older than Vancheri. Thus, Vancheri's claim of age
based discrimination lacks merit. Cf. Apeceche v. White Pine Co., 96 Nev. 723, 726, 615
P.2d 975, 977 (1980) (employee carries initial burden establishing prima facie case of
discrimination by proving membership in protected class). The district court properly found
that as a matter of law no questions of public policy were put at issue by Vancheri's
discharge.
Having closely considered the issues presented here on appeal, we hold that Vancheri
failed to establish a prima facie case under any of his three theories. Accordingly, the district
court properly granted GNLV's motion for involuntary dismissal pursuant to NRCP 41(b) and
denied Vancheri's motion for a new trial.
The orders of the district court, dismissing the action and denying a new trial, are affirmed.
____________
105 Nev. 423, 423 (1989) Trident Construction v. West Electric
TRIDENT CONSTRUCTION CORP., a Nevada Corporation, ANDREW DeLILLO, SR.,
and VINCENT J. DeLILLO, Appellants, v. WEST ELECTRIC, INC., a Nevada Corporation,
Respondent.
No. 19097
June 30, 1989 776 P.2d 1239
Appeal from a final judgment and an order of the district court denying a motion to amend
the findings of fact and conclusions of law. Eighth Judicial District Court, Clark County;
Stephen Huffaker, Judge.
After electrical subcontractor was not paid any amount under settlement, subcontractor
brought action against owner corporation, general contractor, and shareholders of owner
corporation and general contracting corporation. The district court found that general
contractor and shareholders were individually, jointly and severally liable to subcontractor.
Those defendants appealed. The Supreme Court held that: (1) general contractor was liable
pursuant to subcontract agreement; (2) shareholders were not personally liable; {3)
contractor was not liable on subsequent oral agreement between owner and
subcontractor; and {4) subcontractor was not entitled to award of attorney fees.
ally liable; (3) contractor was not liable on subsequent oral agreement between owner and
subcontractor; and (4) subcontractor was not entitled to award of attorney fees.
[Rehearing denied November 21, 1989]
Leslie M. Stovall, Las Vegas; Wells, Kravitz, Schnitzer, Sloan & Lindsey, Las Vegas, for
Appellants.
George D. Frame, Las Vegas, for Respondent.
1. Contracts.
Evidence supported finding that remodeling supervisor was working as general contractor; supervisor contracted for work,
obtained building permits, accepted bids, supervised work, and paid subcontractor. NRS 624.020.
2. Corporations.
Failure of officers signing contract to add their title of office is not ordinarily fatal to validity of corporate contract.
3. Corporations.
Where contract on its face is a contract of the corporation and the other parties have notice of officer's relation to corporation,
contract will be upheld despite officer's failure to add his title of office to signature.
4. Contracts.
If the intent to make a corporate contract appears from the acts of the parties and the entire circumstances taken together with the
subject matter of the deal, a corporate officer signing in his individual name only does not necessarily show that the person was acting
in other than his official capacity for the corporation.
5. Contracts.
It is incumbent upon one seeking to extend personal liability to corporate officer for corporate debt, to show by preponderance of
evidence, that officer intended to be personally bound, and that creditor was looking to officer as guarantor of the debt.
6. Contracts.
Corporation officer's signature, without a statement acknowledging he was acting for the corporation, was insufficient to support a
finding of personal guarantee for debt of corporation, absent evidence officer intended to be personally bound, or that creditor was
looking to officer as guarantor of debt.
7. Contracts.
No evidence supported imposition of liability on general contractor for amount owed electrical subcontractor pursuant to
subsequent oral contract between owner and subcontractor.
8. Costs.
Defense raised by shareholders of property owner was not without reasonable ground or to harass electrical subcontractor, and
because subcontractor recovered more than $20,000 by way of judgment, subcontractor was not entitled to award of attorney fees. NRS
18.010, subd. 2(b).
OPINION
Per Curiam:
A.V.A. Enterprises, Inc. (AVA) acquired the Polynesian Hotel and Casino in Las Vegas, in
May of 1985. Vincent DeLillo and Andrew DeLillo, Sr. were the only shareholders of AVA.
Trident Construction Corp., (Trident) entered into a standard form owner/contractor
agreement with the Polynesian Hotel, whereby Trident was to supervise a large scale remodel
of the casino. Trident obtained the necessary building permits, which, on their face, named
Trident as the contractor. The permits indicated that the owner of the job site was the
Polynesian Casino.
Trident entered into a written subcontract agreement with West Electric, Inc. (West) to
perform electrical work at the Polynesian Hotel for $48,775.00. Trident paid West $15,000.00
from Trident's general checking account as a progress payment. West completed the project,
but received no further compensation, leaving an outstanding balance of $33,775.00 After
completing its contract with Trident, West entered into an oral agreement with AVA to
perform additional work on the casino. AVA also failed to pay West leaving a balance owed
on the second contract of $4,975.00.
West timely filed a mechanic's lien against AVA and the Polynesian Hotel for the
outstanding debt. Thereafter, West entered into a settlement agreement with the Polynesian
Hotel, whereby West would accept $28,500.00 in satisfaction of the outstanding debt and
would release its lien against the hotel. The parties executed the settlement agreement on
Polynesian Hotel stationery, and provided that the Polynesian Hotel would be obligated under
the agreement. Vincent DeLillo signed the agreement without indicating his capacity as an
officer of AVA. Although West released its lien, it never received any of the $28,500.00.
West sued Trident, the Polynesian Hotel, AVA Enterprises, Inc., James Donofrio and and
the Estate of Frances Donofrio, individually, and as owners of Trident, and Vincent DeLillo
and Andrew DeLillo, Sr., individually, and as owners of AVA. The complaint alleged that
AVA Enterprises was a corporation doing business in Nevada. The district court granted a
motion for summary judgment as to the Donofrios individually, upon a showing that Trident
was a corporation in good standing with the Nevada Secretary of State.
After trial on the merits, the district court found that Trident was the general contractor of
the Polynesian Hotel project, that West was a subcontractor, and that Trident and the DeLillos
individually were jointly and severally liable to West.
Trident and the DeLillos moved the district court to amend its findings of fact and
conclusions of law, asserting that the district court failed to set forth sufficient facts upon
which the court relied to support its judgment against them, as mandated by NRCP 52(a). The
district court denied their motion.
The Liability of Trident
This court has held numerous times that findings of fact and conclusions of law must be
upheld if supported by substantial evidence, and may not be set aside unless clearly
erroneous. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 734 P.2d 1236
(1987); Ivory Ranch, Inc. v. Quinn River Ranch, Inc., 101 Nev. 471, 705 P.2d 673 (1985);
Joseph F. Sanson Inv. Co. v. Cleland, 97 Nev. 141, 625 P.2d 566 (1981); Landex, Inc. v.
State ex rel. List, 94 Nev. 469, 582 P.2d 786 (1978). Additionally, in the absence of express
findings of fact by the district court, the supreme court will imply findings where the
evidence clearly supports the judgment. Cooper v. Pacific Auto. Ins. Co., 95 Nev. 798, 603
P.2d 281 (1979).
[Headnote 1]
Specifically, Trident contends that the evidence does not support a finding that it was
working as a general contractor. Trident maintains that it was merely the construction
coordinator, and therefore, was in an agency relationship with AVA. We find it unnecessary
to consider whether Trident was a general contractor or a construction coordinator, and
consider only whether substantial evidence supports the judgment.
Trident contracted with West for the work. AVA was not a party to that contract. Trident
obtained the building permits, accepted the bids and supervised all work, and paid West out
of its general account. NRS 624.020 provides in relevant part:
2. A contractor is any person, . . . acting solely in his professional capacity, who in
any capacity other than as the employee of another with wages as the sole
compensation, undertakes to, . . . construct, alter, repair, . . . any building . . . or other
structures or works in connection therewith. Evidence of the securing of any permit
from a governmental agency . . . shall be accepted by . . . any court of this state as
prima facie evidence that the person securing such permit . . . is acting in the capacity
of a contractor. . . .
4. A contractor within the meaning of this chapter includes a construction manager
who performs management and counseling services on a construction project for a
professional fee.
(Emphasis added.)
Although not specifically set out in the findings of fact and conclusions of law, the district
court considered the evidence before it and determined that Trident did not carry its burden in
light of the prima facie case against it. The district court's finding that Trident was the general
contractor on the Polynesian Hotel project was supported by substantial evidence. Where the
trial court, sitting without a jury, makes a determination predicated upon conflicting evidence,
that determination will not be disturbed on appeal where supported by substantial evidence.
Dickstein v. Williams, 93 Nev. 605, 608, 571 P.2d 1169, 1171 (1977).
The Liability of the DeLillos
The district court additionally found that Vincent DeLillo and Andrew DeLillo, Sr.,
individually, were jointly and severally liable with Trident for $38,541.25, plus interest. The
DeLillos contend that the district court erred in so finding. According to the DeLillos, the
district court did not set forth any facts in its findings of fact and conclusions of law
supporting its determination that the DeLillos personally guaranteed a corporate debt of
AVA.
Extension of personal liability to Vincent DeLillo is based on his signature appearing on
the settlement agreement, without reference to his corporate capacity. Consequently, we must
decide whether Vincent DeLillo's signature, without a statement acknowledging that he was
acting for the corporation, is sufficient evidence to support a finding of personal guaranty for
the debts of AVA.
[Headnotes 2-4]
Failure of the officer signing a contract to add their title of office is not ordinarily fatal to
the validity of a corporate contract. Kenneally v. First National Bank of Anoka, 400 F.2d 838,
841 (8th Cir. 1968) (the omission of the signer's title will not affect the validity of the
instrument where it is clear the instrument was signed in an official capacity), cert. denied,
393 U.S. 1063 (1969). Where the contract on its face is a contract of the corporation and the
other parties have notice of the officer's relation to the corporation, the contract will be
upheld. Gulf & Basco Co. v. Buchanan, 707 S.W.2d 655 (Tex.Ct.App. 1986).
1
If the intent
to make a corporate contract appears from the acts of the parties and the entire
circumstances taken together with the subject matter of the deal, a corporate officer
signing in his individual name only does not necessarily show that the person was acting
in other than his official capacity for the corporation.
__________

1
The court in Buchanan noted:
A survey of authorities treating the manner of execution of agreements indicates that there is no clear
mode of signature that will absolutely fix or avoid personal liability. A signature followed by corporate
office will result in personal liability where the individual is clearly designated
the intent to make a corporate contract appears from the acts of the parties and the entire
circumstances taken together with the subject matter of the deal, a corporate officer signing in
his individual name only does not necessarily show that the person was acting in other than
his official capacity for the corporation. 7 Fletcher, Cyclopedia of the Law of Private
Corporations 3035 (1988).
[Headnote 5]
In Rowland v. Lepire, 99 Nev. 308, 662 P.2d 1332 (1983), this court enunciated the
standard of proof for showing alter ego based on an allegation of undercapitalization. [I]t 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. Id. at 317, 662 P.2d at 1337. By analogous reasoning, we believe it is incumbent
upon the one seeking to extend personal liability to an officer of a corporation for a corporate
debt, to show by a preponderance of the evidence, that the officer intended to be personally
bound, and that the creditor was looking to the officer as the guarantor of the debt.
[Headnote 6]
The agreement bearing Vincent DeLillo's signature was on Polynesian Hotel letterhead.
The language of the settlement agreement expressly obligated the Polynesian Hotel. It is clear
from his testimony that Mr. West was looking to AVA for payment, and not to the DeLillos
personally. Additionally, respondent did not offer proof that AVA was not a valid
corporation.
The record is not clear upon what other evidence, if any, the district court relied when
assessing personal liability. Facts supporting findings may not be implied when the record is
unclear as to what those facts were. Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970).
Findings of fact can only be set aside when they are clearly erroneous, and not supported by
substantial evidence. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 734 P.2d
1236 (1978). Vincent DeLillo's failure to indicate his corporate capacity is not substantial
evidence demonstrating his intent to be personally liable. Accordingly, we reverse the district
court's finding that extended personal liability to Vincent DeLillo for the corporate debt of
AVA.
__________
within the instrument as personal surety for the principal. (Citations omitted). Yet this court has held that
the failure of a corporate officer to affix his corporate capacity to his signature does not make it a
contract of the individual officer where the contract on its face is a contract of the corporation and the
other parties have notice of his relation to the corporation.
707 S.W.2d at 657, 658.
court's finding that extended personal liability to Vincent DeLillo for the corporate debt of
AVA.
Andrew DeLillo, Sr.'s only association with this case was found in the complaint, where he
was named individually, and doing business as AVA. The record does not mention Andrew
DeLillo, Sr. in any meaningful context. Respondent presented no evidence showing Andrew's
relationship to AVA, nor did respondent present any evidence showing that AVA was not a
valid corporation. No documents were presented bearing his signature. Consequently, this
court is not faced with whether there was substantial evidence to support the judgment, but
rather whether the judgment was supported by any evidence at all. We conclude that it was
not, and therefore, the judgment is clearly erroneous. Pandelis Constr. Co., 103 Nev. 129,
734 P.2d 1236. Accordingly, we reverse the district court's finding that Andrew DeLillo, Sr.
was personally liable for the corporate debts of AVA.
Liability for Additional Work Performed
[Headnote 7]
The district court imposed liability against Trident and the DeLillos, jointly and severally,
for the total amount owed on all work performed by West on the Polynesian Hotel. Trident
was a party to the original subcontractor agreement only; it was not involved with West's
subsequent contract with AVA. No evidence supports imposition of liability on Trident for
any of the amount owed pursuant to the subsequent oral contract between AVA and West.
Attorney Fees
[Headnote 8]
The district court awarded $11,000.00 in attorney fees to West. The district court did not
set forth any basis for this award in its findings. From a review of the record it is not clear
that the defense imposed by the DeLillos was without reasonable ground or to harass the
prevailing party. See NRS 18.010(2)(b). Therefore, this court cannot imply the facts
supporting the award of attorney fees. Pease, 86 Nev. 195, 467 P.2d 109. Additionally, West
recovered more than $20,000.00 by way of judgment. West therefore is not entitled to an
award of attorney fees in this case. See, Guild, Hagen & Clark, Ltd. v. First Nat'l Bank, 95
Nev. 621, 600 P.2d 238 (1979); NRS 18.010.
CONCLUSION
The district court order denying Trident's motion to amend the findings of fact and
conclusions of law is affirmed.
findings of fact and conclusions of law is affirmed. The judgment of the district court
imposing personal liability on Vincent DeLillo and Andrew DeLillo, Sr. is reversed. Trident
is liable for damages pursuant to the subcontractor agreement between Trident and West.
Trident is not liable for the damages pursuant to the subsequent oral contract between AVA
and West. The award of attorney fees is reversed.
We remand this case to the district court for modification of the judgment in accordance
with this opinion.
____________
105 Nev. 430, 430 (1989) Drury v. Lang
JOANNE DRURY, Appellant, v. CECIL S. LANG, Respondent.
No. 18787
July 6, 1989 776 P.2d 843
Appeal from judgment terminating appellant's parental rights. Fifth Judicial District Court,
Nye County; William P. Beko, Judge.
Father brought action to terminate mother's parental rights. The district court held for
father, and mother appealed. The Supreme Court held that mother's failure to communicate
with her children for period of six months was not sufficient as matter of law to support
termination of her parental rights, on ground that her behavior evinced settled purpose to
abandon children.
Reversed and remanded with directions.
William R. Phillips & Associates and Ralph G. Dawson, Las Vegas, for Appellant.
Rick Lawton, Fallon, for Respondent.
Infants.
Parent's failure to communicate with her children for period of six months was not sufficient as matter of law to support
termination of her parental rights, on ground that her behavior evinced settled purpose to abandon children. NRS 128.108, subd. 6.
OPINION
Per Curiam:
The primary issue in this appeal is whether a parent's failure to communicate with her
children for a period of six months is sufficient as a matter of law to support a determination
that the parent's behavior evinces a settled purpose to abandon the children.
105 Nev. 430, 431 (1989) Drury v. Lang
parent's behavior evinces a settled purpose to abandon the children. We conclude that it is
not, and reverse the district court's judgment terminating appellant's parental rights.
FACTS
Appellant Joanne Drury (Joanne) and respondent Cecil S. Lang (Cecil) were married on
September 4, 1976. On August 10, 1983, Joanne was granted a decree of divorce on grounds
of irreconcilable differences. The district court awarded Cecil custody of the parties' twin
children, then age six, and awarded Joanne reasonable visitation privileges. Cecil neither
sought nor did the district court award him child support. Both parties subsequently married
other people. Cecil continued to reside in Tonopah with the parties' children, his present wife,
and her two children. Joanne remained in Tonopah until September, 1985, and, thereafter,
lived in New Mexico, Colorado, and Goldfield, Nevada. Joanne returned to Tonopah in
November, 1986, after Cecil petitioned the district court to terminate her parental rights.
The gravamen of Cecil's petition was that Joanne left the children in the custody of another
without provision for their support and without communication for a period of more than six
months. See NRS 128.012(2). Contending that she had endeavored to maintain contact with
the children since the divorce, but that Cecil increasingly frustrated her efforts, Joanne
opposed Cecil's petition. Joanne disputed Cecil's averment that she had not communicated
with the children for six months, and supported her opposition to his petition with an affidavit
which detailed her efforts to maintain contact with the children, as well as with telephone
billings for the months of April and May, 1986, which indicated long distance calls of
relatively short duration from her to Cecil's residence.
Although the hearing on Cecil's petition was not recorded, the district court minutes reflect
that both parties appeared and were represented by counsel, called witnesses, and offered
exhibits.
1
Approximately nine months after the hearing, the district court issued its
Memorandum of Decision and Order, which, according to the court, was based on clear
and convincing evidence.2 The district court initially observed that the parties' divorce
decree did not impose upon Joanne an obligation of support.
__________

1
Despite the absence of a transcript of the proceedings below, Joanne's counsel did not submit to this court a
settled and approved statement of the evidence adduced at trial as provided for in NRAP 10(c). We express no
opinion on whether this omission was due to economic factors, appellate tactics, or attorney neglect. Although
NRAP 10(c) is framed in the permissive, we strongly recommend, particularly in matters as serious as the
termination of a parent's rights, that counsel follow the procedure set forth in the rule when the proceedings
below are unreported.

2
For purposes of our decision we accept as correct the district court's findings and characterization of the
evidence. See City of Las Vegas v. Bolden, 89 Nev. 526, 526 P.2d 110 (1973) (this court will assume that record
supports lower court's findings when evidence upon which judgment rests is not included in the record on
appeal).
105 Nev. 430, 432 (1989) Drury v. Lang
Approximately nine months after the hearing, the district court issued its Memorandum of
Decision and Order, which, according to the court, was based on clear and convincing
evidence.
2
The district court initially observed that the parties' divorce decree did not impose
upon Joanne an obligation of support. It therefore concluded that Cecil's allegation of
abandonment premised on failure to support was meritless. The district court then focused on
the six month period immediately preceding Cecil's filing of the petition on September 17,
1986. Finding that [i]f any communication occurred during the subject period, it could be
generously characterized as only a token effort not likely to have led to enhancing the
parent-child relationship, the district court concluded that Joanne's lack of communication
evinced a settled purpose to abandon the children.
Having found what it considered to be the requisite jurisdictional grounds for termination
of Joanne's parental rights, i.e., abandonment, the district court next determined that
dispositional grounds were also present. Based on its findings that the children have become
integrated into a stable environment . . . , and that [t]heir obvious previous insecurity has
been replaced by an atmosphere which is free of the discord which permeated their earlier
home, the district court held that the children's best interest would be served by terminating
Joanne's parental rights. This appeal followed.
DISCUSSION
Joanne contends that the district court erred in concluding that her failure to communicate
for a period of six months evinced a settled purpose to abandon the children. In Joanne's
view, a mere six month lapse in communication is insufficient as a matter of law to establish
a parent's intent to abandon her children. We agree.
At the time of the hearing on Cecil's petition, NRS 128.105 provided in pertinent part:
An order of the court for termination of parental rights may be made on the grounds
that the termination is in the child's best interest in light of the considerations set forth
in this section of NRS 128.106, 128.107 and 128.108:
1. Abandonment of the child;
. . . .
5. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
. . . .
6. With respect to termination of the parental rights of one parent, the abandonment
by that parent.
105 Nev. 430, 433 (1989) Drury v. Lang
Although the district court characterized Joanne's attempts at communication with the
children as token effort[s] not likely to have led to enhancing the parent-child relationship,
it did not specifically base its finding of jurisdictional grounds, and we believe correctly so,
on subsection 5 of NRS 128.108, supra. See Champagne v. Welfare Division, 100 Nev. 640,
646, 691 P.2d 849, 854 (1984) (Whatever token efforts' might mean, we read NRS 128.105
as a whole to mean termination of parental rights is to be based on substantial abandonment,
neglect, parental unfitness or child abuse.). (Emphasis added.) Instead, it presumably found
that Joanne had abandoned the children. Cf. NRS 128.108(6), supra.
The term abandonment of a child as used in NRS 128.105 is defined as any conduct . . .
which evinces a settled purpose . . . to forego all parental custody and relinquish all claims to
the child. NRS 128.012(1). While abandonment is determined by the facts in each case,
Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970), in every previous case in which
we have upheld a trial court's finding of abandonment something more than a mere failure to
communicate for a six month period was present. See, e.g., Champagne, 100 Nev. at 640, 691
P.2d at 849 (failure to support, neglect and parental unfitness established); Pyborn v.
Quathamer, 96 Nev. 145, 605 P.2d 1146 (1980) (no real effort to communicate for ten month
period and only token efforts to support during same period); Sernaker, 86 Nev. at 277, 468
P.2d at 5 (failure to communicate with and to support child); Casper v. Huber, 85 Nev. 474,
456 P.2d 436 (1969) (failure to provide proper parental care, custody, guidance, maintenance
or support, and child suffered severe environmental deprivation); Carson v. Lowe, 76 Nev.
446, 357 P.2d 591 (1960) (parent's efforts to communicate with child over three to four year
period were meager and parent did not provide support). Indeed, before a parent's intent to
abandon her child is presumed by statute, the parent must have left the child in the care and
custody of another without provision for his support and without communication for a period
of 6 months. . . . NRS 128.012(2) (emphasis added).
Because termination of a parent's rights to her child is tantamount to imposition of a civil
death penalty, we have previously declared that the degree and duration of parental fault or
incapacity necessary to establish jurisdictional grounds for termination is greater than that
required for other forms of judicial intervention. Champagne, 100 Nev. at 648, 691 P.2d at
854-55. In our view, a six month lapse in communication, without more, is insufficient as a
matter of law to support a finding that a parent has demonstrated a settled purpose to abandon
her children.
105 Nev. 430, 434 (1989) Drury v. Lang
CONCLUSION
Based on the foregoing, we conclude that the district court erred in determining that
jurisdictional grounds for termination were present here.
Our determination of the jurisdictional grounds issue obviates the necessity of deciding
whether the district court erred in determining that dispositional grounds were also present.
See id. at 647, 691 P.2d at 854 (when jurisdictional grounds are not found analysis ends and
termination is denied). We note in passing, however, that nothing said herein is intended to
foreclose the district court, upon a proper motion, from imposing reasonable conditions or
restrictions upon Joanne's visitation privileges if required in the children's best interests.
The judgment of the district court is reversed and the cause remanded with directions to
dismiss Cecil's petition.
Steffen, A. C. J., and Springer, Mowbray and Rose, JJ., and Sullivan, D. J.,
3
concur.
____________
105 Nev. 434, 434 (1989) State v. Wilcox
THE STATE OF NEVADA, Appellant, v. RALPH A. WILCOX, Respondent.
No. 19312
July 21, 1989 776 P.2d 549
Appeal from an order of the district court dismissing the criminal information against
respondent. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was charged with forming a conspiracy to cheat at gambling. The district court
granted defendant's motion to dismiss, and State appealed. The Supreme Court held that
defendant could be prosecuted in Nevada, although alleged conspiracy was conceived in
Arizona and defendant might not have committed any acts in Nevada in furtherance of
conspiracy, where other members of conspiracy performed acts in Nevada in furtherance of
conspiracy.
Tufteland, Deputy District Attorney, Clark County, for Appellant.
__________

3
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor
to sit in the place of The Honorable Cliff Young, Chief Justice. Nev. Const. art. VI, 4.
Morgan D. Harris, Public Defender, and Victor John Austin and Mark S. Blaskey, Deputy
Public Defenders, Clark County, for Respondent.
Criminal Law.
Defendant could be prosecuted in Nevada for alleged conspiracy to cheat at gambling, though conspiracy was conceived in
Arizona and defendant might not have committed any acts in Nevada in furtherance of conspiracy, where other members of conspiracy
performed acts in Nevada in furtherance of conspiracy. NRS 465.070, 465.088.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing the criminal information
against respondent. The evidence introduced at the preliminary hearing revealed that
respondent and several other individuals met in Bullhead City, Arizona, and formed a
conspiracy to cheat at gambling. Upon returning to the Nevada Club Casino in Laughlin,
Nevada, other members of the conspiracy committed acts in furtherance of the conspiracy but
respondent arguably did not.
1

Respondent, Ralph Wilcox, was charged by information with one count of conspiracy to
cheat at gambling. See NRS 465.070; 465.088. Thereafter, respondent filed a motion in the
district court to dismiss the information for lack of jurisdiction. He contended that the crime
of conspiracy was completed in Arizona, where the agreement was made, and that only
Arizona could prosecute the crime. See NRS 465.088(2) (a person may be punished for
conspiracy to cheat at gambling whether or not he personally played any gambling game or
used any prohibited device). The district court agreed with this contention, and granted the
motion to dismiss.
Appellant, the State of Nevada, contends that Nevada has jurisdiction to prosecute
respondent for a conspiracy conceived in Arizona, where other members of the conspiracy
performed acts in Nevada in furtherance of the conspiracy. We agree. This court has
previously stated: Even though a crime has been committed, the conspiracy does not
necessarily end, but it continues until its aim has been achieved. Goldsmith v. Sheriff, 85
Nev. 295, 306, 454 P.2d 86, 93 (1969). The conspiracy for which respondent was charged did
not end when the conspirators formed their agreement in Arizona.
__________

1
The conspirators requested a slot machine mechanic to alter the payouts on certain slot machines at the
Nevada Club Casino. Certain members of the conspiracy were later observed playing these slot machines.
agreement in Arizona. The conspiracy continued in Nevada, where respondent's
co-conspirators played the altered slot machines.
Although respondent may not have committed any acts in Nevada in furtherance of the
conspiracy, he became subject to prosecution in this state when his co-conspirators carried
out their criminal design in Nevada. See Pinkerton v. United States, 328 U.S. 640, 646-647
(1946) (so long as the partnership in crime continues, the partners act for each other in
carrying it forward; an overt act of one partner may be the act of all without a new agreement
specifically directed to that act). See also Downing v. United States, 348 F.2d 594 (5th Cir.
1965) (defendant was bound by the unlawful acts and statements of his co-conspirators in
furtherance of the conspiracy, even though such acts and statements took place in another
state out of his presence), cert. denied, 382 U.S. 901. We conclude, therefore, that Nevada
may prosecute respondent for the crime of conspiracy to cheat at gambling. Accordingly, we
vacate the order of the district court dismissing the information against respondent, and we
remand this matter to the district court for further proceedings consistent with this opinion.
Young, C. J., and Steffen, Springer and Mowbray, JJ., and Mosley, D. J.,
2
concur.
__________

2
The Honorable Donald M. Mosley, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
____________
105 Nev. 436, 436 (1989) Sands Regent v. Valgardson
THE SANDS REGENT, a Nevada Corporation, dba THE SANDS RENO HOTEL-CASINO;
ZANTE, INC., a Nevada Corporation, dba THE SANDS RENO HOTEL-CASINO,
Appellants and Cross-Respondents, PETE CLADIANOS, JR., Cross-Respondent, v.
KATHERINE VALGARDSON and LOIS R. METZER, Respondents and
Cross-Appellants.
No. 18887
July 26, 1989 777 P.2d 898
Appeal and cross-appeal from judgment for wrongful discharge. Second Judicial District
Court, Washoe County; Robert Schouweiler, Judge.
Discharged casino dealers brought age discrimination suit and included claims for breach
of contract, wrongful discharge, and bad faith discharge.
bad faith discharge. The district court entered judgment on a jury verdict for the dealers.
Appeal and cross-appeal were taken. The Supreme Court held that: (1) the dealers were
at-will employees and, as such, had no basis to assert breach of contract or bad faith
discharge; (2) the public policy against age discrimination is not so strong and compelling as
to warrant creating an additional exception to the at-will doctrine; and (3) the dealers'
damages under the state and federal age discrimination statute were limited to lost wages and
benefits, plus an equal amount in liquidated damages for the willful violation.
Reversed in part and modified in part; cross-appeal dismissed.
Beckley, Singleton, DeLanoy, Jemison & List and Franny A. Forsman and Charles R. Zeh,
Las Vegas, for Appellants and Cross-Respondents.
Durney & Brennan, Reno, for Respondent and Cross-Appellant Katherine Valgardson.
Goedert & Michaels, Reno, for Respondent and Cross-Appellant Lois R. Metzer.
Casino dealers were at-will employees and, as such, had no basis to assert breach of contract or bad faith discharge.
Public policy against age discrimination is not sufficiently strong and compelling to warrant exception to at-will employment
doctrine. NRS 233.010, subd. 1.
3. Civil Rights.
Casino dealers' damages for age discrimination in violation of state and federal statutes were limited to lost wages and benefits,
plus equal amount of liquidated damages under federal statute. NRS 233.170, 613.420; Fair Labor Standards Act of 1938, 16(b), 29
U.S.C.A. 216(b); Age Discrimination in Employment Act of 1967, 7(b), 29 U.S.C.A. 626(b).
OPINION
Per Curiam:
Terminated after a shift manager explained that they were too old, Valgardson and
Metzer filed an action against appellants (the Sands) seeking both compensatory and punitive
damages. Following a jury verdict and judgment entered in respondents' favor, the Sands has
appealed, urging, inter alia, that the calculation of damages below was in error. On
cross-appeal, Valgardson and Metzer also claim that the damages calculus is incorrect and
specifically take issue with lower court's remittitur of punitive damages.
specifically take issue with lower court's remittitur of punitive damages. Additionally, Metzer
and Valgardson claim that Pete Cladianos should not have been dismissed from this action.
Katherine Valgardson was employed by the Sands as a card dealer from 1982 until
February 23, 1986. She was fifty-eight years old when she was terminated. Lois Metzer was
also a Sands' card dealer and was employed from February 18, 1983, until February 23, 1986.
At the time of her discharge, Metzer was fifty-two years old.
Although the testimony presented below was conflicting, the basic thrust of the evidence
indicated that in February, 1986, Reno in general, and the Sands in particular, were
experiencing a very slow period of economic activity. Charles Kennelly, at the time the Sands
games manager, testified that he told Don Dennis, a Sands shift manager, to lay off three
people. Kennelly denied that he instructed Dennis to dismiss older dealers. Dennis testified
that Kennelly and Cladianos, chief executive officer of the Sands, hired him and that
Cladianos wanted Dennis to clean up the pit
1
by getting rid of the older people and giving
the pit a younger look.
On February 23, 1986, consistent with his understanding of instructions, Dennis fired
Valgardson and Metzer because they were too old. Dennis also told them that if they
protested, the Sands would simply find another reason to dismiss them. Termination slips
were subsequently placed in corresponding Sands' personnel files marked No Rehire and
Quit.
After unsuccessful efforts by the Sands to rehire the dismissed employees, Metzer and
Valgardson filed complaints with the Nevada Equal Rights Commission. However, the
Commission did not pursue the claims. As a result, Valgardson and Metzer brought this
action claiming violations of NRS 613.310 et seq. and the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. 621 et seq. Valgardson and Metzer also sought
common-law relief for breach of contract, public policy wrongful discharge and bad faith
discharge. See K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).
During trial, the claims against Cladianos were dismissed. At the conclusion of the trial,
general verdict forms, which did not delineate theories of recovery, were given to the jury.
The jury returned with a verdict in favor of respondents and awarded Valgardson $80,000,
and Metzer $100,000 in compensatory damages. The jury also awarded a lump sum total of
$875,000 in punitive damages. However, the punitive damages figure was later reduced to
$350,000 after the Sands moved for remittitur.
__________

1
An area in which gaming tables are placed in a casino. Webster's Third New International Dictionary
1724 (1971).
later reduced to $350,000 after the Sands moved for remittitur. Metzer and Valgardson
accepted the remittitur without waiving their rights to cross-appeal.
As previously stated, the Sands urges on appeal that the calculation of damages below was
incorrect. We agree. Specifically, unless the common-law theories of recovery asserted below
are sustainable, Metzer and Valgardson are limited to damages available under their statutory
theories of recovery.
2
We conclude that common-law theories of recovery are not available
to respondents.
[Headnote 1]
First, it is clear that both Valgardson and Metzer were at-will employees and as such,
had no basis to assert breach of contract or bad faith discharge. Specifically, both breach of
contract and bad faith discharge presuppose that the parties had an employment agreement.
See Smith v. Cladianos, 104 Nev. 67, 69, 752 P.2d 233, 235 (1988); K Mart, 103 Nev. at 42,
45, 47-52, 732 P.2d at 1366, 1368, 1369-1373. However, under the facts of this case, Metzer
and Valgardson did not have employment tenure and were not contractually entitled to be
retained unless dismissed for cause. Cf. Id. at 45, 732 P.2d at 1368. Although Metzer and
Valgardson suggest that we look to the Sands employment handbook, we previously stated
in Cladianos that no provision in the handbook modified the Sands' common-law right to
discharge [its employees] at its whim. 104 Nev. at 68-69, 752 P.2d at 234. In short, no
contractual obligation of continued employment existed. See K Mart, 103 Nev. at 46 n. 5, 732
P.2d at 1369 n. 5. Hence, neither breach of contract nor bad faith discharge theories are
sustainable.
[Headnote 2]
Second, we conclude that age discrimination does not fit into the public policy exception
to the at-will employment doctrine. In Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394
(1984), we recognized the presence of tort liability in at-will employment relationships
founded upon strong public policy. The specific problem in Hansen was retaliatory
discharge for filing a workmen's compensation claim. In this case, we are faced with the
challenge of age discrimination. Clearly, Nevada has a public policy against age
discrimination.
3
Nevertheless, we do not perceive that our public policy against age
discrimination is sufficiently strong and compelling to warrant another exception to the
"at-will" employment doctrine.4 Moreover, as noted hereafter, the Legislature has
addressed the gravity of violating Nevada's public policy against age discrimination by
defining the extent of the remedy available to parties injured by such discrimination.
__________

2
The Sands does not challenge respondents' recovery under either the ADEA or under NRS 613.310 et seq.

3
1. It is hereby declared to be the public policy of the State of Nevada to protect the welfare,
prosperity, health and peace of all the
ceive that our public policy against age discrimination is sufficiently strong and compelling to
warrant another exception to the at-will employment doctrine.
4
Moreover, as noted
hereafter, the Legislature has addressed the gravity of violating Nevada's public policy against
age discrimination by defining the extent of the remedy available to parties injured by such
discrimination. We conclude that age discrimination, as objectionable as it may be, does not
rise to the same level as the actionable tortious conduct found in Hansen or K Mart. In so
holding, we reemphasize, as we did in Cladianos, that public policy tortious discharge actions
are severely limited to those rare and exceptional cases where the employer's conduct violates
strong and compelling public policy.
5

[Headnote 3]
Because respondents' common-law claims are unsupportable, only statutory remedies
remain. Under NRS 613.420 and NRS 233.170, respondents were entitled to back pay for a
period not to exceed two years after the date of the most recent unlawful practice. Under the
ADEA, a violating employer is liable for wages and benefits from the date of the wrongful
termination until the date of the trial, in addition to an equal amount of liquidated damages if
the violation was willful. 29 U.S.C. 216(b), 626(b). See Cassino v. Reichhold Chemicals,
Inc., 817 F.2d 1338, 1348-1349 (9th Cir. 1982).
Evidence was presented which indicates that Valgardson is entitled to $34,505.00 in lost
wages and benefits and Metzer is entitled to $62,780.00 in lost wages and benefits. Under the
ADEA and the evidence of willfulness in the record, Valgardson and Metzer are also
entitled to an equal amount of liquidated damages, bringing Valgardson's total damage
award to $69,010.00 and Metzer's total award to $125,560.00.
__________
people of the state, and to foster the right of all persons reasonably to seek, obtain and hold employment
and housing accommodations, and reasonably to seek and be granted services in places of public
accommodation without discrimination, distinction or restriction because of race, religious creed, color,
age, sex, physical or visual handicap, national origin or ancestry (emphasis added).

4
See Fischer v. Sears, Roebuck & Co., 687 P.2d 587, 589 (Idaho App. 1984) (The duty not to discharge an
employee because of age is solely a creature of statute; no such duty existed at common-law which would allow
prosecution of a claim for wrongful discharge from employment because of age.). See also Bonham v. Dresser
Industries, Inc., 569 F.2d 187, 195 (3d Cir. 1977); Johnson v. United States Steel Corp., 202 N.E.2d 816, 818
(Mass. 1964); Fawcett v. G.C. Murphy & Co., 348 N.E.2d 144, 147 (Ohio 1976).

5
See Foley v. Interactive Data Corp., 765 P.2d 373, 376 (Cal. 1988) (But the employer's right to discharge
an at-will' employee is still subject to limits imposed by public policy, since otherwise the threat of discharge
could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action
harmful to the public weal.).
and Metzer are also entitled to an equal amount of liquidated damages, bringing Valgardson's
total damage award to $69,010.00 and Metzer's total award to $125,560.00.
We have carefully considered all other issues raised on appeal and on cross-appeal and
conclude that they lack merit. Accordingly, we dismiss respondents' cross-appeal. Further,
insofar as the verdict and judgment below are inconsistent with our holding, we reverse and
remand to the district court with instructions to enter judgment and award damages to
respondents in accordance with this opinion.
6

____________
105 Nev. 441, 441 (1989) In re Temporary Custody of Five Minors
In the Matter of the Temporary Custody of Five Minor Children. AUGUST H. and LEANN
H., Appellants, v. THE STATE OF NEVADA; WILMA H., MARION H., JAMES
H., SUE ANN H., MARY LOU H., Respondents.
No. 19355
July 26, 1989 777 P.2d 901
Appeal from order granting petition for temporary custody of minor children. Third
Judicial District Court, Lyon County; Mario G. Recanzone, Judge.
District attorney petitioned for temporary custody of minor children who were in
protective custody of the Department of Human Resources, Welfare Division. The district
court granted the petition. Parents appealed. The Supreme Court held that: (1) the order
granting temporary custody, subject to periodic mandatory review and modification, was not
a final, appealable order, but the appeal would be treated as a petition for mandamus; (2) the
preponderance of the evidence standard, rather than the clear and convincing evidence test,
applies to petitions for temporary custody; and (3) substantial evidence supported the
determination that the children had been neglected.
Appeal treated as petition for writ of mandamus, and denied.
Terri Steik Roeser, State Public Defender, and John C. Lambrose, Deputy, Carson City,
for Appellants.
Brian McKay, Attorney General, Carson City; William G. Rogers, District Attorney, and
Eileen Barnett, Deputy, Lyon County; Claassen & Olson, Carson City; Ed Irvin, Fallon, for
Respondents.
__________

6
The Honorable Robert E. Rose, Justice, voluntarily recused himself from participation in the decision of this
appeal.
County; Claassen & Olson, Carson City; Ed Irvin, Fallon, for Respondents.
1. Infants.
Order determining temporary custody of minor children, subject to periodic mandatory review and modification, is not final,
appealable order. NRS 432B.010 et seq., 432B.550, 432B.580, 432B.590.
2. Mandamus.
Parents' attempt to appeal from order determining temporary custody of minor children could be treated as petition for writ of
mandamus; although order was not immediately appealable, order affected custody of children and could have far reaching
consequences for both parents and children. NRS 432B.010 et seq., 432B.550, 432B.580, 432B.590.
3. Infants.
Failure to give parents access to reports that gave rise to Welfare Division's investigation of family did not violate parents'
statutory and constitutional rights in proceedings in which Division obtained temporary custody of children; reports were not before
district court at hearing. NRS 432B.510.
4. Infants.
Requirement that Welfare Division provide parents with plan for services to help family is discretionary and is not prerequisite
to filing of petition for temporary custody. NRS 432B.340, 432B.530.
5. Infants.
Preponderance of evidence standard, rather than clear and convincing evidence standard, applies to proceedings in which Welfare
Division seeks temporary custody of children. NRS 432B.530.
6. Infants.
Substantial evidence supported district court's granting Welfare Division's petition for temporary custody of minor children on
allegations that parents did not properly supervise or control their children; there was evidence that parents were unable to protect
children from each other and failed to teach children basic social skills or to provide any guidance about basic toilet functions and
hygiene, supporting determination that children were neglected. NRS 432B.140, 432B.510.
OPINION
Per Curiam:
On May 6, 1989, the district attorney of Lyon County filed in the district court a petition
for the temporary custody of appellants' five minor children pursuant to NRS 432B.510. The
petition alleged that the four oldest children were the victims of chronic neglect by their
parents and that the children have poor hygiene which has resulted in complaints from school
officials and the Lyon County Sheriff's Department. The petition stated that the children were
in the protective custody of the Nevada Department of Human Resources, Welfare Division,
and requested that the Welfare Division be given temporary custody of the children.
requested that the Welfare Division be given temporary custody of the children. The petition
was later amended to include appellants' youngest child.
On September 13, 1988, after holding an evidentiary hearing, the district court entered an
order directing that all of the children remain in the temporary custody of the Welfare
Division. That order directed the Welfare Division to give extensive visitation rights to
appellants for the following three-month period and to present to the court a report
concerning the family at the end of the three-month period. The order also allowed the
Welfare Division to return the children to the home within the three-month period if it felt
such action was appropriate. Finally, the order set another hearing for the matter. This appeal
followed.
[Headnote 1]
Initially, we note that the proceedings below were conducted pursuant to NRS Chapter
432B. We also note that the order challenged in this appeal determines the temporary custody
of the minor children, and that the order is subject to periodic mandatory review and
modification by the district court. See NRS 432B.550; 432B.580; 432B.590. Thus, the
challenged order of the district court is not a final order. Moreover, we note, and the parties
concede, that no statute or court rule authorizes an appeal from an order of the district court
granting a petition for temporary custody pursuant to NRS Chapter 432B. The right to appeal
is statutory, and where no statute or rule authorizes an appeal, no right to appeal exists. See
Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis,
91 Nev. 24, 530 P.2d 756 (1975). Finally, the periodic review by the district courts of orders
placing minor children in temporary protective custody renders the appellate process
unsuitable for the review of such orders by this court. Under these circumstances, we
conclude that in the absence of a contrary legislative expression, orders granting petitions for
temporary custody pursuant to NRS Chapter 432B are not substantively appealable.
[Headnote 2]
Nevertheless, because the order challenged in this proceeding affects the custody of
children, and may thus have far reaching consequences for both the parents and the children,
we elect to treat the instant appeal as a petition for a writ of mandamus. See Clark County
Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986); Jarstad v. National Farmers Union, 92
Nev. 380, 552 P.2d 49 (1976). Mandamus is an extraordinary remedy, and the decision of
whether to entertain a petition lies within the discretion of this court. See Poulos v. District
Court, 98 Nev. 453, 455, 652 P.2d 1177, 117S {19S2).
652 P.2d 1177, 1178 (1982). Further, mandamus will issue to control an arbitrary or
capricious exercise of discretion by the district court. See Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981). Therefore, this court will not disturb a decision
of the district court regarding the temporary custody of children unless the decision is affected
by a manifest abuse of discretion. See id.; cf. Nichols v. Nichols, 91 Nev. 479, 537 P.2d 1196
(1975) (decision regarding child custody in a divorce action rests in the sound discretion of
the district court and will not be disturbed unless the discretion is clearly abused).
[Headnote 3]
In the present case, appellants assert that the order giving the Welfare Division temporary
custody of the minor children violated their statutory and constitutional rights. Initially,
appellants complain that they were never given access to the reports which gave rise to the
Welfare Division's investigation of the family. We note, however, that the district court
limited the hearing below to allegations that a social worker could testify to directly. Because
the reports which alerted the Welfare Division to the situation in appellants' family were not
before the district court at the hearing below, appellants were not prejudiced by the denial of
access to those reports.
[Headnote 4]
Appellants next assert that NRS 432B.340 requires the Welfare Division to provide them
with a plan for services to help the family prior to instituting an action for temporary
custody.
1
Appellants' contention is without merit. As respondents correctly note, the
provision of a plan for services pursuant to NRS 432B.340 is discretionary; it is not a
prerequisite to filing a petition for temporary custody. Thus, the Welfare Division was under
no statutory obligation to provide appellants with such a plan.
Appellants next complain that the petition for temporary custody contained only
conclusory allegations and thus did not give them sufficient notice of the facts that they
would have to defend against at the hearing on the petition.
__________

1
NRS 432B.340 (emphasis added) provides in pertinent part:
1. If . . . [the Welfare Division] determines that a child needs protection, but is not in imminent
danger from abuse or neglect, it may:
(a) Offer to the parents . . . a plan for services and inform him [sic] that [Welfare] has no legal
authority to compel him [sic] to accept the plan but that it has the authority to petition the court pursuant
to NRS 432B.490 or to refer the case to the district attorney or a law enforcement agency. . . .
. . . .
2. If the parent . . . accepts the conditions of the plan offered by [Welfare] . . . [Welfare] may elect
not to file a petition and may arrange for appropriate services. . . .
them sufficient notice of the facts that they would have to defend against at the hearing on the
petition. Appellants also assert that the hearing on the petition was not held within thirty days
as required by NRS 432B.530. We note, however, that appellants failed to object below to
either the form of the petition or to the hearing date. Under these circumstances, we will not
address these claims of error in this court. Cf. Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 637 P.2d 534 (1981) (claims for extraordinary relief must generally first be
tendered to an appropriate district court); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623
P.2d 981, 983 (1981) (a point not raised in the district court is deemed to have been waived).
[Headnote 5]
Appellants next assert that there is no indication in the documents before this court
whether the district court found clear and convincing evidence supporting its order giving the
Welfare Division temporary custody of the children. Analogizing to cases involving the
termination of parental rights, appellants argue that a petition for temporary custody must be
supported by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745 (1982);
Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984). Respondents correctly
note, however, that NRS 432B.530(5) requires only that the court find a preponderance of
evidence showing that a minor child is in need of protection before issuing an order for
temporary custody. Because an order for temporary custody differs significantly from an
order terminating parental rights, we conclude that the lesser standard is appropriate.
[Headnote 6]
As a final matter, we note that the evidence presented at the hearing below clearly
established that appellants did not properly supervise or control their children. Specifically,
appellants were unable to protect the children from each other and failed to teach the children
basic social skills or to provide any guidance to the children regarding basic toilet functions
and hygiene. Because this evidence was sufficient to show that the children were neglected
under NRS 432B.140,
2
we conclude that the district court did not abuse its discretion when
it granted the petition for temporary custody. Cf. Kobinski v. State, 103 Nev. 293
__________

2
NRS 432B.140 provides in pertinent part:
Negligent treatment or maltreatment of a child occurs if a child . . . is without proper care, control and
supervision or lacks the subsistence, education, shelter, medical care or other care necessary for the
well-being of the child because of the faults or habits of the person responsible for his welfare or his
neglect or refusal to provide them when able to do so.
temporary custody. Cf. Kobinski v. State, 103 Nev. 293, 738 P.2d 895 (1987) (an order
terminating parental rights will be upheld on appeal if it is supported by substantial evidence).
Accordingly, we conclude that our intervention by way of extraordinary writ is not warranted
at this time. Therefore, we deny this petition.
3

____________
105 Nev. 446, 446 (1989) May v. G.M.B., Inc.
DICK MAY and CHRIS MAY, Appellants, v. G.M.B., Inc., Respondent.
No. 18184
July 26, 1989 778 P.2d 424
Appeal from a district court order granting respondent summary judgment and from the
district court's denial of appellants' motion for partial summary judgment. Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
Creditors, to which security interest in debtor's tractor and trailer had been given, brought
action against debtor and another creditor for unlawfully, selling, transferring, or conveying
the vehicles without their consent. The district court granted partial judgment against the
creditors and they appealed. The Supreme Court held that: (1) failure to comply with statute
requiring security interest be noted on motor vehicle titles did not invalidate the security
interest; (2) second creditor was not buyer not in the ordinary course of business entitled to
priority over unperfected security interest; and (3) issues of material fact precluded summary
judgment on conversion claim.
Reversed in part; affirmed in part and remanded for trial.
D. G. Menchetti and Bradley P. Elley, Incline Village, for Appellants.
Folsom and Clark, Reno, for Respondent.
1. Secured Transactions.
Failure to comply with statute requiring certain secured parties to surrender title to pledged vehicle to Department of Motor
Vehicles so that security interest may be noted thereon does not render the security interest void. NRS 482.428.
2. Statutes.
Rights and liabilities of parties both claiming interest in tractor and trailer were not governed solely by statute governing security
interests in motor vehicles; that statute dealt solely with perfection of security interests and did not conflict
with UCC Article 9 in other respects so as to make Article 9 inapplicable. NRS 104.9101 et seq., 4S2.42S;
UCC 9-101 et seq.
__________

3
105 Nev. 446, 447 (1989) May v. G.M.B., Inc.
motor vehicles; that statute dealt solely with perfection of security interests and did not conflict with UCC Article 9 in other respects so
as to make Article 9 inapplicable. NRS 104.9101 et seq., 482.428; UCC 9-101 et seq.
Buyer not in ordinary course of business is entitled to priority over unperfected security interest only to extent that he gives value
and receives delivery of collateral without knowledge of security interest and before it is perfected. NRS 104.9301, subd. 1(c).
Creditor to which tractor and trailer, pledged as collateral to another creditor, were transferred in payment for its loan was not
buyer not in the ordinary course of business entitled to priority over the other creditor's unperfected security interest where it had
knowledge of the earlier security interest. NRS 104.9301, subd. 1(c).
5. Judgment.
Issues of material fact on whether creditor, to which tractor and trailer pledged to another creditor had been transferred, knew of
the other creditor's unperfected security interest before the transfer precluded summary judgment on the other creditor's claim for
conversion.
OPINION
Per Curiam:
THE FACTS
On December 31, 1979, appellants Dick May and Chris May (the Mays) entered into a
contract with D&D Masonry, Inc. (D&D), whereby the Mays agreed to sell 250 shares of
D&D stock to D&D in return for $100,000.00. Pursuant to the contract, D&D gave the Mays
a promissory note for $100,000.00 secured by a floating lien on D&D's equipment.
In March, 1980, the Mays filed with the Secretaries of State of Nevada and California
Uniform Commercial Code (UCC) Financing Statements that were signed by D&D's
principals and that indicated, among other things, the Mays' security interest in D&D's
Peterbilt tractor and Fruehauf trailer. The Mays, however, did not cause the vehicle's titles to
be surrendered to the Departments of Motor Vehicles of Nevada and California, the states
that issued the vehicles' titles respectively, to have the security interests noted thereon.
D&D made payments pursuant to the terms of its contract with the Mays until September,
1982, at which time it defaulted leaving a balance of $42,100.53. At approximately the same
time, D&D, doing business as Sierra Masonry & Fireplace Distributors, became delinquent in
its account with respondent Glass Mountain Block, Inc. (GMB). In time, GMB agreed to
accept D&D's Peterbilt tractor and Fruehauf trailer in satisfaction of D&D's overdue
$33,000.00 account. Prior to the vehicles being transferred, however, Nick Holt, then a
salesman for GMB and now GMB's general manager, learned of the Mays' security
interest.1 GMB acquired the Peterbilt tractor on September 14, 19S3, and the Fruehauf
trailer on October 3, 19S3.
105 Nev. 446, 448 (1989) May v. G.M.B., Inc.
transferred, however, Nick Holt, then a salesman for GMB and now GMB's general manager,
learned of the Mays' security interest.
1
GMB acquired the Peterbilt tractor on September 14,
1983, and the Fruehauf trailer on October 3, 1983. At the time of the transfers, neither
vehicle's title indicated any outstanding liens or encumbrances.
Approximately one year later, the Mays brought suit against Douglas A. Baker, Debra J.
Baker, D&D, and Does I through XV. The complaint alleged that the named defendants
unlawfully sold, transferred or conveyed some or all of the personal property listed on the
UCC Financing Statements without the Mays' authorization, knowledge, or consent, and that
the Doe defendants I through XV unlawfully received possession of and converted the
property. GMB was named as Doe defendant VI by an amendment filed on December 7,
1984.
2

GMB subsequently moved for summary judgment arguing that the Mays had no claim
against it because they failed to perfect their security interest in the manner required by
Nevada and California law. The Mays opposed GMB's motion and filed a cross-motion for
partial summary judgment on their conversion claim. After concluding that the Mays had not
complied with NRS 482.428 and their security agreement was therefore void, the district
court granted summary judgment in GMB's favor.
3
__________

1
Holt stated in his deposition:
A [HOLT]: I was dealing with both sides at that time so I was hearing it from Sierra Masonry. I was
also hearing it from Dick [May]. But regarding Dick, he told me that he had a chattel mortgage or some
kind of a hold on the equipment over there because he had loaned them some money.
Q [MR. MENCHETTI]: Were you aware that Dick had sold his interest in this business to the
Bakers?
A: I wasn't aware of that particularly, no. The only information I had is that Dick had loaned the
Bakers some money.
Q: And you mentioned something about a chattel mortgage?
A: I use that word, I don't think Dick ever used that word. He told me that the equipment over there
was put up as collateral for the money that he had loaned them.
Q: And that was prior to the acquisition of the truck and trailer by Glass Mountain Block?
A: Yes.

2
Pursuant to a stipulation by the parties, the district court, on September 28, 1987, dismissed with prejudice
the actions against Douglas and Debra Baker and D&D.

3
In its entirety, the district court's order provided:
Defendants Bakers owned a Peterbilt truck and Fruehauf trailer which were securing a $100,000 note
to plaintiffs. Apparently defend-
105 Nev. 446, 449 (1989) May v. G.M.B., Inc.
DISCUSSION
1. The Mays contend that the district court erred in declaring that their security agreement
with D&D was void. In the Mays' view, failing to perfect their security interest in the vehicles
would, at most, cause their interest to be subordinated to those persons entitled to priority
under UCC Article 9, NRS 104.9101 et seq. We agree.
[Headnote 1]
The statute on which the district court premised its conclusion that the Mays' security
agreement was void, NRS 482.428, requires certain secured parties to surrender the title to a
pledged vehicle to the Department of Motor Vehicles so that the security interest may be
noted thereon.
4
1. Whenever a security interest is created in a motor vehicle, other than a security
interest required to be entered pursuant to NRS 482.423, 482.424 or 482.425, the
certificate of ownership shall be delivered to the department with a statement signed by
the debtor showing the date of the security agreement, the name of the debtor and the
name and address of the secured party.
2. The department shall issue and deliver to the secured party a certificate of
ownership with the name and address of the secured party noted thereon.
We perceive nothing in NRS 482.428 which supports the district court's conclusion that the
Mays' failure to comply with that statute rendered their security agreement with D&D void.
__________
ants Bakers owed some money to defendant Glass Mountain Block and transferred the truck and trailer to
satisfy this obligation. I am of the opinion that the plaintiffs possessed an imperfect security agreement
because they didn't comply with NRS 482.428. The security agreement is void because the certificate of
ownership wasn't properly surrendered and labeled.
It seems to me that the law requires more than an awareness of collateral to defeat the bonafide [sic]
purchaser's status and a security agreement is not effective. Accordingly, the fact that an agent and
defendant may have been aware of some collateral does not defeat Glass Mountain Block's status as a
bonafide [sic] purchaser. I believe that the Fruehauf trailer is covered by the provisions of NRS 482.428.
Summary judgment should be granted in favor of Glass Mountain Block.
(Emphasis added.)

4
Our review of relevant statutes and case law convinces us that our conclusion would be the same under
either Nevada or California law. Accordingly, and without expressing any view on whether California law
applies to the transactions involving the Fruehauf trailer, we refer solely to Nevada law in this opinion.
105 Nev. 446, 450 (1989) May v. G.M.B., Inc.
Indeed, the parties below did not even argue the validity of the Mays' security agreement.
Rather, as noted above, GMB argued that because the Mays failed to perfect their security
interest in the vehicles the security interest was invalid.
A security agreement is an agreement which creates or provides for a security interest.
NRS 104.9105(1)(1). A security interest, in turn, is an interest in personal property or
fixtures which secures payment or performance of an obligation. . . . NRS 104.1201(36).
Under the UCC as enacted in Nevada, a security interest does not attach, i.e., become
enforceable against a debtor or third parties with respect to the collateral, until there is (1) an
agreement that it attach, (2) value is given, and (3) the debtor has rights in the collateral.
McCorquodale v. Holiday, Inc., 90 Nev. 67, 69, 518 P.2d 1097, 1098 (1974) (citations
omitted); NRS 104.9203. Perfection of a security interest is to be distinguished from its
attachment. See NRS 104.9303.
5
See also J. White & R. Summers, Handbook of Law Under
the Uniform Commercial Code 23-1 (2nd ed. 1980) [hereinafter White & Summers] (The
drafters distinguished attachment of a security interest from its perfection. It is perfection
(filing of a financing statement, taking possession of the collateral, as appropriate, etc.) that
affords maximum secured creditor protection against third parties. . . .).
Perfection of a security interest in a motor vehicle is addressed in NRS 482.432, which
provides:
Compliance with the applicable provisions of NRS 482.423 to 482.431, inclusive, is
sufficient for the perfection and release of a security interest in a vehicle and for
exemption from the requirement of filing of a financing statement under the provisions
of paragraph (b) of subsection 3 of NRS 104.9302. In all other respects the rights and
duties of the debtor and secured party are governed by the Uniform Commercial
CodeSecured Transactions and chapter 97 of NRS to the extent applicable.
(Emphasis added.) Subsection 3 of NRS 104.9302 compliments and expands on NRS
482.432. In pertinent part, NRS 104.9302(3) provides: 3.
__________

5
1. A security interest is perfected when it has attached and when all of the applicable steps required
for perfection have been taken. Such steps are specified in NRS 104.9302, 104.9304, 104.9305 and
104.9306. If such steps are taken before the security interest attaches, it is perfected at the time when it
attaches.
105 Nev. 446, 451 (1989) May v. G.M.B., Inc.
3. The filing of a financing statement otherwise required by this article is not
necessary or effective to perfect a security interest in property subject to:
. . . .
(b) The following statutes of this state: NRS 482.423 to 482.432 . . .; or
(c) A certificate of title statute of another jurisdiction under the law of which
indication of a security interest on the certificate is required as a condition of perfection
(subsection 2 of NRS 104.9103).
(Emphasis added.)
GMB contends that because the provisions of NRS 482.428, supra, are mandatory, any
claimed security interest in a motor vehicle must be perfected through the Department of
Motor Vehicles and evidence of the perfected interest must appear on the certificate of title.
In support of its argument, GMB cites Godfrey v. Gilsdorf, 86 Nev. 714, 718, 476 P.2d 3, 6
(1970), for the proposition that [t]he licensing and registration provisions of the vehicle code
are essentially police regulations and strict compliance with them appears to be the prevailing
view. GMB also argues that NRS Chapter 482 governs the parties' rights and liabilities, and
that UCC Article 9 as enacted in Nevada does not apply in this case.
First, while we neither disagree with GMB's argument as it relates to the method of
perfecting security interests in vehicles nor with the above quoted language from Godfrey,
nothing in NRS 482.428, or in any other statute or case GMB cites, suggests that the failure to
perfect security interest which has attached renders the security agreement, or the security
interest, void. See First Westside Nat'l Bank of Gr. Falls v. Liera, 580 P.2d 100 (Mont. 1978)
(security interest in vehicle unperfected where bank did not record its lien). The district
court's declaring the Mays' security agreement void because they failed to perfect their
security interest was error. Even if we assume that the district court meant that the Mays'
security interest was void because they failed to perfect it, this too was error. See id.
Nothing, except perhaps good business practice and good sense, requires a secured creditor to
perfect his security interest.
[Headnote 2]
Second, within the same paragraph as the above quoted language from Godfrey we stated:
As we see it, the relevant provisions of the two codes [NRS Chapter 482 and the UCC] can
exist side by side with meaning given to each and without doing violence to either, and we
should so construe them. Godfrey, 86 Nev. at 71S, 476 P.2d at 6.
105 Nev. 446, 452 (1989) May v. G.M.B., Inc.
Nev. at 718, 476 P.2d at 6. The plain language of NRS 482.432, supra, provides that
compliance with its provisions is sufficient for the perfection of a security interest in a
vehicle, but that in all other respects UCC Article 9 controls. We believe that here, as in
Godfrey, it is possible to give effect to both NRS Chapter 482 and UCC Article 9 without
depriving either of its intended meaning. Accordingly, we reject GMB's contention that the
rights and liabilities of the parties here are governed solely by NRS Chapter 482.
UCC Article 9's so called golden rule, White & Summers 25-12, is found in NRS
104.9201, which, in pertinent part, provides:
Except as otherwise provided in this chapter a security agreement is effective
according to its terms between the parties, against purchasers of the collateral and
against creditors. . . .
(Emphasis added.) A purchaser is defined as a person who takes by purchase. NRS
104.1201(32). Purchase' includes taking by sale, discount, negotiation, mortgage, pledge,
lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.
NRS 104.1201(31).
Viewing the evidence in the record in the light most favorable to the Mays, Tschabold v.
Orlando, 103 Nev. 224, 225, 737 P.2d 506, 507 (1987), we note that while not perfected, the
Mays' security interest in the vehicles had attached. See NRS 104.9203 (attachment occurs
when debtor has signed a security agreement which contains a description of the collateral,
value has been given, and debtor has rights in the collateral). Thus, unless GMB falls within
any of the exceptions to NRS 104.9201 set forth in Article 9, the Mays' security agreement
with D&D would be effective against it. NRS 104.9201, supra.
Generally, [a] buyer in ordinary course of business (subsection 9 of NRS 104.1201) . . .
takes free of a security interest created by his seller even though the security interest is
perfected and even though the buyer knows of its existence. NRS 104.9307(1). GMB does
not contend that it was a buyer in ordinary course of business;
6
however, GMB suggests that
it was a buyer not in the ordinary course of business.
__________

6
The rule set forth in NRS 104.9307(1) undermines GMB's argument that if the Mays prevail individuals
will not be able to rely on an untainted certificate of ownership when purchasing motor vehicles. Just as NRS
104.9307(1) protects buyer[s] in ordinary course of business, NRS 104.9301(1)(c), infra, gives priority to
buyer[s] not in ordinary course of business who give value and lack knowledge of a security interest. These
two categories will account for most motor vehicle transfers. Under NRS 104.9201, supra, purchasers, see
NRS 104.1201(31)-(32), supra, enjoy
105 Nev. 446, 453 (1989) May v. G.M.B., Inc.
a buyer not in the ordinary course of business. Therefore, in GMB's view, if UCC Article 9
applies to the transaction, it is entitled to prevail pursuant to NRS 104.9301(1)(c).
7
We
disagree.
[Headnotes 3, 4]
We believe Nick Holt's deposition testimony, viewed in the light most favorable to the
Mays, established GMB's knowledge of the Mays' security interest.
8
A buyer not in the
ordinary course of business is entitled to priority over an unperfected security interest only to
the extent that he gives value and receives delivery of the collateral without knowledge of the
security interest and before it is perfected. NRS 104.9301(1)(c) (emphasis added).
Therefore, contrary to its argument GMB was not entitled to the priority as a buyer not in the
ordinary course of business, and, thus, it was not entitled to summary judgment under NRS
104.9301(1)(c).
[Headnote 5]
2. The Mays also contend that the district court erred in
__________
less protection, and, therefore, must be more circumspect in their acquisition of property. In fairness to secured
creditors, we perceive no good reason why the rule should be otherwise.

7
NRS 104.9301(1)(c) provides:
1. Except as otherwise provided in subsection 2, an unperfected security interest is subordinate to the
rights of:
. . . .
(c) In the case of goods, . . . a person who is not a secured party and who is a . . . buyer not in
ordinary course of business, . . . to the extent that he gives value and receives delivery of the collateral
without knowledge of the security interest and before it is perfected.
The vehicles GMB acquired from D&D were equipment, a subcategory of goods. See NRS 104.9109(2).

8
GMB contends that whether it had knowledge of the Mays' security interest, thus placing it outside the
provisions of NRS 104.9302(1)(c), remains an issue. In so contending, GMB highlights the inappropriateness of
the district court's grant of summary judgment. In deciding a summary judgment motion the trial court must, as
we do here, accept as true all evidence favorable to the opposing party. Short v. Hotel Riviera, Inc., 79 Nev. 94,
378 P.2d 979 (1963). See generally Note, The Movant's Burden In A Motion For Summary Judgment, 1987
Utah L. Rev. 731, 735 ([A]llegations in the nonmoving party's pleadings, when supported by affidavits or other
evidentiary material, are to be regarded as true.) (footnote omitted). Here, the district court viewed Nick Holt's
deposition testimony as establishing only an awareness of collateral, not actual knowledge, by GMB. The
UCC, however, imputes an agent's knowledge to his principal if communication is part of the agent's regular
duties or if the agent has reason to know that his information will materially affect the transaction. See NRS
104.1201(17). Accordingly, the district court should have found that GMB had knowledge of the Mays' security
interest in the vehicles.
105 Nev. 446, 454 (1989) May v. G.M.B., Inc.
denying their motion for partial summary judgment on their conversion claim. During oral
argument, counsel for GMB averred that appellant Dick May knew of D&D's transfer of the
vehicles to GMB, and that the Mays subsequently failed to exercise diligence in pursuing
their remedies. The transcript of Nick Holt's deposition, now viewed in the light most
favorable to GMB, suggests that Dick May knew, at least after the fact, of the vehicles'
transfer. At oral argument, counsel for the Mays acknowledged, and we believe correctly so,
that Dick May's knowledge raised factual issues with respect to the Mays' conversion claim
and that summary judgment therefore would not have been appropriate. Accordingly, we
conclude that the district court did not err in denying the Mays' partial summary judgment
motion. The effect, if any, of Dick May's purported knowledge of the transfer, or the Mays'
diligence or lack thereof in pursuing their remedies, should be determined on remand.
CONCLUSION
Based on the foregoing, we conclude that the district court erred in granting summary
judgment in GMB's favor, but that it did not err in denying the Mays' motion for partial
summary judgment. We therefore reverse that portion of the district court's order that granted
summary judgment in favor of GMB, affirm the district court's denial of the Mays' partial
summary judgment motion, and remand the matter for trial on the merits.
____________
105 Nev. 454, 454 (1989) Rose v. First Federal Savings & Loan
CAROL ROSE, Administratrix of the ESTATE OF JAMES ROSE, CAROL ROSE,
Individually, and LAURA STEPHENSON, Appellants, v. FIRST FEDERAL
SAVINGS AND LOAN ASSOCIATION OF NEVADA, Respondent.
No. 18997
August 2, 1989 777 P.2d 1318
judgment on appellants' second claim for relief. Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Successor in interest of grantor of deed of trust brought suit alleging that trustee had not
complied with statutory notice requirements before conducting trustee's sale. The district
court granted summary judgment for trustee, and successor appealed.
The Supreme Court held that trustee of deed of trust must give notice of sale of property to
successor in interest of grantor before proceeding with the sale.
Reversed.
James E. Wilson, Jr., Carson City, for Appellants.
Allan D. Jensen, Reno, for Respondent.
Mortgages.
Trustee of deed of trust must give notice of sale of property to successor in interest of grantor before proceeding with the sale. NRS
21.130, 107.080, subd. 4.
OPINION
Per Curiam:
This case poses the question of whether under NRS 21.130 and NRS 107.080(4) a trustee
must give notice of the sale of property to the successor in interest of the grantor of the deed
of trust before proceeding with the sale. We hold that the statutes do require notice to the
successor in interest, and we therefore reverse.
Facts
In September 1977, James Rose (James) purchases a condominium located at 3474
Terrace Knoll Court in Reno. He purchased the condominium with money borrowed from
First Federal Savings and Loan Association of Nevada (Federal) and secured by a deed of
trust on the condominium. In 1980, James borrowed an additional sum from Federal. This
second loan was secured by a second deed of trust on the condominium.
James made regular payments on both loans until early in 1985, when he failed to make
payments due on the loans. Soon after he failed to make these payments, he passed away,
survived by his second wife, Carol Rose, and his mother Laura Stephenson.
Within two days of James' death in April 1985, a tenant living in the condominium
telephoned Federal and informed the bank that James had died. Thereafter, in May 1985,
James Forman, an attorney representing the James Rose estate, telephoned a collections
officer for Federal. The collections officer told Forman that a notice of default on the first
loan had been recorded on April 26, 1985. Also in May 1985, Laura Stephenson went to
Federal's offices and spoke with the employees there concerning the status of the loans.
of the loans. The savings and loan employees obtained the addresses of Stephenson and
Forman, and notices of default on James' first loan were sent to Stephenson and Forman.
Federal later also sent notices of default for the second loan.
1

On November 7, 1985, First Financial Service Corporation (Financial) exercised the
powers pursuant to the two deeds of trust and sold the condominium at a trustee's sale.
However, Financial did not give prior notice of the trustee's sale, either by personal service or
by mailing, to Carol Rose, Laura Stephenson or James Forman. Thus, other than the contacts
in May 1985, Federal and Financial had no communication with Carol Rose, Laura
Stephenson or James Forman prior to the trustee's sale.
Carol Rose, as administratrix of the James Rose estate, filed suit against Federal and
Financial alleging that they had not complied with the statutory notice requirements before
conducting the trustee's sale. Federal and Financial moved for summary judgment, and the
court granted summary judgment against the estate.
Discussion
When a grantor of a deed of trust breaches the obligation, the trustee may sell the property
to satisfy the obligation. NRS 107.080(1). Before the trustee can sell the property, however,
the trustee must satisfy notice provisions imposed by statute. First, the trustee must record a
notice of default and election to sell and serve the grantor/debtor with a copy of that notice.
This service sets in motion a thirty-five day period in which the grantor/debtor may make
good his deficiency. NRS 107.080(2)-(3). After the thirty-five days have expired from the
service of the notice of default on the grantor/debtor, but in no case less than three months
after the recording of the notice of default, the trustee must give notice of the sale. NRS
107.080(4) provides as follows: The trustee . . . shall . . . give notice of the time and place
[of the sale] in the manner and for a time not less than that required by law for the sale or
sales of real property upon execution.
This reference to the statute giving the requirements for a sale upon execution gives rise to
the confusion and the dispute in the present case. NRS 21.130 provides that the notice of the
sale of real property must be given to the judgment debtor.
2
However, in the context of
trustee's sales, the "judgment debtor" does not exist.
__________

1
There is no dispute concerning the adequacy of the notices of default on the loans.

2
Before the sale of property on execution, notice thereof shall be given as follows:
. . . .
3. Real property. In case of real property, by personal service
the context of trustee's sales, the judgment debtor does not exist. The procedure is
designated to accommodate the involuntary transfer of real property without first obtaining a
judgment against the grantor/debtor. Thus, taken literally, the statute requires notice only to a
non-existent person. But that result was obviously not the intent of the legislature.
We have long held that it is our duty to interpret statutes consistent with the intent of the
legislature. See Recanzone v. Nevada Tax Comm'n, 92 Nev. 302, 305, 550 P.2d 401, 403
(1976). In addition, we must ascribe an intent which will accomplish a reasonable result.
The court must, if possible, and if consistent with the intention of the legislature, give effect
to all the statutory provisions in controversy, and to every part of them. It is our duty, so far as
practicable, to reconcile the various provisions so as to make them consistent and
harmonious. Board of School Trustees v. Bray, 60 Nev. 345, 353-54, 109 P.2d 274, 278
(1941) (emphasis added).
In accordance with these guiding principles, we must determine whom the legislature
intended as the recipient of the notice of sale provided for in NRS 21.130 and NRS
107.080(4). Federal and Financial claim that, because NRS 21.130 refers only to the
judgment debtor and not to his successor in interest, we should include only the
grantor/debtor as the necessary recipient of the notice of sale, thus not requiring notice of sale
to be served on the successor in interest. That result, however, would be contrary to the
apparent intent of the legislature as evidenced in NRS 107.080(3) that the grantor/debtor's
successor in interest should receive any notice that the grantor/debtor had the right to receive.
Even though NRS 107.080(3) only provides for the earlier notice of default and election to
sell, it is the only indication of the legislatively intended recipients of notice in the context of
a trustee's sale.
3
Consistent with this indication of legislative intent, we hold that notice of
the time and place of a trustee's sale as required by NRS 107.080(4) must be served on the
grantor or his successor in interest in accordance with the other requirements of NRS
107.0S0{4) and NRS 21.130.
__________
upon each judgment debtor or by registered mail to the last known address of each judgment debtor and
by posting a similar notice particularly describing the property, for 20 days successively, in 3 public
places of the township or city where the property is situated and also where the property is to be sold; and
also by publishing a copy of the notice three times, once a week, for 3 successive weeks, in a newspaper.
. . .
NRS 21.130 (emphasis added).

3
[T]he notice of default and election to sell [must be] mailed . . . to the grantor or his successor in interest.
. . . NRS 107.080(3) (emphasis added).
ments of NRS 107.080(4) and NRS 21.130. This holding renders the notice provisions of
NRS 107.080 consistent and harmonious. Federal and Financial should have served notice
of the sale of the property on James Rose's successor in interest before proceeding with the
sale.
Having thus held, we conclude that the district court erred by upholding the trustee's sale
without notice to James Rose's successor in interest. Accordingly, we reverse and remand to
the district court with instructions to enter judgment in favor of the estate of James Rose in
accordance with this opinion.
4
concur.
____________
105 Nev. 458, 458 (1989) Gemma v. Gemma
JOSEPH J. GEMMA, JR., Appellant, v. LOIS TAFLINE GEMMA, Respondent.
No. 18821
August 23, 1989 778 P.2d 429
Appeal from judgment. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
Husband appealed determination of the district court that wife had community property
interest in husband's nonvested pension plan. The Supreme Court, Rose, J., held that: (1) a
nonvested pension interest acquired during marriage is community property, and (2)
nonemployee spouse may elect to receive benefits when employee spouse is first eligible to
retire.
Judgment affirmed, but remanded with instructions.
Joseph and Daniel Foley Associates, Las Vegas, for Appellant.
Albright, Stoddard, Warnick & Albright, Las Vegas, for Respondent.
1. Husband and Wife.
Retirement benefits earned during marriage are community property. NRS 123.225.
2. Divorce; Husband and Wife.
When district court determines community interests in defined benefit pension plan, "time rule," whereby payments
of benefits are deferred, should be used to make the calculation and court should so state in divorce
decree; where it would be inequitable for nonemployee spouse to receive retirement benefits based upon
high salary level achieved by employee spouse's postmarriage effort and achievement, court may, at party's
request, retain jurisdiction.
__________

4
M. Gunderson pursuant to this court's general order of assignment filed September 14, 1988.
105 Nev. 458, 459 (1989) Gemma v. Gemma
fit pension plan, time rule, whereby payments of benefits are deferred, should be used to make the calculation and court should so
state in divorce decree; where it would be inequitable for nonemployee spouse to receive retirement benefits based upon high salary
level achieved by employee spouse's postmarriage effort and achievement, court may, at party's request, retain jurisdiction.
3. Divorce.
Having awarded nonemployee spouse interest in employee spouse's nonvested pension plan, district court properly permitted
nonemployee spouse to elect to receive benefits when employee spouse was first eligible to retire.
OPINION
The district court determined in this divorce action that the respondent Lois Gemma had a
community property interest in her husband's, appellant Joseph Gemma, Jr., police retirement
pension even though his pension rights had not vested, and that she could elect to receive
pension benefits when appellant was first eligible to retire. Appellant objects to a nonvested
pension interest being considered community property; and if it is, he opposes his former
wife's ability to receive her share of benefits beginning when he is first eligible to retire. We
reject appellant's contentions and hold that a nonvested pension interest acquired during
marriage is community property and that it is not error to permit the nonemployee spouse to
elect to receive those benefits when the employed spouse is first eligible to retire.
FACTS
On January 2, 1980, appellant Joseph Gemma (Joseph) joined the Las Vegas Metropolitan
Police Department. As a member of the department, Joseph is a participant in the Public
Employees Retirement System of the State of Nevada.
Joseph and the respondent Lois Tafline Gemma (Lois) were married on May 9, 1981, in
Las Vegas and on May 6, 1986, the parties entered into a property settlement agreement
which disposed of all community property interests, except any interest Lois might have in
Joseph's retirement plan. Any future interests in the other party's income or benefits ceased on
the date of the agreement.
On January 8, 1988, the district court entered the divorce decree and divided the
community property. The district court determined the parties' interest in Joseph's Public
Employees Retirement System account to be a community asset and it equally divided the
benefits accrued during marriage between the parties.1
105 Nev. 458, 460 (1989) Gemma v. Gemma
equally divided the benefits accrued during marriage between the parties.
1

At the time of divorce, Joseph had reached the top salary level that a patrolman could
achieve and the only pay increases he could expect were contractual raises agreed to by the
Police Association and his employer. If no such raises were negotiated, Joseph's only pay
increases would result from advancement in rank or promotions based on merit, application,
testing, and acceptance.
Joseph's Public Employee Retirement benefits will become vested after ten years of
service, or on January 2, 1990. See NRS 286.6793. As a police officer, Joseph is eligible to
retire at age 50 if he has at least twenty years of service, or at age 55, if he has at least ten
years of service. See NRS 286.510. A member whose pension is vested under the Public
Employees Retirement System may retire before his eligible retirement date; however, in
such event, his retirement benefit will be reduced by .5 percent for each month that the
member is under the appropriate retirement age.
LEGAL DISCUSSION
[Headnote 1]
Retirement benefits earned during a marriage are community property. Walsh v. Walsh,
103 Nev. 287, 738 P.2d 117 (1987).
__________

1
Specifically, the court stated:
Each party shall receive 1/2 of the community share of said benefits which community share be
determined by multiplying the benefits in question by a fraction, the numerator of which is the number of
months during which the parties were married, the denominator of which is the number of months of time
and service of the Plaintiff which he has in determining his said benefits. Once said benefits become due
and payable, each party shall be entitled to receive his or her portion thereof directly. The Plaintiff shall
further take no action to modify, or otherwise adversely affect the Defendant's interest in said benefits,
without first obtaining the written approval of the Defendant. Upon Plaintiff's obtaining the age of 50
years, provided, he has twenty years of service time or more, or if he does not have at least twenty years
of service time, then upon obtaining the age of 55 years, Plaintiff must pay to the Defendant, if Defendant
so demands at that time and whether or not the Plaintiff has retired from the police force, the Defendant's
community property interest in the subject pension plan, which is deemed to be the amount Defendant
would be entitled to receive as her community share of the pension benefits pursuant to the formula set
forth above if Plaintiff retired and elected to commence receiving his pension benefits. If Defendant does
not elect to then start receiving her share of the benefits, then she shall thereafter receive her share of the
benefits when Plaintiff retires from the police force, or when such benefits otherwise become payable.
105 Nev. 458, 461 (1989) Gemma v. Gemma
This is so even though the retirement benefits are not vested. In re Marriage of Gillmore, 629
P.2d 1 (Cal. 1981); Laing v. Laing, 741 P.2d 649 (Alaska 1987); Van Loan v. Van Loan, 569
P.2d 214 (Ariz. 1977). Most retirement benefits are in the form of a pension and the types of
pension plans vary widely. The fair division of this community asset is often not an easy task
to accomplish, especially when the pension benefit has not vested and the parties have not
been married for a lengthy period of time.
The district court allocated Joseph's pension by granting Lois one half of the pension
benefits earned during the marriage. It accomplished this by holding that Lois was entitled to
one half of the amount of Mr. Gemma's eventual pension plan benefit multiplied by a
fraction, the numerator of which is the number of months during which the parties were
married, the denominator being Mr. Gemma's number of months of time in service on the
police force.
Joseph objects because his retirement benefits will be based on his highest salary for
thirty-six consecutive months during his career, and this period will, in all probability, be
when he is at or near the end of his employment and substantially after the divorce. He asserts
that a calculation based on his highest salary during the marriage would be more appropriate.
There are two general approaches used by courts in dividing defined pension benefits. The
first is to determine the present value of the pension and award half to each spouse. This
approach has the advantage of ending the parties' involvement with each other and finalizing
the divorce immediately in all respects. Its drawbacks, however, are numerous. First, there
might not be sufficient property owned by the employee spouse to cash out or make periodic
payments to the nonemployee spouse. Second, the employee spouse is required to pay the
community property interest in the pension plan immediately upon divorce, but he or she may
not remain employed to actually enjoy the full benefits of the retirement pension or live until
the time of vesting. Third, the nonemployee spouse may receive much less if the present
value in the pension is substantially less than the actual vested value upon retirement. And
fourth, it is often difficult to ascertain a pension's present value.
The second approach is the method used by the district court and is generally known as the
time rule. In re Marriage of Brown, 544 P.2d 561 (Cal. 1976); Berry v. Meadows, 713 P.2d
1017 (N.M.App. 1986); Laing v. Laing, supra; Woodard v. Woodard, 656 P.2d 431 (Utah
1982). Under this approach, a court declares the nonemployee spouse's nonvested community
property interest and directs when the interest shall be paid.
105 Nev. 458, 462 (1989) Gemma v. Gemma
property interest and directs when the interest shall be paid. This is occasionally accompanied
by the court retaining jurisdiction until the benefits are vested and retirement payments begin.
Objections to this method of division echo Joseph's assertions of error in this case. Cases that
adopt the time rule answer the objections Joseph now puts forth by indicating that early
contributions to the pension plan, while smaller, are invested and earned more interest, that
the emphasis should be on the quanlitative nature of the community interest as opposed to the
quantitative interest, and that the early working periods are the building blocks to upward
mobility and hopefully an increased salary.
The time rule approach is susceptible to formulation at the time of divorce, but payment
of benefits are deferred. While no method is perfect, the advantages of the time rule clearly
outweigh any other method of pension division. This method also divides the community
property interest in the pension equally in accordance with NRS 123.225.
One complaint that Joseph asserts can be addressed by the district court retaining
jurisdiction and hearing any claim of unfairness that might arise when the pension benefits
are to begin. Joseph argues that he may substantially improve his pay by extraordinary effort
in the future. Since this must occur, if at all, after his divorce from Lois, she would receive
the increased retirement stipend, in part, because of his efforts and success after marriage. An
even more compelling factual scenario could be imagined if the employee spouse attained an
undergraduate or an advanced degree and received promotions within the same department,
or transferred to an entirely new area of governmental service with an increased salary but
remained within the coverage of the pension plan. While a substantial increase in retirement
benefits related to work or achievement after the marriage, as opposed to the usual
employment promotions and cost of living increases, will probably occur in only a few cases,
it is a situation that will arise and is sufficiently important to be addressed by our courts.
The division of community property is usually final when made and the trial court loses
jurisdiction to subsequently modify or adjust pension benefits thereafter, unless the parties
subsequently agree to such modification (NRS 125.150(6)), or the court specifically retains
jurisdiction. See Walsh, 103 Nev. at 288, 738 P.2d at 117. The district court here did not
retain jurisdiction over the payment of pension benefits.
[Headnote 2]
When a district court determines the community interests in a defined benefit pension
plan, the time rule should be used to make the calculation and the court should so state
in the divorce decree.
105 Nev. 458, 463 (1989) Gemma v. Gemma
make the calculation and the court should so state in the divorce decree. If the employee
spouse believes that the income he or she will receive upon retirement will be a reflection of
increased effort and achievement after the marriage, he or she can request that the court retain
jurisdiction in the event such predictions become reality. If the district court retains
jurisdiction and the increase due to post-marriage efforts does occur, the court then can hear
and decide the employee spouse's claim. If the court agrees with the employee spouse,
retirement benefits as calculated by the time rule and previously declared can be
recalculated using the highest income the employee spouse would have received in the
normal course of events, this being ordinary promotions and cost of living increases, in
contradistinction to the increased income the employee spouse achieved because of his
post-marriage effort and accomplishments.
The procedure for retaining jurisdiction over the payment of pension benefits will not add
uncertainty in the initial calculation of the community interest by using the time rule.
Rather, it will provide a procedure to accommodate those relatively few cases where it would
be inequitable for the nonemployee spouse to receive retirement benefits based upon a high
salary level achieved by the employee spouse's post-marriage effort and achievement.
Joseph's second claim of error is that Lois should not be able to receive any pension
benefits, even though they are vested, until he actually retires and begins to receive benefits
or at his own election. This would place Joseph in a position to dictate, to a substantial
degree, when Lois will begin to receive retirement benefits. The record does not reflect
Joseph's age but it is probable that he could continue to work as a police officer for a decade
after the date he is eligible to retire. We do not believe that Joseph should have such control
over when Lois will begin to receive her community interest in retirement benefits.
In In re Marriage of Luciano, 164 Cal.Rptr. 93 (Ct.App. 1980), the trial court ordered that
the nonemployee spouse must wait until the employee spouse actually retired before receiving
retirement benefits. The court of appeals reversed and concluded that the nonemployee
spouse should be able to determine when her benefits will begin once they become due and
payable.
To uphold the trial court's ruling as to the time Dorothy is to commence receiving her
portion of this community asset would give Ferdinand the option of determining the
receipt by Dorothy of her own property which would be basically unfair. The employee
spouse cannot by election defeat the nonemployee spouse's interest in the community
property by relying on a condition solely within the employee spouse's control.
105 Nev. 458, 464 (1989) Gemma v. Gemma
relying on a condition solely within the employee spouse's control.
164 Cal.Rptr. at 95 (cited with approval in In re Marriage of Gillmore, 629 P.2d at 5).
[Headnote 3]
The district court here properly ordered that Lois may elect to receive pension benefits at
the time they become due and payable, this being defined in the divorce decree as the time
when Joseph is first eligible to retire, and that Joseph shall take no action to modify or
otherwise adversely affect Lois' interest in the benefits without first obtaining her written
approval.
We affirm the district court in all respects, but remand the case to give the parties the
opportunity to request that the district court retain jurisdiction of the payment of pension
benefits; and, if such request is made by either party, for the district court to determine
whether it will exercise its discretion and retain jurisdiction.
Young, C. J., Steffen, Springer, and Mowbray, JJ., concur.
____________
105 Nev. 464, 464 (1989) Colorado Environments v. Valley Grading
COLORADO ENVIRONMENTS, INC., Now Known as BILBRAY INDUSTRIES, a
Nevada Corporation, Appellant, v. VALLEY GRADING CORPORATION, Respondent.
No. 18933
August 23, 1989 779 P.2d 80
Appeal from a judgment pursuant to a jury verdict in a breach of contract action. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Grading corporation sued construction company for breach of contract. The district court
rendered judgment on jury verdict for grading corporation and construction company
appealed. The Supreme Court held that: (1) jury instructions were proper; (2) evidence was
sufficient to support award of equipment leasing costs; and (3) grading corporation was not
entitled to recover equipment standby damages in addition to lost profits and equipment
leasing costs.
Affirmed as modified.
Beckley, Singleton, DeLanoy, Jemison & List and Franny A. Forsman, Las Vegas, for
Appellant.
Jimmerson & Davis, Las Vegas, for Respondent.
1. Trial.
It is party's right to have jury instructed on theories of its case which are supported by evidence.
2. Trial.
Trial court properly refused to give defendant's proffered jury instruction on implied contractual conditions, inasmuch as other
instruction adequately informed jury of concept of implied conditions and proffered instruction did not fully inform jury that
performance was not excused when party is responsible for nonoccurrence of condition.
3. Contracts.
One who contracts to render performance for which government approval is required has duty of obtaining such approval and risk
of its refusal is on him, and where requirement of government approval is foreseeable and is not addressed in contract, failure to obtain
such approval by parties seeking it does not justify party's breach of agreement, or his failure to perform.
4. Contracts.
Plaintiff, which was to construct drainage channel for defendant, adequately established evidentiary foundation necessary to
support its claim for equipment leasing costs.
5. Contracts.
In order for plaintiff to recover equipment leasing costs from defendant as damages for breach of construction contract it was not
required that equipment leased be on job site.
6. Damages.
Contract damages are prospective in nature and are intended to place nonbreaching party in as good a position as if contract had
been performed.
7. Damages.
Delay damages, when foreseeable, are natural consequence of defendant's delay and, thus, are compensable.
8. Damages.
Plaintiff that recovered lost profits and equipment leasing costs in breach of contract action was not also entitled to recover
equipment standby damages.
OPINION
Per Curiam:
On February 28, 1983, appellant Colorado Environments, Inc., now known as Bilbray
Industries (CEI), entered into a contract with respondent Valley Grading Corporation
(Valley). Pursuant to the terms of the contract Valley was to construct certain on-site and
off-site improvements, including two flood retention dams, in a proposed subdivision CEI
was preparing to develop in Laughlin. The contract was silent as to the date on which
construction was to begin, and CEI did not expressly condition its performance upon
obtaining the permits necessary to commence the project.
to commence the project. When the parties executed the contract, CEI informed Valley that
the subdivision's plans were in the final approval stage with Clark County's Public Works
Department (Public Works) and that construction would commence within two weeks.
Contrary to what CEI had indicated, work on the subdivision did not begin within two
weeks. Public Works withheld its final approval of the subdivision plans when concerns arose
over CEI's proposed use of earth-filled or pervious core dams, rather than impervious core
dams as CEI indicated in its initial flood control study. By early April, 1983, CEI decided to
abandon the flood retention dam concept and opted for an armored drainage channel instead.
On April 12, 1983, CEI and Valley executed a second contract in which Valley agreed to
construct the drainage channel. The total price for the two contracts was $1,593,670.
In the interim between Spring and Fall of 1983, Valley bid and performed other projects
with CEI's approval. In September, 1983, CEI informed Valley that construction on the
Laughlin subdivision would begin October 1, 1983. Thereafter, CEI again revised the
commencement date to November 1, 1983. On October 24, 1983, Valley, apparently fearing
yet another postponement, wrote to CEI and demanded that work commence within fifteen
days, or that the contracts be cancelled and it receive 20 percent of the contract price as
damages. CEI did not respond to the demand in writing, but, sometime after November 1,
1983, CEI's president, Robert Bilbray, informed Valley that he was accepting bids from other
contractors to perform the work. In a letter dated November 16, 1983, Valley expressed its
continued willingness to perform the two contracts and characterized CEI's bid shopping as
unethical.
CEI again contacted Valley about performing the Laughlin contracts in April, 1984. The
possibility of Valley performing the work ended, however, when Valley refused to reduce its
contract price by $100,000 as Bilbray demanded. Valley brought the suit that is the subject of
this appeal in mid-June, 1984. Thereafter, CEI awarded the construction contracts to another
company who commenced work in December, 1984. Following trial on Valley's breach of
contract action, a jury found in Valley's favor and awarded it compensatory damages in the
amount of $1,035,600. The jury's award included damages for lost profits ($521,449) and
standby equipment or delay damages ($514,151).
1
This appeal ensued.
__________

1
Although the jury in returning its damage award did not specify the amounts it awarded for lost profit and
equipment standby damages, its award coincided precisely with the damage analysis presented by Valley's expert
witness. See infra.
At trial, CEI contended, among other things, that governmental interference prevented it
from performing its contracts with Valley and that its performance was contingent upon an
implied condition, i.e., that governmental regulations or orders would not prevent its
performance within a reasonable time. CEI therefore offered proposed jury Instruction No.
17. The proposed instruction provided: An implied condition operates where parties enter
into a ocntract [sic] on the assumption that some thing essential to its performance will
occur. The district court refused to give the proposed instruction because it believed that the
concept of implied conditions was adequately covered in another instruction and that the
proposed instruction would confuse the jury. CEI now contends that the district court erred in
refusing to give proposed Jury Instruction No. 17. We disagree.
[Headnote 1]
It is a party's right to have the jury instructed on the theories of its case which are
supported by the evidence. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983).
Where other instructions inform the jury of information contained in a proposed instruction,
however, the trial court should not give the latter. Id. Instruction No. 16, the instruction that
the district court gave on contract conditions, provided:
Performance of a contract may be subject to conditions and performance need not
take place until the conditions are fulfilled. Such conditions may be express or implied.
By the phrase express condition is meant a provision which is specifically agreed to
by the parties either orally or in writing. By the term implied condition is meant a
term or condition which is recognized by the parties to exist and to bind them in their
action despite the fact that it is not expressly spelled out or agreed to by the parties.
Such terms are often said to arise by implication from the terms which were expressly
enumerated in the contract and agreed to or from practice with the industry or business
within which the proposed contract performance would take place. Nonoccurrence of
the condition, express or implied, excuses the parties from performing the contract,
unless one of the parties is responsible for that nonoccurrence.
(Emphasis supplied.)
[Headnote 2]
The message conveyed by the above emphasized language in Instruction No. 16 is
essentially the same as that contained in CEI's proposed instruction. Instruction No. 16
adequately informed the jury of the concept of implied conditions. Therefore, the proposed
instruction would have been redundant.
fore, the proposed instruction would have been redundant. Moreover, unlike the instruction
that the district court gave, the proposed instruction did not fully inform the jury that
performance is not excused when a party is responsible for the nonoccurrence of the
condition. Thus, and as the district court believed, the proposed instruction could have
confused the jury. Accordingly, we believe that the district court did not err in refusing to
give proposed jury Instruction No. 17.
CEI also contends that the district court erred by giving Instruction No. 18 which
provided:
A party to a contract may be relieved of his duty to perform under a contract, either
temporarily or permanently, when the party's performance is rendered impossible by
unforeseen events or occurrences.
Under Nevada law, one who contracts to render a performance for which
government approval is required has the duty of obtaining such approval and the risk of
its refusal is on him. Where the requirement of government approval is foreseeable, and
is not addressed in the contract, the failure to obtain such approval by the party seeking
it does not justify the party's breach of the agreement, or his failure to perform.
Moreover, where a government regulation does not prohibit performance, but only
renders it more costly or difficult to perform, the defense of impossibility of
performance does not apply.
Although CEI admits that the requirement of securing the permits to construct was
foreseeable, it contends that the second paragraph of the instruction informed the jury that
Public Works' refusal to issue the necessary permits provided no excuse or justification for
CEI's failure to perform. Therefore, argues CEI, the instruction required the jury to reject
CEI's theory of defense. Again, we disagree.
[Headnote 3]
Instruction No. 18, which was based on our decision in Nebaco, Inc. v. Riverview Realty,
87 Nev. 55, 482 P.2d 305 (1971), is a correct statement of the law applicable to this case. See
Hawkins v. First Fed. Sav. and Loan Ass'n, 820 So.2d 93 (1973); see also 6 Corbin, Corbin
on Contracts 1347, at 435 (1962) (Ordinarily, when one contracts to render a performance
for which a governmental license or permit is required it is his duty to get the license or
permit so that he can perform. The risk of inability to obtain it is on him; and its refusal by
the government is no defense in a suit for breach of his contract.) (Quoted in Hawkins, 2S0
So.2d at 97.)
in Hawkins, 280 So.2d at 97.) The first paragraph of Instruction No. 18 clearly informed the
jury that if CEI's performance was rendered impossible by unforeseen events or occurrences,
then CEI would be relieved, either temporarily or permanently, of its contractual obligations.
Thus, the instruction did not require the jury to reject CEI's argument that performance of the
contract was rendered impossible by unforeseen governmental requirements that CEI did not
cause itself. Rather, and contrary to CEI's argument that Instruction No. 18 required the
application of a presumption, the instruction required the jury to determine a factual question,
viz. whether the delay in approval of CEI's plans resulted from unforeseeable events or
occurrences. The jury decided this question against CEI. From our review of the record, the
jury's deciding as it did is more attributable to the evidence Valley produced at trial than any
supposed deficiency in the instruction. Valley produced abundant evidence from which the
jury could have found that CEI's own corner and cost cutting measures, as well as its refusal
to cooperate with Public Works, caused the delay in the plans' final approval. In our view,
Instruction No. 18 did not take from the jury CEI's theory of defense. We conclude therefore
that the district court did not err in giving the instruction.
CEI next argues that the evidentiary foundation for the jury's award of equipment leasing
expense (or idle equipment down-time) was inadequate as a matter of law. In CEI's view,
not only did Valley fail to establish the existence of a lease agreement and that Valley either
paid for or was indebted on the leased equipment, Valley also failed to prove that the leased
equipment was ever up on the job. Therefore, according to CEI, the jury's damages award
on this claim was improper.
At trial, Valley offered testimony that it entered into an oral agreement with Gilbert
Development Corporation (Gilbert) to lease the heavy equipment necessary to perform the
CEI contracts. Valley introduced into evidence invoices for the months of December, 1983,
through February, 1984, that listed the equipment it leased and the cost thereof. The total
lease expense for the three month period that Valley estimated it would take to complete the
Laughlin project was $229,680. Further testimony established that both Valley and Gilbert
recognized Valley's indebtedness for the leased equipment.
In presenting its damage claim to the jury, Valley offered the testimony of an expert
witness who opined that because of CEI's breach Valley not only was entitled to lost profit
damages in the amount of $521.449, it was also entitled to equipment standby or delay
damages in the amount of $514,151. According to the expert, the latter damages
compensated Valley for the time its leased equipment stood idle and could not be used.
expert, the latter damages compensated Valley for the time its leased equipment stood idle
and could not be used. CEI presented its own expert who contended that awarding Valley
equipment standby damages would constitute a double recovery. The jury, however, accepted
the testimony of Valley's expert and awarded Valley both lost profit and equipment standby
damages.
[Headnotes 4, 5]
We believe that Valley adequately established the evidentiary foundation necessary to
support a claim for equipment leasing costs. The evidence Valley offered was sufficient to
prove the existence of a binding oral lease agreement the terms of which the jury could have
inferred from the invoices Valley offered into evidence. Moreover, both the testimony at trial
and the invoices established Valley's indebtedness for the leased equipment. Cf. Frank Horton
& Co. v. Cook Electric Co., 356 F.2d 485 (7th Cir. 1966). Although, as CEI correctly points
out, the leased equipment never left Gilbert's yard in Cedar City, Utah, we perceive no
requirement that equipment be on the job site before equipment leasing costs can be
recovered. Peru Associates, Inc. v. State, 334 N.Y.S.2d 772 (N.Y.Ct.Cl. 1971), cited by CEI,
is not to the contrary. There, the court denied a standby equipment claim because the
claimant had equipment standing by during the first three months of the year for a project that
was not scheduled to commence until June. Id. at 779. Therefore, we do not read Peru as
imposing an on-the-job-site requirement for the recovery of equipment leasing costs as CEI
contends. Accordingly, we reject CEI's argument as it relates to the adequacy of the
evidentiary foundation for the jury's award of equipment leasing costs.
[Headnote 6]
The foregoing notwithstanding, we perceive a significant distinction between equipment
leasing costs, to which we believe Valley was entitled, and equipment standby or delay
damages which the jury awarded Valley. It is fundamental that contract damages are
prospective in nature and are intended to place the nonbreaching party in as good a position
as if the contract had been performed. See Lagrange Construction, Inc. v. Kent Corp., 88 Nev.
271, 496 P.2d 766 (1972). The Restatement (Second) of Contracts 347 (1979) sets forth the
proper method for determining lost profits or expectancy damages. It provides:
Subject to the limitations stated in 350-53, the injured party has a right to damages
based on his expectation interest as measured by (a) the loss in value to him of the other
party's performance caused by its failure or deficiency, plus (b) any other loss, including
incidental or consequential loss, caused by the breach, less {c) any cost or other loss
that he has avoided by not having to perform.
loss, caused by the breach, less (c) any cost or other loss that he has avoided by not
having to perform.
Id. The actual expenses Valley incurred in leasing the heavy equipment to perform the
contracts were not costs that Valley avoided by not having to perform. See Tull v.
Gundersons, Inc., 709 P.2d 940 (Colo. 1985); see also 5 Corbin, Corbin on Contracts 1031,
at 195 (1964) ([I]n addition to profits' . . . the plaintiff is always entitled to the amount of
expenditures that would have been reimbursed by the performance promised by the defendant
before any profits' would begin.). Thus, Valley's actual equipment leasing costs were
compensable. Tull, 709 P.2d at 945; Restatement (Second) of Contracts 347, supra. See
also Peru, 334 N.Y.S.2d at 779 (rental fee, rather than construction industry rates not used by
parties to rental agreement is foundation for any allocable charges to breached contract).
[Headnote 7]
In contrast to equipment leasing costs, delay damages properly compensate a plaintiff for
losses sustained as a result of delays attributable to the defendant. Equipment standby
damages, a specific category of delay damages, see 2 S. Stein, Construction Law, para.
11.02[2][a][ii] (1989), usually take the form of lost opportunities to rent idle equipment to
others or the plaintiff's inability to use the equipment at an earlier date on another job. Cf.
L.L. Hall Construction Co. v. United States, 379 F.2d 559 (Ct.Cl. 1966); Brand Inv. Co. v.
United States, 58 F.Supp. 749 (Ct.Cl. 1944) (Littleton, J., dissenting in part). These losses,
when foreseeable, are a natural consequence of the defendant's delay, and, thus, are
compensable. Cf. Restatement (Second) of Contracts 347(b), supra.
[Headnote 8]
In most situations in which delay damages are awarded the defendant has caused the time
of the plaintiff's performance to be extended. See Zook Bros. Construction Company v. State,
556 P.2d 911 (Mont. 1976); 2 S. Stein, Construction Law, para. 6.08, supra. Here, CEI did
not delay Valley; rather, CEI breached the contract by not permitting Valley to perform at all.
Cf. Conner v. Southern Nevada Paving, 103 Nev. 353, 741 P.2d 800 (1987). Although CEI
failed to permit Valley to proceed and the leased equipment stood idle and was not used,
Valley did not suffer compensable injury in excess of its lost profits and unavoidable costs.
When it leased the equipment to perform the Laughlin project, Valley anticipated that the
equipment would be in use there for three months. Therefore, by receiving its lost profits and
unavoidable costs, i.e., equipment leasing costs, Valley is placed in the position it would
have occupied had it performed the contract.
in the position it would have occupied had it performed the contract. An award of equipment
standby damages, on the other hand, would permit a double recovery and give Valley a
windfall. Indeed, had Valley been able to sublease the equipment to another company or use
it at an earlier date on another jobthe lost opportunities for which equipment standby
damages are intended to compensatethe profits attributable to Valley so doing would have
mitigated the losses caused by CEI's breach and, in turn, reduced CEI's liability. Cf. id. at 355,
741 P.2d at 801.
Under the circumstances presented here, we conclude that the damages award in excess of
Valley's lost profits and equipment leasing costs was improper and must be stricken.
Accordingly, we reduce the jury's award of equipment standby damages ($514,151) by the
amount that it exceeds Valley's proven actual equipment leasing costs ($229,680). The total
amount of damages, including lost profits, that Valley is entitled to receive from CEI is
therefore $751,129.
We have carefully considered CEI's remaining contentions and conclude that they are
without merit. The district court's judgment is affirmed as modified and the matter is
remanded to that court for a redetermination of the amount of pre-judgment interest to which
Valley is entitled.
____________
105 Nev. 472, 472 (1989) Rowbottom v. State
MATTHEW FRANK ROWBOTTOM, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 19294
August 23, 1989 779 P.2d 934
Appeal from a judgment of conviction of first degree murder with use of a deadly weapon.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted of first degree murder with use of deadly weapon, and was
sentenced to death, in the district court and defendant appealed. The Supreme Court held that:
(1) substantial evidence supported conclusion that reasonable person would have believed
himself free to leave at time that defendant made incriminating statements to police; (2)
initial warrant to search defendant's apartment was not pretextual, even though warrant was to
search for pyrotechnics, but police suspected that defendant was murderer; (3) defendant's
confession was not involuntary; (4) defendant's mother's testimony that defendant, as
adolescent, forced his sister to commit sexual acts, was inadmissible; and (5) juror
misconduct, in which juror conducted independent investigation of crime, was prejudicial
error which entitled defendant to new trial, even though juror did not share her findings
with other jurors until penalty phase of trial.
independent investigation of crime, was prejudicial error which entitled defendant to new
trial, even though juror did not share her findings with other jurors until penalty phase of trial.
Reversed and remanded for new trial.
David G. Parraguirre, Public Defender, and Karen Grifall, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Larry
Sage, Deputy District Attorney, Washoe County, for Respondent.
1. Arrest.
Individual's mere presence for questioning at police station is not dispositive of whether seizure of person has occurred within
meaning of Fourth Amendment. U.S.C.A.Const. Amend. 4.
2. Arrest.
Substantial evidence supported district court's conclusion that reasonable person would have believed himself free to leave prior to
time that defendant made incriminating statements, and thus police had not seized defendant's person; police told defendant several
times that he was free to leave, and defendant testified that he accompanied police detective to police station and there participated in
questioning voluntarily. U.S.C.A.Const. Amend. 4.
Police did not obtain an initial warrant to search defendant's residence by pretext, even though initial warrant was to search for
pyrotechnics, but police suspected that defendant was murderer; police had interest in searching apartment for pyrotechnics which
defendant admittedly pilfered his National Guard unit, police and deputy district attorney fully apprised issuing magistrate that they
requested warrant to search for pyrotechnics but that defendant was also murder suspect, and police discontinued search and left
premises after observing items connected with murder in plain view. U.S.C.A.Const. Amend 4.
4. Criminal Law.
Confession is inadmissible unless freely and voluntarily made.
5. Criminal Law.
Confession's voluntariness is determined by considering effect of totality of circumstances on will of defendant.
6. Criminal Law.
That defendant was twenty seven years old at time of interview with police was not significant in determination of whether
confession was voluntarily made.
7. Criminal Law.
Defendant's claim of low intelligence was not entitled to great weight in determining whether his confession was voluntarily made;
defendant possessed high school equivalency certificate, and was able to obtain rank of sergeant in his National Guard unit.
8. Criminal Law.
Record did not suggest that defendant's will was overborne as result of police interview's length of excess of ten hours; interview
terminated for period while defendant accompanied detective to witness search of his vehicle, police permitted defendant to
take break and "stretch his legs" after interview resumed, and defendant never indicated to police at any
time during questioning that he was tired or wished, for any reason, to discontinue the interview.
his vehicle, police permitted defendant to take break and stretch his legs after interview resumed, and defendant never indicated to
police at any time during questioning that he was tired or wished, for any reason, to discontinue the interview.
9. Criminal Law.
Each situation should be evaluated according to its own particular facts and circumstances when determining whether defendant's
will was overborne as result of length of interview with police.
10. Criminal Law.
Expert testimony, that defendant had degenerated into psychotic state during police questioning, did not show that defendant's
confession was involuntarily made; trial court rejected that testimony and accepted testimony of police investigator that defendant was
rational and appeared to know what he was doing throughout interview.
11. Witnesses.
Testimony of defendant's mother that, as adolescent, defendant forced his sister to commit sexual acts, was not admissible in
murder trial to rebut defendant's testimony that he loved and enjoyed a close relationship with his sisters, which was apparently offered
to show traumatic effect that being removed from his family during childhood had upon him; if prosecution wished to rebut such
testimony and impeach defendant's credibility with specific instances of conduct, it could have done so by inquiring about his alleged
prior misconduct during his cross-examination. NRS 50.085, subd. 3.
12. Criminal Law.
Defendant's mother's testimony that defendant, as adolescent, had forced his sister to commit sexual acts, was not admissible in
murder trial to show interrelationship of family and defendant's relationship between him and his sisters, as such was not one of the
purposes for which bad acts evidence is admissible. NRS 48.045, subd. 2.
13. Criminal Law.
Whether defendant is prejudiced by juror misconduct is fact question to be determined by trial court, and its determination will not
be disturbed on appeal in absence of showing of abuse of discretion.
14. Criminal Law.
Juror misconduct in first degree murder trial, in which juror conducted independent investigation to determine whether victim
could have exited vehicle with her hands bound as defendant claimed, measured driving times between various locations to determine
whether defendant at one point could have returned to his apartment, visited murder scene and compared gravel there with that
depicted in pictures of victim's body, and engaged in communication with victim's parents, was prejudicial error which entitled
defendant to new trial, even though juror allegedly did not share her findings with other jurors until penalty phase of trial.
15. Criminal Law.
Conduct which erodes defendant's guarantee to fair trial with impartial jurors deciding case only on admissible evidence presented
in court will be presumed prejudicial.
16. Criminal Law.
Juror misconduct in any form is inimical to interests of justice and will not be tolerated.
17. Criminal Law.
Lower courts must insure that jurors misconduct does not occur by properly informing jurors of importance of their
role and of those activities which are prohibited.
properly informing jurors of importance of their role and of those activities which are prohibited.
18. Criminal Law.
District judges should admonish jurors in criminal cases that they are not to visit crime scene or make any independent
investigations.
OPINION
Per Curiam:
A jury convicted appellant Matthew Frank Rowbottom (Rowbottom) of first degree
murder with use of a deadly weapon. He now appeals from the district court's judgment of
conviction and contends: (1) that the district court erred in denying his motions to suppress
evidence; (2) that the district court erred in admitting evidence of his prior misconduct; and
(3) that the district court erred in denying his motion for a new trial based on juror
misconduct. For the reasons set forth below, we reverse and remand for a new trial.
THE FACTS
In the early afternoon of August 26, 1987, a Reno Disposal Company driver discovered
Ivy Pregozen's (Ivy) body on East Commercial Row in Reno. An autopsy revealed that Ivy
died from multiple stab wounds. She had been stabbed five times in the chest and abdomen,
four times in the back, and her neck had been slashed twice. In addition, Ivy suffered
abrasions and bruising about her head and face, she had been sexually assaulted, and a plastic
bindle tie ligature had been applied to her wrists. With the exception of two wounds to the
back, all of Ivy's wounds and injuries, as well as the placement of the ligature, occurred prior
to her death.
As part of their investigation of the murder, Reno Police Detectives contacted and
interviewed those persons who last saw Ivy alive on the evening of August 25th. Ultimately,
on August 27th, Detective Michael Neville contacted Rowbottom. Rowbottom agreed to be
interviewed and voluntarily accompanied Detective Neville to the police station. Shortly after
the interview commenced, detectives asked if Rowbottom would consent to a search of his
residence and vehicle. Rowbottom refused to grant permission for a search of his apartment
explaining, without being asked, that he had illegal pyrotechnics there that he had taken from
his Nevada National Guard unit. He voluntarily consented to a search of his vehicle, however.
When the detectives read the vehicle search consent form to Rowbottom, he apparently
manifested some confusion. The detectives therefore explained the form fully and advised
Rowbottom of his Miranda rights as well.
detectives therefore explained the form fully and advised Rowbottom of his Miranda rights as
well. Afterwards, Rowbottom verbally indicated that he understood his rights and signed the
consent to search form.
The interview terminated when Rowbottom and Detective Neville went to the Sands
Regent Hotel and Casino where Rowbottom worked and his vehicle was parked. Detective
Neville later testified that he and Rowbottom were alone and that Rowbottom was neither in
custody nor in handcuffs. A search of Rowbottom's vehicle revealed two small clumps of
reddish colored sand similar to that present in the area in which Ivy's body had been
discovered. When police found the sand, Rowbottom stated, without being asked, that it had
been there since he purchased the vehicle. Police tested the sand and determined it to be
presumptively positive for the presence of human blood. When asked, Rowbottom denied
that Ivy had ever been in his vehicle; however, police removed a latent finger print from the
right corner of the vehicle's inside rear view mirror that matched that of Ivy's right middle
finger. Police also observed that the tread on the vehicle's tires was similar to that found in
tire impressions left at the murder scene. Following the vehicle search, Rowbottom again
voluntarily accompanied Detective Neville to the police station where, at approximately 5:30
p.m., the interview resumed.
While other detectives interviewed Rowbottom, Detective Neville with the aid of a deputy
district attorney requested a warrant to search for the illegal pyrotechnics believed to be in
Rowbottom's apartment. When the magistrate from whom the police requested the warrant
inquired if the police also wished to search for evidence linking Rowbottom to Ivy's murder,
the deputy district attorney indicated that he believed that sufficient probable cause to request
such a warrant was lacking. The deputy district attorney informed the magistrate that if, while
searching for the pyrotechnics, the police discovered evidence linking Rowbottom to the
murder they would discontinue the search and request another warrant for that evidence.
Thereafter, the magistrate issued a warrant for the requested search.
Soon after entering Rowbottom's apartment, police observed in plain view evidence which
they believed would connect Rowbottom to Ivy's murder. The police halted their search,
secured the residence, and requested and obtained a second search warrant. Among the items
discovered and seized during execution of the second warrant were Ivy's purse, a fixed blade
hunting knife and sheath with what appeared to be blood stains on the sheath, a pair of
Rowbottom's trousers with what appeared to be blood stains on one of the knees, and a
plastic bindle tie similar to that used to bind Ivy's wrists.1 The police also discovered and
seized various Nevada National Guard pyrotechnics, including star cluster flares,
parachute flares, and grenade simulators.
one of the knees, and a plastic bindle tie similar to that used to bind Ivy's wrists.
1
The police
also discovered and seized various Nevada National Guard pyrotechnics, including star
cluster flares, parachute flares, and grenade simulators.
In time, detectives informed Rowbottom of their discoveries, and, at approximately 1:00
a.m. on August 28th, Rowbottom confessed to killing Ivy. According to Rowbottom's
confession, he, Ivy, and some other employees of the Sands Regent met at a bar there on the
evening of August 25th and later had dinner and more drinks at a nearby pizza parlor. Prior to
leaving the pizza parlor, he and Ivy agreed to meet again at the Sands Regent after Ivy
returned from driving her friends to the friends' home in Sparks. Rowbottom told the police
that he arrived at the Sands Regent first and when Ivy arrived she joined him in his vehicle.
Together they left, purchased beer at a convenience store, and drove to a secluded location
where they drank the beer and began petting. Subsequently, according to Rowbottom, Ivy
became upset, terminated the activity, and exited the vehicle. Rowbottom followed taking
with him a knife he kept in the vehicle. He threatened Ivy with the knife, they struggled and
fell to the ground, and the knife accidently enter her back. Rowbottom indicated that he then
went crazy and stabbed Ivy repeatedly in the chest and back. When asked, Rowbottom told
the police that after he killed Ivy he took a plastic bindle tie from his car and placed the
ligature on Ivy's wrists. Rowbottom vigorously denied having sexually assaulted Ivy,
however.
Rowbottom's initial statement to police regarding his possession of illegal pyrotechnics, as
well as the evidence found at his apartment and his ultimate confession to the murder, were
the subject of various motions in limine to suppress. The district court denied each of the
motions.
At trial, counsel stipulated to the admission of an exhibit that depicted various locations
visited by those present on the evening of August 25th. The exhibit also depicted the location
of Rowbottom's apartment. The prosecution used the exhibit to advance its theory of
premeditation, i.e., that Rowbottom, intending to kill Ivy, returned to his apartment where he
obtained the plastic bindle tie and the murder weapon, prior to meeting Ivy back at the
Sands Regent.
__________

1
During the prosecution's case in chief, a Reno Police Department Criminalist testified that the sand found in
Rowbottom's vehicle, as well as the stains found on the knife sheath and on Rowbottom's trousers' knee,
contained human blood, that the blood was inconsistent with Rowbottom's, but that it was consistent with Ivy's.
The criminalist also testified that semen found in Ivy's vaginal cavity was from a B secretor, that Rowbottom was
a B secretor and in the 16th percentile group of the population who could have donated the semen, but that Ivy's
boyfriend was excluded as having been the semen donor.
bindle tie and the murder weapon, prior to meeting Ivy back at the Sands Regent.
Rowbottom testified in his own defense. Rowbottom did not deny that it was he who
sexually assaulted and killed Ivy; he admitted that the events must have happened. He
claimed, however, that he did not remember committing the crimes. Rowbottom's defense
was that he did not commit the crimes with premeditation, but rather, they happened while he
was experiencing a dissociative state. In attempting to establish the reasons for his
experiencing dissociative states, Rowbottom testified about his traumatic and unhappy
childhood, including his being taken on occasions from his family and being placed in foster
homes.
Regarding the night in question, Rowbottom testified that the plastic bindle tie used to
bind Ivy's wrists was already in his vehicle. Rowbottom testified further that he bound Ivy's
wrists while both he and Ivy were in his vehicle after she commented, following an
unsuccessful attempt at sexual intercourse, that he was a nonsatisfying person. According
to Rowbottom, when Ivy complained that the tie was too tight, he exited his vehicle taking
with him a knife he kept there and went to the vehicle's passenger side to remove the ligature.
By the time he reached the vehicle's passenger side, Ivy, whose hands were bound, had exited.
Rowbottom continued stating that both he and Ivy fell, he hit his head on the ground, and the
last thing he remembered was attempting to cut the ligature from Ivy's wrists.
Among the witnesses called by the defense was Rowbottom's mother, a felon convicted of
child abuse, who reluctantly testified that as a child Rowbottom suffered physical abuse from
herself, his stepparent, and foster parents. Following a hearing outside the presence of the jury
and over the defense's objections, the district court gave a limiting instruction to the jury and
permitted Rowbottom's mother to testify on cross-examination that as an adolescent
Rowbottom, on numerous occasions, forced his younger sister to fondle and perform fellatio
on him.
The jury found Rowbottom guilty of first degree murder with use of a deadly weapon, and,
following a penalty hearing, set the penalty to be imposed at death. Shortly thereafter, a juror
contacted the public defender's office and reported numerous instances of juror misconduct.
The alleged misconduct involved, among other things, a juror conducting an independent
investigation to determine whether Ivy could have exited the vehicle with her hands bound as
Rowbottom claimed. The same juror also measured the driving times between various
locations to determine whether, as the State contented, Rowbottom could have returned to
his apartment and obtained the ligature and knife before meeting Ivy at the Sands
Regent.
returned to his apartment and obtained the ligature and knife before meeting Ivy at the Sands
Regent. In addition, the juror visited the murder scene and compared the gravel there with
that depicted in the pictures of Ivy's body which had been admitted into evidence. The juror
also engaged in communication with Ivy's parents, and ultimately related her findings and
conclusions to the other jurors. Finally, the juror indicated to the other jurors that they should
pay heed to her opinions because she had previously served on other murder cases.
Rowbottom moved the district court for a new trial based on the juror misconduct.
Thereafter, the district court held a hearing to determine whether the alleged misconduct
occurred, and, if so, its nature and extent. At that hearing, only the offending juror denied the
allegations of misconduct; however, the other jurors' testimony conflicted regarding when,
either during or after the guilt phase, the offending juror made known her findings and
conclusions.
The district court found that the misconduct occurred as alleged, that it was significant
because it related directly to the issues of premeditation and credibility, but that it was not
crucial or related to all the State's theories, i.e., the State's theory that Rowbottom committed
the murder in the perpetration of a sexual assault. The district court also found that the
offending juror engaged in her misconduct during the guilt phase of the trial, but that she did
not communicate her findings to the other jurors until during the trial's penalty phase.
Because it considered the evidence of Rowbottom's guilt to be overwhelming, the district
court concluded that the misconduct that occurred during the trial's guilt phase was harmless
beyond a reasonable doubt. It therefore denied Rowbottom's motion for a new trial. The
district court was not convinced, however, that the offending juror's communicating her
findings to the other jurors during the trial's penalty phase was harmless, and it vacated the
sentence of death and ordered that a new penalty hearing be held. This appeal ensued.
DENIAL OF SUPPRESSION MOTIONS
1. Rowbottom contends that because the police lacked probable cause on which to arrest
when they first contacted him, his presence and interview at the police station was tantamount
to an illegal seizure of his person and in violation of the Fourth Amendment to the United
States Constitution. Therefore, argues Rowbottom, the district court erred in not suppressing
the un-Mirandized, incriminating statements regarding his possession of Nevada National
Guard pyrotechnics, as well as other fruits derived therefrom. We do not agree.
[Headnote 1]
An individual's mere presence for questioning at a police station is not dispositive of
whether a seizure of the person has occurred within the meaning of the Fourth Amendment.
Oregon v. Mathiason, 429 U.S. 492 (1977). The test to determine if such a seizure has
occurred is whether, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave. United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (footnote omitted).
[Headnote 2]
After a hearing on Rowbottom's suppression motion, the district court found, based on the
totality of facts and circumstances, that Rowbottom's admission was not barred by Miranda,
and [was] not involuntarily made while in custody. Implicit in the district court's findings is
its belief that a reasonable person would have believed himself free to leave. We believe that
substantial evidence supports the district court's conclusion. As the district court observed in
its order denying Rowbottom's motion, when Rowbottom made the statement regarding the
pyrotechnics the police had told him several times previously that he was free to leave.
Moreover, Rowbottom's own testimony was that he accompanied Detective Neville to the
police station and there participated in the questioning voluntarily. Accordingly, we conclude
that the police neither seized Rowbottom's person any time prior to his incriminating
statements nor did they violate his Fourth Amendment rights. See Crew v. State, 100 Nev. 38,
675 P.2d 986 (1984).
[Headnote 3]
2. Rowbottom next contends that the basis articulated by the police to obtain the initial
warrant to search his apartment was pretextual as the police had no interest in searching for
pyrotechnics, but instead wanted to search for evidence linking him to Ivy's murder.
Therefore, in Rowbottom's view, the district court erred in not invalidating both the initial
and subsequent search warrants and in not suppressing the evidence obtained from both
searches of his apartment. Again, we disagree.
Preliminarily, we reject Rowbottom's contention that the police had no interest in
searching his apartment for the pyrotechnics he admittedly pilfered from his National Guard
unit. Recovering hazardous and potentially life threatening military pyrotechnics from a
residential apartment complex implicates serious public safety concerns and is by no means
trivial. Although the police may have had the additional interest of discovering evidence of
Ivy's murder, the record clearly indicates that in applying for the initial search warrant they
neither engaged in pretext nor subterfuge.
in pretext nor subterfuge. The police, as well as the Deputy District Attorney, fully apprised
the issuing magistrate of the circumstances surrounding the situation, and in executing the
initial warrant the police did not exceed its scope. Indeed, when the detectives observed Ivy's
purse and the alleged murder weapon both items were in plain view. After observing the
items, the police discontinued their search and left the premises until they could obtain the
second warrant. In so doing, the police clearly went beyond that which was required of them.
A situation analogous to that presented here occurred in United States v. Kimberlin, 805
F.2d 210 (7th Cir. 1986). There, FBI agents suspected the appellant of possessing contraband
Department of Defense identification cards and facsimiles of the Presidential Seal. Bureau of
Alcohol, Tobacco, and Firearms (BATF) agents also suspected the appellant of having
committed several bombings. Based on probable cause, FBI agents obtained a warrant to
search the appellant's automobile. When they executed the warrant, BATF agents were
present. The BATF agents observed incriminating items, and subsequently obtained a second
warrant to search the vehicle. The appellant sought to have his convictions for the bombings
overturned arguing that the initial warrant obtained by the FBI was but a subterfuge to search
for evidence of the bombings. The United States Court of Appeals for the Seventh Circuit
rejected the appellant's argument stating: We are not persuaded that [the BATF agents']
interest in and presence at the search, or even their having encouraged the search, if they did
so, made the search unreasonable. Id. at 229. The court of appeals premised its conclusion
on its belief that although the offenses that the FBI was investigating were misdemeanors, the
offenses were not trivial, and the FBI had a legitimate interest in pursuing them. Id.
As indicated above, we too believe that the police in the instant matter had a legitimate
interest in conducting their search. The warrant they obtained was based on probable cause,
and their search of Rowbottom's apartment was not unreasonable. While lawfully on the
premises pursuant to the warrant, the police observed evidence of another, more serious
crime. Accordingly, we reject Rowbottom's argument that the police obtained the initial
warrant to search by pretext and conclude, therefore, that the district court did not err in
denying Rowbottom's motion to suppress the evidence discovered in his apartment.
3. Rowbottom's final contention in this area is that during police questioning, which lasted
in excess of ten hours, he was subjected to coercive interrogation techniques, his will was
overborne, and he degenerated into a psychotic state. Thus, according to Rowbottom, his
confession was involuntary and should have been suppressed. Once again, we do not agree.
[Headnotes 4, 5]
A confession is admissible unless freely and voluntarily made. Passama v. State, 103 Nev.
212, 213, 735 P.2d 321, 322 (1987) (citing Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732,
734-35 (1980)). In order to be voluntary, a confession must be the product of a rational
intellect and a free will.' Id. at 213-14, 735 P.2d at 322 (quoting Blackburn v. Alabama, 361
U.S. 199, 208 (1960)). A confession's voluntariness is determined by considering the effect of
the totality of the circumstances on the will of the defendant. Id. at 214, 735 P.2d at 323.
Among the factors to be considered in determining whether a defendant's will has been
overborne are:
[T]he youth of the accused; his lack of education or his low intelligence; the lack of any
advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as deprivation of food
or sleep.
Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
[Headnotes 6, 7]
Our review of the record convinces us that the district court did not err in refusing to
suppress Rowbottom's confession. In considering the factors set forth in Passama, upon
which Rowbottom bases his assignment of error, we note first that Rowbottom's agetwenty
seven years at the time of the interviewis not significant. Nor is Rowbottom's claim of low
intelligence entitled great weight. Although not highly educated, Rowbottom, who possesses
a high school equivalency (GED) certificate, was able to obtain the rank of sergeant in his
National Guard unit. The record before us dispels any question that Rowbottom lacked
knowledge of his constitutional rights. The police informed Rowbottom of his rights as
required by Miranda v. Arizona, 384 U.S. 436 (1966), and, at the hearing on his suppression
motion, Rowbottom himself testified that he understood and knowingly waived those rights.
[Headnotes 8, 9]
Although the police interview with Rowbottom was of longer duration than that involved
in Passama, nothing suggests to us that Rowbottom's will was overborne as a result of the
interview's length. Nor are we inclined to establish any set time limitation on police
questioning. Instead, we believe that each situation should be evaluated according to its
particular facts and circumstances. Here, the police conducted the interview in two stages.
The first stage terminated when Rowbottom accompanied Detective Neville to witness the
vehicle search.
Detective Neville to witness the vehicle search. After the interview resumed and had
continued for some time, the police permitted Rowbottom to take a break and stretch his
legs. Rowbottom never indicated to the police at any time during his questioning that he was
tired or wished, for any reason, to discontinue the interview. Neither are we persuaded by
Rowbottom's argument that the police subjected him to physical punishment during the
interview by depriving him of food and sleep. This argument is contrary to the testimony
presented at the hearing on the motion, including Rowbottom's.
[Headnote 10]
Finally, although an expert testified that Rowbottom had degenerated into a psychotic state
during the questioning, we note that Reno Police Investigator Floyd Siristo testified that
Rowbottom was rational and appeared to know what he was doing throughout the interview.
The district court, as the trier of fact for purposes of the suppression motion, was not required
to accept the expert's testimony as correct or true. We conclude, therefore, that substantial
evidence supports the district court's conclusion that Rowbottom's confession was voluntary
and that the district court did not err in denying Rowbottom's motion to suppress.
EVIDENCE OF PRIOR MISCONDUCT
Rowbottom next contends that the district court erred in permitting his mother to testify
that on several occasions he forced his sister to fondle and to perform fellation on him. In
Rowbottom's view, this testimony was contrary to NRS 50.085(3)
2
and was prejudicial. We
agree.
Testifying in his own defense, Rowbottom told of his traumatic childhood, but stated that
he enjoyed a close relationship with his sisters. On cross-examination, the prosecution
inquired briefly into Rowbottom's familial relationship.
3
The defense subsequently called
Rowbottom's mother to testify.
__________

2
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility,
other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to
truthfulness, be inquired into on cross-examination of the witness himself or on cross-examination of a
witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the general
limitations upon relevant evidence and the limitations upon interrogation and subject to the provisions of
NRS 50.090.

3
The prosecution's inquiry is reflected in the following exchange:
Q [MR. LANE]: Okay. You say you were close to your sisters, correct?
A [ROWBOTTOM]: Yes.
Q: Did you like them?
quently called Rowbottom's mother to testify. When the prosecution inquired on
cross-examination about one of Rowbottom's younger sisters, defense counsel interrupted and
asked to approach the bench. Thereafter, the district court excused the jury and heard an offer
of proof regarding the witness's expected testimony.
4
See Petrocelli v. State, 101 Nev. 46,
692 P.2d 503 (1985). The district court then indicated that it would admit the proffered
testimony over the defense's objections that it was inadmissible evidence of bad acts and
hearsay. The district court stated: If nothing else, I'm going to admit it for that purpose to
show the family relationship, not for, naturally, notthe act is not admissibleit tends to
prove that he committed this offense. . . . When the jury returned, the district court gave a
limiting instruction stating:
It's admissible not for whether or not the incident therein actually happened or if it
did, it tends to show that the defendant committed the crimes in question, but only for
the purpose of showing the relationships between and this family situation of Mr.
Rowbottom and it's already been testified to, his inter-relationship of the family and his
relationship between him and his sisters.
Rowbottom's mother then testified about Rowbottom's alleged past misconduct.
__________
A: I more have love for them.
Q: I beg your pardon?
A: I have love for them.
Q: Does that mean that you do not like them, but you love them?
A: I like them. I also love them as my sisters.
Q: And, of course, is there any reason why you would harbor any ill will toward them for any reason?
A: Repeat that.
Q: Feel bad about them because they're female. You don't feel bad about your sisters, do you?
A: I feel sorry for them.

4
The following exchange occurred between the district court and the prosecution:
THE COURT: He brought it out about testifying about the love of his sisters?
MR. LANE: How it tore him up to be away from them.
THE COURT: How he was torn away from them, not by his own volition, but through his mother and
stepfather, I guess.
MR. LANE: Yes, and because of the various fosterhe testified one time it tore him up because they
were split up, they got taken away, the sisters went to a foster home and he went to a different foster home.
THE COURT: It's evidence then in contradiction of his testimony concerning the relationship between
him and his sisters for one thing?
MR. LANE: Yes, sir.
THE COURT: What else?
MR. LANE: Well, it is evidence of the relationship of Matthew
[Headnote 11]
In Rembert v. State, 104 Nev. 680, 766 P.2d 890 (1988), we held that it was error to allow
the State to attempt to impeach a defendant's credibility with extrinsic evidence relating to a
collateral matter. See also Moore v. State, 96 Nev. 220, 605 P.2d 105 (1980). We believe that
is what occurred here. Rowbottom testified that he loved and enjoyed a close relationship
with his sisters apparently in order to show the traumatic effect that being removed from his
family during his childhood had upon him. Had the prosecution wished to rebut this
testimony and impeach Rowbottom's credibility with specific instances of conduct it could
have done so by inquiring about Rowbottom's alleged prior misconduct during his
cross-examination. NRS 50.085(3), supra. If Rowbottom denied having committed the act,
the prosecution could not, however, prove specific instances of conduct by extrinsic evidence,
i.e., Rowbottom's mother's testimony. Rembert, 104 Nev. at 682-83, 766 P.2d at 892; Moore
v. State, 96 Nev. at 224-25, 607 P.2d at 107-08 (1980).
[Headnote 12]
Moreover, to the extent, if any, that the district court admitted the testimony of
Rowbottom's mother simply to show the relationship that existed between Rowbottom and
his family, the district court erred. NRS 48.045(2) 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.
(Emphasis added.) Admitting the testimony of Rowbottom's prior bad acts to show the
inter-relationship of the family and his relationship between him and his sisters, is not one
of the purposes for which evidence of bad acts is admissible.
JUROR MISCONDUCT
Rowbottom's final contention is that the district court erred in denying his motion for a
new trial based on juror misconduct. Rowbottom argues that the district court's conclusion
that the juror misconduct was harmless beyond a reasonable doubt is erroneous. Given the
sheer quantity of juror misconduct, its particularly egregious character, and the seriousness of
the crime charged, we conclude that the district court's characterization of the misconduct
as harmless was erroneous and that the district court abused its discretion in denying
Rowbottom's motion for a new trial.
__________
Rowbottom within the family situation which has been explored here with this witness.
(Emphasis supplied.)
charged, we conclude that the district court's characterization of the misconduct as harmless
was erroneous and that the district court abused its discretion in denying Rowbottom's motion
for a new trial.
[Headnote 13]
Whether a defendant is prejudiced by juror misconduct is a fact question to be determined
by the trial court, and its determination will not be disturbed on appeal in the absence of a
showing of an abuse of discretion. Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721-22
(1979). In determining whether juror misconduct constitutes harmless or prejudicial error a
trial court must consider whether the issue of innocence or guilt is close, the quantity and
character of the error, and the gravity of the crime charged. Big Pond v. State, 101 Nev. 1, 3,
692 P.2d 1288, 1289 (1985).
[Headnote 14]
Following the hearing on Rowbottom's motion for a new trial, the district court found that
the juror misconduct occurred as alleged during the guilt phase, but that it was shown that the
offending juror did not communicate her findings to the other jurors until the trial's penalty
phase.
5
This finding was contrary to the testimony of three jurors who believed the offending
juror communicated her out of court findings to the other jurors during the guilt phase. The
district court concluded that the misconduct was harmless beyond a reasonable doubt with
respect to the guilt phase and ordered a new trial on the penalty phase only.
In concluding that the misconduct was harmless, the district court overlooked a factor
implicit in its finding that the misconduct occurred and that factor was significant because it
related directly to the issues of premeditation and credibility. Even if the offending juror did
not disclose her conclusions to the others during the guilt phase, she returned to and
participated fully in the jury deliberations while being influenced, in whole or in part, by her
out of court investigations.
6
We cannot say beyond a reasonable doubt that in so
participating she did not inject opinions developed as a result of her particularly
egregious misconduct and thus infect the other jurors in their deliberations.
__________

5
The district court also found, as alleged, that one other juror committed misconduct by reading newspaper
accounts of the trial. The district court determined that this misconduct, too, was harmless beyond a reasonable
doubt because the juror did not recall the newspaper accounts and because the accounts did not contain
information other than that admitted into evidence at trial. In addition, the record reveals that during the hearing
on the motion, another juror admitted to driving by the scene of the murder.

6
The misbehaving juror's conduct and testimony denying any misconduct may well have exposed her to
criminal liability. We are hopeful that the Washoe County District Attorney's office has adequately reviewed her
conduct to determine if criminal prosecution is warranted. The cost and delay she has caused in this case are
substantial.
reasonable doubt that in so participating she did not inject opinions developed as a result of
her particularly egregious misconduct and thus infect the other jurors in their deliberations.
[Headnote 15]
Faced with the vast quantity and egregious character of the misconduct, and considering
the seriousness of the crime charged, we therefore do not believe it can be said beyond a
reasonable doubt that the jury's verdict would have been the same, at least in the degree
attached to the crime, had the misconduct not occurred. Our judicial system guarantees every
defendant a fair trial with impartial jurors deciding a case only on admissible evidence
presented in court. Conduct which erodes these basic tenets will be presumed prejudicial. Cf.
Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986).
[Headnotes 16-18]
The offending juror apparently was not satisfied with the evidence that the State presented,
and her vote alone would have been sufficient to deadlock the jury or cause the other jurors to
consider reducing the degree of the offense for which they ultimately convicted Rowbottom.
Accordingly, we conclude that the district court abused its discretion in denying Rowbottom's
motion for a new trial.
7

CONCLUSION
The district court did not err in denying Rowbottom's suppression motions. The combined
errors of permitting Rowbottom's mother to testify about inadmissible bad acts and pervasive
and egregious juror misconduct, however, denied Rowbottom a fair trial. We therefore
reverse the judgment of conviction and remand the matter for a new trial.
__________

7
Although we base our decision on the most flagrant and egregious misconduct that occurred, we note with
grave concern that three jurors, or twenty-five percent of the jury, engaged in some form of misconduct during
this trial. Misconduct in any form is inimical to the interests of justice and will not be tolerated. We therefore
direct the lower courts to insure that juror misconduct does not occur by properly informing jurors of the
importance of their role and of those activities which are prohibited. In addition to the mandatory admonishment
pursuant to NRS 175.401, district judges should also admonish jurors in criminal cases that they are not to visit
the crime scene or make any independent investigations.
____________
105 Nev. 488, 488 (1989) Ewing v. Bissell
REX EWING, JR., and REX EWING, III, Appellants, v. WARREN E. BISSELL, GILBERT
W. BISSELL, JOHN F. PARSONS, TERESA ELLEN PARSONS, VELMA
DICKSON, BARBARA BISSELL, KYLE FREDERICK PARSONS, CHARLES L.
RUTHE & ASSOCIATES, INC., and DENNIS JAEGER, Respondents.
No. 19126
August 23, 1989 777 P.2d 1320
Appeal from a judgment in an action to abate the purchase price of a parcel of real
property. Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Purchasers of land sued sellers for an abatement of the purchase price, due to the fact that
the parcel contained less land than all persons associated with the transaction believed. The
district court entered judgment for sellers, and purchasers appealed. The Supreme Court,
Rose, J., held that: (1) purchasers established that there was a mutual mistake of fact; (2) the
sale was by the acre and not in gross; and (3) purchasers were entitled to an abatement
reflecting a reduction in the purchase price conforming to the quantity of land actually
received.
Reversed and remanded, with instructions.
Mowbray, J., concurred in part and dissented in part.
Marquis Haney & Aurbach, Las Vegas, for Appellants.
R. Ian Ross, Las Vegas; Zervas & Evans, Las Vegas; Wanderer & Wanderer, Las Vegas,
for Respondents.
In reviewing cases in which mistake of fact in real estate transaction is alleged, if sale was acreage in gross, Supreme Court will
not disturb judgment if evidence is conflicting and there is substantial evidence to sustain it; but there is exception to general rule to
effect that where, upon all evidence, it is clear that wrong conclusion has been reached, judgment will be reversed.
2. Vendor and Purchaser.
Purchasers of real estate parcel established significant mutual mistake of fact as to size of parcel; testimony established that
everyone connected with sale believed lot contained 1.34 acres when it actually contained .83 acres, plat and map indicated parcel was
1.34 acres, and offer and acceptance described lot as containing 1.34 acres.
Even if there is significant mutual mistake of fact as to acreage contained in real estate parcel, purchaser is usually not entitled to
relief if sale was of acreage in gross.
Whether sale of land is sale in gross or sale by acre depends primarily upon intention of parties, which is to be determined from
variety of factors such as negotiations of parties, mode of stating purchase price, manner of describing land, and language of contract.
Most land sales that are held to be transfers in gross contain large amounts of acreage.
Where sale involved less than one acre of land, everyone associated with sale believed lot contained 1.34 acres, and purchasers
were concerned about having at least one acre upon which to construct two homes, sale was by acre, and not in gross.
Purchaser of real estate is entitled to equitable remedy of abatement of purchase price if property is sold by acre and there is
material difference between actual and estimated quantity of land represented by seller; amount of abatement is to be determined by
multiplying quantity of deficiency by price per acre.
Where all parties associated with land sale believed that parcel was 1.34 acres, parcel was actually .83 acres, sale was by acre, and
purchaser paid $22,000 for parcel, purchaser was entitled to abatement of $8,373.13, reflecting reduction in purchase price conforming
to quantity of land actually received.
OPINION
The appellants Rex Ewing, Jr., and Rex Ewing, III (Ewings) purchased a parcel of real
estate from respondents Warren E. Bissell, Gilbert W. Bissell, John F. Parsons, Teresa Ellen
Parsons, Velma Dickson, Barbara Bissell and Kyle Frederick Parsons (sellers) for $22,000.
The sellers represented, and the Offer and Acceptance indicated, that the parcel contained
approximately 1.34 acres. This was the same quantity of acreage designated on the plat map,
and all parties believed that the parcel contained approximately that acreage prior to sale.
Subsequent to the sale, the assessor informed the Ewings that their parcel contained only .83
acres.
The Ewings, alleging alternate theories of fraud, negligent misrepresentation and mutual
mistake of fact, brought suit for an abatement of the purchase price to reflect the reduced
acreage they received. After a non-jury trial, the district court determined that the Ewings had
not established a right to an abatement under any theory, that the sale of the lot was a sale in
gross, and that the respondents were entitled to attorney fees of $41,011. Because the record
establishes substantial evidence of a mutual mistake of fact as to the acreage in the
parcel sold, and because this was not a sale of real estate in gross, abatement of the
purchase price was appropriate and the district court erred in not granting Ewings this
relief.
the record establishes substantial evidence of a mutual mistake of fact as to the acreage in the
parcel sold, and because this was not a sale of real estate in gross, abatement of the purchase
price was appropriate and the district court erred in not granting Ewings this relief.
FACTS
Respondent Dennis Jaeger (Jaeger), a real estate agent, had conversations with one of the
owners of the property in question and ascertained that they wanted to sell it. In his
conversations, he discovered that the plat map listed two noncontiguous lots each as parcel
No. 10, and on the larger parcel, the one ultimately purchased by the Ewings, was written
1.34 acres. Jaeger inspected the property and thought there might be a question as to the total
acreage of the lot; however, he could not determine the actual size of the lot by viewing it.
After walking the property, he had that gut feeling that this property was probably 1.34
acres, plus the easement, that it would be less than 1.34 or that, in fact, was probably 1.34.
The property was listed for sale and a Wayne Miller originally indicated that he would
purchase the property for $22,000. Prior to the execution of the Offer and Acceptance, Jaeger
took Miller to the property, but again from this viewing, could not tell the property's exact
acreage. Jaeger told Miller that the exact size of the lot would be ascertained when escrow
was established. Jaeger prepared an Offer and Acceptance which described the property as
containing approximately 1.34 acres and it was signed by the sellers and Miller.
Wayne Miller was unable to consummate the purchase of the property and the Ewings
considered assuming Miller's right to purchase as set forth in the Offer and Acceptance.
When the Ewings called Jaeger, Jaeger read the Offer and Acceptance verbatim.
Ewings met briefly with Jaeger and told him that they wanted to build two homes on the
lot to be fed by one community well. Local zoning required a minimum of one-half acre to
construct a house, and Jaeger advised the Ewings that they would be able to build one home
per one-half acre. The Ewings placed a $500 deposit on the property, thereby succeeding to
Miller's interest as stated in the Offer and Acceptance.
A lot near the one in question was being purchased by a friend of the Ewings, Herb
Roman. Roman was the person who informed the Ewings of the opportunity to purchase this
lot and that it contained approximately 1.34 acres. An escrow for the sale from the sellers to
the Ewings was established at Nevada Title Company. Jaeger knew that a better legal
description of the property was needed.
property was needed. He informed the Ewings of this need, and the title company
subsequently prepared a more detailed legal description. Jaeger told the sellers that they could
get a survey of the property, but neither party requested a survey. In February, 1982, the
escrow for the sale of the parcel to the Ewings closed simultaneously with the sale of the lot
from the same sellers to Herb Roman. Roman purchased .92 acres for $18,000. The Ewings
believed they were purchasing 1.34 acres for $22,000, but actually were purchasing only .83
acres.
At the close of escrow, the Ewings received a tax bill for 1.34 acres and paid the taxes on
that acreage. In December, 1982, the Clark County Assessor's office informed the Ewings that
they received only .83 acres in the transaction. At that time it was discovered that the 1.34
acre notation on the parcel purchased by the Ewings, as shown on the plat map, actually was
the total amount of acreage contained in the two noncontiguous parcels marked No. 10.
Two weeks after the Ewings purchased the property in question, Jaeger's mother-in-law
who lived with him purchased the smaller parcel of property, which contained .51 acres and
also was labeled as parcel 10, for $750. Jaeger's mother-in-law subsequently sold this parcel
within the year to a third party for $7,000.
LEGAL DISCUSSION
[Headnote 1]
The first issue we must decide is whether to affirm the district court's decision that the
evidence did not support the Ewings' assertion that relief was warranted on the theory of
mutual mistake of fact. In an earlier case concerning whether there was a mistake of fact in a
real estate transaction, and if the sale was of acreage in gross, we announced the standard of
review on appeal.
The general rule of this court is that when the evidence is conflicting and there is
substantial evidence to sustain the judgment it will not be disturbed. But there is an
exception to the general rule to the effect that where, upon all the evidence, it is clear
that a wrong conclusion has been reached, the judgment will be reversed.
Seyden v. Frade, 88 Nev. 174, 177, 494 P.2d 1281, 1283 (1972) (quoting Consolazio v.
Summerfield, 54 Nev. 176, 179, 10 P.2d 629 (1932)) (citations omitted).
[Headnote 2]
Testimony established that everyone connected with this sale believed the lot contained
1.34 acres: the sellers; the sellers' agent, Jaeger; the initial purchaser, Wayne Miller; the
ultimate purchasers, the Ewings; and the neighbor who recommended the purchase, Herb
Roman.
purchasers, the Ewings; and the neighbor who recommended the purchase, Herb Roman. The
parties' belief that the parcel contained 1.34 acres is further supported by the documentary
evidence. The plat map indicated the parcel was 1.34 acres and the Offer and Acceptance
described the lot as containing that same amount.
Jaeger argues that the Ewings were aware that the exact size of the lot was not known and
that they should have ordered a survey if they wanted this information. However, this ignores
that Jaeger was the person most aware of the possible size discrepancy and that two
noncontiguous lots both were labelled Parcel 10. If anyone had the responsibility to insure
that the exact size of the lot was ascertained before escrow closing, it was the sellers and their
real estate agent Jaeger. NRS 645.633(6); cf. Holland Rlty. v. Nev. Real Est. Comm'n, 84
Nev. 91, 436 P.2d 422 (1968) (Seller's agent under duty to disclose material facts that may
affect buyer's decision to purchase).
We conclude that the Ewings established that there was a mutual mistake of fact and that
there is no substantial evidence to hold otherwise.
[Headnotes 3, 4]
Even if there is a significant mutual mistake of fact as to the acreage contained in a real
estate parcel, the purchaser is usually not entitled to relief if the sale was of acreage in gross.
Seyden v. Frade, 88 Nev. at 177, 494 P.2d at 1283. Therefore, the second question we must
answer is whether the district court correctly held that this was a sale of property in gross. In
making this determination, the Seyden case again gives us guidance.
Whether a sale of land is a sale in gross or a sale by the acre depends primarily upon
the intention of the parties, which is to be determined from a variety of factors such as
the negotiations of the parties, the mode of stating the purchase price, the manner of
describing the land and the language of the contract. Dixon v. Morse, 463 P.2d 284
(Idaho 1970); Speedway Enterprises v. Hartsell, 251 P.2d 641 (Ariz. 1952); 1 ALR 2d
9.
88 Nev. at 176. In that case, the purchasers were buying a ranch that was comprised of
approximately 320 acres in Mason Valley and approximately 2,300 acres of range land
located from Wabuska to Adrian Valley. Even though the range land was approximately 140
acres less than estimated, and the sellers were without title to convey an additional 40 acres,
we reversed the district court and held that a substantial variance from the approximated
acreage would not affect the sale when the sale was deemed to be one of acreage in gross.
[Headnotes 5, 6]
Most sales that are held to be transfers in gross contain large amounts of acreage and
rightly so because the specific acreage is less important than the general description of the
large parcel being purchased. In the case at bar, however, we are dealing with a small amount
of acreage and the purchasers were concerned about having at least one acre upon which to
construct two homes. The Ewings received less than an acre and 38 percent less land than
they bargained for.
When purchasing a residential lot, the price is usually set by two basic considerations: the
location and the size of the parcel. In reviewing the limited evidence of comparable sales, it is
shown that $22,000 was a fair price for 1.34 acres, but not for .83 acres. Herb Roman
purchased less than an acre for $18,000 and Jaeger's mother-in-law sold her half acre parcel
for $7,000. This leads to the inescapable conclusion that the Ewings would not have paid
$22,000 for the lot if they realized it contained only .83 acres and the Ewings so testified. We
conclude therefore that this was a sale by the acre and not one in gross as the district court
found.
[Headnotes 7, 8]
Courts have held that a purchaser is entitled to the equitable remedy of an abatement of the
purchase price where the property is sold by the acre and there is a material difference
between the actual and estimated quantity of land represented by the seller. See Mills v.
Brown, 568 S.W.2d 100 (Tenn. 1978). The amount of the abatement is to be determined by
multiplying the quantity of the deficiency by the price per acre. See Wilbur v. Wilson, 179
Cal.App.2d 314 (1960). Accordingly, the Ewings are entitled to an abatement of $8,373.13,
reflecting a reduction in the purchase price conforming to the quantity of land actually
received.
Having held that there was a mistake of fact and that this was not a sale of acreage in
gross, it is not necessary to consider the Ewings' additional claims of error. Since the Ewings
are the prevailing parties and will receive a judgment in excess of the $5,000 purported offer
of judgment, no attorney's fees or costs shall be assessed against them. This case is remanded
to the lower court for entry of judgment conforming with this decision.
Young, C. J., Steffen and Springer, JJ., concur.
Mowbray, J., concurring in part and dissenting in part:
Respectfully, I dissent from that part of the majority opinion declaring that the Ewings are
entitled to an abatement. In this case, there is substantial evidence in the record to support the
district court's decision that this was a sale in gross rather than a sale per acre.
sale per acre. The parties negotiated for the purchase and sale of a residential lot, described as
approximately 1.34 acres for a price of $22,000. The Ewings were interested in the specific
lot because of its location next to their friend Herb Roman. The price expressed was for the
lot in gross not per acre or square foot. Moreover, the Ewings expressed their desire to keep
the lot and not rescind the contract. Therefore, I would affirm the district court's decision that
the Ewings were not entitled to an abatement. However, I concur with the majority, although
for different reasons, that the award of attorney's fees should be reversed.
____________
105 Nev. 494, 494 (1989) Home Savings v. Bigelow
HOME SAVINGS ASSOCIATION and H.S. SERVICE CORPORATION, Appellants, v.
ROBERT T. BIGELOW, Respondent.
No. 14108
September 6, 1989 779 P.2d 85
Appeal from order dismissing third-party complaint. Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
Appeal was taken from an order of the district court which dismissed vendor's third-party
complaint against the builder of an apartment complex. The Supreme Court held that doctrine
of laches did not preclude third-party complaint asserted by seller of apartment complex
against builder, who alleged that he probably would have purchased apartment complex
from purchaser had he initially been brought into action filed by purchaser against vendor.
Pearson & Patton, Las Vegas, for Appellants.
Francis J. Morton, Las Vegas; Morse & Mowbray, Las Vegas, for Respondent.
1. Equity.
Laches is more than mere delay in seeking to enforce one's rights; it is delay that works a disadvantage to another.
2. Equity.
Condition of party asserting laches must become so changed that he cannot be restored to his former state.
3. Equity.
Especially strong circumstances must exist to sustain defense of laches when the statute of limitations has not run.
4. Equity.
Applicability of doctrine of laches turns upon peculiar facts of each case.
5. Contracts.
Doctrine of laches did not preclude third-party complaint asserted by seller of apartment complex against builder, who alleged that
he probably would have purchased apartment complex from purchaser had he initially been brought into action filed by purchaser
against vendor; speculative statement could not establish as matter of law the especially strong circumstances necessary to prefer
defense of laches over applicable statute of limitations and application of doctrine of laches would produce an inequitable result since
builder would have incurred a $6 million obligation had he purchased the complex and settled the litigation.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellants' (Home Savings)
third-party complaint against respondent Bigelow. Home Savings contends that under the
facts presented below, the district court erred in determining that, as a matter of law, the
doctrine of laches prevented Home Savings from pursuing its claim against Bigelow. We
agree. For the reasons expressed below, we reverse the order of the district court and remand
this matter for further proceedings.
In 1977, H.S. Service Corporation, a wholly-owned subsidiary of Home Savings
Association (collectively referred to as Home Savings), built a 301-unit apartment complex in
Las Vegas. The complex was ultimately sold to a group called Forest Lane Associates.
Approximately one year after its completion, the complex literally started to fall apart.
Understandably upset by this turn of events, on October 15, 1979, Forest Lane Associates
brought suit against Home Savings alleging breach of express and implied warranties,
negligence and fraud. On August 24, 1981, after having successfully moved to implead
Bigelow in the Forest Lane suit on an indemnity theory, Home Savings filed a first amended
third-party complaint against Bigelow. According to Home Savings, Bigelow had total
control over the construction of the apartment complex; therefore, Bigelow was responsible
for any and all damages that might be assessed against Home Savings.
Bigelow moved to dismiss the third-party complaint on the ground of laches. According to
Bigelow, in January of 1980, prior to the filing of the third-party complaint, he had an
opportunity to purchase the apartment complex from Forest Lane Associates. Had he
completed the purchase, Bigelow asserted, he would have demanded, as a condition of the
sale, that Forest Lane Associates voluntarily dismiss the action against Home Savings.
Associates voluntarily dismiss the action against Home Savings. Bigelow did not, however,
complete the purchase of the complex. Bigelow further alleged that had he known Home
Savings was going to look to him for indemnification, he would have completed his purchase
of the complex in order to settle the litigation. Because he no longer had an opportunity to
purchase the complex, Bigelow asserted that he had been prejudiced by Home Savings' delay
in bringing the indemnification action.
Home Savings opposed the motion to dismiss alleging that in September 1980, Bigelow
sought and was refused indemnification from Home Savings. Thus, according to Home
Savings, Bigelow had reason to believe as early as September 1980 that he might be brought
into the Forest Lane action. The district court disagreed and granted the motion to dismiss.
[Headnotes 1-4]
Laches is more than mere delay in seeking to enforce one's rights, it is delay that works a
disadvantage to another. Cooney v. Pedroli, 49 Nev. 55, 62, 235 P. 637, 640 (1925) (quoting
Chase v. Chase, 37 A. 804, 805 (R.I. 1897)). The condition of the party asserting laches must
become so changed that he cannot be restored to his former state. Id. It is well-established
that [e]specially strong circumstances must exist to sustain the defense of laches when the
statute of limitations has not run. Lanigir v. Arden, 82 Nev. 28, 36, 409 P.2d 891, 896
(1966). Finally, applicability of the doctrine of laches turns upon the peculiar facts of each
case. See Miller v. Walser, 42 Nev. 497, 181 P. 437 (1919).
[Headnote 5]
In the instant case, Bigelow stated in his affidavit in support of the motion to dismiss,
[t]hat in January 1980 I negotiated with [Forest Lane Associates] for the purchase of Forest
Lane, and would probably have completed the purchase had I been a party to the lawsuit and
therefore more strongly motivated. (Emphasis added.) Such a statement indicates a
possibility that had Bigelow been brought into the action from its inception, he may still have
declined to purchase the complex. Assuming, without deciding, that laches is a defense
available to Bigelow, this speculative statement cannot establish as a matter of law the
especially strong circumstances necessary to prefer the defense of laches over the
applicable statute of limitations. Lanigir, 82 Nev. at 36, 409 P.2d at 896.
Further, rather than doing equity, in our view, the dismissal of the third-party complaint
grants Bigelow a windfall. Had Bigelow purchased the complex, he may have settled the
litigation, but he would have incurred a $6 million dollar obligation.
would have incurred a $6 million dollar obligation. As a result of the dismissal, Bigelow
faces no liability whatsoever. We cannot allow the application of the equitable doctrine of
laches to produce such an inequitable result. Cf. Hanns v. Hanns, 423 P.2d 499, 513 (Or.
1967) (denying defendants a windfall which would result if defense of laches was sustained is
not the kind of prejudice which would impel the court to deny relief which is otherwise
appropriate). Thus, we conclude the district court erred in granting Bigelow's motion to
dismiss.
Accordingly, we reverse the order of the district court dismissing the third-party complaint
with prejudice, and we remand this case to the district court for further proceedings not
inconsistent with this opinion.
Young, C. J., Springer and Rose, JJ., and Shearing, D. J.,
1
and Thompson, D. J.,
2
concur.
__________

1
The Honorable Miriam Shearing, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of Justice Steffen who voluntarily disqualified himself. Nev. Const. art. 6, 4.

2
The Honorable J. Charles Thompson, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of Justice Mowbray who voluntarily disqualified himself. Nev. Const. art. 6, 4.
____________
105 Nev. 497, 497 (1989) Miller v. State
DWIGHT WAYNE MILLER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19166
September 6, 1989 779 P.2d 87
Appeal from judgment of conviction for sexual assault. Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
Defendant was convicted of criminal sexual assault following a jury trial in the district
court. Defendant appealed. The Supreme Court, Steffen, Acting C. J., held that: (1) the rape
shield statute does not preclude the cross-examination of complaining witnesses in criminal
sexual assault cases concerning prior fabricated rape accusations, but (2) the defendant failed
to make the requisite evidentiary showing to establish his right to cross-examine the
complaining witness about prior false allegations.
Affirmed.
Robert Bruce Lindsay, Reno, for Appellant.
Brian McKay, Attorney General, Carson City, and Jack T. Bullock, District Attorney,
Edward Reed, Deputy District Attorney, Humboldt County, for Respondent.
1. Witnesses.
In a sexual assault case, the complaining witness' credibility is critical and thus an alleged victim's prior fabricated accusations of
sexual abuse or sexual assault are highly probative of a complaining witness' credibility concerning current sexual assault charges.
2. Witnesses.
Prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute previous sexual conduct for
rape shield statute purposes; therefore, rape shield statute does not bar the cross-examination of a complaining witness about prior false
accusations. NRS 50.090.
3. Witnesses.
As an exception to the collateral evidence rule, where complaining witness in a criminal sexual assault case denies on
cross-examination making prior false rape allegations, counsel may introduce extrinsic evidence to prove that in the past fabricated
charges were made. NRS 50.085, subd. 3, 50.090.
4. Witnesses.
If a defendant in a sexual assault case proposes to cross-examine the complaining witness about prior false sexual assault or sexual
abuse allegations and introduce corroborative evidence, he must, prior to such questioning, file notice of his intent; the trial court must
then order hearing to determine the propriety of such questioning and the admissibility of corroborative evidence; the defendant must
establish, that the accusations were in fact made, that the accusations were in fact false, and that the evidence is more probative than
prejudicial; if these conditions are satisfied, the complaining witness can be cross-examined concerning the alleged false accusations
and extrinsic evidence of the false accusations presented only if complaining witness denies or fails to recall having made such
accusations. NRS 50.090.
5. Witnesses.
Cross-examination of the complaining witness in a criminal sexual assault case on prior allegations of sexual assault being false
was correctly denied, where the only available evidence of allegedly falsity was number of vague references to the Attorney General's
motivation for not going forward with the complaining witness' prior sexual abuse allegations. NRS 50.085, subd. 3, 50.090.
OPINION
This appeal presents the question of whether defense counsel may cross-examine, for
impeachment purposes, an alleged sexual assault victim concerning prior fabricated rape
accusations. We conclude that under certain conditions, such a practice is permissible.
However, for reasons discussed below and under the facts of this case, we conclude that it is
not appropriate to reverse and remand to the trial court to give Miller an opportunity to
cross-examine the complaining witness in such a fashion.
of this case, we conclude that it is not appropriate to reverse and remand to the trial court to
give Miller an opportunity to cross-examine the complaining witness in such a fashion.
Accordingly, we affirm.
On December 7, 1987, the complaining witness reported to a school counselor that Miller
had sexually assaulted her. The police were subsequently notified and officers interviewed
her. Based upon information obtained from the complaining witness and other pertinent
evidence, Miller was arrested on December 8, 1987. On December 31, 1987, Miller was
charged by information with sexual assault, a violation of NRS 200.366, and battery with
intent to commit sexual assault, a breach of NRS 200.400. At a later arraignment, Miller
entered a plea of not guilty.
Miller's jury trial was scheduled to commence on March 15, 1988. Prior to jury selection,
the State requested that the trial judge disallow defense counsel's cross-examination of the
complaining witness concerning prior allegations of rape or molestation. The State admitted
that in 1986 the complaining witness reported that her uncle had molested her. The State also
noted that although the Attorney General's office investigated the allegations, charges were
not filed.
1
The State argued that under such circumstances, the victim's prior accusation was
not relevant to the question of her credibility and current sexual assault charges.
After reviewing, apparently for the first time, the Humboldt County Sheriff's Office file
concerning the alleged incident between the complaining witness and her uncle, defense
counsel argued that in reality, the complaining witness had twice accused her uncle of
sexually abusing her or attempting to sexually abuse her. When the trial judge asked defense
counsel whether he had other evidence regarding the victim's prior accusations, he responded
that the Humboldt County Sheriff's file was the only information he had. As a result, the
district court ruled that any cross-examination of the complaining witness concerning prior
rape or sexual abuse allegations was precluded by NRS 50.090,
2
Nevada's rape shield
statute.
__________

1
The record is not clear as to why charges were not filed. The State suggested that the Attorney General felt
that the accusations were too old and that the State was worried about a credibility battle between the
complaining witness and her uncle.

2
In any prosecution for sexual assault or statutory sexual seduction or for assault with intent to commit,
attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any
previous sexual conduct of the victim of the crime to challenge the victim's credibility as a witness unless
the prosecutor has presented evidence or the victim has testified concerning such conduct, or the
Eventually Miller was tried and convicted of sexual assault.
3
He was sentenced to life
imprisonment with the possibility of parole after five years. On appeal, Miller alleges, inter
alia, that the lower court abused its discretion in denying Miller the opportunity to
cross-examine the complaining witness regarding prior sexual abuse accusations which may
have been false.
[Headnote 1]
At the outset, it is important to recognize in a sexual assault case that the complaining
witness' credibility is critical and thus an alleged victim's prior fabricated accusations of
sexual abuse or sexual assault are highly probative of a complaining witness' credibility
concerning current sexual assault charges. See Little v. State, 413 N.E.2d 639, 643 (Ind.App.
1980). As professor Wigmore explains:
Occasionally is found in woman complainants, testifying to sex offenses by men, a
dangerous form of abnormal mentalitydangerous here, because it affects testimonial
trustworthiness while not affecting other mental operations. It consists in a disposition
to fabricate irresponsibly charges of sex offenses against persons totally innocent. . . .
Sometimes it is associated with unchaste conduct in the witness, sometimes not. But its
nature is well known to psychiatrists and is recognizable by them. Testimony to its
existence in an individual should always be receivable.
3A Wigmore On Evidence 934a (Chadbourn rev. ed. 1970).
[Headnote 2]
We next conclude, along with a number of sister states,
4
that prior false accusations of
sexual abuse or sexual assault by complaining witnesses do not constitute "previous
sexual conduct" for rape shield purposes.
__________
absence of such conduct, in which case the scope of the accused's cross-examination of the victim or
rebuttal shall be limited to the evidence presented by the prosecutor or victim.

3
The district court had previously ruled that battery with intent to commit sexual assault was a lesser
included offense of sexual assault.

4
See, e.g., Cox v. State, 443 A.2d 607, 613 (Md.App. 1982) (false recanted testimony not related to chastity
or sexual conduct); Com. v. Bohannon, 378 N.E.2d 987, 991-92 (Mass. 1978) (proposed cross-examination
questions concerning whether complainant previously had made false rape allegations did not relate to her prior
sexual activity or reputation for chastity; thus, rape shield statute inapplicable); State v. Durham, 327 S.E.2d
920, 926 (N.C.App. 1985) (child's accusation of abuse by father, told to mother, evidence of conversation or
language and, therefore, not excluded by rape shield statute); State v. LeClair, 730 P.2d 609, 613 (Or.App.
1986) (evidence of child's previous false accusations of sexual abuse not evidence of past sexual behavior under
rape shield law); Clinebell v. Com., 368 S.E.2d 263, 264 (Va. 1988) (false statements concerning sexual
behavior not conduct).
prior false accusations of sexual abuse or sexual assault by complaining witnesses do not
constitute previous sexual conduct for rape shield purposes. Specifically, in such cases, the
defendant is not attempting to inquire into the complaining witness' sexual history to reveal
unchaste character. On the contrary, the defendant seeks to prove for impeachment purposes
that the complaining witness has, in the past, made false accusations concerning sexual
behavior. See Clinebell v. Com., 368 S.E.2d 263, 264 (Va. 1988).
We hold, therefore, than in a sexual assault case, NRS 50.090 does not bar the
cross-examination of a complaining witness about prior false accusations. Accordingly, under
conditions specified hereafter, defense counsel may cross-examine a complaining witness
about previous fabricated accusations, and if the witness denies making the allegations,
counsel may introduce extrinsic evidence to prove that, in the past, fabricated charges were
made. See Id. at 266, See also People v. Mikula, 289 N.W.2d 195, 198-199 (Mich.App.
1978).
[Headnote 3]
We recognize that our ruling impinges on the constraints imposed by NRS 50.085(3),
Nevada's collateral evidence rule.
5
Specifically, NRS 50.085(3) permits cross-examination
of a witness into specific instances of conduct. However, if the witness denies the past
conduct, extrinsic evidence to disprove the denial is generally not admissible. See Moore v.
State, 96 Nev. 220, 224-225, 607 P.2d 105, 107-108 (1980). To the extent that our holding
transcends the limitations of NRS 50.085(3), we carve out an exception for sexual assault
cases.
6

Such an exception is in pari ratione with this court's current position regarding sexual
assault cases and the admissibility of extrinsic impeachment evidence against defendants.
Specifically, in Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988), we held that, under
certain circumstances, NRS 50.0S5{3) does not bar the prosecution from introducing
extrinsic misconduct evidence against defendants in sexual assault cases. Id. at 1146.
__________

5
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility,
other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant
to truthfulness, be inquired into on cross-examination of the witness himself or on cross-examination of a
witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the
general limitations upon relevant evidence and the limitations upon interrogation and subject to the
provisions of NRS 50.090.

6
We note that other jurisdictions that have dealt with this problem either ignore their collateral evidence
rules or simply take the position that such proof constitutes substantive evidence. Galvin, Shielding Rape Victims
in the State and Federal Court: A proposal for the Second Decade, 70 Minn. L. Rev. 764, 860 (1986).
that, under certain circumstances, NRS 50.085(3) does not bar the prosecution from
introducing extrinsic misconduct evidence against defendants in sexual assault cases. Id. at
1146.
[Headnote 4]
As a prerequisite to admitting a complaining witness' prior sexual assault and sexual abuse
accusations and corroborative extrinsic evidence proving the falsity thereof, a threshold
inquiry must establish both the fact of the accusations and the falsity thereof even before
defense counsel launches into cross-examination. See Covington v. Alaska, 703 P.2d 436,
442 (Alaska 1985); Clinebell, 368 S.E.2d at 266. Thus, if a defendant in a sexual assault case
proposes to cross-examine the complaining witness about prior false sexual assault or sexual
abuse allegations and introduce corroborative evidence, he must, prior to such questioning,
file written notice of his intent. The trial court must then order a hearing, outside the presence
of the jury, to determine the propriety of such questioning and the admissibility of
corroborative evidence. In making such a determination, the defendant must establish, by a
preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2)
that the accusation or accusations were in fact false; and (3) that the evidence is more
probative than prejudicial. Cf. Berner, 104 Nev. at 697, 765 P.2d at 1145.
7
If the defendant
satisfies these three conditions, the trial court will authorize cross-examination of the
complaining witness concerning the alleged false accusations. The defendant may thereafter
present extrinsic evidence of the false accusations only if the complaining witness denies or
fails to recall having made such accusations.
[Headnote 5]
Application of the foregoing standard to the instant case reveals that the trial court
correctly precluded cross-examination into past allegations of sexual abuse. Specifically,
although the complaining witness clearly made prior accusations, Miller failed to make the
requisite evidentiary showing to establish that the prior allegations were in fact false.
__________

7
Other jurisdictions apply various standards of proof. For example, in Little, 413 N.E.2d at 643, the court
stated that prior charges must be demonstrably false. In Covington v. State, 703 P.2d 436, 442 (Alaska App.
1985), the court stated that such evidence was admissible only if the defendant makes a showing out of the
presence of the jury that the witness' prior allegations of sexual assault were false, as, for example, where the
charges somehow had been disproved or where the witness had conceded their falsity. Com. v. Bohannon, 378
N.E.2d 987, 991 (Mass. 1978), required some factual basis of falsity. Finally, in Hughes v. Raines, 641 F.2d
790, 792 (9th Cir. 1981), the court stated that the probativeness of a prior rape charge would depend upon
whether it could be shown convincingly that the other charge was false.
allegations were in fact false. More specifically, the only available evidence of alleged falsity
was a number of vague references to the Attorney General's motivation for not going forward
with the complaining witness' prior sexual abuse allegations. Accordingly, it was proper to
deny cross-examination.
We have carefully considered other issues raised on appeal but not discussed herein and
conclude that they lack merit. Accordingly, we affirm the judgment entered below.
Mowbray and Rose, JJ., and Mosley, D. J.,
8
concur.
The reason that I cannot join with the majority, although I agree entirely with its reasoning,
is that I do not think it is fair to expect defense counsel to have followed the somewhat
complex procedures required by the majority opinion. I would send the case back for retrial
so that evidential questions relating to admissibility of false accusations of sexual misconduct
could be dealt with in accordance with Miller.
Defense counsel tried to bring before the court evidence that the complaining witness had
a habit of falsely accusing people of accosting her in a sexual manner. Defense counsel was
told in effect to sit down and not to pursue the matter at all because it constituted a violation
of the rape shield law. Neither the court nor counsel can be faulted for not then realizing that
as a prerequisite to admitting a complaining witness's prior sexual assault and sexual abuse
accusations and corroborative extrinsic evidence proving the falsity thereof, a threshold
inquiry must establish both the fact of the accusations and the falsity thereof even before
defense counsel launches into cross examination. Even less could the court and counsel be
expected to know that as a condition of being allowed to cross examine in these cases defense
counsel must file written notice of his intent. The trial judge could not possibly have known
either that he was required to order a hearing, outside the presence of the jury, to determine
the propriety of such questioning and the admissibility of corroborative evidence. Even less,
without a copy of Miller in hand, could the judge be expected to have applied the required
burden of proof to each of the enumerated requisites listed in the majority opinion at pages
six and seven.
The defendant in this case had only one real defense and that was his accuser's penchant
for making false and indiscriminate charges of the same nature as those that were being made
against him.
__________

8
The Honorable Donald M. Mosley, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in the place of The Honorable Cliff Young, Chief Justice. Nev. Const. art. 6, 4.
him. Miller was prevented from asserting this defense principally because of his lack of
precognition. He, as well as the trial judge, were simply not able to foresee what this court
was going to say on the subject. This inability to predict what now becomes the mandated
procedure in these kinds of cases is what disabled him from presenting his defense. I think
this is unfair. I would give him a chance to present his defense and would send the case back
for trial.
____________
105 Nev. 504, 504 (1989) United Fire Insurance Co. v. McClelland
UNITED FIRE INSURANCE COMPANY, and UNITED DIVERSIFIED CORPORATION,
Appellants, v. KENNETH McCLELLAND and JONI McCLELLAND, Respondents.
No. 18705
September 6, 1989 780 P.2d 193
Appeal from a judgment on a jury verdict awarding respondents compensatory and
punitive damages. Second Judicial District Court, Washoe County; Jerry C. Whitehead,
Judge.
Insured and his wife brought action against group accident and health insurer. The district
court found insurer and its parent liable for bad faith refusal to pay. Appeal was taken. The
Supreme Court held that: (1) evidence supported jury finding that there was no novation of
policy; (2) there was sufficient evidence of bad faith; and (3) insured's wife lacked standing to
sue for compensatory damages for emotional distress due to denial of benefits for her
husband.
Vargas & Bartlett and Nicholas F. Frey; Lionel Sawyer & Collins and M. Kristina
Pickering, Reno, for Appellants.
Hibbs, Roberts, Lemons, Grundy and Eisenberg, Reno, for Respondents.
1. Novation.
A novation consists of four elements: there must be existing valid contract, all parties must agree to new contract, new contract
must extinguish old contract, and new contract must be valid.
2. Novation.
Intent of all parties to cause a novation must be clear.
3. Novation.
Consent to novation may be implied from circumstances of transaction and by subsequent conduct of parties.
4. Novation.
Novation is a question of law only when agreement and consent of parties are unequivocal.
5. Novation.
Whether novation occurred is a question of fact if evidence is such that reasonable persons can draw more than one conclusion.
6. Novation.
Question of whether there was novation of group accident and health policy by particular insurer when another insurer acquired
first insurer's rights and assumed its obligations under policy was for jury and substantial evidence supported jury determination that
there was no novation.
Clear abuse of discretion must exist in order for Supreme Court to disturb district court's admission of expert testimony.
8. Evidence.
Courts should exclude testimonial opinion on state of law.
9. Stipulations; Trial.
Attorney and former deputy insurance commissioner for state could testify on what company was proper insurer and whether that
insurer breached its duty to insureds; counsel for both parties had previously agreed with judge that witness could express legal opinion
on matters not covered by trial court's instructions, and defense counsel opened door to rebuttal testimony by reading from witness'
deposition and bringing out that at time of deposition witness had not seen any conduct on part of defendant insurer that warranted
punitive damages.
10. Insurance.
Jury question on insurer's bad faith arises when relevant facts are in dispute or when facts permit differing inferences as to
reasonableness of insurer's conduct.
11. Insurance.
Sufficient evidence existed to support jury determination that insurer and its parent company acted in bad faith in denying claims
under group accident and health policy.
12. Insurance.
Liability of insurer for bad faith refusal to pay is strictly tied to implied-in-law covenant of good faith and fair dealing arising out
of underlying contractual relationship; therefore, when no contractual relationship exists, no recovery for bad faith is allowed.
13. Insurance.
Wife's coverage as a dependent under her husband's group accident and health policy did not give her standing to enforce her
husband's contract rights for bad faith denial of health care benefits.
14. Insurance.
Fact that medical creditors could seek payment from wife's portion of community property as well as from her separate property
did not give wife standing to bring action against her husband's insurer for alleged bad faith refusal to pay husband's claims. NRS
123.110, 450.390, subd. 2.
15. Insurance.
Proof of insurer's bad faith, by itself, does not establish liability for punitive damage; plaintiff must also show
evidence of oppression, fraud, or malice, express or implied.
punitive damages; plaintiff must also show evidence of oppression, fraud, or malice, express or implied. NRS 42.010.
16. Insurance.
Group accident and health insurer's failure to divulge its financial difficulties to insured, preventing insured from making informed
decision whether to change carriers, constituted bad faith warranting imposition of punitive damages upon insurer's failure to pay
under policy. NRS 42.010.
17. Insurance.
Reduction in compensatory damages awarded insured against insurer did not require disturbance of jury award of punitive
damages.
18. Insurance.
Punitive damage award of $500,000 imposed against group accident and health insurer which acted in bad faith was not excessive.
OPINION
Per Curiam:
This appeal arose from an action brought against appellants United Fire Insurance
Company and its parent, United Diversified Corporation, due to United Fire's refusal to pay
Kenneth McClelland's claims for medical treatment. A jury found appellants liable for bad
faith and awarded respondents Kenneth and Joni McClelland compensatory and punitive
damages.
FACTS
Kenneth received group accident and health insurance as a participant in the American
Marketers Association Group Insurance Plan (AMA plan). United Fire issued the master
policy of insurance to a trustee for the AMA plan, a Mississippi bank. Some 6,724 people
were insured under this policy.
In November 1982, the California insurance commissioner issued a cease and desist order
to United Fire requiring that it stop doing all business in California effective January 1, 1983.
Two months later, the Nevada insurance commissioner served a similar order on United Fire.
On December 30, 1982, one of United Fire's vice presidents sent a letter to all the insureds
under the AMA plan notifying them of a 23.5 percent increase in premiums and cautioning
them not to change or drop their protection. This letter mentioned nothing about the cease
and desist order or about United Fire's financial difficulties.
United Fire and California Life Insurance Company executed a reinsurance and
assumption agreement (Agreement) on January 18, 1983. This Agreement provided that, as of
January 1, 1983, California Life acquired all United Fire's rights and assumed all United
Fire's obligations under the "policies."
United Fire's obligations under the policies. The policies included the AMA plan.
On January 24, 1983, United Fire's president wrote to all of the insureds under the AMA
plan informing them that California Life had assumed United Fire's liability under the AMA
policy and stating that insureds would receive an assumption certificate from California Life.
California Life never sent the promised assumption certificate.
The McClellands continued to receive correspondence from United Fire through May
1983. On June 30, 1983, California Life mailed a letter to the participants in the AMA plan
telling them that the coverage under the group plan would be cancelled, effective October 1,
1983. Two weeks later, California Life sent a second letter, changing the cancellation date to
November 1, 1983. However, the policy expressly stated that it may be terminated upon the
premium due date if written notice is given the policyholder, the Mississippi bank, at least
120 days in advance of such premium date. California Life never notified the policyholder of
the cancellation.
At the time of the Agreement, Kenneth was healthy and insurable. However, in March
1983, doctors diagnosed Kenneth as having an altered renal function with stones in both
kidneys. Kenneth had several operations and hospitalizations to remove stones, cure
infections, and implant and replace a tube from the bladder to the kidney.
Once the dispute over insurance arose, Kenneth delayed several times in receiving hospital
treatment because of a lack of money. On one occasion, Kenneth refused to go to the hospital
when his infection was particularly severe. When he finally did get to the hospital, it took
seven days before the infection could be controlled. Kenneth's physician testified that the
McClellands seemed emotionally distraught due to the amount of the medical bills which
accumulated with no means of paying them.
The McClellands filed suit against appellants and California Life. Just before trial
commenced, California Life agreed to pay McClellands their contract benefits under the
policy. The McClellands proceeded to trial against appellants. A jury awarded Kenneth
compensatory damages of $143,000, Joni compensatory damages of $73,000, and $500,000
in punitive damages.
Appellants assert that as a matter of law they owed the McClellands no insurance benefits
because United Fire and California Life executed the Agreement which substituted California
Life as insurer in United Fire's place. Moreover, appellants claim that expert testimony
improperly invaded the jury's province on all key issues, and that no bad faith liability
existed since any obligation they had to the McClellands presented unresolved questions
of fact and law.
key issues, and that no bad faith liability existed since any obligation they had to the
McClellands presented unresolved questions of fact and law. Next, appellants argue that the
punitive damages award was not supported by either the facts or the law. Finally, appellants
contend that the trial court erred by submitting Joni's claims to the jury. We affirm the district
court's decision except for the portion awarding Joni compensatory damages.
NOVATION
Appellants contend that they owed the McClellands no insurance benefits because the
policy was transferred to California Life, with the McClellands' knowledge and consent,
before the claims giving rise to this suit arose. Thus, they argue that the evidence of novation
entitled them to judgment as a matter of law.
[Headnotes 1-3]
A novation consists of four elements: (1) there must be an existing valid contract; (2) all
parties must agree to a new contract; (3) the new contract must extinguish the old contract;
and (4) the new contract must be valid. Boswell v. Lyon, 401 N.E.2d 735, 741 (Ind.Ct.App.
1980). If all four elements exist, a novation occurred. Id. Additionally, the intent of all parties
to cause a novation must be clear. Pink v. Busch, 100 Nev. 684, 690, 691 P.2d 456, 460
(1984). However, consent to novation may be implied from the circumstances of the
transaction and by the subsequent conduct of the parties. Sans Souci v. Div. of Fla. Land
Sales, 448 So.2d 1116, 1121 (Fla.Dist.Ct.App. 1984).
[Headnotes 4, 5]
Novation is a question of law only when the agreement and consent of the parties are
unequivocal. Downing v. Dial, 426 N.E.2d 416, 419 (Ind.Ct.App. 1981). Whether a novation
occurred is a question of fact if the evidence is such that reasonable persons can draw more
than one conclusion. Herb Hill Ins., Inc. v. Radtke, 380 N.W.2d 651, 654 (N.D. 1986).
[Headnote 6]
Appellants rely on the January 24, 1983 letter which United Fire sent to its insureds under
the AMA plan to prove that a novation occurred. According to United Fire, the letter
unmistakably indicated that United Fire would have no liability for claims incurred after the
effective date, January 1, 1983. Appellants argue that the McClellands' failure to submit the
disputed medical bills to United Fire confirms that the McClellands derived the same
understanding from the letter.
We conclude that a novation did not occur as a matter of law due to questions regarding
the McClelland's alleged consent.
Therefore, the district court properly submitted the issue to the jury. Moreover, the party
asserting novation has the burden of proving all the essentials of novation by clear and
convincing evidence. Miami Nat. Bank v. Forecast Const. Corp., 366 So.2d 1202, 1204
(Fla.Dist.Ct.App. 1979). Thus, we further conclude that substantial evidence supports the
jury's determination that appellants failed to establish, by clear and convincing evidence, all
the facts necessary to prove a novation.
This court will not overturn a jury verdict when substantial evidence supports it. General
Motors Corp. v. Reagle, 102 Nev. 8, 9-10, 714 P.2d 176, 177 (1986). We will look at the
facts from the viewpoint of the prevailing party, assuming that the jury believed all evidence
favorable to that party and that the jury drew all reasonable inferences in its favor. Id. at 9,
714 P.2d at 176.
In the instant case, the McClellands claim that had they known that the California
insurance commissioner had prohibited United Fire from writing insurance in California and
that California Life and its owner had questionable reputations, they would have sought other
insurance. Thus, the jury could have found that the McClellands' acquiescence to California
Life as their insurer did not constitute consent when they knew nothing of United Fire's
ejection from California and Nevada or the questionable status of California Life.
EXPERT TESTIMONY
Appellants maintain that Eugene Leverty, an attorney and former deputy insurance
commissioner for the State of Nevada, improperly testified as to legal conclusions, each of
which invaded the province of the jury. They argue that the district court committed
reversible error in admitting Leverty's opinions concerning reinsurance, bad faith, and
punitive damages.
[Headnotes 7, 8]
A clear abuse of discretion must exist in order for this court to disturb the district court's
admission of expert testimony. Allen v. State, 99 Nev. 485, 487, 665 P.2d 238, 239 (1983).
However, courts should exclude testimonial opinion on the state of the law. Ashton v.
Ashton, 733 P.2d 147, 153 (Utah 1987). An attorney's opinion on the applicable law does not
assist the jury, duty-bound to apply the law as stated by the court, in understanding the
evidence or in determining a fact in issue. Id.
[Headnote 9]
Appellants contend that the following testimony of Leverty was so improperly prejudicial
that we should reverse the verdict and judgment on this basis alone.
judgment on this basis alone. Counsel elicited testimony from Leverty, over objection, that
United Fire is the insurance company before and after thisafter a reinsurance agreement.
All it has done is transferred a portion of its risk to California Life. But California Life's
responsibility is to United Fire. United Fire's responsibility is to the policy holders. On
rebuttal, Leverty further testified, without objection, that United Fire breached its duty to the
McClellands, was guilty of bad faith, and was liable for punitive damages.
1

Both counsel had previously agreed with Judge Whitehead that Leverty could express a
legal opinion on matters not covered by the court's instructions. Since the district court did
not instruct on the effect of the Agreement, the Leverty opinions regarding reinsurance fell
within one of the proper areas of testimony.
We also conclude that United Fire's counsel opened the door to Leverty's rebuttal
testimony. During his cross-examination of Leverty, United Fire's counsel read from Leverty's
deposition and brought out that at the time of the deposition, Leverty had not seen any
conduct on the part of appellant that warranted punitive damages. Consequently,
rehabilitation and a showing of Leverty's present opinion became necessary only after
cross-examination. Therefore, the district court did not err in admitting Leverty's testimony
that United Fire breached its duty and was liable for bad faith and punitive damages.
BAD FAITH LIABILITY
Appellants assert that the district court erred in giving a bad faith instruction to the jury
since they were entitled to judgment, as a matter of law, on the McClellands' bad faith claims.
They maintain that the disputed novation should relieve them of any liability for bad faith.
[Headnote 10]
However, a jury question on insurer's bad faith arises when relevant facts are in dispute
or when facts permit differing inferences as to the reasonableness of insurer's conduct.
__________

1
On rebuttal, Leverty testified as follows:
My opinion is that United Fire was responsible to the policyholder's [sic] and, when the complaint
was filed, it knew that it should pay that claim. That it was outstanding because they were the responsible
company and it failed to process and give the claim information give the process they waited
fortheyit's shown that they didn't pay the claim, they didn't make any attempts to pay it. They didn't
make any attempts to submit the claim information forms to them so they could get the claim and,
therefore, that they have failed it. They breached their duty of a reasonable company doing business,
becoming aware if putting these people through hardship and I think thatthat they are guilty of the bad
faith and punitive damages.
relevant facts are in dispute or when facts permit differing inferences as to the reasonableness
of insurer's conduct. Duckett v. Allstate Ins. Co., 606 F.Supp. 728, 731 (W.D.Okla. 1985).
Moreover, as previously stated, we will not overturn a jury verdict supported by substantial
evidence. General Motors Corp. v. Reagle, 102 Nev. 8, 9-10, 714 P.2d 176, 177 (1986).
[Headnote 11]
In the instant case, the jury could well have concluded that appellants' claim that a
novation occurred was unreasonable in light of United Fire's failure to inform the insureds of
its financial difficulties or to investigate the reputation and financial position of California
Life. The McClellands could not have consented, even impliedly, to a novation when they
lacked knowledge of material facts necessary in making such a determination. Thus,
sufficient evidence exists to support the jury's determination that appellants acted in bad faith
in denying Kenneth's insurance claims which arose after October 31, 1983.
JONI McCLELLAND'S STANDING
The jury awarded Joni $73,000 in compensatory damages for emotional distress due to the
denial of benefits for Kenneth. Appellants argue that Joni had no standing to sue them since
she was neither a contracting party nor a claimant under the certificate issued by United Fire.
We agree.
[Headnote 12]
Liability for bad faith is strictly tied to the implied-in-law covenant of good faith and fair
dealing arising out of an underlying contractual relationship. K Mart Corp. v. Ponsock, 103
Nev. 39, 48, 732 P.2d 1364, 1370 (1987). When no contractual relationship exists, no
recovery for bad faith is allowed. Austero v. Nat. Cas. Co. of Detroit, Mich., 133 Cal.Rptr.
107, 110 (Ct.App. 1976); see also Lowe v. American Medical Intern., 494 So.2d 413 (Ala.
1986) (holding that the cause of action for the tort of bad faith refusal to pay was created to
protect only the person for whose benefit insurance payments were made).
[Headnote 13]
The McClellands respond that even though Joni was not a named insured under the
certificate, she became an insured as a dependent. However, a wife's coverage as a dependent
under her husband's health insurance policy does not give her standing to enforce her
husband's contract rights for bad faith denial of health care benefits. Hatchwell v. Blue Shield
of California, 244 Cal.Rptr. 249, 253 (Ct.App. 1988). In Hatchwell, the court reasoned that
even though the wife is an insured person and an express beneficiary regarding her own
health care benefits, she is merely an incidental beneficiary in regard to her husband's
benefits. Id. We adopt the reasoning of Hatchwell.
express beneficiary regarding her own health care benefits, she is merely an incidental
beneficiary in regard to her husband's benefits. Id. We adopt the reasoning of Hatchwell.
[Headnote 14]
Next, the McClellands argue that Joni has standing because United Fire jeopardized
community property by its refusal to pay medical bills. Medical creditors could seek payment
from Joni's portion of the community property as well as from her separate property. NRS
123.110; NRS 450.390(2). A South Carolina Supreme Court case supports the McClellands'
contention, holding that a spouse who is individually liable for her husband's medical
expenses has sufficient interest in enforcement of the health insurance policy to enable her to
maintain a cause of action for breach of contract and punitive damages. Ateyeh v.
Volkswagen of Florence, Inc., 341 S.E.2d 378, 379-380 (S.C. 1986).
We decline to follow the principles endorsed in Ateyeh. Instead, we follow Hatchwell
which held that a wife did not acquire standing to sue her husband's medical insurer for bad
faith based on her community property interest in the contract and community property
liability for the medical expenses incurred by her husband. 244 Cal.Rptr. at 254. We agree
with Hatchwell which refused to expand tort liability for breach of contract since it concluded
that the rights of the covered spouse sufficiently protect the community interest. Id.
Therefore, we continue to require a contractual basis for the tort of bad faith.
We determine that Joni had no standing to bring a bad faith claim against appellants
because a contractual basis did not exist between her and the insurer. Consequently, the
district court erred by submitting her claims to the jury. Accordingly, we reverse as to the
$73,000 in compensatory damages for Joni's emotional distress.
PUNITIVE DAMAGES
[Headnote 15]
Nevada follows the rule that proof of bad faith, by itself, does not establish liability for
punitive damages. United States Fidelity v. Peterson, 91 Nev. 617, 620, 540 P.2d 1070, 1072
(1975). To recover punitive damages, plaintiff must also show evidence of oppression,
fraud, or malice, express or implied. NRS 42.010. Appellants contend that the record lacks
any evidence showing that their conduct constituted oppression, malice or fraud.
[Headnote 16]
We defined oppression as a conscious disregard for the rights of others which constitutes
an act of subjecting plaintiffs to cruel and unjust hardship."
and unjust hardship. Ainsworth v. Combined Ins. Co., 104 Nev. 587, 590, 763 P.2d 673, 675
(1988), petition for cert. filed, (U.S. Aug. 17, 1989) (No. 89-282) (citations omitted). The
McClellands claim that United Fire's failure to notify the insureds of its ejection from
California and its further failure to investigate or reveal the unworthiness of California Life
was conduct done in conscious disregard for the insureds' rights which constituted an act of
subjecting Kenneth to cruel and unjust hardship. We agree.
United Fire never disclosed to its insureds that the California insurance commissioner had
issued a cease and desist order against United Fire and had prohibited United Fire from
writing insurance in California. Rather, on December 30, 1982, one of United Fire's vice
presidents wrote to the McClellands and other insureds, encouraging their continued
participation in the AMA plan. United Fire's failure to divulge its financial difficulties
prevented Kenneth from making an informed decision whether to change carriers and do
business with a financially sound insurance company or to continue his coverage with United
Fire. In January 1983, Kenneth could have switched his policy to another carrier. However,
when doctors diagnosed Kenneth's kidney problem in March 1983, he was no longer
insurable.
Moreover, United Fire admits that it conducted no investigation of California Life's
financial condition or reputation in the insurance industry. Five months after United Fire and
California Life executed the Agreement, California Life experienced fiscal problems and
attempted to cancel coverage under the AMA plan. Furthermore, once the McClellands
received the cancellation notice, Kenneth delayed several times in going to the hospital for
treatment because the McClellands were struggling financially. Thus, United Fire's less than
candid letter of December 30, 1982 demonstrated a callous disregard for Kenneth's rights and
resulted in his emotional anguish when medical bills accumulated with no means of paying
them. Therefore, we conclude that substantial evidence of oppression on the part of appellants
supports the jury's award of punitive damages.
[Headnote 17]
Further, we determine that the reduction in compensatory damages does not require our
disturbing the jury's award of punitive damages. See Alper v. Western Motels, Inc., 84 Nev.
472, 443 P.2d 557 (1968) (upholding a punitive damage award of $1,500 even though we
increased the compensatory damages of $96 by an additional $75); McDonald v. Bennett, 674
F.2d 1080 (5th Cir. 1982) (holding that a reduction in actual damages did not require a
reduction in punitive damages which were neither excessive nor disproportionate when
compared to the actual damages). In Nevada, we previously held that punitive damages "need
not bear any relationship to the compensatory damage award."
need not bear any relationship to the compensatory damage award. Ace Truck v. Kahn, 103
Nev. 503, 506, 746 P.2d 132, 134 (1987). Rather, Ace Truck established several factors which
we consider in our review of a punitive damages award.
[Headnote 18]
Ace Truck set forth these factors: (1) the financial position of the defendant; (2) the
culpability and blameworthiness of the tortfeasor; (3) the vulnerability and injury suffered by
the offended party; (4) the offensiveness of the punished conduct when compared to societal
norms of justice and propriety; and (5) the means judged necessary to deter future
misconduct. Id at 510, 746 P.2d at 137. Since these factors focus primarily on the punishment
and deterrence of tortfeasors' conduct, we conclude that the reversal of Joni's compensatory
damage award does not require a reduction in the punitive damages award. Nor is the
$500,000 punitive damage award excessive or clearly disproportionate under the Ace Truck
analysis.
Having reviewed appellants' other claims of error, we conclude that they lack merit.
Therefore, we affirm the district court judgment insofar as it awarded Kenneth compensatory
and punitive damages, and reverse that portion of the court's decision awarding compensatory
damages to Joni.
____________
105 Nev. 514, 514 (1989) Powers v. Powers
ROBERT J. POWERS, Appellant, v. CECELIA ANN POWERS, Respondent.
No. 18804
September 6, 1989 779 P.2d 91
Appeal from a divorce decree characterizing appellant's disability benefits as community
property. Eighth Judicial District Court, Clark County; Robert E. Rose, Judge.
Divorce was sought. The district court granted divorce and characterized former husband's
disability retirement benefits as community property. Husband appealed. The Supreme Court,
Young, C.J., held that husband could not argue for first time on appeal that disability benefits
did not contain retirement component subject to distribution upon divorce.
Affirmed.
Mowbray, J., dissented.
John Peter Lee and Daniel Marks, Las Vegas, for Appellant.
Ecker & Standish, Las Vegas, for Respondent.
Divorce.
Former husband who argued before trial court that disability retirement benefits were separate property could not argue for first
time on appeal that disability benefits did not contain retirement component subject to distribution upon divorce.
OPINION
1

On June 2, 1962, appellant Robert Joseph Powers and respondent Cecelia Ann Powers
were married in the State of New York. In 1968, Robert began working for the New York
City Department of Corrections. In 1974, Robert underwent an operation to remove a cyst
from his knee. During the operation a nerve was severed in his knee causing him to have a
condition known as drop foot. As a result of the injury, a medical board determined that
Robert was disabled and he was required to retire from the Department of Corrections in
1979.
Robert was not eligible for retirement benefits, but was eligible for disability retirement
benefits. Several different disability retirements options were available. Robert and Cecelia
chose the option that paid a benefit for Robert's life. The Powers then moved to Las Vegas. In
1987, Cecelia filed for divorce. The Powers could not agree on the distribution of their assets,
including whether the disability retirement benefits were community or separate property and
whether Cecelia should receive spousal support.
On December 15, 1987, the district court filed its decision regarding the character of the
disability retirement benefits and spousal support. The district court reasoned that the
payments appeared to be substantially related to Robert's employment. The district court
noted that a portion of the payment could be viewed as compensation for lost earnings, but
could not determine the amount. The district court found that the persuasive case law
characterized benefits which were products of employment as community property. The
district court relied on Simmons v. Simmons, 568 S.W.2d 169 (Texas Civ.App. 1978) and
Guy v. Guy, 560 P.2d 876 (Idaho 1977). The district court stated that had it not
characterized the disability retirement benefits as community property, it would have
awarded alimony.
__________

1
The Honorable Robert E. Rose, Justice, voluntarily recused himself from the consideration of this case and
took no part in its disposition.
it not characterized the disability retirement benefits as community property, it would have
awarded alimony. This appeal followed.
Robert contends that New York law should govern whether the disability retirement
benefits are divisible upon divorce, because the benefits were earned and awarded in New
York. A party may not raise a new theory for the first time on appeal, which is inconsistent
with or different from the one raised below. See Tupper v. Kroc, 88 Nev. 146, 494 P.2d 1275
(1972). Robert argued below that the disability benefits were his separate property under New
York law and that New York law was in accord with community property laws.
Community property jurisdictions have generally determined that disability retirement
benefits may contain two components.
2
New York law also recognizes that disability
benefits may contain two components. See Musumeci v. Musumeci, 506 N.Y.S.2d 629
(N.Y.Sup.Ct. 1988). In the instant case, the district court determined that Robert's disability
benefits contained two components, one of which was a retirement benefit. Robert did not
provide the district court with any authority to the contrary. Robert may not argue for the first
time on appeal that the disability benefits did not contain a retirement component, which is
subject to distribution upon divorce.
Accordingly, we affirm the decision of the district court.
Steffen and Springer, JJ., concur.
Mowbray, J., dissenting:
Robert Powers adequately made his record below and his contentions have merit.
Respondent conceded during oral argument that New York law governs the characterization
of Robert's disability benefits. The character of marital property does not change because a
husband and wife move to another jurisdiction. Restatement (Second) of Conflict of Laws
259 (1971). The law of the domiciliary state at the time property is acquired controls its
characterization as either separate or community property. See Choate v. Ransom, 74 Nev.
100, 323 P.2d 700 (1958). The domicile at the time retirement benefits vest determines
whether they are divisible upon divorce.
__________

2
See In re Marriage of Saslow, 710 P.2d 346 (Cal. 1985) (holding that disability benefits may be part
replacement of earnings and part retirement); In re Marriage of Kittleson, 585 P.2d 167 (Wash.App. 1978)
(holding that disability benefits may be compensation for injury and part retirement); In re Marriage of Anglin,
759 P.2d 1224 (Wash.App. 1988) (holding that disability benefits may be part replacement of earnings and part
retirement); In re Marriage of Kosko, 611 P.2d 104 (Ariz.App. 1980) (recognizing that disability benefits may
be part retirement and part replacement of earnings).
they are divisible upon divorce. See Gilbert v. Gilbert, 442 So.2d 1231 (La. 1984)
(determining that federal civil service disability retirement benefits which vested while in
Georgia were subject to Georgia's equitable distribution law). It is undisputed that Robert
earned and was awarded the disability retirement benefits while he and Cecelia were
domiciled in the State of New York. Therefore, New York law governs the divisibility of
Robert's disability benefits.
In New York, disability benefits differ from retirement benefits in that they are considered
compensation for personal injuries and therefore separate property. West v. West, 475
N.Y.S.2d 493 (N.Y.App.Div. 1984). However, when a person has a choice between vested
retirement benefits and disability benefits and chooses disability benefits, the disability
benefits are characterized as retirement benefits to the extent that the person could have
chosen the vested retirement benefits. See Musumeci v. Musumeci, 506 N.Y.S.2d 629
(N.Y.Sup.Ct. 1986). But, where retirement benefits are not vested and the party is entitled
only to disability benefits, they are viewed as being awards for personal injury and as such,
separate property. Mylette v. Mylette, 531 N.Y.S.2d 489, 491 (N.Y.Sup.Ct. 1988).
Robert's retirement benefits had not vested and he had no choice other than to accept
disability benefits. Thus New York law would treat the benefits as separate property.
Therefore, I would reverse.
____________
105 Nev. 517, 517 (1989) Gearhart v. Pierce Enterprises
LARRY VAUGHN GEARHART dba EAGLE CONTRACTING; and AMERICAN
CASUALTY COMPANY OF READING, PENNSYLVANIA, a Pennsylvania
Corporation, Appellants, v. PIERCE ENTERPRISES, INC., a California Corporation,
Respondent.
No. 18905
September 6, 1989 779 P.2d 93
Appeal from a grant of judgment by default and from an NRCP 60(b) motion denial.
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
In suit against principal and surety, the district court entered default judgment against both,
and they appealed. The Supreme Court, Steffen, J., held that: (1) surety was not bound by
default judgment entered against principal, and (2) default judgment was improperly entered
against principal.
Appellants.
Richard McKnight, Las Vegas, for Respondent.
1. Principal and Surety.
Default judgment entered against principal was not binding on its surety where surety was not responsible for principal's conduct
causing entry of default and had not assumed principal's legal defense, notwithstanding surety's participation in suit as principal's
codefendant.
2. Pretrial Procedure.
Principal's failure to comply with discovery order could not be imputed to surety for purposes of entering default judgment against
both, though parties were codefendants and represented by same counsel.
Surety was not required to defend against contingency that principal would fail to comply with discovery order, notwithstanding
surety's knowledge of suit and of prospect that failure to comply would lead to entry of default judgment.
4. Judgment.
Default judgment should not have been entered against principal until matter had been adjudicated as to surety, where principal
and surety were codefendants in suit.
OPINION
The central issue presented by this appeal is a question of first impression in this court. We
are asked to determine the legal effect upon a surety of a default judgment entered against its
principal. After reviewing the relevant case law and the facts and circumstances of this
particular case, we conclude, inter alia, that a default judgment against a principal is not
conclusive as to its codefendant surety.
Both Pierce Enterprises and Larry Gearhart are licensed Nevada contractors. In
conjunction with Nevada contractor licensing requirements, Gearhart purchased surety bonds
from appellant American Casualty Company.
In 1985, Pierce Enterprises entered into an agreement with Gearhart to act as a
subcontractor and to perform certain work on a particular construction project. After allegedly
performing pursuant to their agreement, Pierce Enterprises maintained that Gearhart had
failed to fulfill its part of the bargain. In July, 1986, after repeated demands, Pierce
Enterprises brought action for damages against Gearhart and American Casualty Company.
Appellants retained a Las Vegas, Nevada, attorney and the attorney answered Pierce
Enterprises' amended complaint on behalf of both appellants.
1

Pierce Enterprises requested that Gearhart answer certain interrogatories. However,
Gearhart failed to do so and Pierce Enterprises filed a motion to compel. The motion was
granted and an order issued to compel answers. Nonetheless, Gearhart failed to comply with
the order and Pierce Enterprises moved for NRCP 37(b) sanctions and requested that the
lower court enter default judgment and strike appellants' answers. Following a hearing and a
limited grace period to provide proper responses to interrogatories, the lower court ruled in
Pierce Enterprises' favor, entered default judgment, struck appellants' answer and awarded
damages. This appeal followed.
[Headnote 1]
A review of the principles of suretyship and the effect upon a surety of a default judgment
entered against its principal reveals substantial controversy. See Ohio Cas. Ins. Co. v.
Kentucky National Resources, 722 S.W.2d 290, 292 (Ky.App. 1986); Annotation,
Conclusiveness and effect upon surety, of default or consent judgment against principal, 59
A.L.R. 752 (1958); 72 C.J.S. Principal & Surety 192 (1987). As the court in Heritage Ins.
Co. v. Foster Elec. Co., Inc., 393 So.2d 28, 29 (Fla.Dist.Ct.App. 1981), explained:
[A]uthorities are in conflict concerning the legal effect on a surety of a default
judgment against its principal. A default judgment has been considered conclusive:
United States Fidelity & Guarantee Co. v. St. Mary's Hospital of Tucson, 10 Ariz. App.
346, 458 P.2d 966 (1969); Massachusetts Bonding & Insurance Co. v. Central Finance
Corp., 124 Colo. 379, 237 P.2d 1079 (1951); the judgment has been held inadmissible:
United States ex rel. Vigilanti v. Pfeiffer-Neumeyer Construction Corp., 25 F.Supp. 403
(E.D.N.Y. 1938); and the judgment has been considered prima facie evidence that the
surety is liable: Seaboard Surety v. Westwood Lake, Inc., supra; Escambia Chemical
Corp. v. Rocker, 124 Ga. App. 434, 184 S.E.2d 31 (1971). Prima facie evidence may be
contradicted by the surety. Escambia Chemical Corp. v. Rocker, supra.
The foregoing notwithstanding, we conclude, given the facts and equitable considerations
of this case that the default judgment entered against Gearhart is not binding upon his surety,
American Casualty Company.
__________

1
Appellate counsel did not represent appellants in the action below.
Casualty Company. See United States ex rel. Vigilanti v. Pfeiffer-Neumeyer Const. Corp., 25
F.Supp. 403, 404-405 (E.D.N.Y. 1938); Heritage Ins. Co., 393 So.2d at 29; Sutter v. Hill,
101 N.E.2d 502, 504 (Ohio 1951); Kliks v. McCaffrey, 350 P.2d 417, 418 (Or. 1960);
Restatement of Security, Chapter 5 139(3) (1941).
[Headnotes 2, 3]
At the outset, it is important to recognize that American Casualty Company was not
defending for Gearhart but was defending its own potential liability. See Kliks, 350 P.2d at
418. Additionally, American Casualty Company was not responsible for Gearhart's failure to
comply with the lower court's discovery order. Hence, Gearhart's default cannot be imputed to
American Casualty Company. See Doyle v. Jorgensen, 82 Nev. 196, 203 n.11, 414 P.2d 707,
711 n.11 (1966) (the defaulting actions of one defendant cannot be imputed to another who
behaves properly). See also Pfeiffer-Neumeyer Const. Corp., 25 F.Supp. at 405. Finally,
although American Casualty Company knew about the lawsuit and presumably knew about
the prospect of a default judgment against Gearhart, because it was not responsible for
Gearhart's derelictions, it was not required to defend against such a contingency.
[Headnote 4]
We further conclude that although Gearhart may have been properly defaulted, it was
improper to enter a default judgment until the matter had been adjudicated with respect to
codefendant American Casualty Company. See Diamond Nat'l Corp. v. Thunderbird Hotel,
Inc., 85 Nev. 271, 275, 454 P.2d 13, 16 (1969) (if one joint debtor defaults, no separate
judgment may be entered against him since the remaining joint debtors have the right to
defend for all of them). See also Nichiro Gyogyo Kaisha v. Norman, 606 P.2d 401, 403-404
(Alaska 1980); Reliance Ins. Cos. v. Thompson-Hayward Chem. Co., 519 P.2d 730, 736
(Kan. 1974); 6 J. Moore, W. Taggert & J. Wicker, Moore's Federal Practice paragraph 55.06
(1976); 10 C. Wright & A. Miller, Federal Practice and Procedure 2690 (1973). Hence, in
addition to the improper entry of default judgment against American Casualty Company, it
was also error to enter default judgment against Gearhart.
Finally, although appellants have alleged other errors below, because of our holding it is
unnecessary to discuss and decide these additional points.
Accordingly, the judgment of the district court is reversed and the matter is remanded for a
trial on the merits.
Young, C. J., and Springer and Rose, JJ., concur.
Respondent sued appellants, a contractor and his surety, for damages. Appellants retained
the same counsel to defend the suit. Respondent requested that the contractor answer
interrogatories. Almost a year passed, during which time the district court ordered the
contractor to answer the interrogatories, extended the time to answer, and finally when the
interrogatories remained unanswered, entered default judgment against appellants.
I would hold that a surety's liability on a construction contract is generally coextensive
with that of its principal where, as here, the surety had notice and an opportunity to defend the
action and the judgment was not procured by fraud or collusion. See Kentucky Insurance
Guarantee Association v. Dooley Construction, 732 S.W.2d 887 (Ky.Ct.App. 1987).
Therefore, I would affirm the decision of the district court.
____________
105 Nev. 521, 521 (1989) Snow v. State
JOHN OLIVER SNOW, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18634
September 6, 1989 779 P.2d 96
Appeal from denial of motion for new trial in death penalty case; Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
More than two years after defendant's conviction and death sentence for first degree
murder and conspiracy to commit murder became final, defendant moved for a new trial
based on newly discovered evidence. The district court denied motion for lack of jurisdiction,
on ground that motion for new trial based on newly discovered evidence must be made within
two years after verdict. Defendant appealed, asserting that two-year time limit is
unconstitutional as applied to petitioners facing the death penalty. The Supreme Court held
that two-year limit was not a violation of eighth amendment and due process and equal
protection clauses of fourteenth amendment of the United States Constitution, because
another avenue of relief is available through a habeas corpus petition.
Affirmed.
Kevin Kelly, Las Vegas; James E. Lobsenz, Seattle, Washington, for Appellant.
105 Nev. 521, 522 (1989) Snow v. State
1. Habeas Corpus.
Where a prisoner who has been sentenced to death discovers new evidence tending to prove that his conviction was illegally
obtained, such evidence may be brought before the court for consideration, even after two-year limit for motion for new trial based on
newly discovered evidence has run, in petition for writ of habeas corpus. NRS 176.515, subd. 3.
2. Criminal Law.
Two-year limit on motion for new trial based on newly discovered evidence did not violate death penalty petitioner's eighth
amendment rights where another avenue existed by which newly discovered evidence may be presented to the court, in the form of a
habeas corpus petition. NRS 176.515, subd. 3; U.S.C.A.Const. Amend. 8.
Statute requiring that motions for new trial based on newly discovered evidence be brought within two years after verdict did not
violate equal protection clause of fourteenth amendment on basis of distinguishing between those prisoners who bring their motions
within the two years and those who do not, where defendant has avenue, through petition for habeas corpus, by which he may present
his allegedly exculpating, newly discovered evidence more than two years after the verdict. NRS 176.515, subd. 3; U.S.C.A.Const.
Amend. 14.
Although important private interest exists in right not to be executed erroneously, two-year statute of limitations on motion for new
trial based on newly discovered evidence did not violate death penalty defendant's due process rights, where defendant had option of
presenting newly discovered evidence in petition for writ of habeas corpus. NRS 176.515, subd. 3; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Appellant, John Oliver Snow, was convicted of conspiracy to commit murder and of
murder in the first degree. He received a death sentence for the murder charge. More than two
years after his judgment became final, Snow discovered evidence which he asserts proves his
innocence. A portion of the newly discovered evidence purports to show that one of the main
witnesses at the trial committed perjury when she identified Snow as the person who
committed the murder. Snow moved for a new trial and sought an evidentiary hearing to
review the newly found evidence. The trial judge denied the motion, not on its merits, but
because he lacked jurisdiction to hear the motion based upon NRS 176.515(3), which requires
that a motion for a new trial based upon newly discovered evidence "be made only within
two years after the verdict or finding of guilt."
105 Nev. 521, 523 (1989) Snow v. State
based upon newly discovered evidence be made only within two years after the verdict or
finding of guilt. Snow now appeals the trial court's denial of his motion, asserting that the
two-year time limit imposed by NRS 176.515(3) is unconstitutional as applied to petitioners
facing the death penalty.
Snow argues that the two-year time limit is unconstitutional because it violates the eighth
amendment and the due process and equal protection clauses of the fourteenth amendment of
the United States Constitution. We do not agree.
While the two-year statute of limitations imposed by NRS 176.515(3) precludes direct
review of Snow's conviction, Snow may still seek collateral review of his claimed newly
discovered evidence by petitioning for a writ of habeas corpus. The writ of habeas corpus is
available to allow the presentation of questions of law which cannot otherwise be reviewed,
or that are so important as to render ordinary procedure inadequate and justify the
extraordinary remedy. Director, Dep't of Prisons v. Arndt, 98 Nev. 84, 85, 640 P.2d 1318,
1319 (1982); see also State ex rel. Orsborn v. Fogliani, 82 Nev. 300, 417 P.2d 148 (1966).
[Headnote 1]
Although we do not attempt to fashion Snow's petition for writ of habeas corpus for him, it
appears that the gist of Snow's claim is that he was denied due process of law due to the
alleged perjured testimony of one of the witnesses and that, based upon his newly discovered
evidence, the conviction is no longer supported by the evidence. We express no opinion as to
the merits of Snow's claims. However, we are prepared to rule that where a prisoner who has
been sentenced to death discovers new evidence tending to prove that his conviction was
illegally obtained, such evidence may be brought before the court for consideration, even after
the two-year time limit imposed by NRS 176.515(3) has run, in a petition for writ of habeas
corpus.
[Headnote 2]
We are not persuaded by Snow's arguments that the two-year time limit is unconstitutional
based on the eighth amendment of the United States Constitution. The two-year time limit
does not appreciably enhance the risk of an unwarranted execution since there is another
avenue available by which the newly discovered evidence may be presented to the court and,
thus, error in Snow's conviction may be brought to light. See Beck v. Alabama, 447 U.S. 625,
683 (1980) (court has invalidated procedural rules which tend to diminish the reliability of a
death sentence determination).
[Headnote 3]
Likewise, we have considered and we reject Snow's claim that NRS 176.515{3) violates
the equal protection clause of the fourteenth amendment by distinguishing between
prisoners who bring their motions within two years of sentencing and those who do not.
"Equal protection of the law has long been recognized to mean that no class of persons
shall be denied the same protection of the law which is enjoyed by other classes in like
circumstances." Allen v. State, 100 Nev. 130, 135
105 Nev. 521, 524 (1989) Snow v. State
NRS 176.515(3) violates the equal protection clause of the fourteenth amendment by
distinguishing between prisoners who bring their motions within two years of sentencing and
those who do not. Equal protection of the law has long been recognized to mean that no
class of persons shall be denied the same protection of the law which is enjoyed by other
classes in like circumstances. Allen v. State, 100 Nev. 130, 135, 676 P.2d 792, 795 (1984).
Because Snow has an avenue of relief available by which he may present his allegedly
exculpating, newly discovered evidence to the court, the statute of limitations imposed by
NRS 176.515(3) does not deny Snow equal protection under the law.
[Headnote 4]
Finally, upon balancing the factors laid out by the United States Supreme Court in
Matthews v. Eldridge, 424 U.S. 319 (1976), we conclude that the two-year time limit
imposed by NRS 176.515(3) has not denied Snow his right to due process of law. While we
acknowledge that the private interest involved, the right not to be executed erroneously, is an
important private interest which is worthy of careful constitutional protection, since Snow
may present his newly discovered evidence in a petition for writ of habeas corpus, we need
not eliminate the two-year statute of limitations imposed by NRS 176.515(3) in order to
protect this private interest. Moreover, as Snow has conceded, the state has a legitimate
interest in the finality of judgments. When a case must be retried after a significant passage of
time, both parties are hindered by the likelihood that key evidence and witnesses will no
longer be available for presentation to the trier of fact. However, because the state has the
burden of proof in a criminal trial, the prospect of trying a case without access to all of the
evidence which was available originally is especially oppressive on the state, and accordingly,
the state's interest in maintaining a statute of limitations on the bringing of motions for a new
trial is substantial.
The trial judge properly rejected Snow's motion, brought under NRS 176.515(3), for a new
trial because the motion was untimely made. Accordingly, we affirm the trial court's
judgment, and additionally, we reject Snow's contention that the two-year statute of
limitations imposed by NRS 176.515(3) is unconstitutional.
1
concur.
__________

1
The Honorable Cliff Young, Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to sit in
place of The Honorable E. M. Gunderson, Justice, pursuant to the court's general order of assignment filed
September 14, 1988.
____________
105 Nev. 525, 525 (1989) Naovarath v. State
KHAMSONE KHAM NAOVARATH, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 18872
September 7, 1989 779 P.2d 944
Appeal from judgment of conviction for first degree murder and imposition of the sentence
of life without possibility of parole. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Defendant was convicted in the district court of first degree murder. Defendant appealed.
The Supreme Court, Springer, J., held that sentence of life imprisonment without possibility
of parole imposed upon thirteen-year-old defendant was cruel and unusual under federal and
state constitutions.
Sentence reduced from life imprisonment without the possibility of parole to life
imprisonment with the possibility of parole.
Young, C. J., and Steffen, J., dissented.
Morgan D. Harris, Public Defender, Robert H. Thompson, Deputy Public Defender, Clark
Tufteland, Chief Deputy District Attorney, Robert Teuton, Deputy District Attorney, Clark
Criminal Law.
Sentence of life imprisonment without possibility of parole imposed on thirteen-year-old for murder was cruel and unusual under
the state and federal constitutions. Const. Art. 1, 6; U.S.C.A.Const. Amend. 8.
OPINION
We have before us a thirteen-year-old seventh grader who stands convicted of an
unspecified degree of murder by reason of his plea of guilty to an amended information
charging murder. Rejecting a pre-sentence recommendation of life with possibility of
parole, the trial court sentenced appellant Naovarath to imprisonment for the rest of his life
without possibility of parole.
Before proceeding we pause first to contemplate the meaning of a sentence without
possibility of parole, especially as it bears upon a seventh grader.
upon a seventh grader. All but the deadliest and most unsalvageable of prisoners have the
right to appear before the board of parole to try and show that they have behaved well in
prison confines and that their moral and spiritual betterment merits consideration of some
adjustment of their sentences. Denial of this vital opportunity means denial of hope; it means
that good behavior and character improvement are immaterial; it means that whatever the
future might hold in store for the mind and spirit of Khamsone Kham Naovarath, he will
remain in prison for the rest of his days.
1
This is a severe penalty indeed to impose on a
thirteen-year-old. The question is whether under the constitutions of Nevada and the United
States this penalty is excessive, cruel or unusual.
This child committed a serious crime; he killed a man who had been molesting him
sexually and then stole the man's belongings. Homosexual pornographic movies were found
at the crime scene, and there is little doubt that if the homosexual child molester had not died
from his injuries, he would be facing a possible life sentence himself and Naovarath would in
all probability be free. All this aside, we do have before us a murder convict, and we must
decide the issue presented by this appeal, namely, whether Naovarath's sentence of life
imprisonment without possibility of parole is cruel or unusual under the prohibition of the
state and federal constitutions.
2

The department of probation and parole recommended a life sentence with possibility of
parole. The sentencing judge, based on the record before her, concluded that Naovarath was
someone who had made it clear through his actions, his statements, and the testing that he
is amoral, prone to aberrant behavior, and a danger to society.
__________

1
The prosecutor pointed out to the sentencing judge that, if Naovarath were sentenced to life without the
possibility of parole, he could still be free on parole someday if his sentence were to be commuted. It is true that
if some unknown, future governor can garner the ratifying votes of a majority of the newly constituted board of
pardons commissioners, it is possible that by an act of executive clemency Naovarath may not spend the rest of
his days in a prison cell. We suppose that in light of this remote possibility Dante's fancied inscription on the
gates of hell, Abandon Hope All Ye Who Enter Here, may not be properly fastened above this boy's cell;
nevertheless, for now, the sentence is unequivocal: life imprisonment, without parolelife ends in prison.

2
In addition to this issue Naovarath has also assigned as error improper argument on the part of the
prosecutor. Had Naovarath's sentence been the result of a jury verdict, we might be more inclined to be
persuaded by this point. Naovarath claims that certain remarks of the prosecutor relative to parole eligibility
improperly influenced the sentencing judge. It does not seem reasonable to suppose that the sentencing judge
could have been influenced in any appreciable degree by the prosecutor's discussion of the subject of parole
eligibility. We must and do assume that the sentencing judge was well aware of the consequences of her
sentencing, and we decline to go into this matter any further.
and the testing that he is amoral, prone to aberrant behavior, and a danger to society. His acts
speak for themselves.
3
The sentencing judge is apparently saying that, in her judgment,
the killing, taken together with the mental and moral status of the boy, render Naovarath,
at thirteen, permanently unregenerate and an unreclaimable danger to society who must
be caged until he dies.
__________

3
One of the persuasive reasons why Naovarath's acts may not speak for themselves is that, in addition to
Naovarath's being only thirteen years old and probably not yet in puberty (the record is silent on this) at the time
of this event, his mental condition is brought into serious question by the psychologist's report found in the
record. That Naovarath should not be completely removed from the possibility of future parole consideration
and that he have an opportunity at some time in the future to be evaluated by a parole board, then, is supported
by two considerations: first, Naovarath was at the time of the killing a child with the mind of a child, and second,
Naovarath, insofar as the present state of the record is concerned, was psychotic, delusional and unable to
distinguish reality and fantasy. We, of course, do not know just how psychotic or delusional Naovarath was or
is; we have in this record only the court-appointed psychologist's uncontradicted written opinion. It seems that
little heed was paid by anyone to the psychologist's opinion and that no one ever sought a hearing on Naovarath's
competency at the time of the killing or at the time of the plea of guilty of murder.
Our putting murder in quotes prompts mention of another serious weakness in the proceedings in this case.
As stated in the body of this opinion, Naovarath was convicted of an unspecified degree of murder. As far as the
record before us is concerned, no mention is made of murder in the first degree, which is necessary in order to
support the sentence of life without possibility of parole. The question is not raised by Naovarath's counsel in
this appeal.
Further doubts about this conviction are created by Naovarath's presumed lack of capacity to commit a
crime. When the legislature removed the crime of murder from the Juvenile Court Act, the common law of
infancy was automatically restored. At common law a child under fourteen years is presumed to be incapable of
committing a crime. Naovarath, at thirteen, is entitled to a presumption of incapacity. See LaFave and Scott,
Handbook of Criminal Law, 351 (1972). According to NRS 194.010 [c]hildren between eight years and
fourteen years are presumed incapable of committing crimes unless there is clear proof that they knew of the
act's wrongfulness at the time it was committed. The trial court apparently never considered this presumption of
incapacity nor does it appear that counsel could have considered it while evaluating possible defenses or when
judging Naovarath's capacity to enter a voluntary plea. The dissent does point out that Naovarath wrote a letter
to his counsel and that, therefore, he must have been competent to plead; but, then, the dissent also maintains
that Naovarath got a terrific deal when he pleaded guilty to the crime of murder because if he had not made a
deal, he could very well have ended up with two life sentences without possibility of parole; whereas, now he
enjoys the benefit of only having to serve one term of life imprisonment without possibility of parole.
In light of all this, and of the undisputed mental condition of Naovarath, it is hard to reconcile sound
advocacy with the bargain struck herea plea of guilty in exchange for the severest possible sentence. As stated,
we are not in a position to deal with these matters now because the appeal does not raise them, and the record
does not support further appellate inquiry at this time.
A reading of this record raises some additional troublesome questions that probably will have to be answered
in a fact-finding, post-conviction proceeding.
The first question relates to the guilty plea. Expert opinion in the record tells us that Naovarath was
psychotic, delusional, unable to distinguish
ing judge is apparently saying that, in her judgment, the killing, taken together with the
mental and moral status of the boy, render Naovarath, at thirteen, permanently unregenerate
and an unreclaimable danger to society who must be caged until he dies. A reading of the
very limited record before us suggests that the boy's acts do not necessarily speak for
themselves. Let us examine as closely as we can these acts and, more importantly, the
thirteen-year-old who committed them:
Naovarath had known the man who was the object of his wrath for over a year and had
been a visitor in his home, apparently for the purpose of indulging the sexual perversions of
the deceased. On the day of the killing the deceased had, for reasons unknown, refused to
admit Naovarath into his home. Naovarath entered the deceased's home on that day without
permission. After gaining entry, by Naovarath's own account, the boy treated the man in a
very cruel and degrading manner. Naovarath tipped over the man's wheelchair, threw a
variety of objects at his head, taunted the man to kill himself and generally treated this
helpless man in a most merciless fashion.
Let it not be thought that we are underestimating the gravity of this or other crimes
committed by children. The undeniable increase in crimes by younger children has made it
necessary for the criminal justice system to deal severely with young offenders. Our
legislature has removed youthful murderers, whatever their age, from the grace of the juvenile
court act, thus making the most severe adult penalties available, where appropriate, in the
case of youthful murderers. Because, by statute, homicides committed by children even
younger than Naovarath, for instance, ten or eleven year olds, are punishable by adult
standards, careful judicial attention must be given to the subject of fair and constitutional
treatment of children who find themselves caught up in the adult criminal justice system.
__________
reality and fantasy and suffering from a substantial impairment of judgment. The plea canvass is not in the
record, but one wonders whether such a child could possibly be capable, given his language difficulty and the
apparent absence of his parents at critical stages of the proceedings, of understanding a plea negotiation which
required him to plead guilty to murder, with the only issue being whether he should get a life sentence with or
without possibility of parole.
The state of the record on the conviction itself is also of some concern. As stated above, the judgment of
conviction makes no mention of the degree of the murder (except for citation of NRS 200.030, which merely
recites that there are two degrees of murder, first degree and second degree). The judgment does not adjudicate
Naovarath to be guilty of first degree murder and states only that the Court did adjudge Defendant guilty
apparently referring to the plea of guilty to the crime of murder between December 31, 1986 and January 7,
1987, committed in violation of NRS 200.010, 200.030.
In deciding whether the sentence in this case exceeds constitutional bounds it is necessary
to look at both the age of the convict and at his probable mental state at the time of the
offense.
Certainly there must be some age at which a sentence of this severity must be judged to be
unarguably cruel and unusual. Had Naovarath been only nine or ten years old, few would
argue that this kind of sentence could be properly allowed. Most agree that it would be
excessive to sentence a nine or ten year old to life imprisonment without possibility of parole.
Children of this age simply cannot be said to deserve this kind of severe punishment, nor can
it be said that a child of such tender years is so unalterably bad that no parole release should
ever be considered.
When a child reaches twelve or thirteen, it may not be universally agreed that a life
sentence without parole should never be imposed, but surely all agree that such a severe and
hopeless sentence should be imposed on prepubescent children, if at all, only in the most
exceptional of circumstances. Children are and should be judged by different standards from
those imposed upon mature adults. To say that a thirteen-year-old deserves a fifty or sixty
year long sentence, imprisonment until he dies, is a grave judgment indeed if not Draconian.
To make the judgment that a thirteen-year-old must be punished with this severity and that he
can never be reformed, is the kind of judgment that, if it can be made at all, must be made
rarely and only on the surest and soundest of grounds. Looking at the case before us from this
perspective, we conclude that the sentence of life imprisonment without possibility of parole
imposed upon Naovarath was cruel and unusual under the Nevada Constitution and the
United States Constitution.
What means cruel and unusual punishment is not spelled out in either state or federal
constitutions. Recently the United States Supreme Court in Thompson v. Oklahoma, 487 U.S.
815, 108 S.Ct. 2687, 2691 (1988), noted that
[t]he authors of the Eighth Amendment drafted a categorical prohibition against the
infliction of cruel and unusual punishments, but they made no attempt to define the
contours of that category. They delegated that task to future generations of judges who
have been guided by the evolving standards of decency that mark the progress of a
maturing society. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed. 2d 630
(1958) (plurality opinion) (Warren, C.J.).
Former United States Supreme Court Justice Frank Murphy, in an unpublished draft
opinion, put the matter very well:
More than any other provision in the Constitution the prohibition of cruel and unusual
punishment depends largely, if not entirely, upon the humanitarian instincts of the
judiciary.
not entirely, upon the humanitarian instincts of the judiciary. We have nothing to guide
us in defining what is cruel and unusual apart from our consciences. A punishment
which is considered fair today may be considered cruel tomorrow. And so we are not
dealing here with a set of absolutes. Our decision must necessarily spring from the
mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the
human personality.
4

What constitutes cruel and unusual punishment for a child presents an especially difficult
question. Under Nevada statutory law, since 1985, a child may be charged, convicted and
sentenced for murder. For all other purposes the defendant in this case, a child, a seventh
grader at the time of the incident, is almost entirely legally incapacitated. A child may not
vote; a child may not serve on a jury. A child may not drink or gamble; a child of Naovarath's
age may not even drive an automobile. We may possibly have in the child before us the
beginning of an irremediably dangerous adult human being, but we certainly cannot know
that fact with any degree of certainty now. If putting this child away until his death is not
cruel, it is certainly unusual. To adjudicate a thirteen-year-old to be forever irredeemable and
to subject a child of this age to hopeless, lifelong punishment and segregation is not a usual or
acceptable response to childhood criminality, even when the criminality amounts to murder.
As said, hopelessness or near hopelessness is the hallmark of Naovarath's punishment. It is
questionable as to whether a thirteen-year-old can even imagine or comprehend what it means
to be imprisoned for sixty years or more. It is questionable whether a sentence of virtually
hopeless lifetime incarceration for this seventh grader measurably contributes to the social
purposes that are intended to be served by this next-to-maximum penalty. Enmund v. Florida,
485 U.S. 782, 798 (1982).
Punishment by imprisonment is generally accepted as serving three moral and social
purposes: retribution, deterrence of prospective offenders, and segregation of offenders from
society.
Retribution has been characterized by the Supreme Court as being an expression of
society's outrage at criminal conduct and as not being inconsistent with our respect for the
dignity of men. Gregg v. Georgia, 428 U.S. 153, 183 (1976). We do not question the right of
society to some retribution against a child murderer, but given the undeniably lesser
culpability of children for their bad actions, their capacity for growth and society's special
obligation to children, almost anyone will be prompted to ask whether Naovarath
deserves the degree of retribution represented by the hopelessness of a life sentence
without possibility of parole, even for the crime of murder.
__________

4
Unpublished draft opinion, Box 171, Harold Hitz Burton Papers, Library of Congress, quoted in D.
Danelski, The Riddle of Frank Murphy's Personality and Jurisprudence, 13 Law & Social Inquiry 196 (1988).
special obligation to children, almost anyone will be prompted to ask whether Naovarath
deserves the degree of retribution represented by the hopelessness of a life sentence without
possibility of parole, even for the crime of murder. We conclude that as just deserts, for
killing his sexual assailant, life without possibility of parole is excessive punishment for this
thirteen-year-old boy.
Deterrence also has a rational and historically accepted legitimacy in determining the
degree of punishment called for in a given criminal conviction. However, it is hard to claim
that children of under fourteen years are really capable of being very much deterred by
threatened punishment of this magnitude. Twelve and thirteen-year-olds just do not make the
kind of cost-benefit analysis that attaches any weight to the possibility of future
punishment. Thompson, 108 S.Ct. at 2700. Still, given the increase in capital crimes being
engaged in by young people of Naovarath's age and even younger, very serious penalties may
be properly invoked for crimes such as this.
5
One cannot help but wonder, however, if any
thirteen-year-old children will be deterred from homicidal conduct by an appreciation of the
difference between sentences of life with and life without the possibility of parole. Although
general deterrencesending out the word to a young but still sometimes dangerous
population that homicides committed even by the very young are subject to very severe
punishmentis certainly a legitimate purpose, it is highly doubtful that any twelve or
thirteen-year-olds would be more deterred by the penalty imposed on this boy than by a life
sentence which is reviewable by the parole board.
Segregation is not a frequently discussed aspect of the social purpose of imprisonment, but
imprisonment, like the death sentence, does get them off the streetsit quarantines
criminals, so to speak. Perhaps it is justifiable for courts to decree that thirteen-year-olds stay
in prison until they die; probably not. It does not seem to us, from the record, that the trial
judge had enough information to make the predictive judgment that this particular
thirteen-year-old boy should never again see the light of freedom. A strong argument exists
for the proposition that the parole board is best suited to make this kind of judgment at some
future time. The need to segregate dangerous criminals does not justify locking this boy up
for his whole life.
Naovarath's counsel is not here seeking a light sentence. His counsel stipulates that life
imprisonment is the minimum punishment that can be imposed in this case if the appeal is
granted.
__________

5
As far back as 1979, for example, children fourteen and under committed a total of 206 homicides
nationwide, more than 1,000 forcible rapes, 10,000 robberies and 10,000 aggravated assaults. Thompson,
above, dissent of Scalia, J., 108 S.Ct. at 2715 (citing Hearings on S. 829 before the Subcommittee on the
Criminal Law of the Senate Committee on the Judiciary, 98th Cong., 1st Sess., 551 (1983)).
counsel stipulates that life imprisonment is the minimum punishment that can be imposed in
this case if the appeal is granted. The only question is whether it is necessary in order to
punish Naovarath enough, or to deter others enough, or to segregate Naovarath long enough,
that he must be kept behind bars with no hope, never to be free again. Probably some lesser
degree of punishment, probably less fearful deterrence than hopeless lifetime incarceration,
probably segregation for less than a lifetime would, in Naovarath's case, contribute
measurably to the mentioned moral and social purposes of criminal sanctions without
necessitating the horrific maximum sentence levied here.
Guided by the humanitarian instincts mentioned by Justice Murphy, we conclude that
the kind of penalty imposed in this case is cruel and unusual punishment for this mentally and
emotionally disordered thirteen-year-old child.
6
We therefore grant Naovarath's appeal and
order that sentence be imposed against him for a term of life imprisonment with possibility of
parole.
Rose, J., concurs.
I concur.
I agree that appellant Naovarath's sentence should be modified from life without the
possibility of parole to life with the possibility of parole.
Thirteen-year-old Naovarath pleaded guilty to murdering thirty-eight-year-old David Foote
and threw himself on the mercy of the court. While the facts are in dispute, Naovarath's
statement, attached to the Pre-Sentencing Report prepared by the Department of Parole and
Probation which was submitted to the sentencing judge prior to formal sentencing, states in
part:
The last time when I went over to his [Foote's] house to jack him off he told me to give
him a blow job so I said no because I think it is desgusting [sic] we argue for a few
minuties [sic]. Then I told him that I have to go home and he say no don't go so I got up
and walk then he follow me and hit me with a stick. So I grabbed the back of the
wheelchair and tipped it over and he fell down on the ground got up grabe [sic] his
knife and came after me. So I took a glass jar and throw [sic] it at him and hit him in
the head he strated [sic] to bleed I got so scared I diden't [sic] want to leave I was to
[sic] scared to leave. . . .
__________

6
We relate this decision to the eighth amendment of the Constitution of the United States and article 1,
section 6 of the Constitution of the State of Nevada, both of which proscribe cruel and unusual punishment.
Be that as it may, I do not accept Naovarath's explanation as an excuse for his crime. But it
is a fact to be considered in the sentencing process.
The Pre-Sentencing Report in its final recommendation to the sentencing judge stated:
RECOMMENDATION
In addition to the $20 administrative assessment, it is recommended by the Department
of Parole and Probation that the defendant, KHAMSONE KHAM NAOVARATH, be
sentenced to a term of Life in the Nevada Department of Prisons, with the possibility of
parole. (Emphasis added.)
The sentencing judge, however, chose to sentence Naovarath to a term of life without the
possibility of parole.
Writing, of course, only for myself, it strikes me that such a sentence imposed on a thirteen
year old boy under the facts presented reads like a sentence from a Charles Dickens'
nineteenth century novel. Let me make myself crystal clear: I do not in any way approve of
the boy's condemnable conduct nor of the crime he committed. But the boy is still a child of
God and rather than being assigned to oblivion, a flicker of light should be kept alive in the
hope that he may some time in the future be rehabilitated and become an acceptable member
of society.
For these reasons I would reverse and remand the case with instructions to modify the
sentence to life with the possibility of parole.
Young, C. J., with whom Steffen, J., agrees, dissenting:
The district court imposed a sentence of life imprisonment without possibility of parole on
a convicted murderer. The defendant, now age fifteen, was thirteen years old at the time of
the crime.
1
We find that the sentence was constitutional, and did not evidence an abuse of
discretion by the district court. Therefore, we would affirm.
During the morning of January 1, 1987, appellant, Khamsone Kham Naovarath, a thirteen
year old native of Laos, decided to visit his neighbor, David Foote. Foote, a thirty-eight year
old paraplegic confined to a wheelchair, refused to allow Naovarath to enter his home.
However, Naovarath forced his way into the house, and during the next hour, slowly and
brutally murdered the helpless David Foote.
Naovarath knocked Foote out of his wheelchair and tied him to a bench. He hit Foote on
the head with glass bottles and jars which he found in the kitchen.
__________

1
Pursuant to NRS 62.050, criminal charges were filed against appellant in the district court. The juvenile
courts of this state lack jurisdiction when the child is charged with murder or attempted murder.
which he found in the kitchen. Using foam carpet shampoo, he tried to poison or suffocate
Foote. At one point he even encouraged Foote to kill himself with a kitchen knife. Finally,
Naovarath stabbed Foote several times and strangled him with an electric cord. Naovarath
then gathered some of Foote's valuables, and left the premises in Foote's van.
On January 6, 1987, Las Vegas police arrested Naovarath for Foote's murder. The
following day, he confessed to the killing. Naovarath stated that he did not know why he
killed Foote since the decedent had done nothing to harm him.
The majority opinion makes a number of unfounded and unsupported references to sexual
abuse supposedly inflicted upon Naovarath by his wheelchair-bound victim. With little legal
authority and scant factual underpinning to support his position, the appellant apparently feels
compelled to cast aspersions upon a helpless victim. The appellant's descriptions of David
Foote as a homosexual child molester and a sexual assailant are gross distortions of the
record.
At his sentencing hearing, approximately one year after his confession, Naovarath's
counsel for the first time claimed that, on several occasions, David Foote had shown
pornographic films to Naovarath, then paid Naovarath to ejaculate him.
2
Moreover, on the
day of the murder, Foote allegedly requested Naovarath to perform fellatio upon him. When
Naovarath refused, Foote allegedly struck him. In retaliation, Naovarath knocked over Foote's
wheelchair, sending Foote to the floor. Realizing he was in trouble, Naovarath decided to kill
Foote. Naovarath stated that he omitted these incidents from his prior statements because he
was ashamed of his homosexual acts.
However, although pornographic videotapes were found in the victim's home, the evidence
does not demonstrate that Naovarath was the victim of sexual molestation. At the time of his
confession, Naovarath told police that on the morning of the crime, he forced his way into
David Foote's home,
3
unlikely conduct for one now raising the spectre of sexual abuse. By
irresponsibly depicting David Foote as the villain in this case, instead of the victim, the
majority opinion asserts as fact inferences which are, at best, highly speculative.
4
Moreover,
when Naovarath finally broached the subject of David Foote's alleged sexual misconduct,
he described the paraplegic Foote getting up from the ground after being knocked out of
his wheelchair, grabbing a knife and coming after Naovarath.
__________

2
In his detailed confession, Naovarath said nothing about pornographic films or sexual advances by the
victim. A year passed before he made those statements.

3
To suggest, as does the majority, that Naovarath merely entered the deceased's home on that day without
permission is to grossly understate the facts. Skidmarks from David Foote's wheelchair found in front of his
door testify to the brute force used by Naovarath to enter the home and the futility of the victim's attempt to
defend himself against his killer.

4
We are especially disturbed by the majority's conclusions that as just
Moreover, when Naovarath finally broached the subject of David Foote's alleged sexual
misconduct, he described the paraplegic Foote getting up from the ground after being
knocked out of his wheelchair, grabbing a knife and coming after Naovarath. Neither
Naovarath nor his counsel ever explained how a severely handicapped man could display
such physical dexterity. The victim's brother described David Foote as completely unable to
defend himself. Therefore, we believe that Naovarath's belated self-serving explanation of the
events surrounding David Foote's death invites disbelief.
Furthermore, Naovarath's unsupported claim of sexual abuse, made approximately one
year after his confession and just before his penalty hearing, presented a question of
credibility. It was within the district court's discretion whether to accept Naovarath's
late-arriving defense or to discount it.
5
See Renard v. State, 94 Nev. 368, 369, 580 P.2d 470,
471 (1978) (vesting district courts with wide discretion regarding sentencing and probation).
The credibility issue was understandably resolved against Naovarath. We should not overrule,
as here, a district court's reasonable interpretation of the evidence presented at sentencing.
Finally, in view of the majority's great sympathy for the perpetrator of one of the most
brutal murders in recent memory, and its unfounded and indefensible portrayal of the helpless
victim, we feel compelled to remind the reader that paraplegic David Foote was the victim in
this case, and Khamsone Naovarath the offender. For approximately an hour, Naovarath
tortured David Foote to death. That much, at least, is clear from the record.
__________
deserts' for killing his sexual assailant, life without possibility of parole is excessive punishment for this
thirteen-year-old boy. (Emphasis added.) A careful review of the record produces no credible evidence to
indicate the deceased was anything but a brutally murdered victim. To conclude that this helpless paraplegic was
a sexual assailant is to proffer as a basis for the majority's argument what Winston Churchill might have called
a terminological inexactitude.
We are simply unwilling to be perceived, along with the sentencing judge, as jurists who are so calloused as
to permit a thirteen-year-old who killed his sexual assailant to be consigned to life in prison. If the majority's
characterization could be supported in the record, in our opinion the penalty sought by the majority (life with
possibility of parole) would be unacceptably harsh. But facts are stubborn, and the good intentions and
impassioned arguments of the majority cannot change them.

5
The record contains a letter written by Naovarath to the district court shortly before his sentencing, asking
the judge for leniency. Strangely, given the majority's reading of the record, Naovarath makes no mention of
sexual abuse. Instead, he describes his homicidal behavior as an accident.
Naovarath pleaded guilty to murder.
6
The majority implies that Naovarath received
inadequate counsel during the plea bargain process because he eventually received a sentence
of life imprisonment without possibility of parole.
However, the majority ignores the fact that the State originally charged Naovarath with
murder with the use of a deadly weapon. Thus, Naovarath faced a sentence of two
consecutive life terms with or without possibility of parole. NRS 193.165(1). Pursuant to his
plea bargain, the State permitted him to enter a plea of guilty to an amended information
charging him with murder, a felony. That charge exposed Naovarath to one sentence of life
imprisonment with or without parole. NRS 200.030(4)(b). Therefore, contrary to the
majority's view, Naovarath received a substantial concession from the State, as well as
competent advocacy.
For two reasons, the majority claims that Naovarath lacked the capacity to enter into his
plea bargain. First, because Naovarath was thirteen-years-old at the time of the murder, it
suggests that Naovarath presumptively lacked the legal capacity to commit a crime. We find
the majority's argument unsupportable in light of NRS 62.050, which strips juvenile courts of
jurisdiction over minors charged with murder or attempted murder. Our statute applies the
historical rule that the State should treat juveniles charged with capital crimes in every respect
as adults. LeCroy v. State, 533 So.2d 750, 757 (Fla. 1988). Since Nevada tries children who
commit heinous crimes, such as Naovarath, as adults, these violent young people clearly have
the legal capacity to perform criminal acts.
Second, the majority contends that Naovarath was psychotic and delusional, and therefore
incapable of voluntarily and intelligently pleading guilty. In Nevada, in order to competently
enter a plea, a defendant must be of sufficient mentality to understand the nature of the
criminal charges against him, and must be able to assist his counsel in his defense. NRS
178.400.
The record indicates that Naovarath possesses superior intelligence. Moreover, in a letter
addressed to the district court judge before his sentencing hearing, Naovarath indicated his
understanding that, because he took David Foote's life, he faced a sentence of life
imprisonment either with or without the possibility of parole. Thus, the evidence before us
demonstrates that Naovarath was of sufficient mentality to understand the nature of the
charges against him.
__________

6
Although the majority claims that Naovarath pleaded guilty to an unspecified degree of murder, the
amended information relied upon by the majority declared that Naovarath with malice aforethought, wilfully,
feloniously and with premeditation killed David Foote, Since NRS 200.030 defines first degree murder as any
kind of willful, deliberate and premeditated killing, we believe the record is clear that Naovarath pleaded
guilty to first degree murder.
Naovarath was of sufficient mentality to understand the nature of the charges against him.
Further, the record also contains a letter which Naovarath wrote to his public defender,
describing the murder and his association with David Foote. Thus, Naovarath was able to
assist his counsel in his defense.
Additionally, the majority contends that Naovarath's language difficulty prevented him
from understanding his plea negotiation. However, as part of our review of the record, we
viewed a videotape of Naovarath's confession to Las Vegas police investigators. We were
impressed by Naovarath's dispassionate and articulate recitation of his killing of David Foote.
The taped confession indicates that Naovarath possessed ample communication skills during
his arrest and plea negotiation (and little remorse for his actions). Furthermore, at no time did
the district court judge find cause to question Naovarath's competence. Therefore, the record
belies the majority's contention that Naovarath was not competent to enter into his plea
bargain. Moreover, if the majority truly believed their conclusions of incompetence on the
part of Naovarath to enter a plea, it is logically and legally inconsistent to impose any degree
of punishment pursuant to a plea entered by a mentally incompetent defendant.
After consideration of all of the evidence, including the results of a psychological
examination, the district court sentenced Naovarath to life in prison without possibility of
parole. On appeal, Naovarath seeks a reduction of his sentence to life imprisonment with
possibility of parole.
First, Naovarath argues that the prosecutor's closing remarks at the sentencing hearing
were inaccurate and improperly influenced the district court. The prosecutor cited statistics
showing that most crimes are committed by males between the ages of nineteen and
twenty-eight. He noted that with a sentence of life imprisonment with possibility of parole,
Naovarath would be parole eligible at age twenty-three.
7
In comparison, the prosecutor
observed that under a sentence of life imprisonment without possibility of parole, Naovarath
could not anticipate release from prison until age thirty-four at the earliest.
8
Naovarath
contends that the prosecutor's argument placed undue pressure upon the sentencer and
did not accurately reflect the sentencing statutes.
__________

7
NRS 200.030(4) provides in part:
Every person convicted of murder of the first degree shall be punished:
. . . .
(b) . . . by imprisonment in the state prison for life with or without possibility of parole. If the penalty
is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a minimum of
10 years has been served.

8
Except as otherwise provided in NRS 213.1215, the board may not
Naovarath contends that the prosecutor's argument placed undue pressure upon the
sentencer and did not accurately reflect the sentencing statutes. We disagree. The prosecutor
merely integrated the facts of the instant case with the statutory provisions for parole. Under a
sentence of life imprisonment with possibility of parole, Naovarath would be eligible for
release at age twenty-three, after ten years incarceration. NRS 200.030(4). Applying a
sentence of life imprisonment without possibility of parole, Naovarath could receive parole
after twenty years in prison, provided that the state board of pardons commissioners modifies
his sentence to life imprisonment with possibility of parole.
No evidence exists to support Naovarath's contention that the prosecutor's comments
unduly influenced the district court. We have faith that the district court judge was familiar
with the possible penalties for first degree murder, as well as the pardon process and its effect
on prison terms. When the sentence is within the statutory limits and there has been no proof
of judicial reliance upon impalpable or highly suspect evidence, this court will not interfere
with the district court's imposition of sentence. Lloyd v. State, 94 Nev. 167, 170, 576 P.2d
740, 742 (1978).
Next, Naovarath argues that the sentence of life imprisonment without parole was
disproportionate, and violated the Eighth Amendment's ban on cruel and unusual punishment.
Again, we disagree.
Aside from capital cases, successful challenges to the proportionality of particular
sentences are extremely rare. Solem v. Helm, 463 U.S. 277, 289-90 (1983). Reviewing courts
should grant substantial deference to the broad authority that legislatures necessarily possess
in determining the types and limits of punishments for crimes.
__________
release on parole a prisoner whose sentence to death or to life without possibility of parole has been
commuted to a lesser penalty unless it finds that the prisoner has served at least 20 consecutive years in
the state prison, is not under an order that he be detained to answer for a crime or violation of parole or
probation in another jurisdiction, and that he has no history of:
(a) Recent misconduct in the institution, and that he has been recommended for parole by the director of
the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
Although Naovarath was fourteen at the time of sentencing, the district court granted him 374 days credit for
time already served. Thus, the prosecutor miscalculated. Assuming that he received a commutation, a sentence
of life imprisonment without possibility of parole would make Naovarath parole eligible at age thirty-three.
ments for crimes. Solem, 463 U.S. at 290. Moreover, we owe the same deference to the
discretion that trial courts possess in sentencing convicted criminals. Id.
Solem defined three objective factors for Eighth Amendment proportionality analysis. Id.
at 290-292. First, courts must consider the gravity of the offense and the harshness of the
penalty. In the instant case, Naovarath committed the gravest of all crimes, murder, in an
extraordinarily brutal manner. For his conduct, Naovarath received the most severe penalty
constitutionally permitted by our legal system. See Thompson v. Oklahoma, 487 U.S. 815,
108 S.Ct. 2687 (1988) (holding that courts may not impose the death penalty on murderers
who commit their crimes while under the age of sixteen).
Second, we must compare the sentences imposed on other criminals in the same
jurisdiction. In Harvey v. State, 100 Nev. 340, 682 P.2d 1384 (1984), a jury sentenced a
sixteen year old murderer to death for the fatal shooting of a security guard. The defendant
shot the guard in a panic while fleeing a robbery. Id. at 343, 682 P.2d at 1386.
Holding that capital punishment was disproportionate to the penalty imposed in Nevada in
similar cases, this court substituted Harvey's death sentence with a penalty of life
imprisonment without possibility of parole. Id. at 344, 682 P.2d at 1387. We held that
because Harvey shot the guard in a panic, his crime lacked the degree of heinousness and
brutality evidenced in many cases in which the death penalty was imposed. Id. at 342, 682
P.2d at 1385. Moreover, we noted that Harvey suffered from extreme mental or emotional
problems when he committed the murder. Id. at 343, 682 P.2d at 1386.
In the case at hand, Naovarath was thirteen years old when he killed David Foote.
Although younger than the defendant in Harvey, Naovarath's crime was notable for its
cruelty. Naovarath always had the option to leave Foote's house. Instead, he chose to stay and
inflict horrible suffering upon his helpless victim. Like Harvey, Naovarath also labored under
psychological problems. Thus, in accordance with our decision in Harvey, it seems
reasonable to sentence Naovarath to life imprisonment without possibility of parole.
Third, we must compare sentences imposed for commission of the same crime in other
jurisdictions. In a number of states, courts may try and punish juveniles as adults for certain
offenses.
9
For example, in New Jersey, if convicted of murder in criminal court, a juvenile
receives a minimum sentence of thirty years without parole.
__________

9
In Idaho, the state may try 14 year old murder suspects as adults. Idaho Code 16-1806 (1988). In Illinois,
children 15 or older may be tried as adults for murder, criminal sexual assault, armed robbery with a firearm, and
possession of a deadly weapon in a school. Ill. Ann. Stat. ch. 37, 805-4(6) (Smith-Hurd Supp. 1988). In
Indiana, removal from juvenile to district court is mandatory when a child is 10 or older and charged with
murder. Ind. Code
For example, in New Jersey, if convicted of murder in criminal court, a juvenile receives a
minimum sentence of thirty years without parole. N.J.Stat.Ann. 2C:11-3b (West Supp.
1988).
In Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687 (1988), the Supreme Court
vacated the death sentence imposed upon an Oklahoma juvenile who committed first degree
murder at the age of fifteen. According to Oklahoma law, a person convicted of first degree
murder shall be punished by death or life imprisonment. Okla.Stat.Ann.tit. 21, 701.9 (West
Supp. 1988). Since the Supreme Court ruled that the death penalty was unconstitutional in the
case of murderers under the age of sixteen, Thompson now faces lifetime incarceration. In
Eddings v. State, 688 P.2d 342 (Okla.Crim.App. 1984), the Oklahoma Court of Criminal
Appeals imposed the same sentence on a sixteen year old killer.
In Postell v. State, 383 So.2d 1159 (Fla.Dist.Ct.App. 1980), a thirteen year old girl was
convicted of second degree murder, burglary and robbery. The court imposed concurrent
ninety-nine-year terms for the murder and burglary and a consecutive fifteen-year term for the
robbery. Id. at 1160 n. 1.
10

In Whitehead v. State, 511 N.E.2d 284 (Ind. 1987), the Indiana Supreme Court upheld a
fifty-four year sentence imposed upon a juvenile who brutally beat a pregnant woman to
death.
__________
Ann. 31-6-2-4(b)(d) (Michie Supp. 1987). Kentucky maintains a removal age of 14 for juveniles charged with
capital offenses or Class A or Class B felonies. Ky. Rev. Stat. Ann. 635.020(2)-(4), 640.010 (Michie Supp.
1988). Minnesota makes removal mandatory for offenses committed by children 14 years or older who were
previously certified for criminal prosecution and convicted of the offense or a lesser included offense. Minn.
Stat. 260.125 subd. 1, 3, and 3a (1986). Montana has lowered its removal age from 16 to 12 for children
charged with sexual intercourse without consent, deliberate homicide, mitigated deliberate homicide, or
attempted deliberate homicide or attempted mitigated deliberate homicide. Mont. Code Ann. 41-5-206(1)(a)
(1987). In New Jersey, 14 year-olds charged with certain aggravated offenses are now tried and punished as
adults. N.J.Stat.Ann. 2A:4A-26 (West Supp. 1987). New York recently amended its law to allow certain 13,
14, and 15 year-olds to be tried and punished as adults. N.Y.Crim.Proc. Law 190.71 (McKinney 1982).
Furthermore, federal law now holds that juveniles above the age of fifteen who are charged with violent
felonies or certain drug offenses may be transferred from the jurisdiction of the juvenile court to an appropriate
district court of the United States for criminal prosecution. 18 U.S.C. 5032 (1984).

10
Postell has been criticized insofar as it held that the defendant (who was charged by grand jury indictment)
was ineligible for classification as a youthful offender, and thus, subject to the more severe adult penalties. See
State v. Goodson, 403 So.2d 1337, 1339 (Fla. 1981) (holding that indicted juveniles may be subject to
classification as youthful offenders). However, the Florida Supreme Court never specifically overturned Postell.
upon a juvenile who brutally beat a pregnant woman to death. The court noted a number of
aggravating factors also present in the instant case: the State's psychiatrist felt that the
defendant needed long term psychological counseling; the crime was particularly gruesome; a
reduced sentence would depreciate the seriousness of the crime, and there was no excuse or
provocation to justify the defendant's attack upon the victim. Id. at 296.
Thus, a number of states besides Nevada now enforce severe penalties on youthful
murderers.
11
Consequently, we believe that Naovarath's sentence of life imprisonment
without possibility of parole was not disproportionate to his offense. Moreover, the Solem
decision left intact the authority pronounced but three years earlier by the same Court in the
case of Rummel v. Estelle, 445 U.S. 263 (1980). In Rummel, the Court declared:
[g]iven the unique nature of the punishments considered in Weems [Weems v. United
States, 217 U.S. 349 (1910) involving the unique punishment of cadena temporal
imposed by the Philippine Code] and in the death penalty cases, one could argue
without fear of contradiction by any decision of this Court that for crimes concededly
classified and classifiable as felonies, that is, as punishable by significant terms of
imprisonment in a state penitentiary, the length of the sentence actually imposed is
purely a matter of legislative prerogative.
Id. at 274. Naovarath's sentence was within the limits specified by the Nevada legislature and
should not be overturned by this court.
Lastly, Naovarath argues that his sentence is cruel and unusual punishment and therefore
violates the Eighth Amendment. He contends that the murder victim, David Foote, provoked
his own demise by subjecting the thirteen year old Naovarath to sexual abuse. Furthermore,
Naovarath argues that the wartime violence he witnessed as a small child in Laos and
Vietnam should mitigate his sentence.
Again, Naovarath's claims lack merit. Three basic tests exist for evaluating whether a
punishment is cruel or unusual:
(1) In view of all the circumstances, is the punishment of such character as to shock the
conscience and to violate principles of fundamental fairness? (2) Is the punishment
greatly disproportionate to the offense? (3) Does the punishment go beyond what is
necessary to achieve the aim of the public interest as expressed by the legislative
act?
__________

11
Recently, in Stanford v. Kentucky, 57 U.S.L.W. 4973 (1989), the Supreme Court held that the imposition
of capital punishment on persons who murder at sixteen or seventeen years of age does not offend the Eighth
Amendment's prohibition against cruel and unusual punishment.
ment go beyond what is necessary to achieve the aim of the public interest as expressed
by the legislative act?
Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky.Ct.App. 1968).
After consideration of all of the circumstances of this case, we do not find that the
sentence imposed shocks the conscience or violates principles of fairness. Although
Naovarath was only thirteen at the time of the murder, the psychiatrist who examined him
estimated that Naovarath had a mental age of seventeen. Naovarath understood the difference
between right and wrong, yet, after the brutal killing, he expressed no remorse for his actions
other than how this crime will affect the remainder of his life.
As stated above, the district court's sentence of life imprisonment without possibility of
parole was not disproportionate to Naovarath's offense. Therefore, our final question is
whether this punishment serves any of the goals of our penal legislation.
Our legislature implemented tough penalties for first degree murderers as a means of
dealing with dangerous and incorrigible individuals who would be a constant threat to
society. The psychiatrist who examined Naovarath stated that his conscience is
non-developed, if not amoral. Moreover, the physician observed evidence of a developing
psychosis. The rage and randomness of Naovarath's conduct during the murder is tragic
evidence of the danger which he poses to society.
Nothing in Naovarath's background serves to mitigate this impression or indicates a
potential for rehabilitation. He admitted to drug and alcohol abuse, as well as involvement
with street gangs. Juvenile records indicate that he is an habitual liar, had a poor school
attendance record, and took part in no constructive activities at home or in the community.
We are unmoved by Naovarath's contention that his tender years entitle him to special
consideration at sentencing. As described above, we appear to be witnessing a national trend
toward the reduction of the age of juvenile criminal liability. Persons under eighteen commit
approximately twenty percent of violent crimes and forty-four percent of serious property
crimes. Hearings on S. 829 before the Subcommittee on Criminal Law of the Senate
Committee on the Judiciary. 98th Cong., 1st Sess., 551 (1983).
In 1979, children under the age of fifteen committed 206 homicides, over 1,000 forcible
rapes, and more than 10,000 robberies and 10,000 cases of aggravated assault. Id. at 554
(citing the United States Department of Justice, Sourcebook of Criminal Justice Statistics
1981). Many of these juveniles are cynical, street-wise, repeat offenders, and are
indistinguishable, except for their age, from their adult criminal counterparts. Id. at 551.
cynical, street-wise, repeat offenders, and are indistinguishable, except for their age, from
their adult criminal counterparts. Id. at 551.
Traditionally, our juvenile system followed the premise that rehabilitation should be its
primary function. However, when applied to the most serious youthful offenders of today,
that vision fails to adequately protect the public interest. Id. at 543. We recognize that
juvenile offenders have special needs. However, we also recognize our responsibility to
protect the public from violent crime and to hold young people accountable for their actions
when, as in the case at hand, they engage in particularly heinous conduct.
In the instant case, the sentence of life imprisonment without possibility of parole was
necessary to accomplish the objective of protecting society and to achieve the related goals of
deterrence, rehabilitation and retribution. Thus, it was clearly within the purposes envisioned
by the Nevada legislature.
The sentence imposed on Naovarath by the district court was within the statutory limits.
Moreover, the penalty was not disproportionate to his offense, nor was it cruel and unusual
punishment. Accordingly, we would affirm the decision of the district court.
____________
105 Nev. 543, 543 (1989) Nevada Power v. Public Service Commission
NEVADA POWER COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF
NEVADA; DESIGNATED PARTIES OF RECORD IN DOCKET NOS. 83-707 and
83-667 BEFORE THE PUBLIC SERVICE COMMISSION OF NEVADA; and THE
ATTORNEY GENERAL'S OFFICE OF ADVOCATE FOR CUSTOMERS OF
PUBLIC UTILITIES, Respondents.
No. 18423
September 18, 1989 779 P.2d 531
Appeal from an order of the district court denying appellant Nevada Power Company's
petition for judicial review. First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Power company appealed from order of the district court which denied petition for review
of rate-making decision of the Public Service Commission. The Supreme Court held that it
was not an abuse of discretion to require power company to amortize gain from sale of real
property over three years, with the gain being shared with ratepayers.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas; and Allison, MacKenzie,
Hartman, Soumbeniotis & Russell, Carson City, for Appellant.
William H. Kockenmeister, Carson City, for Public Service Commission.
Jon Wellinghoff and Elizabeth Elliott, Reno, for The Attorney General's Office of
Advocate for Customers of Public Utilities.
1. Public Utilities.
Court will not interfere with Public Service Commission decisions other than to keep them within the framework of the law.
2. Public Utilities.
No single rule exists to determine how capital gains derived from sale of real property by public utility should be treated for
rate-making purposes.
3. Electricity.
It was proper for Public Service Commission to deal with power company's sale of real property by requiring it to amortize the
gain over a period of three years and to share the gain with ratepayers.
OPINION
Per Curiam:
In this case, Nevada Power Company appeals a decision of the Public Service Commission
(PSC). Nevada Power applied to the PSC for a rate increase. The PSC granted Nevada Power
a lesser rate increase than requested in part because it ruled that shareholders and ratepayers
should share the capital gain from the sale of land and Nevada Power's headquarters. The
PSC noted that conflicting methods of distributing such gain existed, but determined that the
gain should be equitably divided between shareholders and ratepayers.
The only testimony regarding how the gain could be equitably distributed between
shareholders and ratepayers came from three expert witnesses. Each expert testified that the
gain should be distributed to the ratepayers in the form of lower rates. Mr. Skirpan
recommended that the gain be distributed within a year. Mr. Romero and Mr. Frerichs
recommended that the gain be distributed over a three-year period. These experts determined
that Nevada Power and its shareholders would benefit from the use of the money, while
ratepayers would benefit in receiving lower rates. The PSC concluded that a three-year
amortization of the gain would be an equitable distribution in this case. The district court
denied Nevada Power's petition for judicial review. This appeal followed.
On appeal, Nevada Power contends that PSC erred in failing to recognize and apply the
correct rule to determine how the gain realized upon the sale of real property should be
treated. Specifically, Nevada Power contends that the single governing rule in such cases is
that the benefit of capital gain follows the risk of capital loss. We disagree.
[Headnotes 1, 2]
This court will not interfere with PSC decisions other than to keep them within the
framework of the law. See PSC v. Continental Tel. Co., 94 Nev. 345, 580 P.2d 467 (1978).
No single rule exists to determine how capital gains derived from the sale of real property
should be treated for rate-making purposes. See Democratic Central Committee v.
Washington Metropolitan Area Transit Commission, 485 F.2d 786 (D.C.Cir. 1973), reh. den.,
cert. den. sub. nom. D.C. Transit System, Inc. v. Democratic Central Committee, 415 U.S.
935 (1974).
[Headnote 3]
In this case, PSC chose to balance the equities between ratepayers and shareholders and
distributed the gain in a manner that was fair according to the experts who testified. That
ruling, based upon this record, was proper. See Democratic Central Committee, supra; Re
Boston Gas Company, 49 PUR4th 1 (Mass. DPU 1983); Re the Detroit Edison Co., 20
PUR4th 1 (Mich. PSC 1977); Re Calgary Power Ltd., 34 PUR4th 398 (Alberta PUB, 1980).
1
concur.
__________

1
The Honorable David Zenoff, Senior Justice, participated in this appeal in the place of Chief Justice E. M.
Gunderson pursuant to this court's general order of assignment filed September 14, 1988.
____________
105 Nev. 546, 546 (1989) Barbagallo v. Barbagallo
ALFRED THOMAS BARBAGALLO, Appellant, v. CATHY LEE BARBAGALLO,
Respondent.
No. 18757
September 21, 1989 779 P.2d 532
Appeal from district court order affirming recommendation of domestic relations referee
regarding modification of child support decree. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Father appealed from order of the district court affirming recommendation of domestic
relations referee regarding modification of child support decree. The Supreme Court,
Springer, J., held that father who was awarded joint custody of party's child was not entitled
to reduction of his child support obligation as determined by child support formula.
Affirmed.
Mills & Gibson, Las Vegas, for Appellant.
Joseph W. Houston, II, Las Vegas, for Respondent.
1. Parent and Child.
Statutory child support formula applies in joint and shared custody cases. NRS 125B.070, subd. 2, 125B.080.
Before statutory child support formula can be applied to joint and shared custody cases, court must first make preliminary decision
as to which of two joint or sharing custodians is entitled to receive child support payments. NRS 125B.070, subd. 2, 125B.080.
Because of probable increases in overall expenses in joint physical custody cases and because of danger inherent in reducing child
support payments made to primary custodian, court should exercise considerable caution before reducing child support formula
amounts. NRS 125B.070, subd. 2, 125B.080.
It is not appropriate for courts to devise any kind of mathematically calculated reduction formula in joint and shared child custody
cases. NRS 125B.070, subd. 2, 125B.080.
In determining whether to deviate from child support formula in joint and shared custody cases, greater weight must be given to
standard of living and circumstances of each parent, their earning capacities and relative financial means of parents than to other
statutory factors. NRS 125B.060, 125B.080, subds. 8, 8(j).
Because of presumptive nature of child support formula, application of formula must be the rule, and deviation from formula for
benefit of secondary custodian must be the exception; therefore, secondary custodian has burden of showing any unfairness
that might result from that custodian's having to pay full formula amount.
dian has burden of showing any unfairness that might result from that custodian's having to pay full formula amount. NRS 125B.070,
subd. 2, 125B.080.
Basis for deviation from child support formula must be found in unfairness or injustice which may be result to secondary
custodian if he or she, after making substantial contributions of financial or equivalent nature to support of child, will be required to
pay full child support formula amount. NRS 125B.070, subd. 2, 125B.080.
Where either increase or reduction in child support formula amount is ordered, deviation from formula should be supported by
written findings of fact and statements of reasons. NRS 125B.080, subd. 8.
Father who was awarded joint custody of party's child was not entitled to reduction of his child support obligation as determined
by child support formula; father's contacts with child were more like visitation periods rather than assumption of full custodial
responsibilities. NRS 125B.070, subd. 2, 125B.080.
OPINION
In 1987 Nevada enacted a formula child support law, which provides that the court shall
apply the appropriate formula in determining the required support in any contested case
involving the support of children. NRS 125B.080. In the present case, a contested case
involving the support of children, the trial court applied the appropriate formula and ordered
Alfred Barbagallo, the father of the child, to pay, as his statutory obligation for support,
eighteen percent of his gross monthly income. The father argues that he should not be ordered
to pay the full formula obligation (eighteen percent of $2,500.00, or $450.00 per month)
because he is a joint custodian of the child and has joint physical custody of the child on three
of the seven days of the week. The father claims that he should be entitled to an adjustment
downward of the required formula obligation because of the shared nature of the child
custody.
The matter was heard by a domestic relations referee, who found, after a close
examination of the time which the minor child spends with the father, that this time did not
render the father's custody so significantly different as to justify a departure from the
formula. Based on this finding and the recommendation of the referee the district court
ordered the father to pay the full statutory child support obligation. We conclude that the trial
court acted properly in making this child support award and affirm the judgment of the trial
court.
The father's claim to a reduction of the full statutory obligation has considerable merit and
raises some significant and troublesome issues relating to child support. Where a divorced
mother and father share the financial burdens of child raising on a close to equal basis, and
where mother and father have close to equal financial resources, it would not be fair, even
though the statute says that the court shall apply the appropriate formula, to pick out mother
or father and order that he or she pay the other the appropriate formula support obligation.
The statutory mandate that the court shall apply the appropriate formula is designed to
relate to the traditional and once quite typical post-divorce situation in which one parent
(usually the mother) is the custodial parent and the other parent (usually the father) is the
noncustodial parent. Under such circumstances the noncustodial parent would ordinarily be
ordered to pay child support to the custodial parent. The statutory formula is easily applied to
these kinds of cases; it is not so easily applied to shared and joint custody cases. In the
process of enacting the child support formula statute the legislature gave considerable
attention to this important problem.
The original version of A.B. 44 of the 64th Session, 1987, did deal specifically with the
problem now before us, namely, how formula child support requirements should be adjusted
in joint custody or shared custody cases. The language of A.B. 44 as originally proposed, but
eventually rejected, provided that in cases of equal physical custody the parent with the higher
income had to pay the other parent an amount equal to the difference between his or her
statutory obligation and the obligation of the other parent. The bill went on to provide that
where physical custody of one parent amounted to more than 146 days, but fewer than 218
days, the parent of greater income must pay an amount which is equal to the product of the
amount of obligation for support of the parent awarded the least amount of custody and an
amount equal to the percentage of time the other parent is awarded physical custody of the
child. The original bill makes it apparent that the legislature did consider dealing with this
problem in a formalized manner and then decided against it.
For some reason the legislature has declined to say whether the formula support statute is
to be applied to joint or shared custody cases, or, if applied, how the formula should be
adjusted in cases where custody burdens are shared by two custodians on fairly equal terms.
A.B. 44 as originally drafted provided an answer to the problem. Since the bill was not
enacted in its original form, it now falls upon the court to provide an answer to the problem.
[Headnotes 1, 2]
First we hold that the child support formula mandated by NRS 125B.0S0 and NRS
125B.070{2) does apply in joint and shared custody cases.
125B.080 and NRS 125B.070(2) does apply in joint and shared custody cases. Wherever
possible courts should give effect to legislative enactments; and here, it appears to us that the
NRS 125B.070(2) formula amounts can be applied, subject to certain limited adjustments, to
these kinds of joint custody cases. Before the formula can be applied in these cases, however,
a very critical preliminary decision must be made by the courts, and that is: Which of the two
joint or sharing custodians is entitled to receive child support payments, and who has to pay?
Trial courts may even, in certain rare cases of equal caretaking and equal financial status of
the custodians, rule that neither party is entitled to receive child support from the other. In
most cases, however, the court will be able to identify a primary and secondary custodian.
One custodian will be seen as having shouldered the main responsibilities, financial and
otherwise, for child nurture and support.
1
One custodian can ordinarily be identified as
having the primary responsibility for maintaining a home for the child or children and for
providing for basic needs. Once the primary custodian is identified, the court, then, shall
apply the appropriate formula and order the secondary custodian to pay the formula amount.
As indicated above, cases do arise in which a secondary, joint or sharing custodian
contributes so substantially to the financial support of a child that in fairness and equity some
relief from the full formula requirements must be afforded. We now address how the formula
obligation may be adjusted downward in joint and shared custody cases.
First we must bear in mind that balanced against the need in some cases to relieve the
secondary parent from the full formula burden is the reality that the primary custodian is
faced with an array of fixed expenses relating to child rearing, costs such as rent, mortgage
payments, utilities, car maintenance and medical expenses. These expenses go on and are not
usually appreciably diminished as a result of the secondary custodian's sharing of the burdens
of child care and maintenance. The sad reality that must be faced is that the desirable sharing
of custody responsibilities by the secondary custodian in joint custody situations has the
inevitable result of increasing total child-related expenses. It is ironic that joint custody
arrangements, which are premised on the theory that an equal sharing of physical and
emotional resources is best for the child, would result in added burdens on both
custodians, but this appears to be the case.
__________

1
The party having the majority of custodial time in a joint physical custody situation is presumably, but not
unexceptionably, the primary custodian. It is certainly possible that a party entitled to three days physical
custody could convince the trial court that he or she was exercising the majority of child rearing responsibilities
and financial burdens, but experience probably dictates that the person having physical custody most of the time
will probably turn out to be the primary custodian.
is best for the child, would result in added burdens on both custodians, but this appears to be
the case.
[Headnote 3]
Because of the probable increases in overall expenses in joint physical custody cases and
because of the danger inherent in reducing child support payments made to a primary
custodian, the courts should exercise considerable caution before reducing the formula
amounts. As the secondary custodian's child-related expenses increase, the expenses of the
primary custodian do not decrease proportionally, and care should be taken that children do
not suffer while in the care of the primary custodian by reason of unwarranted reductions in
the formula payments being made by the secondary custodian.
[Headnote 4]
How to accommodate the interests of the secondary custodian in a fair manner that will
still do justice to the primary custodian and not be contrary to the best interests of children is
not an easy task. The legislature, apparently, was not able to come up with a formulary or
quantitative method for making adjustments in these cases; accordingly, we do not see it as
being appropriate for the courts to devise any kind of mathematically calculated reduction
formula.
2
About all that we can do under the circumstances is to state generally the
applicable principles and give guidance as to how justice might best and fairly be
accomplished by the district courts in these troubling and difficult cases.
We do have statutes that provide a starting place for addressing the problem. NRS
125B.080(8)
3
lists twelve factors which are to be considered when adjusting the amount
of support.
__________

2
We note that the district courts in some cases have attempted to devise their own formulas in making
adjustments to this kind. An example of this process can be found in the Nevada Civil Practice Manual (Michie
1988). It appears at section 3008 that [s]ince no case authority on the new statute is available at the time of the
writing of this handbook, many questions with regard to application of the formula cannot be definitively
answered. Id. at 703-04. The manual then describes a mathematical device for adjusting the formula which is
characterized as one of the approaches which have been utilized by some courts and domestic relations
referees. The practitioner is cautioned that these approaches have not been presented to or accepted by all
courts Id. at 704. As said above, it is inappropriate for the courts to adopt their own formulas when the
mathematical approach to adjusting the formula in joint custody cases has been considered and rejected by the
legislature.

3
NRS 125B.080(8) provides:
The court shall consider the following factors when adjusting the amount of support of a child upon
specific findings of fact:
(a) The cost of health insurance;
(b) The cost of child care;
In NRS 125B.060 are listed considerations which should be evaluated by [a]ny court
establishing or enforcing an order for the support of a child, in determining the amount to be
paid. Whether or not intended by the legislature to apply directly to the problem at hand, the
considerations appearing in NRS 125B.060 include two very important matters which we
believe ought always to be taken into account. These are the standard of living and
circumstances of the parents and the earning capacity of the parents.
4

[Headnote 5]
Although all of the items listed in NRS 125B.080(8) and NRS 125B.060 may be regarded,
clearly they need not be given equal weight. What really matters in these cases is whether the
children are being taken care of as well as possible under the financial circumstances in
which the two parents find themselves. Greater weight, then, must be given to the standard of
living and circumstances of each parent, their earning capacities and the relative financial
means of parents than to any of the other factors.
If, for example, the secondary custodian has a much higher standard of living, greater
earning capacity and considerably greater financial means than the primary custodian, the
courts must be careful not to allow unwarranted reductions in the formula amount being paid
by such a secondary custodian to the primary custodian.
Most of the other statutory factors and considerations are of much lesser weight than the
standard of living and relative financial condition of the parties. For example, the father in
this case lays great stress on the amount of time he claims to spend with his child and
cites NRS 125B.0S0{S){1), the "amount of time the child spends with each parent."
__________
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother's pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial parent moved with the
child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent;
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both spouses.

4
NRS 125B.060 will become ineffective on October 1, 1989. See 1989 Nev. Stats. ch. 405 16. The repeal
of this section has no material effect on this opinion as the considerations listed therein are, in the main, covered
elsewhere in Chapter 125B or in the body of the opinion, wherein we stress the standard of living and
circumstances of each parent, their earning capacity and the relative financial means of parents more than any
of the other factors.
lays great stress on the amount of time he claims to spend with his child and cites NRS
125B.080(8)(1), the amount of time the child spends with each parent. The father contends
that since the child spends forty three percent of its time with the father, the formula should
be reduced by forty-three percent of the formula amount. However, the commendable
willingness of a secondary custodian to spend time with his or her children does not, by itself,
reduce the child rearing related expenditures being borne by the primary custodian. A parent
might spend a large amount of time with his or her child and yet contribute little or nothing to
the child's material welfare.
[Headnotes 6-8]
Because of the presumptive nature of the formula, application of the formula must be the
rule, and deviation from the formula for the benefit of the secondary custodian must be the
exception.
5
Therefore, the secondary custodian has the burden of showing any unfairness
that might result from that custodian's having to pay the full formula amount. Further, the trial
court must, in accordance with NRS 125B.080(5), set forth findings of fact as to the basis
for the deviation from the formula. The basis for the deviation must be found in the
unfairness, the injustice, which may result to the secondary custodian if he or she, after
making substantial contributions of a financial or equivalent nature to the support of the
child, were required to pay the full formula amount.
To summarize:
1. The NRS 125B.070 formula applies to joint physical custody and shared custody cases.
2. The court must make a determination as to which parent is the primary custodian and
the secondary custodian.
3. The secondary custodian must pay to the primary custodian the full formula amount
unless the secondary custodian sustains the burden of showing that substantial injustice
would result in requiring him or her to pay the full formula amount.
4. In determining whether an injustice is present the trial court should make reference to
the factors and considerations in NRS 125B.080(8) and NRS 125B.060, with principal
concern being given to the standard of living of the parties, their earning capacity and their
relative financial means.
5. Where either an increase (under NRS 125B.080(4)) or reduction in the formula amount
is ordered, the deviation from the formula should be supported by written findings of fact and
a statement of reasons.
__________

5
It is presumed that the basic needs of the child are met by the formulas set forth in subsection 2 of NRS
125B.070. NRS 125B.080(4).
[Headnote 9]
The record before us does not warrant a reversal of the child support award given in this
case to the mother as primary custodian. We do not have in the record on appeal a transcript
of the proceedings on the motion to increase child support, but we do have a binding written
finding by the domestic relations referee which was adopted by the trial court in granting the
support increase. The findings of the referee adopted by the district court tell us that the
father's contacts with the child look more like visitation periods rather than assumption of full
custodial responsibilities. The referee found that the father visited on three weekends plus an
extra day each month, not a terribly unusual or atypical visitation arrangement. We find
nothing in the record that discloses such a substantial contribution by the father as secondary
custodian that would mandate, as a matter of law, a formula reduction in this case.
The trial court denied all objections to the referee's findings and recommendations,
affirmed the same and ordered the father to pay the sum of $450.00 per month. We discover
in this record no irregularity in the referee's proceedings nor in the referee's findings and
recommendations. The appellant has not shown any abuse of discretion on the part of the trial
court in accepting the referee's findings and recommendations. We therefore affirm the
judgment of the trial court. We have considered other assignments of error and find them to
be without merit.
Young, C. J., Steffen, and Mowbray, JJ., and Zenoff, Sr. J.,
6
concur.
____________
105 Nev. 553, 553 (1989) Bally's Employees' Credit Union v. Wallen
BALLY'S GRAND EMPLOYEES' FEDERAL CREDIT UNION and JUDY McDANIEL,
Appellants and Cross-Respondents, v. DELORSE WALLEN, Respondent and
Cross-Appellant.
No. 18795
September 21, 1989 779 P.2d 956
Appeals from a judgment upon a jury verdict in an action for breach of contract and
wrongful termination of employment, and cross-appeal from a district court order dismissing
respondent/cross-appellant's defamation claim and from the district court's remittitur of
punitive damages.
__________

6
remittitur of punitive damages. Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Discharged employee sued employer and supervisor for breach of contract, breach of
implied covenant of good faith and fair dealing, defamation and wrongful interference with
contract. Following jury trial before the district court judgment was entered in employee's
favor on contract claims after punitive damage award was remitted from $25,000 to $15,000.
Employer and supervisor appealed, and employee took cross appeal from dismissal of
defamation claims and partial remittitur. The Supreme Court held that employee's subjective
expectations of continued employment were insufficient to create implied contract that she
would only be terminated upon just cause and thus verdict in employee's favor could not
stand.
Reversed; cross-appeal dismissed.
Stephens, Knight and Edwards, Reno; Callister & Reynolds, Las Vegas, for
Appellants/Cross-Respondents.
Glade L. Hall, Reno, for Respondent/Cross-Appellant.
Dismissed employee could recover on contract claims only if she established that she was other than an at-will employeein other
wordsthat she was employed either under express or implied contract that she could be terminated only for just cause.
Jury's verdict will not be overturned if it is supported by substantial evidence, unless, from all evidence presented, verdict was
clearly wrong.
Employee's subjective expectations of long term employment were legally insufficient to transform at-will employment
relationship into contract terminable only for just cause; employee's belief that she would have job as long as she performed her duties,
her expectation of permanent employment based on her request for such employment at time of her application and her entering into
long-term employee benefit programs established nothing more than subjective expectations and did not alter agreement that was
characteristic of at-will relationship.
OPINION
Per Curiam:
After being terminated by appellant/cross-respondent Bally's Grand Employees' Federal
Credit Union (Bally), respondent/cross-appellant Delorse Wallen (Wallen) brought suit
against Bally and her supervisor, appellantJcross-respondent Judy McDaniel {McDaniel).
Bally and her supervisor, appellant/cross-respondent Judy McDaniel (McDaniel). Wallen
alleged: (1) breach of contract against Bally; (2) breach of the implied covenant of good faith
and fair dealing against Bally; (3) defamation against McDaniel; (4) slander against McDaniel
and Bally's general manager, Peter Todd; and (5) wrongful interference with contract against
McDaniel and Todd.
During trial, Todd was dismissed as a defendant upon the parties' stipulation. At the close
of Wallen's case-in-chief, the district court dismissed the defamation and slander claims
against McDaniel pursuant to McDaniel's NRCP 41(b) motion. The jury, by a vote of six to
two, returned a general verdict in favor of Wallen and assessed compensatory damages of
$21,000 and punitive damages of $25,000. After entry of judgment, Bally and McDaniel
moved for judgment notwithstanding the verdict or, in the alternative, remittitur of punitive
damages. The district court denied the JNOV motion, but reduced the punitive damages
award to $15,000 and apportioned it at $10,000 against Bally's and $5,000 against McDaniel.
Bally and McDaniel appeal separately from the judgment as amended and allege numerous
assignments of error. Wallen cross-appeals from the dismissal of her defamation claim and
from the district court's partial remittitur of punitive damages.
[Headnote 1]
Preliminarily, we note that in order for the jury to have decided in Wallen's favor on her
employment claims it first was required to find that she was other than an at-will employee,
i.e., it was required to find that Bally employed Wallen under either an express or an implied
contract that she would be terminated only for just cause. See Sands Regent v. Valgardson,
105 Nev. 436, 439, 777 P.2d 898, 899 (1989) (breach of contract and bad faith discharge
presuppose more than at-will employment agreement between parties). Absent such a finding,
and with certain limited exceptions not relevant here, Bally was at liberty to discharge Wallen
with or without cause. See Smith v. Cladianos, 104 Nev. 67, 69, 752 P.2d 233, 235 (1988).
[Headnote 2]
Bally contends that nothing other than an at-will employment relation existed between it
and Wallen and that the evidence does not support the jury's verdict. In considering Bally's
contention, we must assume that the jury believed the evidence favorable to Wallen and made
all reasonable inferences in her favor. Paulin v. Sutton, 102 Nev. 421, 423, 724 P.2d 749, 750
(1986). We will not overturn the jury's verdict if it is supported by substantial evidence,
unless, from all the evidence presented, the verdict was clearly wrong.1 Id.;
substantial evidence, unless, from all the evidence presented, the verdict was clearly wrong.
1
Id.; Hotels El Rancho v. Pray, 64 Nev. 591, 626, 187 P.2d 568, 585 (1947).
[Headnote 3]
From our review of the record we are convinced that the evidence upon which the jury
could have found the existence of an implied-in-fact contract to terminate only for just cause
was not substantial. Regarding the purported terms of her employment with Bally, Wallen
testified: Well, I understood as far as a contract between Judy [McDaniel] and I that Ias
long as I performed my duties, I would have a job. (Emphasis supplied.) We recently
indicated, however, that an employee's subjective expectations are legally insufficient to
transform an at-will employment relationship into a contract of termination only for just
cause. Vancheri v. GNLV Corp., 105 Nev. 417, 421, 777 P.2d 366, 369 (1989) (citing
Roberts v. Atlantic Richfield Co., 568 P.2d 764, 769 (Wash. 1977); Schartz v. Michigan
Sugar Co., 308 N.W.2d 459, 462 (Mich.Ct.App. 1981)). Thus, this testimony was insufficient
as a matter of law to establish an intention on the part of Bally to create anything other than
an at-will employment contract.
Wallen also testified that during a pre-employment polygraph examination she indicated
that she was seeking permanent employment, that she believed she would be promoted to
assistant manager and that she entered into all long-term employee benefit programs. This
evidence, which is of dubious relevance regarding the existence of an implied-in-fact
contract, established nothing more than Wallen's subjective expectations of continued
employment, and, as indicated above, is legally insufficient to rebut the presumption of
at-will employment. Id. at 421, 777 P.2d at 369.
Wallen points to her husband's testimony as further evidence of an implied-in-fact contract
between her and Bally, but Mr. Wallen's testimony actually supports Bally's position.
Regarding his knowledge of the terms of Wallen's employment, Mr. Wallen testified:
Not that this is going to go on for the rest of your lives, but the two of them working
together [Wallen and McDaniel] would have a place to work together. . . . [T]he two of
us working together, and everything is going to be rosy, we'll be here for as long as
we're around, I guess for as long as you care to work.
__________

1
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (emphasis supplied).
we'll be here for as long as we're around, I guess for as long as you care to work.
(Emphasis supplied.) This testimony described nothing more than agreement of employment
for an indefinite term, and, contrary to Wallen's position, such an agreement is characteristic
of an at-will relationship. See Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 596, 668 P.2d
261, 262 (1983) (Steffen, J., dissenting) ([E]mployment 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.) (citing Phillips v. Goodyear Tire & Rubber Co., 651 F.2d 1051 (5th
Cir. 1981)).
Wallen also argues that McDaniel's deposition testimony supports the jury's finding of an
implied-in-fact contract to terminate only for just cause. We disagree.
Only through a strained interpretation of the word substantial could McDaniel's
deposition testimony be considered sufficient to support the jury's verdict. The deposition
testimony, which Wallen published at trial in an effort to impeach McDaniel, was not only
contrary to McDaniel's trial testimony, it was also internally self-contradictory.
2

The record is devoid of any other evidence from which the jury could reasonably have
inferred the existence of something other than an at-will relationship between Wallen and
Bally. Accordingly, we conclude that the jury's verdict cannot stand and that the judgment
against Bally and McDaniel must be reversed.
In her cross-appeal, Wallen contends that the district court erred in dismissing her
defamation claim. After a careful review of the record, we conclude that this contention is
without merit. See Branda v. Sanford, 97 Nev. 643, 737 P.2d 1223 (1981). Moreover, our
conclusions above obviate the necessity of considering Wallen's assignment of error
regarding the district court's remittitur of punitive damages.
__________

2
After McDaniel testified that Bally's had no policy of termination for just cause, the following exchange
occurred:
Q [Mr. Hall]: Is it correct that I asked you this question, So is it the policy of the credit union that
employees can only be terminated for just cause, in other words, some failure to perform?
And you gave the answer, Correct.
A [McDaniel]: Can I answer that with an explanation, too?
Q: Sure. Just answer me, did you give that testimony at that time?
A: Yes.
Q: All right. Now, if you have an explanation, sure.
Q: At the time I didn't understand fully what that meant. Later on in the deposition I corrected it,
because it means like a company policy, or a signed contract, or employees manuals, and, no, we have
none of that.
For the foregoing reasons, the judgment against both Bally and McDaniel is reversed;
Wallen's cross-appeal is dismissed. It is so ordered.
Young, C. J., Steffen, Springer and Rose, JJ., and Recanzone, D. J.,
3
concur.
____________
105 Nev. 558, 558 (1989) State, Dep't of Motor Vehicles v. Torres
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v.
FRANK TORRES, Respondent.
No. 18718
September 28, 1989 779 P.2d 959
Appeal from an order of the district court reversing a decision of a Department of Motor
Vehicles hearing officer to revoke respondent's drivers license. Second Judicial District
Court, Washoe County; William N. Forman, Judge.
Department of Motor Vehicles and Public Safety upheld revocation of license of driver
charged with driving under influence of intoxicating liquor. Driver petitioned for review. The
district court reversed, and Department appealed. The Supreme Court held that police officer
had reasonable grounds to believe that driver was under influence of intoxicating liquor and
was in actual physical control of his vehicle, and therefore officer properly directed driver to
submit to chemical intoxication test, where defendant was asleep in vehicle which was
blocking access to drive through lane of open restaurant.
Reversed.
Brian McKay, Attorney General, and Cheryl A. Lau, Deputy Attorney General, Carson
City, for Appellant.
Calvin R. X. Dunlap, Reno, for Respondent.
1. Automobiles.
Probable cause for arrest on charge of driving under influence of intoxicating liquor does not have to be demonstrated prior to
police officer directing administration of chemical test to determine percentage of alcohol in blood of driver; officer only has to have
reasonable grounds to believe that person to be tested was driving and in actual physical control of vehicle while under influence of
intoxicating liquor or controlled substance. NRS 484.383, subd. 1.
__________

3
The Honorable Mario G. Recanzone, Judge of the Third Judicial District Court, was designated by the
Governor to sit in place of The Honorable John C. Mowbray, Justice. Nev. Const. art. 6, 4.
2. Automobiles.
Police officer had reasonable grounds to believe that driver was under influence of intoxicating liquor when he had driven into
drive through lane of restaurant, and therefore officer properly directed driver to submit to chemical intoxication test without
conducting field sobriety test; driver was asleep in front seat of vehicle which was blocking drive through lane, keys were in ignition
switch, driver stumbled and leaned against vehicle for balance after being awakened, and driver had strong odor of intoxicants on his
breath and his eyes were extremely wet and watery. NRS 484.383, subd. 1.
3. Automobiles.
Evidence was sufficient to show that driver was in actual physical control of vehicle prior to police officer directing driver to
submit to chemical intoxication test; vehicle was in drive through lane of open restaurant, driver was asleep, driver was lying partially
on passenger seat, and key was in ignition switch in on position. NRS 484.379, subd. 1, 484.383, subd. 1.
OPINION
Per Curiam:
On August 9, 1986, at approximately 3:26 a.m., Officer Timothy M. Dees of the Reno
Police Department was dispatched to a Naugles restaurant on Silverado Boulevard in Reno,
in response to a report of a man passed out at the wheel of a vehicle in the drive through
lane of the restaurant. Upon arriving at the restaurant, the officer observed a Chevrolet Blazer
in the drive through lane of the restaurant, one vehicle length short of the order window. The
vehicle was blocking access to the order window.
Officer Dees approached the drivers side of the vehicle and looked inside. He saw a man
in the driver's seat, slumped sideways so that his body was partially on the passenger seat.
The man was identified as respondent Frank Torres. The engine was not running, but the keys
were in the ignition switch and the switch was in the on position. The officer took the keys
out of the ignition and called to Torres to wake him up. After receiving no response, Officer
Dees awakened Torres by shaking him. The officer asked Torres to produce his drivers
license and to step out of the vehicle. At this time Torres identified himself as an officer with
the Sparks Police Department. As Torres stepped out of his vehicle he stumbled and leaned
against the vehicle for balance. Torres had a strong odor of intoxicants on his breath and his
eyes were extremely red and watery. Officer Dees placed Torres under arrest for driving
under the influence of intoxicating liquor (DUI). Torres agreed to take a chemical
intoxication test, and Officer Dees did not ask him to perform a field sobriety test. Officer
Dees advised Torres of the Nevada implied consent admonition. A breath test was
administered and resulted in alcohol level readings of 0.14 and 0.15 percent.
level readings of 0.14 and 0.15 percent. Torres was served with a notice of revocation of his
drivers license.
[Headnote 1]
Following an administrative hearing, a hearing officer of the Department of Motor
Vehicles and Public Safety upheld the revocation of Torres' drivers license. Torres petitioned
for judicial review. The district court reversed the hearing officer's decision, and this appeal
followed. The district court found that there was no probable cause for Torres' arrest on a
charge of DUI and that Torres was not in actual physical control of his vehicle within the
meaning of the DUI statute.
1
We disagree.
[Headnote 2]
Under the circumstances, Officer Dees had reasonable grounds to believe that Torres was
under the influence of intoxicating liquor and in actual physical control of his vehicle, and
that Torres had driven into the drive up lane of the restaurant while under the influence.
Therefore, Officer Dees could direct Torres to submit to a chemical intoxication test without
conducting a field sobriety test. See NRS 484.383(1).
The hearing officer found that Officer Dees had reasonable grounds to believe that Torres
was driving or in actual physical control of his vehicle on a highway or on premises to which
the public has access, that Torres had 0.10 percent or more by weight of alcohol in his blood,
and that Torres' drivers license should be revoked. The hearing officer's findings are
supported by substantial evidence on the record presented. The district court erred in
disturbing an agency's factual determination that is supported by substantial evidence. See
State Dept. Mtr. Veh. v. Kiffe, 101 Nev. 729, 733, 709 P.2d 1017, 1020 (1985).
[Headnote 3]
In reversing the hearing officer, the district court also found as a matter of law that the
hearing officer erroneously applied the statutory provisions proscribing driving or being in
actual physical control of a vehicle while intoxicated to the facts of this case. See NRS
484.383(1). This court has previously held that [w]hile it is true that the district court is free
to decide pure legal questions without deference to an agency determination, the agency's
conclusions of law, which will necessarily be closely related to the agency's view of the
facts, are entitled to deference, and will not be disturbed if they are supported by
substantial evidence."
__________

1
We note that the district court applied an incorrect standard in reaching its conclusions. NRS 484.383(1)
provides that a police officer may direct the administration of a chemical test to determine the percentage of
alcohol in the blood of the person to be tested if the officer has reasonable grounds to believe that the person to
be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or
a controlled substance. It is not necessary under this statute that probable cause for an arrest on a charge of DUI
be demonstrated.
agency's conclusions of law, which will necessarily be closely related to the agency's view of
the facts, are entitled to deference, and will not be disturbed if they are supported by
substantial evidence. Jones v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1985). See
also NRS 233B.140(5); NRS 484.387(3).
We have previously explained that a person is in actual physical control of a vehicle under
NRS 484.379(1) when the person has existing or present bodily restraint, directing
influence, domination, or regulation of the vehicle. Rogers v. State, 105 Nev. 230, 773 P.2d
1226 (1989). In making such a determination,
the trier of fact must weigh a number of considerations, including where, and in what
position, the person is found in the vehicle; whether the vehicle's engine is running or
not; whether the occupant is awake or asleep; whether, if the person is apprehended at
night, the vehicle's lights are on; the location of the vehicle's keys; whether the person
was trying to move the vehicle or moved the vehicle; whether the property on which the
vehicle is located is public or private; and whether the person must, of necessity, have
driven to the location where apprehended.
Id. at 230, 233 P.2d at 1228.
Torres was lying partially on the passenger seat of his vehicle. The key was in the ignition
switch, in the on position. Most importantly, Torres was discovered asleep in a vehicle in
the drive through lane of a restaurant that was open for business. Vehicles ordinarily are not
parked or left stationary for extended periods of time in drive through lanes. Upon being
confronted, Torres did not deny having driven the vehicle into the drive through lane.
Furthermore, it seems likely that Torres would have driven away if his intoxicated condition,
had he not fallen asleep and been apprehended.
Under these circumstances, we conclude that the hearing officer's determination that
Torres was in actual physical control of his vehicle within the meaning of the DUI statute is
supported by substantial evidence. Further, the hearing officer's finding is not affected by any
error of law. Compare Rogers, 105 Nev. at 230, 234 P.2d at 1228 (person found asleep in
drivers seat of a car parked alongside and partially on a highway held in actual physical
control of the vehicle) with Bullock v. State, Dep't Motor Vehicles, 105 Nev. 326, 775 P.2d
225, (1989) (person found asleep in the drivers seat of a vehicle parked in a parking lot who
testified that he had not driven the vehicle after consuming intoxicating liquor in a nearby
tavern held not in actual physical control of the vehicle). See also Isom v. State, 105 Nev.
391, 776 P.2d 543 (1989). Therefore, the district court erred in substituting its judgment for
that of the hearing officer.
ing its judgment for that of the hearing officer. See NRS 233B.140(5); Kiffe, 101 Nev. at 733,
709 P.2d at 1020. Accordingly, we reverse the decision of the district court and reinstate the
decision of the hearing officer.
____________
105 Nev. 562, 562 (1989) Elko Enterprises v. Broyles
ELKO ENTERPRISES, INC., a Nevada Corporation, dba COMMERCIAL HOTEL,
Appellant, v. ROGER WADE BROYLES, a Minor, Through His Guardians, SCOTT
ANTHONY ROGERS, and CYNTHIA MARIE ROGERS, Respondents.
No. 19027
September 28, 1989 779 P.2d 961
Appeal from judgment, entered on a jury verdict, awarding damages in a personal injury
action. Fourth Judicial District Court, Elko County; Michael E. Fondi, Judge.
Father was murdered in hotel bar and son sued the hotel for wrongful death. Following a
jury trial in district court, a substantial verdict was awarded son, and hotel appealed. The
Supreme Court held that: (1) the trial court properly refused to set aside the jury's
determination that the hotel should have anticipated the murderer's act and that it breached its
affirmative duty to warn the victim, and (2) jury instruction that defendant can be found
negligent even if injury was caused by third person, provided that third person's conduct was
reasonably foreseeable, was correct.
Affirmed.
Perry, Hebert & Spann, Reno; Wilson & Barrows, Elko, for Appellant.
James E. Wilson, Jr., Carson City, for Respondents.
1. Negligence.
Business proprietor has duty to use reasonable care to keep premises safe for his patrons.
2. Negligence.
Whether bar's employees, having heard ex-husband's threats to kill ex-wife and her companion, breached bar's affirmative duty to
warn ex-wife and her companion or protect them from hazard posed by ex-husband's presence on the premises, was question for jury.
3. Negligence.
Instruction that defendant can be found negligent even if injury was caused by third person, provided that third person's conduct
was reasonably foreseeable, was proper in negligence action.
OPINION
Per Curiam:
This is a wrongful death case in which a jury awarded respondent Roger Wade Broyles a
substantial verdict for the death of his father, Roger Dean Broyles. Roger's father was
murdered in the Commercial Hotel in Elko by one Merrill Wolford.
To be reviewed in this appeal is whether the murder of Roger's father in the Commercial
Hotel bar can give rise to legal tort liability on the part of Elko Enterprises, Inc., the owner
and operator of the hotel. To answer this question we must inquire at some depth into the
facts surrounding the murder.
On Friday evening, October 25, 1985, Roger's father was in the Commercial Hotel bar in
the company of a woman named Laverne Hunt. Hunt is the former wife of Merrill Wolford,
the man who killed Roger's father. Approximately five months earlier, Hunt and Wolford had
been divorced. Wolford had continued to live in a trailer with Hunt up until ten days before
the shooting. Wolford and Broyles had previously been good friends. Wolford believed that
Broyles and Hunt were maintaining a sexual relationship.
In the two to three months before the shooting, Wolford had lost control of his drinking.
He was getting drunk every night. Broyles, Hunt and Wolford were all regulars at the
Commercial Hotel bar and were known to the employees there. The bartenders and the
waitress were aware of Wolford and Hunt's divorce.
On the Friday night before the killing Wolford sat down at the end of the bar that Mike
Hale (Hale) was tending. At the other end of the bar sat Hunt and Broyles. Hale saw Wolford
looking at the couple and commented, It's alot like gettin' kicked right in the gut, ain't it
Merrill. Wolford got up and talked to another customer for a short while and then returned to
the bar. As he sat down, Hunt and Broyles were preparing to leave. Hale asked Wolford,
[Y]ou feel any better now Merrill? Wolford replied, [T]hat's OK Mike . . . I'll kill'em both
. . . I'm gonna shoot'em both. Wolford indicated to Hale that he had a gun in his vest pocket;
however, Hale did not actually see the gun. Hale stated that the whole time that Wolford was
in the bar he did not take his right hand out of his pocket. Wolford paid for his drink with his
left hand.
As Wolford got up to leave, Hale was kinda shocked because he knew that Broyles and
Hunt were right there and he'd just showed me [the gun]. Hale asked Wolford, Merrill . . .
did I just hear what Iwhat I thought I heard? Hale stated that Wolford replied, I didn't say
anything. Then Wolford got up from the bar.
up from the bar. Hale said, Merrill, you're a good dude . . . you got alot goin' for yah. By
that time Broyles and Hunt were out of the bar. Wolford looked around a little, then soon left
the bar without finishing his drink.
Hale told the waitress on duty, Donna Cooper (Cooper), about his conversation with
Wolford. About half an hour later, Wolford returned to the bar. Cooper, in a playful manner,
patted Wolford down, and a shocked look came across Cooper's face, and she said,
Whooa! Cooper confirmed that she did feel a gun in Wolford's pocket. Nothing else of
consequence happened at the bar that Friday evening.
The next evening, Saturday, October 26, 1985, Wolford again went to the bar at the
Commercial Hotel. He was not wearing his vest. He was looking for Hunt to invite her to a
Halloween party. Wolford sat down at the bar and ordered a drink from Hale. According to
Hale, Wolford reached over the bar and said, Bang, I got yah! to Hale. The two conversed
for a while, and Hale bought Wolford a beer. Wolford left after fifteen or twenty minutes
without finishing his drinks.
Later that evening, at about 8:15, Wolford returned to the bar at the Commercial Hotel.
Wolford was wearing his vest and had his hand in his pocket. Hunt and Broyles were sitting
at the end of the bar. Hale saw Wolford come through the door and thought, Now he
probably doesn't have it with him, you know, wow, sh, does he have it, should Iwhat
should I do? No, he probably doesn't have it with him, . . . maybe he'll have to go to his truck
or home to get it.
According to Hale, Wolford came through the door and just kept walking, just walked all
the way around and didn't say a word to anybody, he bumped through people, he hit Leonard
pretty hard, there's a real narrow space right there where people walk, he didn't even slow
down, not a bit, he just run into people and walked right up to [Broyles and Hunt] and didn't
say a word, just started shooting. When Hale heard the gunfire, Hale just went right down
on the ground. However, when the gunfire continued, Hale ran out the door to a nearby
establishment and told the people there to call an ambulance.
The assailant, Wolford, gave a different account from that of Hale's. According to
Wolford's deposition he went into the bar in order to invite his former wife, Laverne, to a
Halloween party. Upon seeing Laverne sitting at the bar with the now deceased Roger
Broyles, he avoided them and went unseen to the men's room. Upon coming out of the men's
room, Wolford testified that he observed Laverne and Broyles in an embrace. This caused
Wolford to go into some kind of altered state of consciousness.
According to Wolford, [e]verything just went kind of red and black. And then it wasI was
watching everything. After the shooting Wolford remembers that he went back inside of
his body. He testified that he had no intention to kill Broyles, but that he flipped out and
was crazier than Hell.
If we were to patch together a version most favorable to plaintiffrespondent's
positionthe killing could have taken place as follows. On Friday night Wolford openly
expressed his intention to Commercial Bar personnel to shoot Broyles and Laverne. He had a
gun. None of the Bar personnel who were concerned about the threats did anything to protect
their patron Broyles from the death threat. They did not notify company security or the police.
They did not even favor Broyles with a warning. That Wolford might shoot Broyles on Friday
appears to be foreseeable under these circumstances, but, Laverne and Broyles left the
premises before Wolford carried out his threat.
On the next night, Saturday night, Wolford entered the bar knowing that Roger and
Laverne would probably be there during the evening. Both the bartender, Mike Hale, and the
waitress, Donna Cooper, knew or believed that Wolford was armed.
Hale was concerned because Wolford had his vest on (where he kept his gun). He knew
that Laverne and Broyles were in the bar and wondered what should I do. At least one bar
employee saw Wolford go into the bathroom, and it is certainly arguable that at this time
someone of those who knew of the dangerous situation had time to notify security or at least
warn Broyles of the fact that he was being stalked on the premises by a dangerous and armed
man who had made open threats that he was going to shoot Broyles and Laverne.
Elko Enterprises argues that as a matter of law they had no duty to protect Broyles from
being shot by Wolford, explaining in its brief that it is the courts' duty to determine whether
upon facts and evidence which the jury may reasonably find to be true, the law imposes upon
the defendant any legal duty to act . . . for the protection of the plaintiff. As stated, the jury
could reasonably have found in this case that Commercial Bar personnel knew that Wolford
had expressed directly and indirectly his intention to kill Broyles, that Wolford had a gun in
his possession, that there was more than adequate time within which to take some protective
action even if it were only warning Broyles and Laverne of the threats.
[Headnotes 1, 2]
It was Elko Enterprises's duty as proprietor of the premises to use reasonable care to keep
the premises safe for its patrons. Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d 683
{19S4).
(1984). In El Dorado Hotel v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984), we noted
that a business proprietor has the duty to control the wrongful acts of third persons where he
has reasonable cause to anticipate the act and the probability of injury. Not only were
Wolford's actions foreseeable under an interpretation of the evidence that is most favorable to
respondent, Wolford's attack upon Broyles appears to have been actually foreseen by and a
matter of considerable concern to the employees of Elko Enterprises. The trial judge in this
case, in ruling on the motion for directed verdict, commented that all issues of foreseeability
are not issues of law, and that some are indeed issues of fact. We agree. Whether agents of
Elko Enterprises had reasonable cause under the facts of this case to anticipate the act, that
is, to anticipate that Wolford would shoot Broyles is, as ruled by the trial court, a jury
question. If Commercial Bar employees did or reasonably should have anticipated Wolford's
acts, then there was an affirmative duty to warn Broyles and Laverne or protect them from the
hazard posed by Wolford's presence on the premises; and the jury found that the duty was
breached by Elko Enterprises. We will not set aside this jury determination, and we affirm the
trial court's refusal to do so.
[Headnote 3]
Elko also claims that the trial court erred in giving the following instruction:
If you find that defendant was negligent and that their [sic] negligence was a substantial
factor in bringing about an injury to the plaintiff but that the immediate cause of the
injury was the conduct of a third person, the defendant is not relieved of liability for
such injury if at the time of their [sic] conduct the defendant's employees realized that a
third person might act as he did where the risk of harm suffered was reasonably
foreseeable.
Jury Instruction No. 29.
The statement of law given is taken from Nevada Jury Instructions 4.06 and from BAJI
3.79. The instruction tells the jury that a defendant can be found negligent even if the injury
was caused by a third person, provided that the third person's conduct was reasonably
foreseeable. This is a correct statement of the law and is not inconsistent, as contended by
Elko Enterprises, with our holding in El Dorado.
The judgment of the trial court is affirmed.
____________
105 Nev. 567, 567 (1989) State v. Fain
THE STATE OF NEVADA, Appellant, v. RONALD FAIN, Respondent.
No. 19478
September 28, 1989 779 P.2d 965
Appeal from order of the district court dismissing indictment against respondent; Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
State appealed from order of the district court which dismissed indictment. The Supreme
Court held that defendant was not deprived of his right to a speedy trial.
Tufteland and Daniel M. Seaton, Deputy District Attorneys, Clark County, for Appellant.
Michael A. Cherry, Las Vegas; Mark B. Bailus, Las Vegas, for Respondent.
1. Criminal Law.
In determining whether defendant has been denied the right to a speedy trial, court must consider the length of delay, reason for the
delay, defendant's assertion of his right to a speedy trial, and the prejudice to the defendant caused by the delay.
2. Criminal Law.
Even if defendant could show that delay in bringing him to trial was intentional, he would not necessarily be entitled to a
dismissal.
3. Criminal Law.
Defendant did not show prejudice from delay in bringing him to trial where he did not identify any witnesses who could have been
interviewed or indicate how their testimony would have helped the defense, there was no factual support for claim that he was deprived
of possible defense of insanity or mental incompetency and, in view of the brutal nature of the murder with which he was charged, it
was unlikely that he could have received a concurrent sentence for his crime even if he had been tried and sentenced prior to expiration
of another sentence which he was serving.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing an indictment against
respondent.
On December 17, 1978, Wayne Rutledge was brutally murdered in Las Vegas. Rutledge
was stabbed numerous times in the face, neck, chest, back and abdomen, and was beaten
about the head with a blunt instrument.
105 Nev. 567, 568 (1989) State v. Fain
face, neck, chest, back and abdomen, and was beaten about the head with a blunt instrument.
Within a few months after the murder, Las Vegas police investigators suspected that
respondent was one of the killers. However, they did not have sufficient evidence to allow
them to prosecute respondent at that time. In 1980, respondent pleaded guilty to second
degree murder in an unrelated case. He was sentenced to life in prison with the possibility of
parole.
In January 1983, respondent telephoned a police investigator and said he wanted to talk
about the Rutledge murder. According to the detective, respondent indicated that he was
present when Rutledge was killed and may have been involved in the murder. In February
1983, respondent's ex-girlfriend gave a statement to the police containing a similar version of
the facts. Armed with this new evidence, the police department requested the district attorney
to file a criminal complaint against respondent. On March 16, 1983, a complaint was filed
charging respondent with murder with the use of a deadly weapon. However, the complaint
was never served on respondent and the prosecution was not carried out. In November 1986,
after respondent again telephoned the police investigator, the detective checked respondent's
computer file and discovered there was an active warrant for the Rutledge murder. A second
complaint, identical to the March 1983 complaint, was filed on December 8, 1986.
Appellant filed a motion in the justice's court to dismiss the complaint on the ground that
he had been denied his right to a speedy trial under the United States Constitution. The
justice's court granted the motion to dismiss. On the state's appeal to the district court, the
district court affirmed the decision of the justice's court. The state then sought an indictment
from the grand jury. On October 2, 1987, the grand jury returned an indictment charging
respondent with murder with the use of a deadly weapon. Respondent moved the district
court to dismiss the indictment, again asserting that he had been denied his right to a speedy
trial. On August 22, 1988, the district court dismissed the indictment. The state appeals from
this order.
[Headnote 1]
The state contends that respondent was not denied his constitutional right to a speedy trial
and was, therefore, not entitled to have the charges against him dismissed. We agree. In
determining whether a criminal defendant has been denied the right to a speedy trial, this
court must consider four factors: the length of the delay, the reason for the delay, the
defendant's assertion of his right to a speedy trial, and the prejudice to the defendant caused
by the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
105 Nev. 567, 569 (1989) State v. Fain
We first note that the delay in prosecuting respondent has been substantial. The time lapse
between the filing of the first complaint in March 1983 and respondent's filing of a motion to
dismiss in December 1986 is attributable to the state, as is the time between the filing of the
indictment in October 1987 and respondent's motion to dismiss the indictment in December
1987. We note, however, that in Barker v. Wingo the delay attributable to the state was
approximately the same as in the instant case (about four and one-half years). Further, the
Court in Barker noted that the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge. 407 U.S. at 531.
[Headnote 2]
The state characterizes its failure to prosecute respondent between March 1983 and
December 1986 as inadvertent and negligent. Although the record on this point is not
entirely clear, it does not appear that the state deliberately delayed the prosecution in order to
prejudice respondent. We note that even if respondent could show that the delay was
intentional, he would not necessarily be entitled to a dismissal. See Barker, 407 U.S. at 516
(Commonwealth of Kentucky intentionally delayed Barker's prosecution because it wished to
convict another suspect first and then obtain the other suspect's testimony against Barker).
It appears that respondent asserted his right to a speedy trial in a timely fashion after he
was served with the complaint in November 1986, and has repeatedly asserted his claim since
that time.
[Headnote 3]
Prejudice to the accused is a paramount concern in speedy trial cases. Sheriff v. Berman,
99 Nev. 102, 107, 659 P.2d 298, 301 (1983). 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. Id. Respondent has failed to
demonstrate significant prejudice or to support his allegations with evidentiary proof. He has
not identified any specific witnesses who could have been interviewed or indicated how their
testimony would have helped the defense. Respondent alleges that he has been deprived of a
possible defense of insanity or mental incompetence. The record before this court, however,
does not contain any factual support for this allegation such as affidavits from psychologists
or psychiatrists or records of any treatment for mental illness. Respondent contends that he
was prejudiced by the delay in that he lost the possibility of serving concurrent sentences.
105 Nev. 567, 570 (1989) State v. Fain
sentences. Considering the brutal nature of Rutledge's murder, and given respondent's
previous conviction for another murder, it is extremely unlikely that respondent would
receive a concurrent sentence for this crime. We conclude that respondent has failed to
demonstrate significant prejudice from the delay in prosecution.
While a showing of prejudice to the defense is not essential, the court may weigh such a
showing, or its absence, more heavily than other factors. Sheriff v. Berman, 99 Nev. at 107,
659 P.2d at 301. Considering the facts of the present case in terms of the factors outlined in
Barker v. Wingo, we believe that the absence of significant prejudice to the defense, and the
serious nature of the crime sought to be prosecuted, outweigh the admittedly substantial delay
in prosecution. We conclude that respondent was not deprived of his constitutional right to a
speedy trial. We therefore reverse the order of the district court dismissing the indictment
against respondent and we remand this matter to the district court for further proceedings
consistent with this opinion.
____________
105 Nev. 570, 570 (1989) Carr-Bricken v. First Interstate Bank
LORETTA CARR-BRICKEN, Appellant, v. FIRST INTERSTATE BANK OF NEVADA,
SPECIAL ADMINISTRATOR OF THE ESTATE OF JULES BRICKEN, DECEASED,
Respondent.
No. 19434
September 28, 1989 779 P.2d 967
Appeal from orders denying various motions by appellant and granting respondent's
motion for summary judgment on respondent's counterclaim for declaratory relief. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
In divorce proceeding, the district court denied motions by wife and granted husband's
motion for summary judgment on wife's counterclaim for declaratory relief. Wife appealed,
and the Supreme Court held that: (1) court did not err in granting husband's motion to
terminate temporary support; (2) court's error in granting husband's motion to strike before
wife responded to motion was harmless; (3) husband's counterclaim was not separate action
which renewed period for filing peremptory challenge; (4) court did not err in denying wife's
motion to disqualify judge; and (5) court erred in granting husband summary judgment.
Affirmed in part; reversed in part; and remanded.
Feldman, Shaw & DeVore, Zephyr Cove, for Appellant.
Thomas Perkins, Carson City, for Respondent.
1. Divorce.
Husband's motion to terminate temporary support was technically defective because it was not supported by affidavits, but because
copy of wife's property settlement agreement with her first husband was attached to motion, the affidavit requirement was substantially
satisfied. DCR 13(5)-(6); FJDCR 13(a).
2. Divorce.
Orders for support pendente lite may be granted in discretion of district court. NRS 125.050(1).
3. Divorce.
District court's finding that wife had overstated amount of alimony she had been receiving from her first husband, together with
property settlement agreement showing that she was not without assets, constituted substantial evidence to support court's discretionary
decision to terminate support pendente lite. NRS 125.050(1).
4. Judges.
Failure to file timely peremptory challenge to judge results in waiver of that right.
5. Divorce.
Trial court's error in granting husband's motion to strike wife's peremptory challenge to judge before time elapsed for wife to
respond to motion was harmless since she filed her peremptory challenge long after hearings on several contested pretrial matters in the
case, and her right to peremptory challenge had thus been waived as a matter of law.
6. Judges.
Husband's counterclaim was not a separate action which renewed period for filing peremptory challenge to judge; allowing
plaintiff to file peremptory challenge after filing of any counterclaim would give plaintiff opportunity to disqualify district judge
simply because he has made previous unfavorable rulings, which would undermine primary purpose of counterclaims to permit
sufficient settlement of all disputes in a single suit. SCR 48.1.
7. Judges.
Judge's testimony that he bore no animus to wife and that he delayed deciding one of her motions because he had assumed double
load of cases, constituted substantial evidence to support court's finding of lack of prejudice and supported denial of motion to
disqualify.
8. Judgment.
Material issues of fact existed as to whether husband promised to support wife for the rest of her life, whether he acknowledged the
promise, and whether he referred to joint property so as to create an implied-in-fact contract of support existing before marriage,
precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from court orders denying various motions by appellant and granting
respondent's motion to terminate appellant's temporary support and motion for summary
judgment on respondent's counterclaim for declaratory relief.
lant's temporary support and motion for summary judgment on respondent's counterclaim for
declaratory relief.
Appellant Loretta Carr-Bricken and Jules Bricken cohabited from late 1979 until they were
married in 1985. Appellant filed for divorce on October 6, 1986. While the divorce
proceedings were pending, Jules Bricken died and was replaced as defendant by respondent
First Interstate Bank of Nevada as Special Administrator of the Estate of Jules Bricken.
Loretta Carr-Bricken appeals from district court orders terminating her temporary support,
denying her motion for pendente lite alimony, attorney's fees and costs, striking her
peremptory challenge of Judge Fondi, denying her motion to disqualify Judge Fondi, and
from entry of summary judgment on Jules Bricken's counterclaim for declaratory relief. We
reverse the district court's grant of summary judgment and affirm in all other respects.
[Headnote 1]
Appellant first contends that the district court committed reversible error in its order
granting Jules Bricken's motion to terminate appellant's temporary support. Appellant argues
that the motion was defective because not supported by affidavits. Indeed, the motion was
technically defective because it was not supported by affidavits as required by DCR 13(5)-(6)
and FJDCR 13(a). Nevertheless, we hold that the copy of appellant's property settlement
agreement with her first husband, which was attached to the motion and the authenticity of
which was not challenged, substantially satisfies the affidavit requirement.
[Headnotes 2, 3]
Appellant's second assignment of error is a continuation of her first. Appellant contends
that the district court erred by denying her motion for pendente lite alimony, attorney's fees
and costs. Orders for support pendente lite may be granted in the discretion of the district
court. NRS 125.040(1); Kapp v. District Court, 31 Nev. 444, 453, 103 P. 235, 239 (1909).
Findings of fact are reversible only if clearly erroneous; they must be upheld if supported by
any substantial evidence. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130,
734 P.2d 1236, 1237 (1987). Appellant's property settlement agreement with her first husband
was before the court. The agreement showed that appellant was not without assets and that, at
the hearing regarding appellant's original motion for support pendente lite, the district court
found that appellant had overstated the amount of alimony she had been receiving from her
first husband. We hold that, combined with testimony taken at the hearing, the property
settlement agreement referred to above constitutes substantial evidence to support the
discretionary decision to terminate support pendente lite.
to support the discretionary decision to terminate support pendente lite.
[Headnotes 4, 5]
Appellant next contends that the district court erred by granting respondent's motion to
strike appellant's peremptory challenge to Judge Fondi. On September 25, 1987, respondent
moved to strike appellant's peremptory challenge. Appellant was entitled to at least ten days
to file a response to the motion. See DCR 13(3). Therefore, the district court erred by granting
respondent's motion to strike only five days later, on September 30, 1987, before appellant
responded to the motion. We hold, however, that this error was harmless. No error in any
court order is ground for disturbing the order, unless refusal to disturb the order denies a party
substantial justice. NRCP 61. Peremptory challenges to a judge in a civil action must be filed
at least three days before the date set for the hearing of any contested pretrial matter arising
from that action. SCR 48.1(3). Failure to file a timely peremptory challenge to a judge results
in waiver of that right. Jeannes v. District Court, 97 Nev. 218, 220, 626 P.2d 272, 274 (1981).
Since appellant filed her peremptory challenge long after hearings of several contested
pretrial matters in this case, her right to a peremptory challenge had been waived as a matter
of law. For this reason, the court's error did not deny appellant substantial justice.
[Headnote 6]
Appellant's argument that respondent's June 22, 1987 counterclaim was a separate action
which renewed the period for filing the peremptory challenge under SCR 48.1 is without
merit for two reasons. First, the Nevada case cited as support by appellant is inapposite; the
case merely authorized a peremptory challenge to a judge by an intervening party, who,
unlike appellant, was new to the action. See Moore v. District Court, 77 Nev. 357, 364 P.2d
1073 (1961). Second, allowing a plaintiff to file a peremptory challenge after the filing of any
counterclaim would give a plaintiff the opportunity to disqualify the district judge simply
because he has made previous unfavorable rulings. This practice undermines the primary
purpose of counterclaims: to permit efficient settlement of all disputes in a single suit. See
Friedenthal, Kane & Miller, Civil Procedure Sec. 6.7 (1985) (counterclaim promotes policy
of settling all disputes between two parties as expeditiously and economically as possible).
[Headnote 7]
Appellant also assigns as error District Court Judge Griffin's denial of her motion to
disqualify Judge Fondi. Findings of fact are reversible only if not supported by any
substantial evidence.
are reversible only if not supported by any substantial evidence. Pandelis, 103 Nev. at 130,
734 P.2d at 1237. Judge Fondi's testimony that he bore no animus to appellant and that he
delayed deciding one of appellant's motions because he had assumed a double load of cases
constitute substantial evidence to support Judge Griffin's finding of lack of prejudice.
[Headnote 8]
Appellant's final assignment of error is meritorious. In his counterclaim, Mr. Bricken
sought a declaratory judgment that appellant had acquired no property rights in his assets
during the couple's pre-marital cohabitation. Mr. Bricken brought a motion for summary
judgment on the counterclaim. Appellant correctly contends that the district court's granting
of summary judgment in favor of respondent was erroneous because of the existence of a
triable question of fact. Where the slightest doubt as to facts exists, a litigant has a right to
trial and summary judgment should not be granted. Oak Grove Inv. v. Bell & Gossett Co., 99
Nev. 616, 623, 668 P.2d 1075, 1079 (1983). 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
the summary judgment was rendered. Id. Mr. Bricken denied that any implied-in-fact contract
of support existed between the couple before marriage. However, in paragraph (c) of her
affidavit in opposition to summary judgment, appellant specifically alleges that, before the
couple married, Mr. Bricken promised to support appellant for the rest of her life. Indeed, Mr.
Bricken admitted to having made this promise. Paragraphs (d)-(f) of the affidavit contain
detailed allegations of Mr. Bricken's several references to our property, including to a
business Mr. Bricken had acquired before he met appellant. In paragraph (i), appellant states
that she assumed primary responsibility for Mr. Bricken and their home, perhaps in exchange
for Mr. Bricken's promises. Reviewed in the light most favorable to appellant, these facts
indicate that more than a slight doubt exists as to whether the implied-in-fact contract existed.
Accordingly, the court's grant of summary judgment was in error.
For the reasons stated above, we reverse the district court's grant of summary judgment
and remand the case for trial on respondent's counterclaim. We affirm the district court orders
in all other respects.
____________
105 Nev. 575, 575 (1989) Las Vegas Transit v. Las Vegas Strip Trolley
LAS VEGAS TRANSIT SYSTEM, INC., NEVADA CHECKER CAB CORPORATION,
NEVADA YELLOW CAB CORPORATION, and NEVADA STAR CAB
CORPORATION, Appellants, v. LAS VEGAS STRIP TROLLEY and THE
NEVADA PUBLIC SERVICE COMMISSION, Respondents.
No. 19256
October 18, 1989 780 P.2d 1145
Appeal from a district court order denying a petition for judicial review of a Public Service
Commission decision. Eighth Judicial District Court, Clark County; Robert E. Rose, Judge.
Judicial review was sought of the Public Service Commission's granting of trolley
company's application to provide transportation services. The district court denied petition,
and appeal was taken. The Supreme Court held that the Public Service Commission engaged
in prohibited ad hoc rule making by defining trolley bus, setting standard of general
applicability, and effecting policy without following requirements of Nevada Administrative
Procedure Act in course of granting application.
Reversed.
Beckley, Singleton, DeLanoy, Jemison & List and Franny A. Forsman, Las Vegas, for
Appellant Las Vegas Transit System, Inc.
Alverson, Taylor & Mortensen and David Clayson, Las Vegas, for Appellants Nevada
Checker Cab Corporation, Nevada Yellow Cab Corporation and Nevada Star Cab
Corporation.
Patrick Joyce, Carson City, for Respondent Nevada Public Service Commission.
Hilbrecht & Associates, Las Vegas, for Respondent Las Vegas Strip Trolley.
1. Administrative Law and Procedure; Automobiles.
Public Service Commission engaged in prohibited ad hoc rule making by defining trolley bus and trolley in course of granting
trolley company's application to provide transportation services; commission set standards of general applicability and effectuated
policy by creating new definition for trolley. NRS 233B.010-233B.150.
2. Administrative Law and Procedure; Public Utilities.
Matters contained in body of Public Service Commission opinion are equal in significance to matters found in footnote for
purposes of applying Nevada Administrative Procedure Act. NRS 233B.010-233B.150.
OPINION
Per Curiam:
In 1986, respondent Las Vegas Strip Trolley (LVST) filed an application with the Public
Service Commission (the Commission) seeking authority to provide transportation services
along the Las Vegas Strip. During public hearings on the matter, LVST informed the
Commission that its proposed transportation system was to consist of gas driven, twenty
passenger Boyertown Trolleys. After the hearings, the Commission granted LVST's
application. However, the PSC conditioned the issuance of LVST's Certificate of Public
Convenience upon LVST's filing of a tariff limiting the scope of the service to the trolley-type
buses. Appellants, competing Las Vegas transportation companies, challenged the
Commission action in the district court. The district court denied relief.
[Headnote 1]
The central issue on appeal is whether the district court erred in concluding that the
Commission did not engage in prohibited ad hoc rule making. Specifically, appellants argued
below and maintain on appeal that the Commission defined trolley bus or trolley and set
a standard of general applicability without following the Nevada Administrative Procedure
Act, NRS 233B.010-NRS 233B.150, requirements. After reviewing the record in light of
pertinent case law, we agree with appellants.
Our decision in Coury v. Whittlesea-Bell, 102 Nev. 302, 721 P.2d 375 (1986), is
dispositive of the issue before us. In Coury, appellant applied to the Commission for a
certificate to operate a stretch limousine service. At the time Commission proceedings
commenced, a stretch limousine was an unknown and undefined vehicle under then
existing Nevada public utility regulations. Ultimately, the Commission issued a certificate
which authorized Coury to operate a stretch limousine service. Additionally, the certificate,
by way of a footnote, defined a stretch limousine.
1
Upon district court review, it was
determined that the Commission had engaged in ad hoc rule making and the certificate was
declared a nullity.
On appeal, we affirmed. First, we paraphrased NRS 233B.038 and its characterization of a
regulation as a standard of general applicability which effectuates policy. Second, we
established that "defining" means establishing limits or stating exactly what a thing is.
__________

1
The Commission's definition of a stretch limousine differed from the formally established definition of a
limousine. See Coury, 102 Nev. at 304-305, 721 P.2d at 326-377.
that defining means establishing limits or stating exactly what a thing is. Third, we
determined that the Commission's definition of a new kind of limousine set a standard of
general applicability which was designed to effectuate Commission policy. Fourth, we
dismissed any notions that the Commission was simply establishing limits and conditions and
was not engaging in ad hoc rule making.
[Headnote 2]
Similar to Coury, the Commission in this case defined trolley or trolley bus where no
such definition had previously existed and set a standard of general applicability to effectuate
Commission policy. Specifically, in the Commission's November 9, 1987, Opinion, the
Commission stated, [t]rolleys will have an unique exterior and interior and move more
slowly from one hotel to another, pulling in and out of numerous hotel entrances with no
stops on the strip. Additionally, in its accompanying Order, the Commission required that
LVST file tariffs with the Commission which were to include the following specific
language:
(1) Vehicles used to provide the authorized service shall be twenty (20) passengers,
gas-powered Boyertown trolley buses.
(2) Las Vegas Strip Trolley's initial route will commence at the Hacienda Hotel
terminal north on Las Vegas Boulevard South to Sahara Avenue; east on Sahara
Avenue to Paradise Road; south on Paradise Road to Convention Center Drive; west on
Convention Center Drive to Las Vegas Boulevard South; north on Las Vegas
Boulevard South to the Circus Circus Hotel; south on Las Vegas Boulevard South to
the Hacienda Hotel terminal, service places of business and convention and tourist
attractions along said route.
(3) The aforementioned trolley buses shall stop only at entrances of establishments
on the Las Vegas Strip.
2

The specific Commission Opinion language coupled with the Commission's specific tariff
requirements reveals that, under Coury, the Commission defined a "trolley" or "trolley
bus" where no such definition existed previously.3
__________

2
Although Coury dealt with a prohibited definition found in a footnote to the Commission's opinion and this
case deals with definitions located in the body of the Commission's opinion and within its accompanying order,
such differentia are immaterial. First, the Nevada Administrative Procedure Act approves only one rule-making
procedure and disapproves all others regardless of where the prohibited rule is found. Second, matters contained
within the body of an opinion are equal in significance to material found within a footnote. See Melancon v.
Walt Disney Productions, 273 P.2d 560, 561 (Cal. 1954).
Commission's specific tariff requirements reveals that, under Coury, the Commission defined
a trolley or trolley bus where no such definition existed previously.
3

Additionally, the Commission, by defining a new kind of vehicle and the possibility of
operating trolleys and trolley buses, generates interest beyond the confines of this case and
general applicability of the Commission's opinion and order was the natural result. Cf.
Coury, 102 Nev. at 306, 721 P.2d at 377-378.
Finally, it is clear from the record that the Commission's decision effectuated policy. See
NRS 233B.038. In its opinion under the heading Legislative Policy, the Commission states
that LVST's trolley bus service will complement the currently inadequate service, relieve
frustration and congestion at bus stops and provide a safer environment for visitors on the
Strip. Further, [t]he new competition will tap an unsaturated market' and enhance overall
transportation on the Strip. The Commission concluded by stating that granting LVST a
certificate of public convenience and necessity to provide a new transportation service on the
Strip is consistent with the legislative policies stated in NRS 706.151 (emphasis added).
Although portions of the language in the relevant Commission opinion and order smack of
arguably permissible limitations, the overall tenor is definitional. The Commission granted
LVST authority to operate a trolley or trolley bus service as opposed to a simple bus line.
Such a grant is beyond a mere condition on the operation of the trolley service. On the
contrary, it is a specific authorization to operate a special, previously undefined kind of
vehicle. See Coury, 102 Nev. at 306, 721 P.2d at 377.
Given the foregoing analysis, we hold that the district court erred in failing to set aside the
Commission's opinion and order. Clearly, the Commission engaged in ad hoc rule making by
promulgating a standard of general applicability which effected policy without complying
with the Nevada Administrative Procedure Act. Thus, the trial court decision cannot stand.
We have carefully considered all other issues raised on appeal but not discussed herein and
conclude that they lack merit.
__________

3
Compare the above-quoted Commission Opinion and Order language with the following established
public utility regulation:
Bus defined. Bus means any motor vehicle with a capacity of 9 or more persons, including the
driver, designed, constructed and used for the transportation of passengers, their baggage and light
express.
NAC 706.022.
Accordingly, the district court order affirming the Commission's decision is reversed.
4

Young, C. J., Steffen, Springer and Mowbray, JJ., and McGroarty, D. J.,
5
concur.
____________
105 Nev. 579, 579 (1989) Murray v. State
WILLIAM CARROLL MURRAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18120
WILLIAM CARROLL MURRAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19616
October 18, 1989 781 P.2d 288
Consolidated appeals from (1) judgment of conviction of three counts of sexual assault
and (2) district court order denying appellant's petition for post-conviction relief. Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Defendant was convicted in the district court of sexual assault. Defendant appealed. The
Supreme Court held that: (1) exigent circumstances existed to justify warrantless arrest of
defendant at his home, but (2) prosecutor's improper comment on defendant's right to
post-arrest silence was not harmless.
Edward B. Horn, Reno, for Appellant.
__________

4
Inasmuch as LVST has, consistent with the Commission's decision and the district court's affirmance, been
operating its trolley service for some time and with a concomitant investment of time and capital, equity and
fairness direct us to allow LVST to continue operating under the current certificate for ninety days following
issuance of this opinion. If LVST files a new application within the ninety day period, it may continue operating
its trolley service under the current certificate until the Commission reaches an appropriate decision.

5
The Honorable John S. McGroarty, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
1. Arrest.
Exigent circumstances doctrine authorizes warrantless felony arrest in suspect's residence if police have reasonable grounds to
believe there is urgent need to preserve life by entry or urgent need to launch a criminal investigation involving substantial threat of
imminent danger to life, health or property. U.S.C.A.Const. Amend. 4.
2. Arrest.
Exigent circumstances justifying warrantless home arrest generally exist where police are in hot pursuit of person who is allegedly
armed and who allegedly committed violent felony. U.S.C.A.Const. Amend. 4.
3. Arrest.
Exigent circumstances existed to justify warrantless arrest of defendant at his home; police arrested defendant in immediate
response to allegations that defendant had committed violent felony at house filled with other people and that defendant had an
arsenal at house. U.S.C.A.Const. Amend. 4.
4. Criminal Law.
Prosecutor's comment on defendant's post-arrest silence during closing argument constituted prosecutorial misconduct which
violated defendant's rights against self-incrimination and to fair trial; comment suggested that only reason defendant's story seemed at
all credible was because defendant could remain silent during trial and listen to testimony of other witnesses, then fabricate story
consistent with other testimony before he had to testify. U.S.C.A.Const. Amends. 5, 14.
5. Criminal Law.
Prosecutor's improper reference to defendant's right to post-arrest silence was not harmless; case turned on testimony of defendant
and victim and prosecutor's comment stripped defendant's testimony of any credibility it may have had with jurors. U.S.C.A.Const.
Amend. 5.
OPINION
Per Curiam:
Following a jury trial, appellant William Murray (Murray) was convicted of three counts
of sexual assault and sentenced to fifteen years in the Nevada State Prison. The district court
further denied Murray's petition for post-conviction relief. After review of Murray's
assignments of error on this consolidated appeal, we conclude that the conceded prosecutorial
misconduct in this case constituted reversible error. Accordingly, we reverse and remand for a
new trial.
FACTS
On June 6, 1986, Mrs. Carla Tefteller (Tefteller) was visiting a friend in the Reno area
with her husband of nine years, Toby Tefteller. Around 3:00 p.m. on June 6, Tefteller drove
to a convenience store in the car of her friend's fiance, David Patow (Patow). Upon leaving
the store, she discovered the car would not start.
start. She phoned her friend for a ride home, but the friend said Tefteller would have to wait
until Patow returned home with another car. Tefteller asked appellant Murray for a jump start.
Unable to jump start the car, Murray offered Tefteller a ride home and she accepted. Tefteller
testified that Murray was supposed to give her a ride back to her friend's house across town.
Heading down Stead Boulevard, Murray requested they stop first at his house to pick
something up and Tefteller agreed. At the house were eight or more people, including at least
two women and three children. At about 4:00 p.m., after some introductions, Tefteller called
her friend from the kitchen phone. Taking the telephone from Tefteller, Murray promised
Patow he would return Tefteller to the store in fifteen to thirty minutes. Patow proceeded to
the store and waited for Tefteller. After the phone call, Murray directed Tefteller to wait in
Murray's back bedroom. Tefteller testified she agreed to go because she figured there was
something elsewhere in the house she was not supposed to see. She sat on the floor and
waited for Murray.
Tefteller had an alcoholic drink in the front seat of her car at the convenience store, and
several witnesses testified she appeared to have been drinking. Tefteller admitted she mixed
herself a drink at the house. She testified she took only a few sips of this drink, but Murray
states she drank at least two mixed drinks at the house. One witness testified that Tefteller
appeared drunk.
A witness present at the house testified that Tefteller was at the house for a total of at least
two and one-half hours. What occurred during the time Murray and Tefteller were alone in
the back bedroom is known for certain only to Murray and Tefteller. Tefteller testified that
when Murray returned to the room he threw her on her back and then stuck his hand down her
throat and wrapped her head and mouth with duct tape to stifle her screams. She testified that
she tried to bite Murray's hand when it was in her throat, and that Murray threatened to take
out his shotgun and knife unless she cooperated. In compliance with a demand from Murray,
she removed her tampon and threw it into a corner. Tefteller testified Murray raped her three
times. On three occasions other persons knocked on the bedroom door. Each time, Tefteller
testified, she ripped the tape off her mouth and screamed. Some time after the third knock,
Murray let Tefteller open the door to find her friend's fiance David Patow, who was supposed
to be waiting at the convenience store.
Contrary to Tefteller's testimony, Murray stated that Tefteller told him at the convenience
store that she would like to have a few drinks at Murray's house while waiting for Patow to
arrive at her friend's house, which was across town. Once at his house, Murray testified,
Tefteller did not object when he put his hand on her leg on the front porch, and Tefteller
agreed to accompany him to his bedroom.
Murray testified, Tefteller did not object when he put his hand on her leg on the front porch,
and Tefteller agreed to accompany him to his bedroom. According to Murray, once in the
bedroom the two engaged in consensual necking and then attempted intercourse. Murray
states that when he could not maintain an erection Tefteller goaded him by suggesting he try
wrapping his duct tape around his penis and by making other comments deprecating his
manhood. Murray admitted he wrapped the duct tape around Tefteller's head and mouth in a
fit of rage over her comments. He admitted he accidentally hit Tefteller's lip with his hand
when wrapping the tape. He states he immediately apologized, carefully removed the tape,
dabbed some blood from Tefteller's bruised lip, and let her leave with Patow. He testified
Tefteller screamed only once, in anger, when the removed the tape.
Informed of Tefteller's allegations of rape and that Murray had an arsenal at his house,
police arrested Murray without a warrant at Murray's house early that evening. As a
consequence of the arrest, police obtained photographs of minor injuries to Murray's chest
and knuckles. Police conducted no search at the time of arrest.
During her closing argument at Murray's trial, the prosecuting attorney made the following
comment:
MS. FIELD-LANG: It's quite interesting, as you watch the course of the evidence
develop, that Mr. Murray was able to sit here and listen to everyone testify. He had
records of all the witnesses' statements.
Denise Tefteller was not or did not have that information available to her. Nor did
any of the other witnesses who testified.
Denise Tefteller first told her story to the doctoror, excuse me, to the police at
Dory and Dave Patow's house, and then to the doctor, and her story is consistent.
She told her story again to Detective Frankenhauser and again to Detective Pam
Cercek. Every time, it was recorded on tape and every time it was the same story.
Of course, Mr. Murray, you see, didn't tell his story until five months of
contemplating, listening to all of the witnesses
MR. WITEK: Your honor, I want to object here. Objection.
THE COURT: All right.
MR. WITEK: I think counsel is discussing my client's Fifth Amendment privilege
to remain silent following arrest, and it's clearly improper.
THE COURT: All right. I think you better rephrase your argument, counsel.
Jury will disregard that comment.
Even after being admonished by the trial judge, the prosecutor concluded her theme:
MS. FIELD-LANG: And keep in mind, when he sat there on the witness stand, he
had every reason to lie.
Did you notice how, when he thought that another witness had testified to the same
thing he did, other than Denise Tefteller, he kind of said the same thing as that witness
did?
LEGAL DISCUSSION
I. Legality of the Warrantless Arrest
Murray first assigns as error the district court's ruling that exigent circumstances existed
which justified the warrantless arrest of Murray at his house. We disagree.
[Headnote 1]
The fourth amendment of the U.S. Constitution prohibits warrantless felony arrests at a
suspect's home absent consensual entry or exigent circumstances. Payton v. New York, 445
U.S. 573, 576 and 588-89 (1980). The exigent circumstances doctrine authorizes a
warrantless felony arrest in the suspect's residence if the police have reasonable grounds to
believe there is an urgent need to preserve life by entry or an urgent need to launch a criminal
investigation involving a substantial threat of imminent danger to life, health or property.
Banks v. State, 94 Nev. 90, 96-97, 575 P.2d 592, 596 (1978). The search, however, must not
be a planned warrantless search with an accompanying intent either to arrest or obtain
evidence. Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). Murray's arrest
was not accompanied by a planned warrantless search. Officers conducted no search until
hours after the arrest. The later search was pursuant to a search warrant.
[Headnotes 2, 3]
Exigent circumstances generally exist where police are in hot pursuit of a person who is
allegedly armed and who allegedly committed a violent felony. See Johnson, supra; U.S. v.
Davis, 785, F.2d 610 (8th Cir. 1970). Here, police arrested Murray in immediate response to
allegations that Murray had committed a violent felony at a house filled with other people and
that Murray had an arsenal at the house. Under Johnson and Davis, therefore, exigent
circumstances existed to justify the warrantless arrest of Murray at his home.
II. Prosecutorial Misconduct
[Headnote 4]
Murray argues that the prosecutor's comment during closing argument constituted
prosecutorial misconduct which violated Murray's rights against self-incrimination and to a
fair trial.
Murray's rights against self-incrimination and to a fair trial. We agree. In its answering brief,
respondent admits: Frankly, it is difficult to defend this comment on its merits. The purpose
of the comment was to diminish Murray's credibility as a witness. The comment suggested
that the only reason Murray's story seemed at all credible was because Murray could remain
silent during trial and listen to the testimony of other witnesses; then Murray could fabricate a
story consistent with the other testimony before he had to testify. This court has held violative
of a defendant's rights a strikingly similar comment made during closing argument. See
Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986). This court has reversed other
convictions for improper references by prosecutors to a defendant's right to post-arrest
silence. See Mahar v. State, 102 Nev. 488, 728 P.2d 439 (1986); McGuire v. State, 100 Nev.
153, 677 P.2d 1060 (1984) (involving the same District Attorney's Office which prosecuted
the present case).
[Headnote 5]
We conclude that the error caused by the prosecutor's comment was harmful, mandating
reversal of Murray's conviction. To be considered harmless, error caused by a prosecutor's
improper references to the defendant's right to post-arrest silence must be harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). Our analysis must be to
determine whether the evidence against Murray was so conclusive that we can declare the
prosecutor's remark harmless beyond a reasonable doubt.
The evidence against Murray in this case is not overwhelming. Little physical evidence
exists to corroborate Tefteller's claim of lack of consent. A full pelvic exam on Tefteller the
same day turned up no trauma inconsistent with consensual intercourse. The only injury to
Tefteller observed by witnesses was her slightly bleeding lip, which is consistent with
Murray's account. A witness testified that scratches on Murray's chest were minor and, again,
might have been consistent with consensual intercourse. Although Tefteller testified she
suffered permanent scarring in her mouth from having Murray's hand stuck down her throat,
no other evidence supports this testimony. The nicks on Murray's knuckles were as
consistent with Murray's claim that he nicked his knuckles on sheet metal at work as with
Tefteller's claim that she bit him. In their later search of the house, police found no discarded
tampon and no knife or shotgun. The officers found only a piece of duct tape. The duct tape is
consistent with either Murray's or Tefteller's accounts. Murray's testimony that he had a
tantrum and silenced Tefteller with the tape when Tefteller insulted his manhood with her
reference to the tape is not incredible beyond a reasonable doubt.
tape when Tefteller insulted his manhood with her reference to the tape is not incredible
beyond a reasonable doubt. This is especially true in light of the facts that Murray had been
drinking and had been awake for twenty-four hours.
The testimony of people at Murray's house gave little support to Tefteller's assertion of
lack of consent. These people testified they heard only one, not three screams. None believed
the scream or other sounds coming from the bedroom indicated anyone was in any danger.
One witness testified that the single scream was in anger, consistent with Murray's testimony.
Finally, another witness testified that he heard Tefteller and Murray talking in conversational
tones when he knocked on the bedroom door. All this testimony tends to contradict Tefteller's
testimony that she screamed each time someone knocked on the door.
The fact that soon after she arrived at Murray's house Tefteller arranged by phone to meet
Patow at the convenience store is not overwhelming evidence that Murray forced her to
remain. Tefteller had been drinking and she had fifteen to thirty minutes to wait before
returning to the store to meet Patow. Moreover, there is no indication on the record that
anyone told Patow the address of Murray's house, which was across town from Patow's
house. Regardless of whose version of the events is true, Tefteller must have been surprised,
either pleasantly or unpleasantly, to see Patow at the bedroom door. Murray testified he
believed Tefteller fabricated the rape story to prevent her husband from discovering her
infidelity. This is a plausible motive for fabrication.
Absent strong physical or circumstantial evidence of sexual assault, this case turned on the
only direct evidence on the issue of consent, Murray's and Tefteller's testimony. Murray's
credibility was crucial to his defense. In its answering brief, the State admits as much by
characterizing the case as a swearing contest. Moreover, at oral argument the State
conceded the case had been close and had hinged in large part on Murray's and Tefteller's
credibility. The jurors apparently considered the case to be close as well, since their
deliberations lasted seven hours.
The prosecutor's comment stripped Murray's testimony of any credibility it may have had
with the jurors. If any of the jurors had doubts based on consistencies between the testimony
of Murray and other witnesses, the comment dispelled those doubts. The Deputy District
Attorney's message was clear: Murray's testimony rang true only because, unlike Tefteller,
Murray had had time to fabricate his story by waiting until the other witnesses had testified;
Murray was a liar with an unfair advantage.
In Aesoph, this court concluded that a similar comment made by the prosecutor, standing
alone, was harmful error because Aesoph's credibility was an important issue in that case.
Aesoph's credibility was an important issue in that case. See Aesoph, supra, 102 Nev. at 322,
721 P.2d at 383. Murray's credibility was a vital issue in this case. As in Aesoph, then, the
prosecutorial misconduct in this case mandates reversal. Indeed, this court generally has
considered illegal attacks on parties' credibility to be harmful error in criminal cases where
the evidence against the party is not overwhelming or the credibility of the party is an
important issue. See, e.g., Mahan v. State, 104 Nev. 13, 752 P.2d 208 (1988) (holding that
prosecutor's inaccurate statement that defendant's fingerprints matched prints found at the
crime scene was harmful error because evidence against defendant was not overwhelming);
Winiarz v. State, 104 Nev. 43, 752 P.2d 761 (1988) (holding that a statement by a psychiatrist
that defendant's defense of accident was a lie was harmful error in murder appeal because
defendant's credibility on the issue of accident was vital to the state's case).
In conclusion, because Murray's credibility was an important issue and the evidence
against Murray was not overwhelming, the prosecutor's comment infected the trial with
harmful error.
Because the prosecutorial misconduct in this case mandates reversal, we need not reach
Murray's other claims of error.
We conclude that the prosecutorial conduct in this case constitutes harmful error.
Accordingly, we reverse Murray's conviction and remand for a new trial.
____________
105 Nev. 586, 586 (1989) Herbst v. Humana Health Ins. of Nevada
JERRY HERBST, Appellant, v. HUMANA HEALTH INSURANCE OF NEVADA, INC.,
Respondent.
No. 19709
October 24, 1989 781 P.2d 762
Appeal from an order awarding attorney's fees to the appellant Herbst in the amount of
$6,587. Herbst contends that the fees awarded should be higher. Eighth Judicial District
Court, Clark County; Addeliar Guy, Judge.
Insured, who prevailed in action against group health insurer for wrongful refusal to
reimburse insured for medical expenses, filed motion for award of attorney's fees under
Employee Retirement Income Security Act. The district court granted insured only a portion
of fees requested, and insured appealed. The Supreme Court held that: (1) trial court
improperly used factors, which applied to determination of lodestar amount, for purpose of
determining whether award of attorney's fees greater or lesser than presumptively valid
lodestar amount was proper; {2) failure of insured to provide court with detailed
breakdown of attorney's fees did not entitle trial court to reduce fees; and {3) insured
was entitled to recover fees incurred for claims relating to breach of implied duty of good
faith and fair dealing, intentional infliction of emotional distress, and fraud, even though
claims had been dismissed on ground that they were preempted by Act, where those
claims arose from common core of facts with claim on which insured was successful.
than presumptively valid lodestar amount was proper; (2) failure of insured to provide court
with detailed breakdown of attorney's fees did not entitle trial court to reduce fees; and (3)
insured was entitled to recover fees incurred for claims relating to breach of implied duty of
good faith and fair dealing, intentional infliction of emotional distress, and fraud, even though
claims had been dismissed on ground that they were preempted by Act, where those claims
arose from common core of facts with claim on which insured was successful.
John Peter Lee, Grenville Thomas Pridham and James J. Lee, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for Respondent.
1. Insurance.
Trial court improperly used Hummell factors, which apply to determination of whether attorney's fees should be awarded under
federal statute, when court determined amount of attorney's fees to be awarded, pursuant to Employee Retirement Income Security Act,
to insured, who prevailed in action against group health insurer for wrongful refusal to reimburse insured for medical expenses; trial
court should have used the lodestar calculation and Johnson-Kerr factors.
2. Pensions.
Use of Hummell factors, which apply to determination of whether attorney's fees should be awarded under federal statute, when
court determines amount of award of attorney's fees under Employee Retirement Income Security Act is unreasonable, as such factors,
which include degree opposing party's bad faith, ability of party to satisfy award, whether award would deter others from acting
similarly, whether requesting party sought to benefit all participants in beneficiaries of existing plan or resolve significant question
regarding Act, and relative merits of parties' positions, are not capable of being quantified. Employee Retirement Income Security Act
of 1974, 502(g)(1), 29 U.S.C. 1132 (g)(1).
3. Insurance.
Trial court improperly calculated attorneys' fees under Employee Retirement Income Security Act as percentage of total judgment
awarded to insured in action against group health insurer for wrongful refusal to reimburse insured for medical expenses. Employee
Retirement Income Security Act of 1974, 502(g)(1), 29 U.S.C. 1132(g)(1).
4. Insurance.
Failure of insured, who prevailed in action against group health insurer for wrongful refusal to reimburse insured for medical
expenses, to provide trial court with detailed breakdown of attorney's fees did not entitle court to reduce fees requested under Employee
Retirement Income Security Act, as attorney's accounting manager's affidavit, which stated that attorney and legal assistants performed
so many hours of work, when combined with fact that attorney worked for two years on case, established 12 volumes of
records on appeal, and engaged in five-day trial, were sufficient to enable court to make reasonable
determination of attorney's fees.
case, established 12 volumes of records on appeal, and engaged in five-day trial, were sufficient to enable court to make reasonable
determination of attorney's fees. Employee Retirement Income Security Act of 1974, 502(g)(1), 29 U.S.C. 1132(g)(1).
5. Insurance.
Insured, who prevailed in action against group health insurer for wrongful refusal to reimburse insured for medical expenses, was
entitled to award of attorney's fees under Employee Retirement Income Security Act for that claim, along with claims for fraud, breach
of implied duty of good faith and fair dealing, and intentional infliction of emotional distress, even though latter claims had been
dismissed on grounds that they were preempted by Act, where all claims arose from common core of facts that insured was injured in
accident, insured's doctor ordered critical care nursing for him, and insurer refused to pay for nursing. Employee Retirement Income
Security Act of 1974, 502(g)(1), 29 U.S.C. 1132(g)(1).
OPINION
Per Curiam:
Appellant Jerry Herbst (Herbst) sued respondent Humana Health Insurance of Nevada, Inc.
(Humana) for reimbursement for private critical care nursing services and other claims. The
jury found in favor of Herbst on his claim for reimbursement and awarded him $22,400.
Herbst asked for attorney's fees of $56,846.25 pursuant to 29 U.S.C. 1132(g)(1). The court
awarded Herbst attorney's fees of $6,587.91, which represented 25 percent of the judgment.
Herbst appealed, contending that he deserved the fees he asked for.
We hold that the district court correctly determined that attorney's fees were warranted.
The court, however, erred because it used incorrect standards in determining the amount of
attorney's fees to be awarded. We therefore reverse the court's determination as to the amount
of attorney's fees awarded and remand this case back to the district court to issue an award of
attorney's fees consistent with this opinion.
FACTS
On November 12, 1985, Herbst was severely injured in a boating accident in Key West,
Florida, He came under the care of Dr. Barth Green, the head of the neurological unit at
Jackson Memorial Hospital. Dr. Green determined that Herbst needed to be in the intensive
care unit of the hospital but no beds were available there. Dr. Green then ordered that Herbst
be placed in a regular room with private critical care nurses. Without such care Dr. Green
believed that Herbst could die at any time.
Herbst spent $22,500 in expenses for private critical care nurses. He was covered for
medical bills by a group health insurance policy issued by Humana to Herbst's employer. On
February 12, 1986, Herbst submitted claims to Humana. Humana denied Herbst's claim for
critical care nursing. Herbst filed a complaint against Humana for wrongful refusal to
reimburse Herbst for medical expenses. The complaint also sought damages and punitive
damages for fraud, breach of implied duty of good faith and fair dealing, and intentional
infliction of emotional distress. The court dismissed the latter claims on the ground that they
were preempted by the Employee Retirement Income Security Act of 1974 (ERISA). Herbst's
claim for reimbursement went to jury trial on May 16, 1988. The trial lasted five days. The
jury returned a verdict in favor of Herbst for $22,400.
In September 1988, Herbst's attorney submitted a motion to the court pursuant to 29
U.S.C. 1132(g)(1) for attorney's fees of $56,846.25. The district court awarded Herbst
attorney's fees of $6,587, stating specifically that this sum represented 25 percent of the
judgment. The district court stated that in determining the amount of attorney's fees it looked
to the factors listed in Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). The
court held that pursuant to Hummell: (1) Humana did not act in bad faith in refusing to pay
for Herbst's critical care nursing; (2) Humana was able to pay attorney's fees; (3) both parties'
positions were meritorious and supported by credible evidence; (4) the case involved a unique
issue of fact which is unlikely to reoccur and therefor an award of attorney's fees would have
no effect on other insurers; and (5) the award would benefit only Herbst and not other
participants in the ERISA plan.
LEGAL DISCUSSION
In Hummell the Ninth Circuit Court of Appeals reversed a district court which refused to
award attorney's fees to the prevailing party in a suit governed by ERISA. The court cited
five factors which a court should use in determining whether attorney's fees should be
awarded. These factors are: (1) the degree of the opposing party's bad faith; (2) the ability of
the party to satisfy an award of attorney's fees; (3) whether an award of attorney's fees would
deter others from acting similarly; (4) whether the party requesting fees sought to benefit all
participants and beneficiaries of an existing plan or resolve a significant question regarding
ERISA; and (5) the relative merits of the parties positions. Hummell, 63 F.2d at 453.
The five factors mentioned in Hummell are used only to determine whether or not
attorney's fees should be awarded in a case governed by ERISA.
governed by ERISA. There are no cases which stand for the proposition that the Hummell
factors should be used to determine the amount of attorney's fees to be awarded.
The correct method for determining the amount of attorney's fees under federal statutes has
been decided by the United States Supreme Court and other federal courts. After a court has
determined that attorney's fees are appropriate it then must multiply the number of hours
reasonably spent on the case by a reasonable hourly rate to reach what is termed the lodestar
amount. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546,
564-566 (1986); Patton v. County of Kings, 857 F.2d 1379, 1382 (9th Cir. 1988);
Southerland v. International Longshoremen's and Warehousemen's Union, 845 F.2d 796,
800-801 (9th Cir. 1988). There is a strong presumption that the lodestar rate is reasonable.
Delaware Valley Citizens, 478 U.S. at 565; Patton, 857 F.2d at 1382.
After the court has determined the lodestar fee it may adjust it based on the 12 factors
mentioned in Hensley v. Eckerhart, 461 U.S. 424 (1983). See also Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975); Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 719 (5th Cir. 1974).
1
These factors, termed the Johnson-Kerr factors, are used
by the court not to determine the lodestar amount but to support an award of attorney's fees
greater or lesser than the presumptively valid lodestar amount. Trustees of Cent. States v.
Golden Nugget, Inc., 697 F.Supp. 1538 (C.D.Cal. 1988).
[Headnotes 1-3]
The United States Supreme Court has held that the calculation of the lodestar amount as
well as the use of the Johnson-Kerr factors are applicable to all cases in which Congress has
authorized an award of attorney's fees to the prevailing party. Hensley, 461 U.S. at 433. The
Hummell factors are used only to determine if attorney's fees are warranted. Hence, the
district court erred when it used the Hummell factors and failed to use the lodestar calculation
and the Johnson-Kerr factors in determining the amount of attorney's fees to be awarded to
Herbst.
2
The court also erred in calculating attorney's fees as a percentage of the total
judgment.
__________

1
The 12 factors are: (1) the time and work required; (2) the difficulty of the issue; (3) the skill required to
perform the service; (4) the amount of time taken away from other work; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) the time limitations imposed on the attorney by the case; (8) the amount of money
involved and the results obtained; (9) the reputation, experience, and ability of the attorney; (10) the lack of
desirability of the case; (11) the length of acquaintanceship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430.
also erred in calculating attorney's fees as a percentage of the total judgment.
[Headnote 4]
Humana contends that the failure of Herbst to provide the court with a detailed breakdown
of his fees entitled the court to reduce his fees accordingly. We disagree. The trial court did
not hold that Herbst's fees were reduced because he did not document his bills. The court
expressly stated that it was giving Herbst 25 percent of the judgment and was using the
Hummell factors to determine the amount of fees. As stated previously, these are incorrect
methods to use in determining the amount of attorney's fees in an ERISA case. Moreover, the
Ninth Circuit Court of Appeals requires only that affidavits submitted by the parties be
sufficient to enable the court to consider all factors necessary to determine a reasonable
attorney's fee. Dennis v. Chang, 611 F.2d 1302, 1308 (9th Cir. 1980). In a sworn affidavit
Charlene Smith, the accounting manager for John Peter Lee, Ltd., states that Herbst's attorney
performed 439.5 hours of work and that 359.5 hours of work was performed by legal
assistants. This affidavit combined with the fact that Herbst's attorney worked for two years
on the case, established 12 volumes of records on appeal, and engaged in a five day trial
should enable the court to make a reasonable determination of attorney's fees.
[Headnote 5]
Finally, Humana contends that since Herbst originally filed eight claims, only one of
which went to trial, Herbst should not be awarded attorney's fees for the time he worked on
the unsuccessful claims. We disagree. Hensley holds that where the plaintiff's claims involve
a common core of facts he is entitled to attorney's fees even for the work performed on his
unsuccessful claims. It is only where a plaintiff has failed to prevail on a claim that is distinct
in all respects from his successful claims that he should not be entitled to attorney's fees for
work done on the unsuccessful claims. Hensley, 461 U.S. at 435. Herbst's claims against
Humana were for fraud, breach of implied duty of good faith and fair dealing, intentional
infliction of emotional distress, and breach of contract. All of these claims arose from a
common core of facts: (1) Herbst was injured in an accident; (2) Herbst's doctor ordered
critical care nursing for him; and (3) Humana refused to pay for the nursing. Therefore, the
fact that Herbst did not prevail on some claims does not preclude recovery for the time
Herbst worked on those claims since all claims arose from a common core of facts.
__________

2
It should be noted that the use of the Hummell factors to determine the amount of an award of attorney's
fees is unreasonable since these factors are not capable of being quantified.
not prevail on some claims does not preclude recovery for the time Herbst worked on those
claims since all claims arose from a common core of facts.
We affirm the district court's holding that attorney's fees were warranted, reverse the
court's determination of the amount of attorney's fees to be awarded Herbst, and remand this
case back to the district court to calculate the correct amount of attorney's fees consistent with
this decision. In its determination of attorney's fees the court is directed to use the lodestar
method as refined by the Johnson-Kerr factors.
____________
105 Nev. 592, 592 (1989) Brascia v. Johnson
STEPHEN BRASCIA, Appellant, v. CHRISTINA JOHNSON, Respondent.
No. 19388
November 2, 1989 781 P.2d 765
Appeal from jury verdict allocating fault fifty percent to appellant and fifty percent to
respondent. Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Defendant in automobile accident case appealed from order of the district court which
granted new trial following jury verdict allocating fault at fifty percent to plaintiff and fifty
percent to defendant. The Supreme Court held that: (1) evidence that motorist's vehicle was
struck in the rear the second time she stopped while attempting to enter street supported
finding of negligence, and (2) court may not grant new trial where the issue is the weight of
the evidence.
Appellant.
Phillips, Kelley & Howard, Las Vegas, for Respondent.
Where evidence conflicted concerning exactly what happened in automobile accident case, Supreme Court was required to review
the evidence in light most consistent with the jury verdict on appeal from grant of motion for new trial.
2. New Trial.
Court may not substitute its own judgment in place of the jury's judgment on motion for new trial unless the jury erred as a matter
of law, and court may not grant a new trial if the question only concerns the weight of the evidence.
3. Automobiles.
Finding that motorist who was rear-ended the second time she stopped while attempting to enter intersection was fifty percent
negligent was supported by the evidence, notwithstanding her claim that public policy dictated that she was not negligent as a matter of
law because the best policy is to allow a driver to stop as many times as needed before entering another street.
Plaintiff who did not raise issue of inconsistent verdict forms until after jury had been discharged waived the issue.
Supreme Court may uphold the grant of a new trial even if it is justified on a different ground than the trial court found.
Any error in giving instruction on sudden emergency was harmless where jury found defendant negligent and thus did not apply
the sudden emergency doctrine.
Supreme Court could not review trial court's failure to award attorney fees where it had granted motion for new trial and ruled that
defendant's motion for costs and fees was thus defaulted. NRAP 3A.
OPINION
Per Curiam:
This is an appeal from an order granting a new trial based upon the trial judge's view that
the jury did not follow the court's instructions. We hold that a finding that the first driver was
negligent is within the jury's prerogative.
Facts
On March 19, 1986, respondent Christine Johnson was on Tonopah Drive at the
intersection with Rancho Drive in Las Vegas. There was a stop sign where traffic on Tonopah
merged with traffic on Rancho at a sharp angle. A line of cars waited on Tonopah to merge
onto Rancho, and appellant Stephen Brascia was immediately behind Johnson in that line.
Johnson stopped at the stop sign and then started onto Rancho Drive. Brascia also stopped
and looked to the left for oncoming traffic. He began to roll forward, still looking to the left
and not knowing that Johnson had stopped again. He just tapped her.
1
The jury returned
two general verdict forms and special interrogatories.
__________

1
The testimony of the parties concerning what happened at the intersection conflicted. While Brascia
claimed that Johnson stopped, moved forward and then stopped again, Johnson testified that she simply stopped
at the stop sign and was rear-ended by Brascia before she could move forward. Since the evidence conflicts
concerning exactly what happened, this court must view the evidence in a light most consistent with the jury
verdict. See M&R Investment Co. v. Mandarino, 103 Nev. 711, 716, 748 P.2d 488, 491 (1987)
The jury returned two general verdict forms and special interrogatories. One general
verdict form stated that the jury found in favor of Johnson and found her damages to be
$10,000.00. The other general verdict form stated that the jury found in favor of Brascia.
Finally, the special interrogatories assigned fifty percent of the fault for the accident to each
of the parties. With the apparently inconsistent verdicts, the district court inquired of the jury
and had the jury confirm that it was the jury's intent to find each party negligent and to
attribute fifty percent of the fault to each party. Brascia objected but withdrew his objection
when it became apparent that the court had ascertained the jury's true intent. Johnson did not
object to the jury verdict or seek further clarification.
[Headnote 1]
Brascia moved for costs and attorney's fees, while Johnson moved for judgment
notwithstanding the verdict, additur and, in the alternative, a new trial. The district court
granted a new trial because the jury's finding of negligence on Johnson's part struck the court
as absurd and because the jury did not, in the trial court's opinion, follow the instructions of
the court. Brascia now appeals.
Discussion
The Order Granting a New Trial
[Headnote 2]
NRCP 59(a) specifies the grounds upon which a court may grant a new trial. One of these
grounds is manifest disregard by the jury of the court's instructions. We have held that this
basis for granting a new trial may only be used if the jury, as a matter of law, could not have
reached the conclusion that it reached. See Fox v. Cusick, 91 Nev. 218, 220, 533 P.2d 466,
468 (1975). This standard follows logically from the 1964 amendment of NRCP 59 which
eliminated insufficiency of the evidence as a ground for granting a new trial. Thus, since
the amendment, a court may not substitute its own judgment in place of the jury's judgment
unless the jury erred as a matter of law. This precludes the court from granting a new trial if
the question only concerns the weight of the evidence. Id. If Johnson was not free of
negligence as a matter of law, we must reverse and reinstate the jury verdict.
__________
(citing Hernandez v. City of Salt Lake, 100 Nev. 504, 507, 686 P.2d 251, 252-253 (1984)). With this in mind,
we must assume that the jury concluded that Johnson stopped at the stop sign, started into traffic, and then
stopped again when Brascia hit her from behind because that scenario is most consistent with the jury's finding
that Johnson was fifty percent negligent.
[Headnote 3]
Johnson suggested that public policy dictates that she was not negligent as a matter of law.
She states that the best policy is to allow a driver to stop as many times as needed before
entering another street. See Massingille v. Meredith, 408 S.W.2d 209 (Ky. 1966). While this
proffered public policy would be advanced by holding that Johnson was not negligent in this
case, it contradicts our stated policy that issues of negligence are properly resolved by a jury.
See Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258 (1981). In Nehls, the plaintiff approached
an intersection that was controlled by a traffic light. The right turn lane, however, was not
controlled by the traffic light and led onto a separate new lane on the intersecting street,
making it unnecessary for the vehicle turning right to merge into traffic. The plaintiff
proceeded to make the right turn, followed by the defendant. The plaintiff stopped in the right
turn lane, as did the defendant. They both proceeded into the separate lane on the intersecting
street, but the plaintiff stopped again. The defendant was unable to stop in time and
rear-ended the plaintiff.
The district court granted summary judgment to the plaintiff stating that the defendant's
negligence alone had caused the accident. On appeal, we reversed stating that there remained
triable issues of fact concerning the plaintiff's possible negligence in stopping. At a trial, the
evidence may persuade the jury that respondent Leonard stopped suddenly and without
adequate warning, that the stop unnecessarily exposed appellant to unreasonable risk, and that
the stop constituted a substantial factor in causing the collision in which appellant sustained
injuries. Id. at 328, 630 P.2d at 260.
While there are some differences between Nehls and the present case, the most notable
being that the Nehls accident did not occur while the parties were proceeding through the
controlled part of an intersection and merging into other traffic, the Nehls decision accurately
reflects Nevada's policy that these types of issues concerning negligence should be left to the
jury: In Nevada, issues of negligence and proximate cause are considered issues of fact and
not of law, and thus they are for the jury to resolve. Id.
[Headnote 4]
This state's policy is to send issues of negligence like the one presented by this case to the
jury. The jury determined that both Brascia and Johnson were negligent, and that
determination came in the valid exercise of the jury's fact-finding power. Thus, we cannot
conclude that Johnson was free of negligence as a matter of law and therefore reverse
the order granting the new trial.2
cannot conclude that Johnson was free of negligence as a matter of law and therefore reverse
the order granting the new trial.
2

The Sudden Emergency Jury Instruction
[Headnote 5]
Even though the district court based its grant of a new trial solely on the jury's failure to
follow the instructions, Johnson now suggests that the grant of a new trial was justified
because the court erroneously instructed the jury on the sudden emergency doctrine.
3
Johnson argued this point as one of the grounds for a new trial, and this court may uphold the
grant of a new trial even if it is justified on different grounds than the district court found.
Thus, Johnson has effectively preserved this issue for appeal.
[Headnote 6]
Johnson's argument is that there was no evidence to support a finding of a sudden
emergency and that giving this instruction resulted in the jury's ability to absolve Brascia of
negligence when there was no sudden emergency. We note, however, that any error in giving
the instruction was harmless because the jury found Brascia negligent and, thus, did not apply
the sudden emergency doctrine. NRCP 61 (error not affecting substantial rights must be
disregarded). The jury's job was to determine who was negligent and then, if both parties
were negligent, to decide the percentage of the damages caused by each party's negligence.
Since the sudden emergency jury instruction provided that the jury could find that Brascia
was not negligent and the jury found that Brascia was negligent, the jury apparently found
that the sudden emergency doctrine did not apply. Thus, any possible error was harmless.
The Denial of Costs and Attorney's Fees [Headnote 7]
__________

2
Johnson also argues that the jury may not have actually found that both parties were negligent because of
the inconsistent verdict forms that it signed. The district court, however, correctly pointed out that Johnson had
not preserved that issue because she did not bring it up until after the jury had been discharged. That failure to
object while the jury was still available and able to clarify its verdict constituted a waiver. Scott v. Chapman, 71
Nev. 329, 291 P.2d 422 (1955).

3
Jury instruction 18A provided as follows:
A person confronted with a sudden emergency which he does not create, who acts according to his
best judgment or, because of insufficient time to form a judgment, fails to act in the most judicious
manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like
circumstances.
[Headnote 7]
Finally, Brascia contends that the district court erred by failing to award costs and
attorney's fees. At the close of the jury trial, Brascia made a motion for costs and attorney's
fees under NRCP 68 because he had made offers to settle. At the consolidated hearing on this
motion and Johnson's motion for a new trial, the district court granted the new trial and ruled
that the motion for costs and fees was defaulted. Brascia now contends that, if the order
granting a new trial is reversed, he should be entitled to costs and attorney's fees. However,
the court took no action that this court can review. See NRAP 3A (specifying the only actions
of the district court that a party may appeal). The court did not deny the motion for costs and
fees; it said that the motion was defaulted. In addition, in its written order, the district court
granted the motion for a new trial and did not mention the motion for costs and fees. The
motion, at least in part, is subject to the discretion of the district court, and the district court
simply did not exercise its discretion here. See Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268
(1983). Thus, the case must be remanded for action by the district court concerning Brascia's
motion for costs and fees.
Conclusion
The district court improperly granted a new trial after the jury had reached a verdict that
Johnson and Brascia were each fifty percent negligent. Therefore, we reverse and remand this
action to the district court for entry of judgment in accordance with the jury verdict and for a
ruling by the district court on Brascia's motion for costs and attorney's fees.
____________
105 Nev. 597, 597 (1989) Sprouse v. Wentz
GARY F. SPROUSE, An Individual, and DONALD C. HATCH and CHERYL HATCH,
Husband and Wife, Appellants/Cross-Respondents, v. OLIVER W. WENTZ and
JOANNA MAY WENTZ, Husband and Wife, Respondents/Cross-Appellants.
No. 19066
November 2, 1989 781 P.2d 1136
Appeal and cross-appeal from judgment of the district court. Fifth Judicial District Court,
Nye County; William P. Beko, Judge.
California rancher sued Nevada rancher seeking rescission of ranch exchange agreement
and option agreement for purchase of livestock.
livestock. The district court granted rescission of ranch agreement, awarded Nevada rancher
compensatory damages on livestock agreement and for conversion of sheep, and awarded
California rancher punitive damages. Both parties appealed. The Supreme Court held that: (1)
California rancher's pleadings did not state tort claims in fashion sufficient to put Nevada
rancher on notice that punitive damages were being claimed; (2) livestock option agreement
was not severable from ranch exchange agreement and should also have been rescinded; and
(3) trial court improperly placed on California rancher obligation of disproving Nevada
rancher's claim that sheep had been converted.
[Rehearing denied March 6, 1990]
Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas, for
Appellants/Cross-Respondents.
Lionel Sawyer & Collins and Paul Bancroft, Las Vegas, for
Respondents/Cross-Appellants.
1. Damages.
If punitive damage award is not based upon a cause of action sounding in tort, award must be stricken on appeal. NRS 42.010.
2. Damages.
Rancher granted rescission under agreement to exchange ranches was not entitled to punitive damages based on argument that his
pleadings provided sufficient facts to give other rancher notice that punitive damages were being sought for tort of wrongful
repossession; facts relevant to claim of wrongful repossession were scattered throughout pleadings, they were background for contract
causes of action and they were never drawn together into specific claim so as to give proper notice that wrongful possession claim was
being made. U.S.C.A.Const. Amend. 14.
Although rancher granted rescission of contract to exchange ranches had pleaded tort of conversion, rancher was not entitled to
punitive damages because he had not alleged fraud, malice or oppression so as to put adversary on notice that punitive damages were
being claimed. U.S.C.A.Const. Amend. 14.
4. Fraud.
Rancher granted rescission of agreement to exchange ranches was not entitled to punitive damages based on claim that trial court's
findings concerning conduct of adversary amounted to express finding of fraud; court had expressly based its award of punitive
damages on malice and oppression, and rancher had not alleged malice or oppression in any of its pleadings. U.S.C.A.Const. Amend.
14.
5. Damages.
Rancher granted rescission of contract to exchange ranches was not entitled to punitive damages on grounds that pleadings
contained facts constituting allegation of tortious breach of contract sufficient to sustain punitive damages; facts were
scattered throughout pleadings and not drawn together to sufficient extent to present claim putting
adversary on notice that punitive damages were being claimed on tortious breach of contract.
punitive damages; facts were scattered throughout pleadings and not drawn together to sufficient extent to present claim putting
adversary on notice that punitive damages were being claimed on tortious breach of contract. U.S.C.A.Const. Amend. 14.
6. Contracts.
Trial court incorrectly decided that contract under which rancher was granted option to acquire livestock from another rancher was
severable from rescinded contract under which ranchers agreed to exchange their ranches; even though there was separate
consideration for each contract, evidence indicated parties intended for both contracts to comprise single agreement and rescission of
exchange agreement should have resulted in rescission of livestock option agreement also.
Trial court improperly placed on rancher who was operating ranch on behalf of another rancher burden of disproving owner's
contention that operator had not converted sheep.
OPINION
Per Curiam:
This litigation arose from a series of transactions in which Sprouse and Wentz attempted
to exchange their ranches along with other property and rights. The trial court ordered
rescission of the ranch exchange agreement but awarded compensatory damages on other
aspects of the agreement. The district court also awarded punitive damages against Sprouse.
Sprouse now appeals claiming that the punitive damage award was erroneous because it
was not based on an underlying tort. Wentz cross-appeals claiming that the court should have
ordered rescission of all agreements and that the court's finding that he converted sheep is
without support in the evidence.
Facts
In December 1980, Sprouse and Wentz met in Reno and signed a preliminary agreement
covering the exchange of their respective ranches in Nevada and California. The parties met
again in the succeeding two months to finalize their negotiations, and, late at night on
February 9, 1981, the parties signed the final version of the exchange agreement. The
agreement covered many areas, but the provisions which are pertinent to this appeal were as
follows: (1) Wentz agreed to convey to Sprouse his Brown Valley Ranch in California; (2)
Sprouse agreed to convey to Wentz the Duckwater and Copper Flat fee lands in Nevada
(Nevada ranch), along with extensive BLM and Forest Service grazing rights, water rights
and equipment; and (3) Wentz agreed to pay $1,371,945.00 as evidenced by a promissory
note secured with a deed of trust on the Nevada ranch.
The Livestock Option Contract and Changes to the Exchange Agreement
At another late night meeting on March 18, 1981, the parties arranged for Wentz to take
over operation of the Nevada ranch, even though for some reason the parties were unable to
close the original exchange agreement. Accordingly, they executed an addendum to the
exchange agreement providing for the operating arrangements. In addition, they also signed
an addendum that gave Wentz an option to buy livestock from Sprouse (referred to later as
option livestock) and that sold to Sprouse certain livestock belonging to Wentz (referred to
later as bill of sale livestock). Pursuant to these agreements, apparently made because of the
ill-health of Clive Sprouse who had been operating the ranch, Wentz took over operations at
the Nevada ranch.
On August 26, 1981, the parties met to close escrow on their transactions. Among other
agreements, the following agreements were executed and delivered: (1) a deed from Wentz to
Sprouse conveying the California ranch; (2) a promissory note and deed of trust from Wentz
to Sprouse; (3) deeds from Sprouse to Wentz conveying the Nevada ranch; (4) an option to
buy livestock from Sprouse to Wentz; and (5) a bill of sale conveying ranching equipment
from Sprouse to Wentz.
Failure of ConsiderationGrazing Rights
At the closing, Sprouse was to deliver the documents necessary to transfer the BLM and
Forest Service grazing rights, without which the Nevada ranch was worthless to Wentz.
Instead, Sprouse made no effort to secure those rights for Wentz. Apparently, the grazing
rights were security on an indebtedness owed by Sprouse to a third party. But Sprouse made
no effort to get the third party to release these rights. It was primarily this failure of Sprouse
in securing the grazing rights for Wentz's benefit that ultimately prompted the district court to
allow Wentz to rescind the exchange agreement.
1

The Safari
After various extensions on the livestock option contract and after it became apparent to
Sprouse that Wentz would be unable to exercise the option, Sprouse decided to take
possession of the livestock which was in Wentz's possession at the Nevada ranch pursuant to
the parties' earlier agreement by which Wentz took over operation of the ranch.
__________

1
The district court's decision that Wentz could rescind the exchange agreement for failure of consideration
due to Sprouse's failure to deliver the grazing privileges is not questioned in this appeal.
over operation of the ranch. Sprouse repossessed the livestock by self-help with what the
parties refer to as a safari. Sprouse gathered a number of men and trucks, and, as the district
court put it, Sprouse and his men swarmed down on Wentz's home in a fashion and with
numbers sufficient to intimidate their victim. . . . They herded the livestock to a neighboring
farm; however, Sprouse later returned the livestock to Wentz's care.
The District Court's Findings and Judgment
The district court first found a failure of consideration because of Sprouse's failure to
transfer grazing rights and allowed Wentz to rescind the exchange agreement. The court also
found that the livestock option contract was severable from the exchange agreement and
found that Wentz had breached that contract by failing to give his bargained for consideration
to Sprouse. Thus, the court awarded compensatory damages to Sprouse for Wentz's breach of
the livestock option contract. Finally, the court ordered a punitive damage award of
$650,000.00 against Sprouse for his conduct.
Punitive Damages
The only issue in Sprouse's appeal is whether the district court properly awarded punitive
damages. Sprouse claims that the court awarded punitive damages based on conduct that was
not pleaded or tried as a tort cause of action. It appears from the decision of the district court
that the court based its punitive damage award on what it termed reprehensible conduct;
however, it does not appear that the court found in favor of Wentz on any cause of action that
would support the punitive damage award.
In his counterclaim, Wentz set forth nineteen causes of action. These causes of action were
for breach of contract, fraud and conversion. In connection with the two causes of action for
fraud, Wentz included two causes of action containing allegations of fraud necessary for
punitive damages. Nowhere in the counterclaim were malice or oppression alleged. In fact,
except for the two fraud causes of action, the conversion cause of action is the only
non-contract cause of action alleged, and the counterclaim does not allege fraud, oppression
or malice in connection with that conversion cause of action. In addition, the prayer for relief
asks for punitive damages only for fraud. The rest of the relief requested is in the form of
compensatory damages and rescissory relief.
The district court expressly found that there was no fraud involved in this case and limited
the grant of punitive damages against Sprouse to oppression and malice.
against Sprouse to oppression and malice. The court specifically based the punitive damages
on Sprouse's failure to transfer grazing rights, his safari, and his continued use of range,
grazing rights and equipment without reimbursement to Wentz. The district court concluded
that this conduct supported a punitive damage award of $650,000.00.
[Headnote 1]
If the punitive damage award is not based upon a cause of action sounding in tort, the
award must be stricken on appeal. See NRS 42.010. Also, compensatory damages must be
awarded before the court can award punitive damages. City of Reno v. Silver State Flying
Serv., 84 Nev. 170, 180, 438 P.2d 257, 264 (1968). However, Wentz claims that there are
four tort causes of action upon which the court could have based punitive damages in this
case: wrongful repossession, conversion, fraud, and tortious breach of contract.
[Headnote 2]
Wentz first claims that he pleaded facts giving rise to a wrongful repossession cause of
action. He states that the pleadings provided the Sprouses with more than adequate notice
that they sought both compensatory and punitive damages for the Sprouse's acts of wrongful
repossession. While it is true that various acts that may have given rise to an action for
wrongful repossession were contained in the Wentz counterclaim, the scattered facts did not
give sufficient notice to Sprouse that a compensatory or punitive damage award would be
sought on those facts.
For the most part, the facts that Wentz now claims he pleaded as a wrongful repossession
cause of action appear merely as background facts for contract causes of action in the
counterclaim. For example, one of the Wentz's causes of action stated a claim for expenses
incurred in caring for livestock after they were returned following the Sprouse safari. In the
prayer for relief with respect to this cause of action, Wentz sought an amount equal to the
costs and expenses of caring for the livestock. Taken as a whole, this cause of action gave
notice to Sprouse only of a contract cause of action, even though it included allegations about
the safari.
Sprouse points out that all along Wentz based his action on fraud, unconscionability and
failure of consideration as a basis for rescission, restitution and punitive damages. The
prayers for relief in the counterclaim were all based on these theories, and the Wentz pre-trial
statement covered only these theories.
Wentz also asserts that, even if the pleadings did not fairly put Sprouse on notice of the
wrongful repossession claim, the issue was tried by consent. NRCP 15(b) provides that
[w]hen issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings."
not raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings. Since facts supporting a
cause of action for wrongful repossession were proven at trial, Wentz asserts that a wrongful
repossession cause of action was tried by consent.
It is true that trial by implied consent may arise if evidence relevant to the issue is received
without objection. Schwartz v. Schwartz, 95 Nev. 202, 205, 591 P.2d 1137, 1140 (1979).
However, we have also placed restrictions on finding implied consent. These restrictions are
meant to insure procedural due process and a fair trial to parties such as Sprouse. In Ivory
Ranch v. Quinn River Ranch, 101 Nev. 471, 473, 705 P.2d 673, 675 (1985), we rejected the
argument that the trial court could find an affirmative defense of mutual mistake when the
issue was not raised in the pleadings or the trial statements, and the district court did not
notify the parties that it was considering the issue. The same problems are present in this case.
The wrongful repossession action was not raised in the pleadings or the pre-trial statement. In
addition, it is not clear that the district court really did consider wrongful repossession at all.
As far as we can tell from the record, wrongful repossession apparently was never discussed
in this case until this appeal. But if the district court did base its decision on a wrongful
repossession cause of action, the court never notified the parties. Thus, allowing Wentz to
recover punitive damages for wrongful repossession would most likely violate Sprouse's
procedural due process and fair trial rights. See id.
[Headnote 3]
Unlike Wentz's failure to plead the wrongful repossession action, Wentz did plead a
conversion cause of action. In the ninth cause of action of the counterclaim, Wentz alleged
that Sprouse took possession of various items belonging to Wentz and that Sprouse refused to
pay for or return the items. In the prayer for relief associated with the ninth cause of action,
however, Wentz did not mention punitive damages. Wentz also did not allege any conduct
amounting to fraud, malice or oppression in connection with the conversion cause of action.
Wentz claims, without support, that the conversion cause of action was also tried by
consent. He does not, however, make any claim that fraud, malice or oppression in
connection with the conversion were tried by consent. One of these elements would be
necessary to support an award of punitive damages, but Wentz shows nothing in the
pleadings or the trial to indicate that the issue was considered. As discussed above, upholding
the punitive damage award where Sprouse had no notice that he might be subjected to
punitive damages would violate Sprouse's procedural due process and fair trial rights.
subjected to punitive damages would violate Sprouse's procedural due process and fair trial
rights.
[Headnote 4]
Wentz also argues that the court's findings concerning Sprouse's conduct amounted to an
express finding of fraud sufficient to support the punitive damage award. However, this
argument ignores the fact that the district court expressly based its award of punitive damages
on malice and oppression. Thus, even if Wentz could prove that the court's conclusions
amounted to a finding of fraud, this proof would not justify the punitive damage award.
[Headnote 5]
Finally, Wentz alleges that Sprouse's tortious breach of contract supports the punitive
damage award. This allegation suffers from the same problems discussed above in connection
with wrongful repossession: the respondent's answering brief is the first time tortious breach
of contract is mentioned. Although various breach of contract actions were pleaded and tried,
there is no indication in the record that Sprouse could have known that the court would base a
punitive damage award on tortious breach of contract action or that Wentz was seeking such
relief.
In sum, Wentz has vigorously tried to justify on appeal the court's punitive damage award.
However, we are not convinced that any of these rationales for sustaining the punitive
damage award would be fair to Sprouse. Sprouse rightfully believed from the pleadings and
the pre-trial statements that Wentz sought punitive damages based only on fraud. To uphold
the punitive damage award based on Wentz's reasoning now would deny Sprouse the
opportunity to defend against a substantial punitive damage award. It is also contrary to the
rule of law that punitive damages must be based on an underlying cause of action not based
on a contract theory (see NRS 42.010; City of Reno v. Silver State Flying Serv., 84 Nev. 170,
180, 438 P.2d 257, 264 (1968)) to allow the district court to award punitive damages without
even mentioning (or indicating to this court that there was) an underlying tort and then to
allow the victorious party to go fishing for a supporting tort on appeal. Therefore, we must
reverse the punitive damage award against Sprouse.
Severability of Contracts
[Headnote 6]
As his first issue in his cross-appeal, Wentz argues that the district court incorrectly held
that the option contract for the livestock was severable from the exchange agreement for the
ranches.
ranches. Based on this holding, the district court awarded compensatory damages to Sprouse
for Wentz's breach of the option contract for livestock. Wentz contends that if the court had
properly held that the two agreements were inseverable the livestock option contract would
have been rescinded along with the exchange agreement, and Sprouse would not be entitled
to any compensatory damages.
Whether two agreements constitute a single, inseverable contract or two separate contracts
is a question of law. Linebarger v. Devine, 47 Nev. 67, 72, 214 P. 532, 534 (1923); Bethea v.
Investors Loan Corp., 197 A.2d 448 (D.C.App. 1964). We have announced that [w]hether a
contract is entire, or separable into distinct and independent contracts, is a question of the
intention of the parties, to be ascertained from the language employed and the subject-matter
of the contract. Linebarger, 47 Nev. at 72, 214 P. at 534.
The district court held that the exchange agreement and the option contract were severable.
In so finding, the court focused on the form of the agreements. The consideration for the
exchange of ranches and the consideration for the option contract for the livestock were
completely different. Under the exchange agreement, Sprouse agreed to convey his Nevada
ranch in exchange for Wentz's California ranch and a promissory note, while, under the
option contract, Sprouse agreed to hold open an offer to sell in exchange for payment of a
price by Wentz.
While it is true that the consideration for the option contract is not intertwined with the
consideration for the exchange agreement for the ranches, this analysis by the district court
ignores the intention of the parties which, as we held in Linebarger, should be controlling
concerning severability. Wentz cites to various points in the record that are quite convincing
that Sprouse and Wentz intended all of their agreements to be inseverable. For example, the
original exchange agreement provided for the sale of both ranch and livestock. When the
livestock option was drawn up separately later due to changing conditions it was expressly
incorporated into the exchange agreement. Wentz testified that, if he had acquired the
livestock under the option and had not acquired the ranch, he would have had no place to put
the livestock. And Sprouse himself testified: I don't see that you can separate the two
[agreements].
It is apparent that the parties intended that the agreements not be severable. It is also
apparent that the district court did not consider the parties' intentions when it came to the
conclusion that the agreements should be severed into two contracts. Since the parties would
not have contracted for the sale of livestock had they not been contracting at the same time
to exchange ranches, the district court erred in holding that the exchange agreement and
the option contract were two separate contracts.2 The district court should have allowed
rescission of the livestock option contract along with the exchange agreement.3 Thus, the
court's award of compensatory damages based on Wentz's breach of the option contract
must be reversed.
they not been contracting at the same time to exchange ranches, the district court erred in
holding that the exchange agreement and the option contract were two separate contracts.
2
The district court should have allowed rescission of the livestock option contract along with
the exchange agreement.
3
Thus, the court's award of compensatory damages based on
Wentz's breach of the option contract must be reversed.
Conversion of Livestock
[Headnote 7]
Finally, Wentz claims that the trial court erred in placing the burden of proof of disproving
Sprouse's claim that Wentz converted some of Sprouse's livestock on Wentz and that there is
no substantial evidence to support the trial court's conclusion that Wentz converted the sheep.
In Sprouse's complaint, he alleged that Wentz had failed to deliver 1,528 miscellaneous
ewes, lambs, and other sheep. Subsequently, in its decision, the court stated that because
Wentz had not presented any evidence to refute this claim in the complaint Wentz was liable
to Sprouse for those sheep.
Sprouse conceded at oral argument that the evidence presented at trial did not go to prove
the conversion alleged in the complaint. Therefore, we must also reverse the district court's
award for missing livestock.
Conclusion
In accordance with this opinion, we reverse the award of punitive damages against
Sprouse. We also reverse the court's award of compensatory damages for Wentz's breach of
the livestock option contract. And finally, we reverse the district court's award of
compensatory damages to Sprouse for missing livestock. We affirm the decision of the
district court in all other respects.
__________

2
Because we hold that the contracts were inseverable and should have been rescinded together, we need not
address Wentz's contention that the livestock option contract was unconscionable.

3
Sprouse contends that, if we hold that the exchange agreement and the option contract were inseverable,
Wentz cannot rescind for failure of consideration because Wentz breached the option contract before Sprouse
failed to transfer the grazing privileges. This argument, however, does not conform to the facts. Sprouse admits
that Wentz breached the option contract on April 22, 1982, while the court found that the failure of
consideration occurred at the closing of escrow on August 26, 1981. Thus, Wentz was entitled to rescission of
the entire agreement because of Sprouse's failure to transfer the grazing privileges before the breach of the
option contract occurred.
____________
105 Nev. 607, 607 (1989) Wilfon v. Hampel 1985 Trust
GEORGE F. WILFON, Appellant, v. CYRIL HAMPEL 1985 TRUST, Respondent.
No. 19371
November 2, 1989 781 P.2d 769
Appeal from judgment of the district court declaring respondent holder of a prescriptive
easement and permanently enjoining appellant from interfering with respondent's use of the
easement. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Landowner appealed from order of the district court which recognized adjoining
landowner's right of prescription over two portions of landowner's land. The Supreme Court
held that: (1) adverse claim with respect to one roadway was not established until adjacent
landowner paved the roadway, and (2) when landowner creates a road across his land, there
arises a presumption that its use by others is by permission of the landowner.
Reversed.
Richard F. Cornell, Reno for Appellant.
Anderson and Pearl and Terrill R. Dory, Reno for Respondent.
1. Easements.
Standard of proof in establishing a prescriptive easement is clear and convincing evidence.
2. Easements.
Where prescriptive easement claimant creates or establishes a roadway on another's property, hostile or adverse use may be
inferred from the use of another's property.
3. Easements.
Adverse claim for easement for roadway did not begin until time that claimant paved roadway on owners's property where, prior to
that time, owner had expressed a general intention to be neighborly and to allow others to enter upon his property.
4. Easements.
Prescriptive easement is not established by use of right-of-way by owner of dominant estate in the belief that it is a public road.
5. Easements.
When road is established by landowner, there arises a presumption that its use by others is with the permission of the landowner.
6. Easements.
Mere fact that road established by landowner was used by adjacent landowner to serve a propane tank and a billboard did not
justify creation of prescriptive easement for the adjoining landowner.
OPINION
Per Curiam:
This is a prescriptive easement case. The trial court recognized respondent Cyril Hampel's
right of prescription over two portions of George Wilfon's land. Hampel operates a trailer
park adjacent to the Wilfon property and claimed the right to use as a driveway a small
horseshoe-shaped portion of a corner of the Wilfon property. Hampel also claimed a
prescriptive right to use a dirt road that crossed Wilfon's property. With respect to these
portions of Wilfon's property, there is evidence that the trailer park tenants crossed over the
corner of Wilfon's property for a number of years and that the mentioned dirt road was used
to service a propane tank and a billboard on the Hampel property.
Wilfon was an absentee owner and did not give express permission to Hampel, the trailer
park tenants or anyone else to cross over or use the road that traversed his property. He did,
however, express a general intention to be neighborly and to allow Hampel's predecessors and
others to enter upon his property. Wilfon did make mention of the fact that he had plans
eventually to move onto the property and at that time to deny access and use of the road to
others. Wilfon did, in fact, carry out his intentions to withdraw permission to cross over his
property by the installation in April, 1988 of a chain link perimeter fence on his property.
This act cut off his property from any use by the public or by Hampel.
Hampel reacted by tearing down the fence. Wilfon put it up again. Hampel sued for
declaratory judgment declaring a prescriptive easement over the land and seeking an
injunction against Wilfon's fencing his property where the fencing interfered with Hampel's
traveling through Wilfon's property. The principal issue is whether the use of Wilfon's
property by Hampel and his predecessors was hostile and adverse for a period of five years.
[Headnote 1]
The elements of an easement by prescription are five years' adverse, continuous, open and
peaceable use. Stix v. La Rue, 78 Nev. 9, 11, 368 P.2d 167, 168 (1962); see also Anderson
v. Felten, 96 Nev. 537, 612 P.2d 216 (1980). The standard of proof in establishing a
prescriptive easement is clear and convincing evidence. Allingham v. Nelson, 627 P.2d 1179
(Kan.App. 1981); Gerberding v. Schnakenberg, 343 N.W.2d 62 (Neb. 1984); Garmond v.
Kinney, 579 P.2d 178 (N.M. 1978).
Wilfon asserts that Hampel failed to prove by clear and convincing evidence that Hampel's
use of the described roads was hostile or adverse to Wilfon for the required five-year
period.
hostile or adverse to Wilfon for the required five-year period. We agree.
First, with regard to the area of encroachment represented by Hampel's paving over of a
portion of a corner of the Wilfon property, the trial court noted that the paving of the driving
area in question and as testified to was recent in nature. The trial court also noted that the
evidence is uncertain with respect to how far this road actually encroached prior to the
paving. From this it must be concluded that although for a period of years people might have
been crossing over a corner of the Wilfon property, the paving of the road by Hampel was the
first hostile assertion by Hampel of a definitive right-of-way over Wilfon property.
[Headnotes 2, 3]
From the time that Hampel paved a portion of the Wilfon property in October of 1986,
adversity may be inferred from the circumstances of the use. Chollar-Potosi Mining Co. v.
Kennedy & Keating, 3 Nev. 361 (1867). In Chollar-Potosi, the prescriptive easement
claimant established a roadway over the owner's property, as did Hampel in 1986 when he put
pavement on Wilfon's property. (In Chollar-Potosi, 3 Nev. at 372, it appears that the proof
shows clearly that the Potosi Company surveyed and graded this road for travel in 1861, and
since then have been continuously using it as a road.) Chollar-Potosi stands for the
proposition that, where a prescriptive easement claimant creates or establishes a roadway on
another's property, a hostile or adverse use may be inferred from the use of another's property
in this manner. Thus Hampel's adverse claim began at the time of the paving, October 1986.
There is no evidence of any hostile claim before this time. It does not appear that any adverse
claim of any right to cross over Wilfon's property was ever made by anyone prior to the
mentioned paving activity by Hampel in 1986. Courts are reluctant to find prescriptive
easements over open and unclosed land since such use tends to be permissive in nature and
does not imply a hostile or adverse use. Burdess v. Arkansas Power & Light Co., 597 S.W.2d
828, 830 (Ark.App. 1980); Adams v. Skagit County, 566 P.2d 982, 984 (Wash.App. 1977).
The mere fact that Hampel and his predecessors crossed over a corner of Wilfon's property
does not show any hostile claim of right on Hampel's part.
Hampel's adverse claim to the paved road area necessarily begins in October of 1986. The
statutory requirement of five years' adverse use cannot be present with respect to the paved
portion of the Wilfon property; so the prescriptive easement in this area must be denied.
[Headnotes 4, 5]
With regard to the other prescriptive easement granted in this case over a road across the
Wilfon property known as Cavanagh Road, we likewise are hard-pressed to discover evidence
to support an adverse claim by Hampel for the required five years. According to witness
Haskins, a former owner of the Hampel property, the road appears on his plat plan, and he
understood it to be a public road.
1
There is nothing in the record to indicate other than that
Cavanagh Road was an established road created on the property by Wilfon's predecessors.
Where a road is established by the landowner, there arises a presumption that its use by others
is with the permission of the landowner. See Jackson v. Hicks, 95 Nev. 826, 604 P.2d 105
(1979); Turrillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956); Howard v. Wright, 38 Nev.
25, 143 P. 1184 (1914).
2

[Headnote 6]
The mere fact that Cavanagh Road was used to service a propane tank and a billboard for a
long period of time does not justify the creation of a prescriptive easement. A case in point is
that of Turrillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956), in which the prescriptive
easement claimants show extended use by the public for more than 30 years. To this the
court responded by citing an earlier Nevada case.
As stated in Howard v. Wright, 38 Nev. 25, 143 P. 1184, 1187, [The] mere use of a
passage over another's land for a long time with his knowledge is not necessarily an
adverse use. The circumstances may be such as to authorize an inference that the use is
adverse but they may also be such as to intimate that the use was by permission.
Turrillas, 72 Nev. at 291, 303 P.2d at 1003.
The court then continued in language most apropos to the case before us:
Where a roadway is established or maintained by a landowner for his own use, the
fact that his neighbor also makes use of it, under the circumstances which in no way
interfere with use by the landowner himself, does not create a presumption of
adverseness.
__________

1
When an owner of a dominant estate uses a right-of-way in the belief that it is a public road, this does not
establish a prescriptive easement. Cardenas v. Kurpjuweit, 753 P.2d 290, 294 (Idaho App. 1988).

2
Hampel claims, citing Chollar-Potosi Mining Co. v. Kennedy & Keating, 3 Nev. 361 (1867), that
adversity may be inferred from the circumstances of the use. What Hampel has overlooked in Chollar-Potosi
is that the predecessor of the Chollar-Potosi Mining Company, the party claiming to have the prescriptive right,
had actually built the road through the property in question. Chollar-Potosi does not stand for the proposition, as
claimed by Hampel, that the mere use of another's road without asking permission constitutes adverse use.
use of it, under the circumstances which in no way interfere with use by the landowner
himself, does not create a presumption of adverseness. The presumption is that the
neighbor's use is not adverse but is permissive and the result of neighborly
accommodation on the part of the landowner.
Turrillas, 72 Nev. at 291-92, 303 P.2d at 1003 (our emphasis).
In the case before us it appears that Cavanagh Road had been established and maintained
by owners of the Wilfon property and that there is a presumption that until Hampel tore down
Wilfon's fence the road was permissively used. No prescriptive rights could be established
until after the hostile act of Hampel's tearing down Wilfon's fence, insisting on the right to
cross Wilfon's property. Such hostile claim has not, as in the case of the other claimed
prescriptive right, persisted over the required five-year period.
Any evidence of adversity in this case is insubstantial at best. Certainly the presumption of
permissiveness as stated in Turrillas has not been overcome, and it is not possible in this case
to conclude that there is clear and convincing evidence of the adversity element of either of
Hampel's claims. We, therefore, reverse the judgment of the trial court and dissolve the
injunction.
____________
105 Nev. 611, 611 (1989) Wright v. Schum
JASON WRIGHT, a Minor by His Mother and Next Friend, DEBRA K. WRIGHT,
Appellants, v. JOHN SCHUM, Respondent.
No. 18282
November 2, 1989 781 P.2d 1142
Appeal from an order of the district court dismissing appellant's complaint against
respondent, pursuant to NRCP 41(b). Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Passerby injured by dog bite sued landlord of tenant who owned dog. The district court
dismissed complaint, and passerby appealed. The Supreme Court, Springer, J., held that: (1)
landlord was not liable, as landlord, for dog bite inflicted on passerby by tenant's pit bulldog;
(2) landlord, as individual, voluntarily assumed part of duty owed to public by tenant owner
of dog when landlord permitted tenant to remain on premises in return for promise not to
allow dog outside house unless chained; and (3) material questions of fact, precluding
summary judgment, existed as to whether landlord, in individual capacity, had breached
his voluntarily assumed duty of care toward public with respect to dog by allowing tenant
to remain and by not repairing front gate which allowed dog easy opportunity to leave
premises if unchained while outdoors.
as to whether landlord, in individual capacity, had breached his voluntarily assumed duty of
care toward public with respect to dog by allowing tenant to remain and by not repairing front
gate which allowed dog easy opportunity to leave premises if unchained while outdoors.
Geoffrey White, Reno, for Appellants.
Jon Douglas Benson, Reno, for Respondent.
1. Animals.
Landlord was not liable as such when pit bulldog owned by tenant escaped from yard of leased premises and injured passerby.
2. Animals.
Landlord owed duty to passerby, as individual and not based upon his status as landlord, when he voluntarily undertook to
discharge part of duty of owner of pit bulldog to general public to prevent animal from leaving leased premises; landlord had entered
into agreement allowing tenant to remain on premises with dog provided dog was kept inside or chained when outside.
3. Judgment.
Material issues of fact, precluding summary judgment, existed as to whether landlord, in his individual capacity and not as
landlord, had breached a duty to protect general public against pit bulldog owned by tenant when he agreed to let tenant remain on
premises in return for promise that dog would be either kept in house or placed on chain when outdoors, and did not repair defect in
front gate which would allow dog to easily leave premises if unconfined outdoors.
OPINION
This is a dog bite case. Eleven-year-old Jason Wright was walking home from a day's
swimming when an escaped pit bulldog attacked him and injured him severely. Jason
obtained a jury verdict in his favor against the owner of the pit bulldog, but the court
dismissed his case against respondent Schum, who was the landlord and owner of the
premises from which the dog escaped.
[Headnote 1]
Schum claims that as a landlord he cannot be held liable for the negligent conduct of his
tenants for injuries caused to third persons not injured on the leased premises. It is quite clear
under Nevada law that Schum is correct in this assertion and that he cannot be held liable
as a landlord.
Nevada law that Schum is correct in this assertion and that he cannot be held liable as a
landlord. We recognized, as late as 1985, in Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290
(1985), the traditional common law rule that once a lessee [has] taken possession of
property, the landlord [is] not subject to liability . . . [to] others coming onto the land, for
physical harm caused by a dangerous condition on the premises. . . . Although Jason invites
us to extend the scope of landlord liability to include cases in which injuries are sustained by
one who is bitten by a tenant's dog under circumstances in which the landlord has actual
knowledge of the presence of a dangerous animal on the premises and in which the landlord
has the right to remove the animal by evicting the tenant, we decline to do so. Contra Uccello
v. Laudenslayer, 118 Cal.Rptr. 741 (Cal.App. 1975). The trial court, in dismissing landlord
Schum from the lawsuit, wisely observed that holding landlords liable for the actions of their
tenants' vicious dogs by requiring them to evict tenants with dangerous dogs would merely
result in the tenants' moving off to another location with their still dangerous animals. The
trial judge likened this approach to the case of Typhoid Mary, who was outcast from one
place only to continue her deadly disease-spreading activity at another place. In Nevada,
Schum's failure to evict a tenant known to him to be harboring a dangerous pit bulldog will
not alone provide grounds, as it did in the above-cited Uccello case, for holding a landlord
tortiously liable for attacks by a tenant's dog.
Another reason why the Uccello rule of landlord liability cannot be applied to this case is
that, unlike Uccello, the injuries to Jason did not occur on the rented premises and, except for
defective perimeter fencing mentioned below, the injuries were not directly related to a
dangerous condition of the premises.
[Headnote 2]
As a consequence of the general rules of law relating to landlord liability, recently
confirmed in the Turpel case, Schum cannot be held liable by reason of his status as a
landlord nor by reason of his failure to evict a tenant with a dog known by him to be
dangerous. This does not end the matter, however.
In Turpel we observed correctly that merely because a person had the legal status of being
an owner or landlord, such person did not enjoy immunity from tort liability.
1
As put in
Turpel, there is no reason to except "landlords or property owners from the general
application of the basic principles of tort law."
__________

1
In Turpel v. Sayles negligence was based on Sayles' failure to carry out her duty as an owner to install
smoke detectors in a condominium that she owned. Turpel was injured while trying to warn a family living in the
condominium of a fire. Turpel's rescue would not have been necessary if the property owner, Sayles, had
installed smoke detectors. Obviously the duty to
there is no reason to except landlords or property owners from the general application of the
basic principles of tort law. Turpel, 101 Nev. at 39, 692 P.2d at 1293. Schum, obviously, as
other persons must exercise reasonable care not to subject others to an unreasonable risk of
harm. Id. at 38, 692 P.2d at 1292 (quoting Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973)).
The question in this case, then, is not whether Schum is liable to Jason as a landlord, but
rather whether he is liable as other persons for the exercise of due care in not subjecting
Jason to an unreasonable risk of harm. Put another way: Is there evidence in this record
which, if believed by a jury or fact finder, would support a finding that Schum failed to
exercise due care in subjecting Jason and others to an unreasonable risk of harm? We come to
the conclusion that Schum's conduct with respect to the escaping pit bulldog could be viewed
as creating an unreasonable risk of harm to Jason and others who were open to attack by this
dog when he escaped from the custody of his owners. Let us now examine the facts that
support this conclusion.
The owners of the pit bulldog, the Pitzers, were month-to-month tenants of Schum at the
time the dog escaped from the yard and mangled Jason. When the Pitzers moved into the
house, they did not tell Schum that they had a pit bulldog. Schum found this out only when a
neighbor, Denise Austin, complained to him that the Pitzers had a pit bulldog and that it had
escaped from its yard on two occasions and attacked their dogs, seriously injuring one and
killing the other. In addition to his attacks on the Austins' dogs, the Austins observed that the
Pitzers' pit bulldog, Buddy, would become agitated and very aggressive when he saw the
Austins in their own backyard. On such occasions, Buddy would lunge at the Austins, often
wedging his head between the boards of the fence, in an apparent attempt to break through to
get at the Austins. Denise Austin and her family were so afraid that the pit bulldog would
break into their yard again and injure them that they gave up the use of their backyard.
Denise Austin's husband testified that he was very concerned about the dog's
aggressiveness. He stated, On all occasions [I] carried a can of wasp knock-down spray with
me in case the dog happened to come through the fence. I had a loaded twenty-two pistol next
to my back door.
Schum claims that he did not know that pit bulldogs were dangerous to humans and
specifically denies knowing that this pit bulldog was dangerous, except perhaps where
other dogs were concerned.
__________
install smoke detectors is related to Sayles' status as an owner or landlord, and there would be no duty apart from
this status; still, Turpel is not a case of landlord liability; it is, as stated in the Turpel opinion, one of general
tort liability.
bulldog was dangerous, except perhaps where other dogs were concerned. That Schum was
on notice that the dog would be dangerous if he escaped from the yard is supported by his
exposure to the Beware of the Dog sign on the front door of the house and by Schum's
promise to the Austins that he would take care of the problem. According to Denise Austin,
Schum agreed that he would make the Pitzers get rid of the dog or move out. It certainly can
be argued that if he did not think the dog was dangerous, he would not have so agreed. Under
these circumstances, a jury could have properly concluded that Schum knew that the dog
could be dangerous to others if the dog escaped from the yard. This conclusion is further
supported by the fact that Schum allowed the Pitzers to stay on only on their promise that
they would at all times keep the dog in the house or in the yard on a chain. Had he not some
apprehension about the dog's dangerous nature he would not have insisted, at pain of losing a
tenant, that the Pitzers secure the dog in some manner. Shortly after Schum gave this
ultimatum to the Pitzers, the pit bulldog, unchained, broke through the fence and attacked the
dog of another neighbor, the Andersons.
The question comes down to whether under these circumstances Schum can be judged to
be free of negligence as a matter of law and thus entitled to dismissal under Rule 41(b).
If Schum is to be held liable under the basic principles of tort law (Turpel, above), it
must be as a person who has negligently undertaken with respect to the pit bulldog to perform
the duty of due care owed by the Pitzers. The applicable principle of tort law is set out in
section 324A(b) of the Restatement (Second) of Torts, which 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 a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
. . . .
(b) he has undertaken to perform a duty owed by the other to the third person. . . .
Parsing the Restatement, we see that any liability on the part of Schum in this case must be
based on:
1. The presence of a duty to Jason on the part of Pitzer to protect Jason and others from
the risk of harm by the pit bulldog. (That there was such a duty has been adjudicated by the
judgment of liability against the Pitzers in this case.)
2. An undertaking by Schum of the duty, or a portion of it, owed by Pitzer to Jason.
3. Negligence on the part of Schum in the performance of that duty.
The facts in this case, taken in the light most favorable to Jason, seem to support a
conclusion that to some degree at least Schum undertook the task of securing the pit bulldog
and of keeping him from escaping and becoming dangerously at large.
2
If Schum did
undertake to share the Pitzers' duty of protecting the public from an escaped and dangerous
pit bulldog, there is little or no question that he acted in a negligent manner. The most
important question before us, then, becomes whether Schum undertook or partially undertook
Pitzers' duty to protect Jason and others from harm.
First, it should be noted that the mere advice or warning by one person to another that care
should be taken to avoid a certain risk does not in itself create an undertaking and consequent
liability on the part of one giving such advice. Had Denise Austin, for example, extracted a
promise from the Pitzers that the dog would be kept chained as a means of protection against
the risk of harm by the dog, Denise Austin could not be held liable simply because she had
tried to get Pitzer to secure the dog and was ineffectual in keeping the dog from doing
harm.
__________

2
The dissent does not seem to take into account the rule in Turpel that landlords are not excepted from
general tort responsibility just because they are landlords. It must be recognized that here, as in Turpel, the
general liability (not liability as a landlord) arises out of the defendant's status as a landlord. In Turpel the
general duty to passersby arose out of the landlord's duty to maintain smoke alarms. In the present case the
general duty to passersby arose out of the landlord's undertaking to protect others from the dangers of an
escaped pit bulldog. We note that Schum's undertaking goes beyond a mere acquiescence, as Schum's conduct
is described in the dissent. Schum was much more than a passive observer of Pitzers' management of the dog.
Schum intended to and did influence and control the conduct of his tenants. Control means [t]o exercise
authority or dominating influence over; direct; regulate. Influence is [t]o have power over; affect. Donnell
v. Cal. Western School of Law, 246 Cal.Rptr. 199, 206 n.1 (Cal.App. 4 Dist. 1988) (Wiener, J., dissenting). In
this case, Schum affirmatively controlled the Pitzers' actions by threatening to use his power of eviction.
Q: [y]ou told them that if there were any more problems involving their pets, that they would be evicted?
A: I mentioned eviction when I first called. I said, I want you to take care of this problem or get rid of
that dog. . . .
The Schum-Pitzer agreement amounted to more than passive compliance or failure to make any objections
(Black's Law Dictionary 22 (5th ed. 1979)) on the part of Schum. Had Schum not exerted his power as a
landlord, threatening eviction if an agreement were not reached relative to the dog problem, then perhaps he
could be said merely to have acquiesced. Under the stated circumstances, however, a jury would be entitled to
conclude that there was an undertaking by Schum that amounted to more than mere acquiescence.
by the dog, Denise Austin could not be held liable simply because she had tried to get Pitzer
to secure the dog and was ineffectual in keeping the dog from doing harm. Trying to prevent
harm by warning or advising is certainly not the kind of undertaking contemplated by the
quoted Restatement section. The present case is different from this, however. Schum clearly
had the power to enforce his demand that Pitzer take care of the dangerous dog problem
Schum was in a position to tell the Pitzers to make the dog safe or move out. The difference
between the Austin example and the case before us is that the example involves only a failure
to intervene; whereas, Schum has negligently caused injury to another rather than merely
failing to avert injury. Once Schum used his power to evict in order to protect the world
against this dangerous dog, he undertook a duty to exercise due care. His duty was not to his
tenant nor to invitees of his tenant, as would be the case in a typical landlord liability case;
Schum's duty is to the world. It is true that he could not have undertaken this duty absent his
power over his tenant, but it is this power that enabled him to assume responsibility for the
proper security of the dog against potential victims were the dog to escape. Thus, we have a
situation in which the two, Schum and Pitzer, at the enforceable request and insistence of
Schum, put together a plan for making the dog's continued presence on the premises safe and
secure and of no risk to others. Schum and Pitzer then came to a mutual understanding that
Pitzer would be allowed by Schum to remain on the premises provided that Pitzer promised
to keep the dog in the house or on a chain. This kind of forced agreement goes beyond a mere
request or suggestion by Schum to Pitzer. For reasons best known to Schum, Schum acceded
to Denise Austin's urging that he do something about the dangerous dog. What Schum did
was, using his power and authority over Pitzer, to assume the duty or obligation of securing
the dog. Schum had the power to control the acts of the Pitzers in protecting the public (not
necessarily invitees or others having some connection to the rented premises). In controlling
the Pitzers' handling of the dog problem, Schum became a collaborator in the necessary
precautionary steps needed in order to make a dangerous dog safe and became responsible for
exercising due care in doing so.
In Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla.App. 1985), a
retirement home management assumed the duty of care and supervision of elderly tenants
driving vehicles on the premises. As in the case of Schum, the owner had no initial duty to
protect anyone against negligent drivers; however, once the owners assumed the duty to
supervise and exert control over the vehicular operation of its tenants, and exerted its control
over these drivers, it had to do so in a reasonably prudent manner.
over these drivers, it had to do so in a reasonably prudent manner. Its failure to control
prudently, once control was undertaken, made the retirement home liable for its negligent
undertaking to supervise and control its tenants.
Schum as landlord had no initial duty to protect Jason and others from injuries caused by
his tenants' escaped pit bulldog. However, once he was cajoled by Denise Austin into doing
something about the dog and then did something by way of enforcing a rather specific plan
for securing the dog, he was in a position of having engaged in an undertaking to assure
performance of Pitzers' duty to protect others against the risk of dog attack. This undertaking
was not possible without the power that Schum had to impose the terms of the undertaking;
but, still, Schum's duty to the world, and his duty to Jason, was a duty as an ordinary person
and not as a landlord.
[Headnote 3]
The only remaining question is whether Schum's enforcement of the mutually agreed upon
dog protection plan was reasonable and prudent under the circumstances. It must be
remembered that the gate on the front fence was broken and firmly wedged in a manner that
would allow the dog to escape from the front yard if he gained access to that area. All
concerned knew about this defect. To think that a dangerous dog could be contained, given
this opening in the front yard, by the mere promise of the house occupants to keep the dog in
the house is to ignore the nature of most dogs. Most dogs, as did the pit bulldog in this case,
will walk out of a door ajar. This dog simply walked out of a door left open, through the
aperture of the broken gate, onto the sidewalk and proceeded to the point where Jason
unfortunately appeared on the scene.
Under the evidence adduced in this case a jury could have found that Schum was at least
partially legally responsible for the tragedy that resulted in Jason's permanent disfigurement
by finding that Schum shared in, that he partially assumed, that he undertook the task,
initially Pitzers' task alone, of protecting the world from this pit bulldog. We, of course, are
not saying that Schum was negligent as a matter of law; what we are saying is that Schum is
not non-negligent as a matter of law.
In sum, what we have here is this: Schum, going beyond his role as mere owner and
landlord, decided to eliminate the risks associated with his tenants' keeping a pit bulldog on
the rental premises. Using his power of eviction to force compliance with his intentions,
Schum undertook to take care of the problem of a dangerous dog. He took care of the
problem in a very imperfect and predictably hazardous manner when he agreed with the
Pitzers to let Buddy remain on rented premises that had an obviously insecure perimeter,
with the only security against the dog's escape being the tenants' agreement with Schum
that the dog would remain in the house or on a chain.
Pitzers to let Buddy remain on rented premises that had an obviously insecure perimeter, with
the only security against the dog's escape being the tenants' agreement with Schum that the
dog would remain in the house or on a chain. The arguable unreasonableness of what Schum
did in undertaking to take care of the dog problem became clearer as time went on. After the
keep-the-dog-chained-or-in-the-house security plan was instituted by Schum and the Pitzers,
the dog again escaped and ravaged another dog; and, also, Schum remained aware
3
of the
wedged-open gate.
When one looks at these circumstances, at what Schum knew or should have known about
the dog, at Schum's joining with the Pitzers in undertaking to share in the Pitzers' duty to deal
with the problem, at the likelihood that serious injury would result if the dog were to escape
from the yard, and at the relatively slight burden of eliminating the risk, it is not difficult to
conclude that Schum could have properly and lawfully been found negligent by a jury in this
case. We, therefore, reverse the judgment of the trial court and reinstate Jason's action for
negligence against John Schum.
4

Mowbray and Rose, JJ., concur.
I submit that the result of the majority's decision will be the expansion of landlord liability
in this state. It could make landlords liable for injuries suffered by third parties a substantial
distance from the landlord's property as a result of a tenant's tortious conduct.
While courts may impose legal duties when none existed previously, such an imposition
should be exercised with extreme care. Georgianna v. Gizzy, 483 N.Y.S.2d 892, 894
(App.Div. 1984). Generally, when a landlord is out of possession of leased property and the
tenant has exclusive control of the premises, the landlord is not responsible for injuries from
animals kept by tenants on the leased property. Vigil By and Through Vigil v. Payne, 725
P.2d 1155, 1157 (Colo.Ct.App. 1986). When courts have found liability, it is predicated upon
existence of two criteria: (1) the landlord's actual knowledge of the animal's vicious
propensities, and {2) the landlord's retention of substantial control over the premises.
__________

3
Schum testified that he first became aware of the broken gate shortly after he leased the premises to the
Pitzers. At that time Schum would frequently drive by the house on his way to his girlfriend's home.

4
The Honorable Robert E. Rose, Justice, participated in the decision of this appeal on the record, briefs and
recording of the oral argument.
(2) the landlord's retention of substantial control over the premises. Georgianna, 483
N.Y.S.2d at 893. Neither element is present in this case.
When the premises were leased, Schum was informed only that the tenants had a small to
medium-sized house dog. It is not uncommon for dogs to fight amongst themselves.
Knowledge of a dog's propensity to attack other dogs is not the equivalent of knowledge that
the dog will attack a human being. Banks v. Adair, 251 S.E.2d 88, 89 (Ga.Ct.App. 1978). No
evidence exists to indicate that Schum knew of the likelihood of an attack by Buddy upon a
person. Thus, the actual knowledge requirement is missing in this case.
Nor does the evidence suggest that Schum retained substantial control over the premises
after he gave up possession to the Pitzers. Absent an agreement to the contrary, the lessor
surrenders both possession and control of the land to the lessee, retaining only a reversionary
interest. Strunk v. Zoltanski, 466 N.Y.S.2d 716, 717 (App.Div. 1983). Although the lease
agreement reserved to Schum the right to enter and inspect the premises, and to approve or
veto any repairs or alterations, Schum did not reserve any portion of the property for his own
use. Inasmuch as Schum did not maintain substantial control over the leased premises, the
second Georgianna criterion is also absent. Therefore, under generally recognized case law,
liability does not exist in this case.
According to the majority, however, Schum's liability rests on his negligent undertaking of
a duty owed by the Pitzers to safeguard passersby who might receive injuries from the Pitzers'
dog.
1
The record indicates that after Schum discussed their dog's behavior with the Pitzers,
the Pitzers agreed to keep the dog in the house or on a chain.
__________

1
The majority contends that Schum's duty arises from section 324A of the Restatement (Second) of Torts.
That section provides:
One who undertakes, gratuitously, or for consideration, to render services to another which he should
recognize as necessary for the protection of a third person or his things, is subject to liability to the third
person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking,
if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
(Majority's emphasis.)
However, as described herein, Schum never undertook to perform a duty owed by the Pitzers to third parties.
Therefore, section 324A is inapposite to the instant case.
behavior with the Pitzers, the Pitzers agreed to keep the dog in the house or on a chain.
Obviously, the Pitzers did not properly implement this plan, or else this tragedy would not
have occurred. However, Schum's discussion with the Pitzers as to how their dog might be
maintained more securely is not equivalent to the landlord undertaking a duty owed by the
tenant to third parties to restrain the dog's aggressive behavior.
2

The majority concedes that Schum cannot be held liable by reason of his status as a
landlord. Nevertheless, it concludes that Schum's mere acquiescence in a plan (negligently
implemented by the Pitzers) to keep the dog on a chain or in the house somehow spawned
what appears to be an unlimited duty to anyone injured by the dog whether on the premises,
nearby the premises, or blocks away.
The majority cites Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257
(Fla.App.Dist. 1985), as authority for its contention that Schum undertook to assure
performance of the Pitzers' duty to protect others against the risk of a dog attack. However,
Garrison involved a retirement home with a professional responsibility to supervise and
control the activities of its mostly senile, elderly residents. In this case, Schum wielded
neither substantial power nor control over his tenants' conduct. His mere acquiescence in the
Pitzers' plan to control their dog falls far short of the professional obligation owed by the
appellant retirement home in Garrison. Therefore, Garrison is clearly distinguishable from
the case at hand.
The majority asserts that landlord status is not part of the liability equation. Ironically,
however, it bases its theory of liability on the idea that Schum, using his power and
authority [as a landlord] over Pitzer, assumed the duty of securing the dog. (Emphasis
added.) Although the majority would find an undertaking in this case on the ground that
Schum (again as a landlord!) had the power to control the acts of the Pitzers in protecting the
public, we believe that this power is illusory. As discussed above, Schum surrendered both
possession and control of his property to the Pitzers. Strunk v. Zoltanski, 466 N.Y.S.2d 716,
717 (App.Div. 1983). Without maintaining substantial control over the leased premises, we
fail to comprehend how Schum had the power to control his lessees.
__________

2
The majority characterizes the result of this discussion as a forced agreement in which Schum and Pitzer
then came to a mutual understanding that Pitzer would be allowed by Schum to remain on the premises provided
that Pitzer promised to keep the dog in the house or on the chain. However, at trial, Schum testified that he
believed that he had no legal right to evict the Pitzers. Accordingly, the record belies the majority's suggestion
that Schum imposed on the Pitzers a plan for controlling the dog.
trol over the leased premises, we fail to comprehend how Schum had the power to control his
lessees.
Moreover, although the majority finds that mere advice or warning would not create an
undertaking, it fails to define any real parameters for the duty perceived by it when one, not a
landlord, offers to assist with a problem created by another's negligence. If a friend of the
tenants had offered assistance in chaining the dog, would that friend thereafter be liable for
injuries caused by the dog? What if a neighbor complained to the landlord that instead of a
dog, the tenants had a teen-age son who drank to excess before driving? Would the landlord
be liable if he suggested to the tenant that the son should be allowed to drive only under
carefully monitored conditions, and thereafter the tenant's son, while driving under the
influence, injured a third party? It is easy to envision an almost infinite variety of
circumstances when a lessor of propertyagricultural, commercial or residentialif advised
of the questionable deportment of a lessee, might, under the rationale of the majority, be
called upon to respond in damages. Until we can devise rational limits for this novel theory, it
would be irresponsible to unleash such a doctrine in our increasingly litigious society.
The majority cites Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985), for the
proposition that a landlord could be liable for negligence not as a landlord or owner, but
because of a failure to exercise care not to subject others to an unreasonable risk of harm.
However, as the majority admits, in Turpel, the property owner's duty of reasonable care
was related to her position as an owner/landlord, and she would have incurred no duty apart
from this status.
In the instant case, the majority introduces its rationale for Schum's liability with the
following: Schum, going beyond his role as mere owner and landlord, decided to eliminate
the risks associated with his tenants' keeping a pit bulldog on the rental premises. However,
the majority goes on to declare that [u]sing his [landlord's] power of eviction
3
to force
compliance with his intentions, Schum undertook to take care of the problem' of a dangerous
dog. (Emphasis added.) Accordingly, the majority is unable to divorce Schum's status as a
landlord from his role in this case.
__________

3
Ironically, although the majority disclaims any relationship between Schum's landlord status and his
liability in this case, it emphasizes that Schum had the power of eviction over the Pitzers. However, eviction of
a tenant is commonly a difficult and frustrating process. Thus, the majority ignores the reality of contemporary
landlord-tenant relations when it implies that Schum could have easily resolved the situation by evicting the
Pitzers.
Thus, the general duty my colleagues perceive herein a reasonable care to third parties is in
reality a duty of care as a landlord. This is the cornerstone of the majority's finding of
liability. Whether elliptically or candidly embraced, such a doctrine will bring a harvest of
increasing litigation in claimants' ceaseless quest for more defendants and deeper pockets.
Moreover, once our courts find landlords liable to third parties for negligence of tenants,
imposition of strict liability on landlords may not be far behind. Love, Landlord's Liability
for Defective Premises: Caveat Lessee, Negligence, or Strict Liability, 1975 Wis. L. Rev. 19,
157-158. Courts might feel an irresistible temptation to impose strict liability on the theory
that, as the deep pocket, a landlord is in the best position to bear and distribute the risks of
loss attributable to the business of leasing. Id. This contingency, as well as the liability
imposed by the majority herein, would have profound implications for property ownersand
for renters who will eventually bear this burden.
A landlord is not an insurer of his tenant's safety, nor of the safety of the people whom his
tenant invites onto the leased property. Strunk v. Zoltanski, 466 N.Y.S.2d 716, 719 (App.Div.
1983) (Rubin, J., dissenting). Moreover, when a landlord has delivered possession and
control of his property to a tenant, he should not, absent the unique circumstances defined in
Georgianna, 483 N.Y.S.2d at 893, be held liable to third persons for injuries sustained as a
result of misconduct of the tenant. National Tea v. Gaylord Discount Dept. Stores, 427
N.E.2d 345, 348 (Ill.App.Ct. 1981). With regard to third persons, tenants occupy a position
on a parity with that of an owner in possession. Knox v. Gray, 712 S.W.2d 914, 915 (Ark.
1986). If society wants the above well recognized principles changed to create additional
defendants, it should be done by a legislative act, not by judicial decision.
Since Jason Wright may bring a cause of action for negligence against the Pitzers, he is not
without a legal remedy. Therefore, I would affirm the decision of the district court.
____________
105 Nev. 624, 624 (1989) Meadow v. Civil Service Bd. of LVMPD
HOWARD S. MEADOW, Appellant, v. THE CIVIL SERVICE BOARD OF THE LAS
VEGAS METROPOLITAN POLICE DEPARTMENT, Respondent.
No. 19550
November 2, 1989 781 P.2d 772
Appeal from an order of the district court denying petition for a writ of certiorari from a
decision of the Civil Service Board of the Las Vegas Metropolitan Police Department
upholding appellant's termination. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Police officer petitioned for writ of certiorari from decision of civil service board
upholding his termination. The district court denied petition, and officer appealed. The
Supreme Court, Young, C. J., held that: (1) admission of polygraph evidence was not
prejudicial; (2) testimony of a veteran police officer was properly admitted; and (3) board's
decision was not arbitrary and capricious.
Affirmed.
Rose, J., dissented.
Greenman, Goldberg & Raby, Las Vegas, for Appellant.
Brown & Kane, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Municipal Corporations.
Police officer was not prejudiced by civil service board's reception of polygraph evidence, in hearing on charge that officer used
excessive force when making an arrest, where other evidence supported board's decision to uphold officer's termination.
2. Administrative Law and Procedure; Municipal Corporations.
Civil service board, convened to review police officer's termination for acts of excessive force, properly admitted testimony of
14-year veteran officer, who had heard grunts, groans and screams coming from room where respondent officer had taken handcuffed
suspect that it sounded like somebody getting their butt whipped. NRS 50.265.
Although substantial positive information regarding police officer was presented, decision of civil service board which upheld his
termination was not arbitrary and capricious, in light of evidence that officer placed gun barrel in informant's mouth and threatened to
kill him, that he assaulted a burglary suspect who was already handcuffed and under arrest, and that he carried an unauthorized
weapon. NRS 233B.140(5)(f).
OPINION
Appellant argues that because the board considered allegedly improper evidence of a
polygraph examination, the district court erred when it affirmed the board's decision.
However, we need not address the admissibility of the polygraph evidence because the board
heard other substantial evidence supporting its decision to uphold Meadow's termination.
Meadow underwent a polygraph examination in connection with an arrest made by him in
September 1987. Donnell Wells charged that Meadow used excessive force when making the
arrest. The examination was to verify whether Meadow caused facial injuries to Wells by
striking him with an unauthorized chrome baton.
However, Meadow was charged with two other acts of excessive force. At the hearing
before the board, two witnesses testified as to a December 1986 incident when Meadow
placed the barrel of a gun in an informant's mouth, cocked the trigger, and threatened to
blow his fucking head off if any police officers were hurt during an upcoming operation.
Other witnesses testified as to a July 1987 incident when Meadow beat and choked a suspect
who was already handcuffed and under arrest.
[Headnote 1]
Thus, even if we disregard the incident involving Donnell Wells, enough evidence was
presented at the board hearing to uphold Meadow's termination. Accordingly, even if the
board erred by admitting the polygraph results, this error was harmless and did not prejudice
the substantial rights of Meadow. See Bezuneh v. Urlacher, 540 N.Y.S.2d 76 (App.Div. 1989)
(holding that erroneous reception of polygraph evidence does not require reversal of
administrative tribunal's decision when, apart from this evidence, the determination is
supported by substantial evidence on the entire record).
[Headnote 2]
Meadow argues that the board erred by allowing Officer Berni to speculate during his
testimony about events which he neither saw nor of which he had personal knowledge.
However, Officer Berni's testimony in this regard was not speculation evidence. Officer Berni
had been a police officer for over fourteen years. He testified that he heard grunts, groans and
screams coming from the room where Meadow had taken a handcuffed suspect. According to
NRS 50.265, lay witness testimony is limited to those opinions or inferences which are
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.
those opinions or inferences which are 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. Given
Officer Berni's experience, his testimony that it sounded like somebody getting their butt
whipped in the other room was rationally based on his perceptions at the time. Therefore, the
board properly admitted his testimony. NRS 50.265.
[Headnote 3]
Finally, Meadow argues that the evidence presented to the board demonstrated that he was
an outstanding and dedicated police officer, and that he did not use excessive force in the line
of duty. Accordingly, he contends that the board's decision to uphold his termination was
arbitrary and capricious, and an abuse of its discretion. Again, Meadow's contention lacks
merit.
1

It's true that a number of persons testified as to Meadow's outstanding performance as a
police officer. However, several police officers who worked with Meadow also testified to
the excessive force which he used while on the job. Officers Retke and Berni testified
regarding the December 1986 incident when Meadow placed a gun barrel in an informant's
mouth and threatened to kill him. Officers Berni and Hixson both testified to the July 1987
incident in which Meadow assaulted a burglary suspect who was already handcuffed and
under arrest. Meadow's supervisor testified that he carried an unauthorized weapon (the
chrome-tipped baton).
Besides this damaging evidence, the record indicates that the members of the board put a
substantial amount of thought into their decision to uphold Meadow's termination.
__________

1
The record does reveal substantial positive information concerning Meadow. A career police officer,
Meadow has obtained a master's degree in police science and is apparently approaching eligibility for a
doctorate degree. As noted in the dissenting opinion, Meadow was active in promoting several programs of
positive value to law enforcement and the community which he served. He has received numerous
commendations and was discipline-free prior to the occurrence of the incidents resulting in his termination. If we
were empowered to function as the equivalent of a board of review, we may very well have concluded that
Meadow's termination was unduly harsh. However, our function is to determine whether the Civil Service Board
of the Las Vegas Metropolitan Police Department had before it substantial evidence upon which to base its
decision. Because it did, we cannot conclude that the board's ruling was arbitrary, capricious or an abuse of
discretion. Moreover, Meadow's superior officers in the department, including, presumably, the Sheriff,
recommended termination as an appropriate consequence for Meadow's infractions. We are most reluctant, in
light of the evidence in this record, to impose on the Sheriff an officer whom he has determined to be unfit for
service in the law enforcement agency over which he is responsible. It is difficult to hold heads of organizations
responsible for the quality and effectiveness of their efforts if they are forced to work with persons found, by
substantial evidence, to be unfit for service.
members of the board put a substantial amount of thought into their decision to uphold
Meadow's termination. Board member Clark noted Meadow's fine credentials as a police
officer, but also stated that he questioned Meadow's judgment, professionalism and
credibility. Clark observed that an officer in Meadow's position must be beyond reproach.
Board member Boyer agreed with Clark as to Meadow's use of poor judgment. Finally, board
chairman Agonia declared that:
As counsel for the Department stated, this case is not, it's not an easy case to deal with,
because we have at stake the career of an officer who has obviously distinguished
himself both as a member of this community and as a police officer. . . . I don't believe
that [the] good work that has taken place over the years and [the] good work that may
continue is any excuse for the overlooking of the three incidents that have taken place.
The incident with the gun in the mouth, I find inexcusable. Even for a police officer
who had been on this force for one year. I think that that demeaning kind of behavior
should not be meted out to anyone, irrespective of whether they be an unreliable source
of information or whatever. The excessive force that was exhibited in the July 4, 1987
incident, whether excessive or not, I don't believe that you know there's any excuse for
it in terms of the leadership that has to be exhibited by supervisors within the
Metropolitan Police Department. The use of the baton which was clearly not authorized
is just another chain in the events. . . .
To be arbitrary and capricious, the decision of an administrative agency must be in
disregard of the facts and circumstances involved. State v. Ford, 755 P.2d 806, 808 (Wash.
1988). In this case, the record indicates that the board considered all of the evidence, pro and
con, regarding Sergeant Meadow, before deciding to uphold his termination. Accordingly, the
board did not act arbitrarily and capriciously, nor abused its discretion. NRS 233B.140(5)(f).
Therefore, the district court properly upheld the board's decision. Gandy v. State ex rel. Div.
Investigation, 96 Nev. 281, 282, 607 P.2d 581 (1980).
Appellant's other contentions lacking merit, we hereby affirm the decision of the district
court.
Steffen, Springer, and Mowbray, JJ., concur.
Rose, dissenting:
At the Las Vegas Metropolitan Police Department Civil Service Board {the Board) appeal
hearing, the Board received, over objection, the results of a polygraph examination that
indicated Meadow had been deceptive in answering several questions but that an officer
who testified somewhat contrary to Meadow about the same incident had been truthful.
ice Board (the Board) appeal hearing, the Board received, over objection, the results of a
polygraph examination that indicated Meadow had been deceptive in answering several
questions but that an officer who testified somewhat contrary to Meadow about the same
incident had been truthful. The receipt of this evidence was clearly improper and I cannot say
that such error was harmless. Therefore, I would reverse and remand for a new administrative
review hearing.
This court has consistently held that polygraph examination results are not admissible
evidence because they do not possess the trustworthiness or reliability demanded of
competent evidence. Warden v. Lischko, 90 Nev. 221, 224, 523 P.2d 6, 8 (1974); American
Elevator Co. v. Briscoe, 93 Nev. 665, 671, 572 P.2d 534, 535 (1977). While administrative
hearings may be held with less formality than civil or criminal trials, only relevant and
reliable evidence should be received at such proceedings; polygraph examination results do
not have sufficient reliability. See Higley v. Edwards, 678 P.2d 775 (Or.App. 1984).
In a similar case, the Supreme Court of Illinois held that the results of a polygraph
examination given to police officers were not admissible in disciplinary proceedings before
the Board of Fire and Police Commissioners and the receipt of such results at the hearing
required reversal of the disciplinary action taken. Kaske v. City of Rockford, 450 N.E.2d 314,
319 (Ill. 1983). And in a subsequent case, an Illinois Appellate Court held that the mere
receipt of polygraph examination results required reversal of the case and remand for a new
administrative hearing.
In Kaske v. City of Rockford (1983), 96 Ill.2d 298, 70 Ill.Dec. 841, 450 N.E.2d 314,
cert. denied (1983), 464 U.S. 960, 104 S.Ct. 391, 78 L.Ed.2d 335, our supreme court
held that polygraph evidence was inherently deficient and was inadmissible in an
administrative proceeding. The introduction alone of such evidence is reversible error.
The trial court correctly held in the present case that the introduction of polygraph
evidence at the hearing also required reversal.
Salvaglio v. Board of Fire and Police Com'rs, 465 N.E.2d 1065, 1070 (Ill.App. 1984)
(citations omitted).
The Las Vegas Metropolitan Police Department recommended that Meadow be terminated
for three incidents of excessive force and the use of a baton, an unauthorized weapon, during
one of those incidents. In reviewing the record, two of these incidents appear to be more in
the nature of inappropriate conduct rather than the use of excessive force. A pre-termination
hearing was held and the recommendation of the Department was affirmed.
The record on appeal does not contain a transcript of the pre-termination hearing and what
evidence was presented.
The hearing before the Board was an appeal of the pre-termination Board decision. The
recommendation of the pre-termination Board was accepted and then Meadow went forward
with evidence attempting to show that the decision to terminate him was excessive and a less
severe discipline would have been more appropriate. This procedure strikes me as unusual in
that the pre-termination hearing was where the primary evidence was received, but the
transcript of this hearing is not part of the record.
Through several witnesses, Meadow established that he was a career police officer, held a
master's degree in police science and was near receiving his doctorate degree. He had never
been disciplined prior to the incidents in question, had received numerous commendations
and was an officer who believed in pro-active police work. Pro-active police work was
defined as taking the initiative in trying to prevent crimes from happening and assertively
pursuing those who commit offenses. Meadow was instrumental in establishing both the
Street Narcotics Unit and the Burglary Attack Team at the Las Vegas Metropolitan Police
Department. Putting the issue of excessive use of force aside, Meadow is precisely the type of
police officer you would want assigned to your neighborhood.
Meadow called as a witness the police lieutenant who investigated one of the three
incidents. He testified that Meadow was an excellent police officer and that he found no
excessive force when he investigated the incident where Meadow and other officers
apprehended a suspected car thief. On cross-examination, the Department's attorney asked the
lieutenant if the results of a polygraph examination that Meadow had taken would help him in
determining whether excessive force was really used. In arguing that the examination results
could legally be received, the Department's attorney stated:
It may be inadmissible in a court of law, but they are certainly admissible under the
relaxed rules of evidence as applied by this Board. . . . The results of the polygraph in
determining the termination was the appropriate action are very significant in that they
show that Officer Hixson told the truth about the incident and Sergeant Meadow lied. . .
.
Meadow's attorney objected to the receipt of any polygraph examination results, but the
Chairman of the Board received it in evidence. The examination results showed that Meadow
was deceptive in answering several questions concerning the use of excessive force in
apprehending the suspected car thief and the subsequent investigation that followed.
subsequent investigation that followed. No foundation for the admission of the polygraph
examination was established and the polygraph examiner never testified.
The decision to terminate Meadow or impose a lesser disciplinary penalty was a very close
one. Meadow was a career police officer with a distinguished police record and no
disciplinary problems until these incidents. With the admission of the polygraph examination
results, the Board was shown that Meadow was a liar in addition to an officer who had used
excessive force. The Board's decision on the termination of Meadow was split, two in favor
and one opposed. The one board member against termination argued forcefully that the
punishment does not fit the crime.
In the context of this close determination, the receipt of the polygraph examination had the
real potential to tip the scales against Meadow. Credibility was very important in this case. In
fact, one of the Board members who voted for termination stated that in reviewing one of the
incidents, we have a credibility problem here. The polygraph results provided evidence that
severely damaged Meadow's credibility. I therefore cannot say that the improper receipt of the
polygraph results were harmless or that substantial evidence supports the dismissal and
disregard the damning conclusions of the polygraph examination.
If the men accused of the car theft went to trial, any incriminating polygraph examination
they might have taken would not be admissible at their criminal trial, and any conviction
secured at such trial would be reversed. The decision to terminate Meadow was no less
serious to him and he should have a least the same rights as would a criminal defendant.
Meadow testified what law enforcement meant to him:
Law enforcement is the only thing I know. I've dedicated my whole life to being the
best police officer I could. Everything I've done has been for this community and this
department as a whole. My whole life revolves around being a police officer, as my
wife can tell you.
His livelihood was taken from him without a warning or any attempt to rehabilitate him.
Polygraph examination results should not be admitted at administrative hearings any more
than at trials, and any decision made after such evidence is received should be reversed unless
it can be said that there is no reasonable possibility that the clearly improper evidence
influenced the final outcome. That cannot be said in this case and the decision to terminate
Meadow should be reversed and remanded for a new hearing before the Board.
____________
105 Nev. 631, 631 (1989) Phillips v. State
JOHN PHILLIPS, JR., aka JOHN LEATHEL PHILLIPS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 19660
November 2, 1989 782 P.2d 381
Appeal from judgment of conviction, pursuant to jury verdict, of one count each of
burglary and battery with a deadly weapon. Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Defendant was convicted of burglary and of battery with a deadly weapon following jury
trial in the district court and he appealed. The Supreme Court held that: (1) district court did
not commit reversible error by failing, sua sponte and on the record, to conduct a colloquy
with defendant establishing waiver of defendant's right to testify on his own behalf, and (2)
exercise of peremptory challenges by prosecutor was not preserved for appeal.
Affirmed.
Sper & Creel, Las Vegas, for Appellant.
Tufteland and William Henry, Deputy District Attorneys, Clark County, for Respondent.
1. Constitutional Law; Witnesses.
Criminal defendants have right to testify on their own behalf under the due process clause of the fourteenth amendment, the
compulsory process clause of the sixth amendment, and the fifth amendment's privilege against self-incrimination. U.S.C.A.Const.
Amends. 5, 6, 14.
2. Criminal Law; Witnesses.
It is good practice that every defendant should be advised on the record, outside the presence of the jury, by the court of his right to
testify, at or near the end of the State's case-in-chief, but failure of the court to expressly advise defendant of his right to testify does not
automatically require reversal of criminal conviction. U.S.C.A.Const. Amends. 5, 6, 14.
3. Criminal Law.
There was no reversible error in trial court's failing, sua sponte and on the record, to conduct a colloquy with defendant
establishing waiver of defendant's right to testify in his own behalf, where there was no evidence on the record that defense counsel or
trial court coerced or misled defendant into not testifying or that defendant did not know of his right to testify and wanted to take the
stand, and where fact that the defendant had three prior convictions suggested that he knowingly waived his right to testify.
4. Criminal Law.
Alleged use by prosecutor of peremptory challenges to exclude African Americans from jury was not preserved for
appeal in light of failure to include in the record on appeal any facts pertaining to the peremptory
challenges or to supplement the record on appeal.
African Americans from jury was not preserved for appeal in light of failure to include in the record on appeal any facts pertaining to
the peremptory challenges or to supplement the record on appeal. NRAP 10(c)(g).
5. Criminal Law.
Facts or allegations contained in a brief are not evidence and are not part of the record.
OPINION
Per Curiam:
Appellant John Phillips, Jr. (Phillips) was convicted of one count each of burglary and
battery with a deadly weapon. The convictions stemmed from a hammer attack on Phillips'
former girlfriend in the girlfriend's house. Phillips did not testify at his trial. The district court
did not obtain from Phillips a waiver on the record of Phillips' right to testify on his own
behalf. However, there is no evidence in the record to suggest that Phillips did not know that
he could testify on his own behalf; that Phillips ever requested the court to allow him to
testify, or that Phillips' trial counsel or the district court judge in any way coerced or misled
Phillips into not testifying. During jury voir dire Phillips claims that the prosecuting attorney
excluded from the pool of prospective jurors the only two persons of Phillips' same race,
African American. However, the record on appeal does not contain the transcribed record of
the jury voir dire.
Phillips raises two assignments of error by this appeal. First, Phillips claims that the
district court erred by failing, sua sponte and on the record, to conduct a colloquy with
Phillips establishing a waiver of Phillips' right to testify on his own behalf. This is a question
of first impression for this court. Second, Phillips urges that the prosecuting attorney's
exercise of peremptory challenges as to the only two prospective African American jurors
constituted a violation of the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986).
I. WAIVER OF THE RIGHT TO TESTIFY IN ONE'S OWN BEHALF IN CRIMINAL
CASES.
[Headnotes 1, 2]
Criminal defendants have the right to testify on their own behalf under the due process
clause of the fourteenth amendment, the compulsory process clause of the sixth amendment
and the fifth amendment's privilege against self-incrimination. Rock v. Arkansas, 483 U.S.
44, 49 (1987). Phillips urges this court to adopt the minority rule of People v. Curtis, 681
P.2d 504 (Colo.
1984). Curtis requires the trial court, sua sponte and on the record, to conduct a colloquy
establishing waiver by a criminal defendant of the defendant's right to testify. Curtis, 681
P.2d at 512. Curtis is a minority view. Id. at 512, n. 9. This court finds only two other cases
adopting the same rule. See State v. Neuman, 371 S.E.2d 77 (W.Va. 1988); Culberson v.
State, 412 So.2d 1184 (Miss. 1982). One court has held that Curtis mandates reversal of a
criminal conviction for failure to conduct the colloquy, even when, as here, the record is
merely silent as to whether or not the defendant was aware of this right or desired to testify.
See Neuman, supra.
We decline to adopt the rule of Curtis that mandates the reversal of any criminal
conviction if the defendant has not been expressly advised by the court of his right to testify.
Neither the United States Supreme Court nor any other federal court has required a waiver on
the record of the right to testify in all cases. Indeed, some federal courts have declined to
impose such a requirement. See United States v. Systems Architects, 757 F.2d 373, 376 (1st
Cir. 1985), cert. denied, 474 U.S. 847 (1985); United States v. Janoe, 720 F.2d 1156, 1161
(10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). We do believe that every defendant
should be advised on the record, but outside the presence of the jury, by the court of his right
to testify at or near the end of the State's case-in-chief. This will eliminate any question about
the defendant knowing that he has such a constitutional right and that the decision is
ultimately his to make. In summary, while it is good practice, the Curtis colloquy is not a sine
qua non of a valid conviction in all cases.
[Headnote 3]
There is no evidence on the record that defense counsel or the trial judge coerced or misled
the defendant into not testifying or that Phillips did not know of his right to testify and
wanted to take the stand. The fact that Phillips had three prior convictions suggests that
Phillips knowingly waived his right to testify for two reasons. First, Phillips probably decided
not to take the stand in order to avoid being impeached with the three prior convictions in
front of the jury. Second, in light of his three prior involvements with the criminal justice
system, Phillips' claim that he was unaware of his right to testify strains credulity. This is
especially so where Phillips' defense counsel called six other witnesses on Phillips' behalf at
trial.
II. THE EXERCISE OF PEREMPTORY CHALLENGES BY THE PROSECUTOR.
[Headnotes 4, 5]
If Phillips states a prima facie Batson violation, the prosecutor must offer a racially
neutral explanation for the exercise of peremptory challenges.
must offer a racially neutral explanation for the exercise of peremptory challenges. See
Batson, supra; Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987). The only evidence
Phillips presents regarding his Batson claim is not evidence at all, but, rather, the following
allegation in Phillips brief: Court-appointed counsel has been advised by Appellant that the
state removed both prospective black jurors by the use of peremptory challenges. The record
does not contain a transcript of jury voir dire or any other evidence relating to these
peremptory challenges.
Phillips has not properly preserved this issue for appeal by failing to include in the record
on appeal any facts pertaining to these two peremptory challenges. This court can rule only on
matters contained within the record. A Minor v. State, 85 Nev. 323, 325, 454 P.2d 895, 896
(1969). Facts or allegations contained in a brief are not evidence and are not part of the
record. Id.; Sparks v. State, 96 Nev. 26, 29, 604 P.2d 802, 804 (1980). Under these
authorities, this court cannot reach Phillips' Batson claim. Even if this court did accept
Phillips' allegations as evidence stating a prima facie Batson violation, the record contains no
evidence to permit this court to assess whether the prosecutor had a neutral explanation for
these peremptory challenges.
Phillips' appellate counsel states that he could not have known of a possible Batson
violation since appellate counsel was not present at trial and any records on jury voir dire
likely would not include any reference to race. Even granting that this is true, however,
appellate counsel learned of Phillips' Batson claim before filing the Opening Brief of
Appellant. Since then, appellant's counsel could have remedied the defect in the record in at
least two ways. First, based on excusable neglect, counsel could have moved this court to
supplement the record pursuant to NRAP 10(g). Second, even if there was no reporter's
transcript of the voir dire, counsel could have prepared a statement of what transpired based
on Phillips' and trial defense counsel's recollections pursuant to NRAP 10(c). Phillips had a
fair opportunity to supplement the record on appeal. Although this court does not lightly
dismiss constitutional claims due to an inadequate record, Phillips must present this claim, if
at all, through other post-conviction processes.
For the reasons stated above, we affirm the district court's judgment of conviction in all
respects.
____________
105 Nev. 635, 635 (1989) Cronin v. District Court
JOSEPH I. CRONIN, ESQ., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and THE
HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Respondents, and
RALPH ENGELSTAD, BETTY A. ENGELSTAD, Individually and dba IMPERIAL
PALACE HOTEL AND CASINO, Las Vegas, Nevada; THE IMPERIAL PALACE,
INC., a Nevada Corporation, Real Parties in Interest.
No. 19890
November 2, 1989 781 P.2d 1150
Original petition for writ of certiorari or, in the alternative, for writ of mandamus. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Plaintiffs' attorney petitioned for writ of certiorari or mandamus to challenge order
disqualifying him from representing plaintiffs. The Supreme Court, Rose, J., held that
attorney's ex parte communications with management level employees of defendant permitted
district court to disqualify him.
Petition denied.
[Rehearing denied April 19, 1990]
Joseph I. Cronin, for Petitioner.
Bell & Young and Craig Hoppe, Las Vegas; Barker, Gillock, Koning, Brown & Earley,
Las Vegas, for Respondents and Real Parties in Interest.
1. Mandamus.
Mandamus is properly used to challenge orders disqualifying attorneys from representing parties in actions that are pending in
district courts.
Attorney's ex parte communications with defendant's management level employees, director of corporate security, its director of
human resources, and its chief of uniformed security about plaintiffs' case permitted district court to disqualify attorney from
representing plaintiffs, even though attorney did not intentionally violate prohibition against ex parte communications and presented
substantial, credible evidence that defendant was systematically destroying relevant evidence. SCR 182; ABA Model Rules of
Professional Conduct, Rules 4.2, 4.2 comment.
District courts have responsibility for controlling conduct of attorneys practicing before them and have broad discretion in
determining whether disqualification is required in particular case.
District court's determination whether to disqualify attorney will not be disturbed absent showing of abuse of discretion.
In situation involving disqualification of attorney, any doubt should be resolved in favor of disqualification.
District court deciding whether to disqualify attorney must balance prejudices that will inure to parties as result of its decision.
Neither attorney's negligence nor his ignorance of prohibition against ex parte communications with opposing party can justify
violation of rule. SCR 182.
Neither client's interest nor opponent's conduct justify communication with adverse party that lawyer knows is represented by
counsel. SCR 182.
OPINION
1

On December 14, 1984, James and Joan Scanlon were paying guests at the Imperial Palace
Hotel in Las Vegas. While they were in their room on that date, a man dressed in a hotel
service type uniform appeared in the room, robbed the couple and raped Joan Scanlon.
Consequently, in 1986, the Scanlons commenced an action against the Imperial Palace Hotel
and its owners (collectively referred to as Imperial Palace). On August 9, 1988, the Scanlons,
represented by petitioner (Cronin), filed in the district court an amended complaint seeking
damages from the Imperial Palace for, among other things, negligently failing to provide
adequate security for the guests of the hotel.
Prior to the filing of the amended complaint, on either July 19, 1988, or July 21, 1988,
Mick Shindell, the director of corporate security at the Imperial Palace, received a call from
the hotel PBX that attorney Cronin was waiting to see him and to serve some papers on him.
2
Cronin was escorted to Shindell's office and served the papers. It appeared to Shindell that
Cronin knew he was the director of corporate security, and Shindell assumed that his position
in the hotel management structure was the reason that he was being served with the
papers.
__________

1
Although the petition names both Joseph Cronin and Louis Wiener, Jr., as petitioners, the petition is signed
only by Cronin. Further, only Cronin submitted an affidavit supporting the petition, and the petition contains
arguments that are relevant only to Cronin. Therefore, it does not appear that Louis Wiener is challenging the
order of disqualification in this case.

2
The facts regarding the employees of the Imperial Palace are taken from the depositions of those
employees.
his position in the hotel management structure was the reason that he was being served with
the papers. Shindell conversed with Cronin for about 10 minutes, and then walked Cronin to
the front of the hotel. Before Cronin left the premises, Shindell told him that somebody may
call him, regarding the Scanlon case.
Shindell called Cronin's office in Minden the following day. Shindell told Cronin that he
wanted to meet with him personally to discuss the Scanlon case. Cronin was receptive to the
idea, and a meeting was scheduled. Shindell then mentioned his plan to meet with Cronin to
two other Imperial Palace employees, Shirley Albury and Ed Steffen.
Cronin met with Shindell the following Wednesday at a restaurant in Las Vegas. The
meeting lasted about one and one-half hours at that location, and continued for an additional
hour at Shindell's home. During the meeting, Shindell told Cronin that he was ordered to
destroy any documents in his files which indicated that the security department at the Imperial
Palace needed improvement. Shindell also gave Cronin several documents from the Imperial
Palace during that meeting. Shortly afterwards, Shindell told Shirley Albury and Ed Steffen
of his meeting with Cronin. Shindell telephoned Cronin the following day, and informed him
that Shirley Albury wanted to talk to him.
Shirley Albury, the director of human resources at the Imperial Palace, first met Cronin at
Shindell's house in mid or late July of 1988, within one week of her conversation with
Shindell. Albury informed Cronin of her job title and duties at the Imperial Palace, and
specifically asked Cronin if she could talk to him. According to Albury, Cronin did nothing to
discourage her from talking to him. During her initial three-hour meeting with Cronin, Albury
told Cronin that she was ordered to purge, and did purge from several personnel files,
information that might harm the Imperial Palace in the Scanlon case. According to Albury,
the files were purged during the hotel's process of responding to a request for production of
documents.
3

Albury met with Cronin on four subsequent occasions to discuss various aspects of the
Scanlon case. Albury gave Cronin a 4-5 inch stack of Imperial Palace documents during the
course of those meetings. The final meeting occurred at her home on September 8, 1988,
when Cronin stopped by her home, unannounced, while she, Shindell and others were
present. During the two hours that Cronin was in Albury's house, Cronin showed Albury and
Shindell the draft of a document that he intended to file in court.
__________

3
There is no indication in the record that the attorneys representing the Imperial Palace had any knowledge
of the alleged destruction of documents.
Ed Steffen, the chief of uniformed security at the Imperial Palace, met with Cronin on two
occasions. The first meeting was arranged by Shindell at Steffen's request. Although Steffen
met with Cronin at Shindell's home for about three hours, the two talked about the Scanlon
case for only about fifteen minutes. The second meeting with Cronin was not scheduled;
Steffen was simply present at Shindell's house when Cronin stopped by. They discussed the
Scanlon case, and Cronin questioned Steffen regarding certain Imperial Palace documents.
Steffen admitted giving documents to Shindell, and assumed that the documents were
forwarded to Cronin.
On September 18, 1988, the Scanlons filed in the district court a motion to strike the
answer of the Imperial Palace to the amended complaint, and for the entry of judgment in
favor of the Scanlons due to the alleged willful destruction of evidence by the Imperial
Palace. That motion alleged that the Imperial Palace had ordered hotel employees to purge
embarrassing material from the hotel's files. In particular, the motion alleged that all security
incident reports and crime reports predating January 1, 1983, were destroyed. The motion
also alleged that personnel files concerning security employees were purged of negative
evaluations and other material that might reflect negatively on the security in the hotel.
The Imperial Palace opposed the motion to strike, and categorically denied destroying any
documents. Further, it labelled as untrue deposition testimony which indicated that
documents were destroyed, and stated that other deposition testimony indicated that copies of
the allegedly destroyed documents were still in existence.
In September of 1988, during the pendency of the motion to strike, the Imperial Palace
filed in the district court a motion for a temporary restraining order and for a preliminary
injunction. In that motion, the Imperial Palace asserted that Cronin acted improperly when he
communicated with its employees without the consent of its attorneys. See SCR 182 (a lawyer
is prohibited from communicating with an adverse party who is represented by an attorney
without the consent of the attorney). Accordingly, the Imperial Palace asked that Cronin be
enjoined from engaging in any further ex parte communications with its employees. The
district court issued a restraining order on September 20, 1988. Cronin opposed the motion
for a preliminary injunction.
On January 9, 1989, during the pendency of the request for an injunction, the Imperial
Palace filed in the district court a motion to disqualify Cronin from representing the Scanlons
in the action below. The Imperial Palace asserted that, prior to his meetings with Cronin,
Shindell had been present in meetings where settlement strategies in the Scanlon case
were discussed.
with Cronin, Shindell had been present in meetings where settlement strategies in the Scanlon
case were discussed. Therefore, the Imperial Palace argued that it was irreparably harmed by
Cronin's unauthorized interviews because of the actual and the potential disclosure of
attorney-client and work product disclosures that occurred during those interviews.
[Headnote 1]
Cronin opposed the motion to disqualify arguing, among other things, that considerations
of public policy excused his actions. On March 14, 1989, after a hearing, the district court
entered an order granting the motion to disqualify. This proceeding followed.
4

[Headnote 2]
Cronin contends in his petition that the district court incorrectly determined that he
communicated with an adverse party when he spoke with the employees of the Imperial
Palace regarding the Scanlon case. Cronin asserts that the employees contacted him initially,
and that he did not speak with employees of the Imperial Palace who had managing authority
for the hotel. Further, he states that none of the employees he interviewed had any authority to
control the litigation below. Therefore, Cronin contends that the district court erred in
determining that he violated SCR 182 when he interviewed the employees of the Imperial
Palace. See Wright by Wright v. Group Health Hosp., 691 P.2d 564, 570 (Wash. 1984) (the
provisions of DR 7-104(A)(1), the predecessor to SCR 182, did not prohibit a lawyer
representing the plaintiff in a medical malpractice action from interviewing, ex parte,
nonspeaking/managing agent employees of the defendant).
The Imperial Palace correctly notes, however, that the Wright case interpreted DR
7-104(A)(1). That rule was superseded in Nevada by SCR 182, which states:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized by law to
do so.
The Nevada Rules of Professional Conduct are taken from the ABA Model Rules of
Professional Conduct. See SCR 150(1). Although the preamble and comments to the Model
Rules were not adopted by this court, those materials "may be consulted for guidance in
interpreting and applying the Nevada Rules of Professional Conduct, unless there is a
conflict between the Nevada Rules and the preamble or comments."
__________

4
Mandamus is used properly to challenge orders disqualifying attorneys from representing parties in actions
that are pending in the district courts. See Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982).
not adopted by this court, those materials may be consulted for guidance in interpreting and
applying the Nevada Rules of Professional Conduct, unless there is a conflict between the
Nevada Rules and the preamble or comments. SCR 150(2). SCR 182 was taken verbatim
from Model Rule 4.2. Comment 2 to the Model Rule 4.2 provides in pertinent part:
In the case of an organization, this Rule prohibits communications by a lawyer for
one party concerning the matter in representation with persons having a managerial
responsibility on behalf of the organization, and with any other person whose act or
omission in connection with that matter may be imputed to the organization for
purposes of civil or criminal liability or whose statement may constitute an admission
on the part of the organization. If an agent or employee of the organization is
represented in the matter by his or her own counsel, the consent by that counsel to a
communication will be sufficient for purposes of this Rule. . . .
[Headnotes 3-5]
Initially, we note that the district courts have the responsibility for controlling the conduct
of attorneys practicing before them. See Trust Corp. of Montana v. Piper Aircraft Corp., 701
F.2d 85 (9th Cir. 1983); Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7 (1929)
(district court has inherent power to enjoin an attorney from representing conflicting
interests). Further, the district courts have broad discretion in determining whether
disqualification is required in a particular case, and that determination will not be disturbed
by this court absent a showing of abuse of that discretion. See Schloetter v. Railoc of Indiana,
Inc., 546 F.2d 706 (7th Cir. 1976). See also Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219
(1982) (disqualification of prosecutor's office rests in the discretion of the district court);
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) (mandamus will
issue to control an arbitrary or capricious exercise of discretion by a district court). Finally, in
a situation involving the disqualification of an attorney, any doubt should be resolved in favor
of disqualification. See Hull v. Celanese Corporation, 513 F.2d 568 (2d Cir. 1975).
[Headnote 6]
Although the district court has wide latitude in determining whether to disqualify counsel
from participating in a given case, its discretion in such cases is not unlimited. The district
court must balance the prejudices that will inure to the parties as a result of its decision. See
Shelton v. Hess, 599 F.Supp. 905 {S.D.Tex.
(S.D.Tex. 1984). Therefore, to prevail on a motion to disqualify opposing counsel for an
alleged ethical violation, the moving party must first establish at least a reasonable
possibility that some specifically identifiable impropriety did in fact occur. Id. at 909.
Moving counsel must also establish that the likelihood of public suspicion or obloquy
outweighs the social interests which will be served by a lawyer's continued participation in a
particular case. Id.
[Headnote 7]
In the present case, it is undisputed that Cronin had repeated and pervasive ex parte
communications with management level employees of the Imperial Palace to discuss the
Scanlon case. He met with Mick Shindell twice, Shirley Albury five times and Ed Steffen
twice. He received extensive records from the three. Cronin admitted in a deposition that he
knew that Mick Shindell was the executive in charge of the security department at the
Imperial Palace prior to his first meeting with Shindell. Cronin also admitted in an affidavit
filed below that he had interviewed three current management level employees of the Imperial
Palace. Those documents belie Cronin's statement in this proceeding that he communicated
only with non-speaking/managing employees of the Imperial Palace. It is clear that Cronin
knew that each of the persons he interviewed was a high-ranking employee of the Imperial
Palace. Although we do not believe that Cronin intentionally violated SCR 182 when he met
with the employees of the Imperial Palace, neither Cronin's negligence nor his ignorance of
the rule can justify his conduct. See In re Lewelling, 678 P.2d 1229, 1230 (Or. 1984). Thus,
the district court was clearly confronted with at least a reasonable possibility that a
specifically identifiable impropriety did occur.
[Headnote 8]
The second determination, whether the likelihood of public suspicion or obloquy
outweighs the social interests that would be served by Cronin's continued participation in the
Scanlon case, is not as easy as the first. This court has previously characterized as
reprehensible the conduct of an attorney who engages in ex parte communications with an
opposing party who is represented by counsel. See Holiday Inn v. Barnett, 103 Nev. 60, 732
P.2d 1376 (1987). As outlined at the beginning of this opinion, however, Cronin was
presented with substantial amounts of credible evidence that the Imperial Palace was
systematically destroying evidence relevant to the Scanlon case. Indeed, if the allegations of
wrongdoing by the Imperial Palace contain even a scintilla of truth, public suspicion and
obloquy could be fostered by Cronin's disqualification.
disqualification. We note, however, that by failing to disclose evidence of the Imperial
Palace's alleged fraud to the district court at the earliest opportunity, Cronin may have
become an unwitting participant in that alleged fraud. In this regard, we note that upon
receiving evidence of the alleged fraud, Cronin apparently increased his demand for
settlement from $750,000 to 5,000,000. Although this increased settlement demand was
undoubtedly prompted by the allegedly improper acts of the Imperial Palace, and was almost
certainly in the best interests of the Scanlons, neither a client's interests nor an opponent's
conduct justify communication with an adverse party that a lawyer knows is represented by
counsel. See Lewelling, 678 P.2d at 1230; In re Schwabe, 408 P.2d 922 (Or. 1965).
The disqualification of Cronin may impose a substantial economic penalty on him as the
dissent in this case points out. And the real parties in interest may have committed acts more
serious than those of Cronin. However, it is our obligation to review and act upon Cronin's
conduct, a member of the Nevada Bar. We are not now called upon to determine the
violations of the real parties in interest or the penalties that should be imposed upon them.
That is initially left to other public officials and courts. Although Cronin was faced with a
difficult situation and conflicting loyalties, we cannot overlook conduct that clearly violates
the letter and spirit of SCR 182.
Finally, we note that Cronin does not dispute the allegation of the Imperial Palace that
prior to meeting Cronin, Mick Shindell was present at meetings with attorneys for the
Imperial Palace at which the Scanlon case was discussed. This circumstance created a great
potential for disclosure of privileged material during Shindell's meetings with Cronin, and
thus constitutes another factor that the district court could have used in determining that the
nature and extent of Cronin's conduct outweighed the Scanlons' interest in being represented
by counsel of their choice. See Shelton, 599 F.Supp. at 909.
In light of the above, we conclude that the district court properly balanced the interests of
the parties below when it resolved the motion to disqualify Cronin from representing the
Scanlons. The circumstances of this case reveal no abuse of discretion by the district court;
therefore, we are constrained to deny this petition.
5

__________

5
Cause appearing, we deny the parties' respective request for sanctions.
It is alarming to me that Imperial Palace, guilty of the kinds of wrongdoing attributed to its
management, should be successful in having Mr. Cronin eliminated as counsel in this case.
Imperial Palace claims no prejudice that might result from Mr. Cronin's continuing as counsel
in this case and paradoxically must rest its case on the collateral claim of Mr. Cronin's
wickedness in violating our rule, SCR 182.
The severance of the attorney-client relationship, the denial to Mr. Cronin's clients of the
right to counsel of their choosing, does not seem to me to bear any relationship to what, by all
accounts, was at worst an unintentional violation of our rule. Aside from the interests of the
clients in this case, it does not seem to me that summary removal of counsel for the plaintiffs
in this case is an appropriate penalty to be imposed upon the attorney given even the worst
possible interpretation of his conduct in this case.
1

Rather than sever the attorney-client relationship in this case, thereby punishing both client
and attorney, I would simply refer the matter to the Bar. If Mr. Cronin is claimed to be guilty
of an unintentional rule violation, it should be dealt with in the same manner as other ethical
and disciplinary matters are dealt with. To allow the trial court's order to stand is, to my mind,
to permit a great and regrettable injustice to both Mr. Cronin and his clients.
__________

1
We cannot be blind to the fact that removal of Mr. Cronin as counsel in this case will very probably result
in a loss to him of fees in the hundreds of thousands of dollars. Such a fine is painful indeed as a consequence
for Mr. Cronin's receiving information about Imperial Palaces's attempt to corrupt the judicial system. Also, it
does not seem fair to me that Mr. Cronin should be punished at the behest of Imperial Palace. The wrongdoer
goes unpunished; the discoverer of the wrongdoing is punished by being removed from the case. This is not
right.
____________
105 Nev. 644, 644 (1989) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS,
DEPARTMENT I and THE HONORABLE DAVID R. GAMBLE, JUDGE,
Respondent, and ALEJANDRO C., a Minor, Real Party in Interest.
No. 19350
November 2, 1989 781 P.2d 776
Original petition for a writ of mandamus.
State filed a motion to certify youth for trial as an adult. The district court denied the
motion on the grounds that the juvenile court was without jurisdiction to certify a minor for
offenses committed before age sixteen. State filed a petition for writ of mandamus. The
Supreme Court, Steffen, J., held that statute empowers the juvenile court to certify and
transfer to the adult criminal justice system minors sixteen years of age or older who commit
felonious offenses prior to their sixteenth birthday.
Petition granted.
Brent Kolvet, District Attorney, Douglas County, for Petitioner.
Ronald J. Bath, Reno, for Respondent.
Infants.
The juvenile court is empowered by statute to certify and transfer to the adult criminal justice system minors sixteen years of age
or older who commit felonious offenses prior to their sixteenth birthday; however, before exercising discretion to reject or grant a
request for certification of such a minor as an adult, the juvenile judge must make a full investigation, and the judge is expected to
appropriately weigh unpersuasive efforts by the prosecution to explain substantial delays in dealing with minors charged with serious
offenses. NRS 62.080.
OPINION
The sole issue presented by this original mandamus proceeding is whether NRS 62.080
1
empowers the juvenile court to certify and transfer to the adult criminal justice system
minors sixteen years of age or older who commit felonious offenses prior to their
sixteenth birthday.
__________

1
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
and transfer to the adult criminal justice system minors sixteen years of age or older who
commit felonious offenses prior to their sixteenth birthday. We hold that it does.
The minor whose conduct prompted these proceedings was approximately one month shy
of his sixteenth birthday when he allegedly committed six serious offenses, each of which
would have been a felony if committed by an adult. After an investigation, the State filed a
petition alleging delinquency with the juvenile court on July 18, 1988. The petition charged
the minor, Alejandro C., with sexual assault, attempted sexual assault, two counts of battery
with intent to commit sexual assault, and two counts of burglary. Thereafter, on August 9,
1988, the State filed a motion pursuant to NRS 62.080 to certify Alejandro C. for trial as an
adult. The juvenile judge denied the State's motion on grounds that the juvenile court was
without jurisdiction to certify a minor for offenses committed before age sixteen. The State
subsequently challenged the ruling of the juvenile court by filing a petition for writ of
mandamus in this court.
As a general rule, courts are enjoined to construe statutory language so as to give effect
to, rather than nullify, an act of the legislature. State ex rel. Kaufman v. Martin, 31 Nev. 493,
499, 103 P. 840, 842 (1909). The operative phrase used by the legislature in conferring
certification jurisdiction on the juvenile court consists of the words is charged with.
Paraphrasing the key language, if a juvenile 16 years of age or older is charged with an
offense which would be a felony if committed by an adult the juvenile court may either
retain jurisdiction or transfer the child to the adult criminal system (emphasis ours). If the
legislature had intended to limit certification proceedings to juveniles who commit felonious
offenses after reaching age sixteen, it would have so provided.
Although the language of the statute is clear, the eventual resolution of this proceeding
was delayed as a result of internal debate and concern over the possibility that a frank
recognition of the statutory language would facilitate prosecutorial manipulation of the
juvenile justice system by merely sitting back and waiting for a youth's sixteenth birthday
before charging him or her with an offense committed at an earlier age.
__________
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.
an offense committed at an earlier age. Ultimately, and with due respect for the views of the
dissenting justice, we concluded that there are substantial safeguards in place to minimize, if
not eliminate, such a contingency.
The statute provides that a juvenile judge may not exercise his or her discretion on the
issue of certification until after a full investigation. Once the investigation is complete, the
juvenile judge has the discretion to reject the State's request for certification and to retain
jurisdiction over the juvenile offender. And the judge is expected to appropriately weigh
unpersuasive efforts by the prosecution to explain substantial delays in dealing with a
juvenile chargeable with serious offenses. Moreover, we have provided the juvenile court
with extensive guidelines to assist in determining whether to transfer a child to the adult
criminal system. See In the Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983). We
are confident that our juvenile judges will give careful consideration to those guidelines in
reaching a decision regarding certification. If, after analyzing the results of the full
investigation required by the statute and applying the guidelines specified in Seven Minors,
the juvenile judge abuses his discretion, this court remains as an additional safety valve to
prevent unwarranted prosecutions of juveniles in adult criminal proceedings.
The statute as enacted by the legislature provides a desirable flexibility in the handling of
youthful offenders. In Seven Minors, we observed that 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. Id. at 99 Nev. 430, 664 P.2d 949 (footnote omitted). Thus, in a given case, a
juvenile judge may determine that a minor who has committed a serious offense at age
fifteen, but who was not identified as the offender until shortly before or sometime after age
sixteen, may fully satisfy the criteria for certification. In other cases involving the same or
similar age components, the juvenile judge may determine that the complex of factors
impacting the youthful miscreant and the demands of society warrants retention of the minor
in the juvenile justice system.
Giving effect to the literal language of the statute is also consonant with Nevada law that
makes children between the ages of eight and fourteen years subject to criminal
accountability and punishment if there is clear proof that such children knew the
wrongfulness of their offenses at the time they were committed.2 Logically, then,
certification proceedings should at least be theoretically available where felonious
offenses have been committed by eight-year-olds who are identified as the perpetrator
shortly before or sometime after their sixteenth birthday.
wrongfulness of their offenses at the time they were committed.
2
Logically, then,
certification proceedings should at least be theoretically available where felonious offenses
have been committed by eight-year-olds who are identified as the perpetrator shortly before or
sometime after their sixteenth birthday. Although petitions for certification of
sixteen-year-olds who committed their offenses at age eight would be so rare as to approach
historical nonoccurrence, petitions against minors who committed their felonious offenses as
physically strong, violent fifteen-year-olds could, in today's world, be anticipated with
frightening frequency.
Moreover, the statutory language and scheme selected by the legislature is responsive to
trends in juvenile crime. States are reducing the age of minors certifiable to criminal courts
for felonious crimes. The Appendix to 4.10 of the Model Penal Code & Commentaries
(1985) reflects that children committing serious crimes (i.e., felonies) are transferable to
criminal courts in at least thirty-four states at ages varying between thirteen and fifteen years.
3
Only eight states restrict waiver to children committing crimes after their sixteenth
birthday.
4
Such trends among the states are hardly surprising given the fact that persons
under the age of eighteen commit approximately twenty percent of the violent crime and
forty-four percent of serious property crimes nationwide. Comprehensive Crime Control Act
of 1983: hearings before the Subcommittee on Criminal Law of the Committee on the
Judiciary, United States Senate, Ninety-eighth Congress, first session on S. 829, p. 551
(1983). Moreover, according to statistics covering the year 1979, minors under the age of
fifteen committed 206 homicides, in excess of 1,000 forcible rapes and more than 10,000
robberies and 10,000 aggravated assaults. Id.
__________

2
NRS 194.010, in pertinent part, reads:
Persons capable of committing crimes. All persons are liable to punishment except those belonging to the
following classes.
1. Children under the age of 8 years.
2. Children between the ages of 8 years and 14 years, in the absence of clear proof that at the time of
committing the act charged against them they knew its wrongfulness.

3
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana,
Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New
Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah,
Virginia, Washington, West Virginia and Wyoming.

4
Delaware, Hawaii, Kansas, Montana, North Dakota, Oregon, Rhode Island and Wisconsin.
at 554 (citing the United States Department of Justice, Sourcebook of Criminal Justice
Statistics, 1981).
Finally, we are confident that if the legislature intended to limit the availability of transfer
proceedings to minors who have committed felonious offenses at age sixteen or older, it will
be prompted by this decision to amend the statute accordingly. Because the language of the
existing statute is clear and provides a reasonable, flexible scheme for dealing with juveniles
involved in the commission of serious offenses we are unwilling to alter the scope and effect
of the statute in the name of statutory construction.
In light of the above, we conclude that petitioner's request for a writ of mandamus is
justified. Accordingly, the clerk of this court shall issue a writ of mandamus directing the
respondent to reinstate the State's petition to certify Alejandro C. for trial as an adult pursuant
to NRS 62.080 and to decide the petition in accordance with the procedure specified in this
opinion.
5

Nevada's juvenile court act was enacted in 1911. At that time the juvenile court was
empowered in its discretion, in any case of a delinquent child [to] permit such child to be
proceeded against in accordance with the [criminal] laws. . . . 1911 Nev. Stats., ch. 197 10,
at 388 (our emphasis). In 1949 this provision was amended so as no longer to allow any
child to be tried as an adult, but, rather, to limit the process to more mature children who
commit serious crimes after they have become 16 years of age or older.
For fifty years now our juvenile courts have from time to time in their discretion
removed from the grace of the juvenile court certain juveniles who commit crimes at ages
sixteen and seventeen. No child who has committed a crime under the age of sixteen has
since the enactment of this statute in 1949 been subject to transfer proceedings to the adult
court. The reason for this is that everyone concerned has understood that the purpose of the
statute is to take a few of the more serious or incorrigible older offenders, sixteen and
seventeen, out of the juvenile court and hold them accountable as adults. Perhaps in today's
world the legislature should consider lowering the statutory age of adult transfer to fifteen or
even lower, but the law as it stands and as it has stood for the past fifty years sets 16 years of
age or older as the determinative time.
__________

5
as the determinative time. The result of the majority opinion is to revert to the law as it was in
1911. It is most difficult for me to believe that when the statute was amended in 1949 to set
the sixteen year age limitation, the legislature intended to keep the same any case, any age
application of the statute that had been in effect since 1911.
Understandably outraged by the seriousness of the charge in this case, the Douglas County
prosecutor seeks to change the law by urging a rather tortured interpretation of the law that
would allow the juvenile court to transfer a child for adult prosecution no matter at what age
the child committed the offense. That a prosecutor would press this point to the court is
understandable. That this court would reverse the trial court's correct holding and adopt this
position is not understandable to me.
The majority opinion interprets the juvenile certification statute, which allows for transfer
to the adult court of certain juveniles who commit crimes after they have passed their
sixteenth birthday, in a manner that does violence to the meaning and intent of the juvenile
court act.
Now adult criminal prosecutions may be brought against juveniles no matter at what age
they happen to violate the criminal law. The juvenile court act does not provide this and does
not mean this.
My dissent is based on these grounds:
1. The Issue Has Already Been Decided. In In re Three Minors, 100 Nev. 414, 417, 684
P.2d 1121, 1123 (1984), we characterized the triggering event for the institution of transfer
proceedings as the commission of a felonious offense by a juvenile 16 years of age or older.
This language belies the waiting game espoused by the majority opinion, which allows
adult criminal prosecution to be levied against children who commit crimes at tender years.
1

2. Any Ambiguity In the Statute Should Be Resolved in Favor of the Juvenile. [A]n
ambiguous statute must be construed liberally in favor of the accused. Sheriff v. Lang, 104
Nev. 539, 541, 763 P.2d 56, 58 (1988). If this statute were to be construed in favor of the
juvenile, he would be treated as fifteen-year-old offenders have been treated for fifty years
and would not be subject to adult prosecution. The only question, then, is whether the statute
is ambiguous. The majority says that the language of the statute is clear. I do not think so.
The majority sternly proclaims that the words "charged with an offense" can have only
one possible meaning and that is the meaning consistent with its view that adult transfer
proceedings can be "charged" at any time after a juvenile's sixteenth birthday no matter
when the delinquency was committed.
__________

1
I am very much aware of the majority's prediction that this probably will not happen, but I am very
reluctant to believe that the legislature would have enacted a law that would allow it to happen.
proclaims that the words charged with an offense can have only one possible meaning and
that is the meaning consistent with its view that adult transfer proceedings can be charged
at any time after a juvenile's sixteenth birthday no matter when the delinquency was
committed. With due respect to my colleagues I see many possible interpretations of the
words charged with an offense. I am somewhat puzzled by the ease with which the majority
resolves this issue, seeing no shades of meaning in the phrase and admitting to no doubt about
what the majority asserts to be clear and unequivocal legislative intent. All we have to do is
look at a legal dictionary to see that the word charged is not employed in its usual sense. As
noted below, the word charged has a number of possible meanings, most of which are
inconsistent with the majority view.
2
The most reasonable interpretation of the language in
question and the only interpretation consistent with juvenile court jurisprudence is the
interpretation heretofore made in Three Minors, which refers to, the charged commission of
a felonious offense by a juvenile 16 years of age or older. (Emphasis added.) This means to
me that transfer proceedings can be effected by charging that a felonious offense has been
committed by whom?by a juvenile 16 years of age or older. That only offenses
committed by juveniles sixteen years or older are subject to prosecution in the adult court is
as clear to me as it is unclear to my colleagues. I hope that such diversity of opinion can at
least be taken to show that the language is in some degree ambiguous. To me it is rather
obvious that there is absent in this case the necessary commission of a felonious offense by a
juvenile 16 years of age or older. What we have here, rather, is commission of a felonious
offense by a fifteen year old and not by one sixteen years or older. If I were to go so far as to
say, as has the majority, that the language of the statute is clear, I would simply say, as we
did in Three Minors, that charged with an offense refers to the charging event mentioned in
Three Minors, namely, the charged commission of a felonious offense by a juvenile 16
years of age or older. I do not, however, make such a claim of absolute clarity and say only
that because it is not entirely clear what "charged with an offense" means in the context
of the juvenile court act, and because it might even mean that the prosecutor can wait
until a younger juvenile reaches sixteen before initiating proceedings directed toward
adult prosecution, the ambiguity must be resolved in favor of the juvenile; and the
juvenile must, therefore, be retained in the juvenile court, as properly held by the district
judge.
__________

2
The word charged is necessarily anomalous and out of place in the juvenile court act. The legal meaning of
charge is the accusation of a crime by a formal complaint, information or indictment. Black's Law Dictionary
211 (5th ed. 1979). Juvenile proceedings are noncriminal in nature, NRS 62.193, and no charge can be brought
against a juvenile until after transfer. Some meaning other than that assigned by the dictionary must be given to
the word charged in this context, and I am afraid I do not know that meaning. A charge could mean the filing of
the juvenile court petition under NRS 62.130 or it could mean the institution of the transfer or certification
proceedings under NRS 62.080; or it could have some amorphous meaning like suspected of or accused.
The one thing that the word charged is not is clear.
because it is not entirely clear what charged with an offense means in the context of the
juvenile court act, and because it might even mean that the prosecutor can wait until a
younger juvenile reaches sixteen before initiating proceedings directed toward adult
prosecution, the ambiguity must be resolved in favor of the juvenile; and the juvenile must,
therefore, be retained in the juvenile court, as properly held by the district judge.
3. Consistency with Juvenile Court Jurisprudence. Unlike my colleagues in the majority, I
will, as said, admit to the possibility of my reading wrongly the ambiguous language in
question, but I believe I am safe in saying that my view (namely, as in Three Minors, that the
triggering event for transfer is the commission of a felonious offense by a juvenile 16
years of age or older) is more in harmony with the intent and purpose of the juvenile court
act than is the view that it does not matter at what age the crime was committed. For example,
in the Comments to Section 4.10 of the Model Penal Code (Tent. Draft No. 7, 1957),
[a]s to offenders under 16 at the time of the offense it is implicit in the treatment of the
exclusive jurisdiction of the juvenile court as a substitute for the old rule of incapacity
that the age at the time of the offense should be determinative. It would obviously
conflict with the ameliorative purpose of the 16 year criterion to permit passage of the
time between the offense and prosecution to sustain a criminal proceedings; time
worked no such effect in cases of non-age at common law.
(Emphasis added.)
I am afraid that the decision filed today does obviously conflict with the ameliorative
purpose of the 16 year criterion. The purpose of placing a limitation on the juvenile courts as
to who can be sent to adult court is to restrict adult transfer to those who commit serious
crimes when they are older, more mature and hence properly accountable as adult persons. It
is the age, maturity and state of mind at the time the crime is committed that is being
addressed by the age limitation not the age, maturity and state of mind at the time the
prosecution decides to bring charges. The idea that a child of twelve or thirteen who
commits a crime can be later prosecuted as an adult when he grows up a bit is about as
repugnant an idea as can be conceived of insofar as the ideals of the juvenile court are
concerned. Of course, the majority may be right, nothing so untoward or unjust as this would
ever occur in the prosecution of those who commit crimes.
I have no quarrel with the majority's recitation of statistics relating to juvenile crime, and
perhaps the legislature should reduce the age at which a transferable juvenile must commit
a felonious act; but this court should not be making this kind of change in the law.
reduce the age at which a transferable juvenile must commit a felonious act; but this court
should not be making this kind of change in the law.
____________
105 Nev. 652, 652 (1989) McNabney v. McNabney
GAIL McNABNEY, Appellant and Cross-Respondent, v. LAURENCE McNABNEY,
Respondent and Cross-Appellant.
No. 17755
November 27, 1989 782 P.2d 1291
Appeal and cross-appeal from the district court's division of property in a divorce
proceeding. Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Wife appealed and husband cross-appealed from division of property by the district court
in divorce proceeding. The Supreme Court, Springer, J., held that: (1) division of contingent
legal fee received by husband in the form of annuity which awarded eighty percent to
husband and twenty percent to wife was not clearly erroneous, and (2) there is no judicially
created presumption favoring equal distribution of community property or any judicial
mandate that community property be divided in an essentially equal manner.
Affirmed; cross-appeal dismissed.
John Ohlson and Frederick H. Leeds, Reno, for Appellant and Cross-Respondent.
Pinkerton and Polaha, Reno, for Respondent and Cross-Appellant.
Contingent legal fee received by husband in the form of an annuity payable in installments was community property.
Oral agreement that annuity income was to be husband's property rather than community property could be enforced under certain
circumstances but presumption of community property could be overcome only by clear and certain proof.
3. Divorce.
Decision of divorce court sitting without a jury on issue of whether parties had oral agreement that annuity income was to be
husband's property rather than community property, which was based on conflicting evidence, would not be
disturbed on appeal unless the holding was clearly erroneous.
property rather than community property, which was based on conflicting evidence, would not be disturbed on appeal unless the
holding was clearly erroneous.
4. Divorce.
Division of contingent legal fee received by husband in the form of an annuity payable in installments which awarded eighty
percent of the fee to the husband and twenty percent to the wife was not clearly erroneous. NRS 125.150, subd. 1.
5. Divorce.
In making a just and equitable property division, each case must be decided individually on its own merits in view of facts and
circumstances bearing upon the statutory considerations although courts may use equal division of the community property as a
starting point. NRS 125.150, subd. 1.
6. Divorce.
There is no judicially created presumption favoring equal distribution of community property or any judicial mandate that
community property be divided in an essentially equal manner. NRS 125.150, subd. 1.
Community property is property owned in common by husband and wife with each having an undivided one-half interest.
8. Courts.
A legal rule, as distinguished from a statement of statistical regularity, is a precept attaching a definite legal consequence to a
definite, detailed state of facts.
9. Divorce.
To judicially create a legal rule that divorce courts must divide community property equally between the parties would violate
statute providing for just and equitable division of community property. NRS 125.150, subd. 1.
10. Divorce.
Equal division of community property is not necessarily equitable. NRS 125.150, subd. 1.
11. Divorce.
Although party who acquires an item of community property is not entitled by virtue of the acquisition to any greater or lesser
share of the property, it is legitimate to consider who acquired the property when equitable considerations are being weighed in
connection with division of community property. NRS 125.150, subd. 1.
12. Divorce.
Where each party is economically self-sufficient, it is permissible to consider how the community property was acquired as a
factor in deciding how property is to be equitably distributed. NRS 125.150, subd. 1.
13. Divorce.
Failure of divorce court to state reasons for unequal division of community property was not ground for reversal where trial court's
careful treatment of case resulted in basic fairness, wife failed to preserve any error as to failure to state reasons, and wife
was not prejudiced by failure to state reasons.
OPINION
The outcome of this appeal rests on the meaning of the words just and equitable as used
in NRS 125.150(1). This statute relates to court distribution of community property between
spouses in divorce cases.
In granting a divorce, the court . . . shall make such disposition of . . . the community
property of the parties . . . as appears just and equitable, having regard to the respective
merits of the parties and to the condition in which they will be left by the divorce, and
to the party through whom the property was acquired, and the burdens, if any, imposed
upon it, for the benefit of the children.
NRS 125.150(1) (our emphasis).
The controversy here centers on the trial court's unequal but just and equitable division
of one item of the parties' community property, a contingent legal fee received by the husband
during the brief marriage of the parties.
[Headnotes 1-3]
The fee in question is to be received in the form of an annuity, payable in gradually
increasing installments (presently $3,700.00 per month) until the year 2004. The fee is
community property.
1

The trial court divided the other community property in an equal manner but determined
that it would be just and equitable to award eighty percent of the legal fee to the husband. The
trial court's determination was based on these facts:
1. The marriage was of short duration. Although the divorce was not granted until
after three years of marriage, the couple parted after only two years of marriage.
__________

1
The husband claims that the parties agreed orally that the annuity income was to be the husband's property
and not community property. An oral agreement of this kind can be enforced under certain circumstances, but
the presumption of community property can be overcome only by clear and certain proof. See Schreiber v.
Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983); Burdick v. Pope, 90 Nev. 28, 518 P.2d 146 (1974). Laurence's
contentions were disputed by Gail, and the issue was decided in Gail's favor. Where a divorce court, sitting
without a jury, makes this kind of decision, based on conflicting evidence, the decree will not be disturbed on
appeal unless the holding was clearly erroneous. The conclusion that the income in question was part of the
community is based on substantial evidence, and we conclude that no error has been committed by the trial court
in holding that the annuity income is community property. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103
(1973). Laurence's cross-appeal will therefore be dismissed.
2. The wife entered into the marriage, according to trial court findings, with
considerable separate estate which included income from rentals of her several
separate properties and an investment account in excess of $100,000.00.
3. The wife had been a well-paid federal government employee, was self
supporting and neither expected or depended upon the husband for economic or
financial support before or during the marriage.
4. The trial court expressly found that after the divorce the wife will not require any
financial assistance and will be able on her own to maintain the same standard of
living and lifestyle that she had had.
5. With regard to the husband's income, the trial court found that the monthly
payments [of the annuity] constitute a substantial portion of [the husband's] law
practice income.
The trial court could certainly have viewed this fee to have been a rare or
once-in-a-lifetime emolument, which comprised, as expressly found by the court, a
substantial portion of the husband's income. Of course, had there been children, had the
wife been sick or disabled, or had the wife not have been financially independent, the equities
would have been much different and not have justified this kind of distribution.
[Headnote 4]
Persons of fair mind and disposition may reasonably conclude that the trial court's not
wanting to deprive the husband of a substantial portion of his income and the court's wanting
to give the husband a larger proportion of his earned fee were motivated by a sense of fairness
and not by any thought of favoring one party or disfavoring the other. Most certainly the trial
court's exercise of discretion in this regard was not clearly erroneous so as to require
reversal. See Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978); Johnson v. Steele, Inc., 94
Nev. 483, 581 P.2d 860 (1978).
The real question presented by this appeal is not whether the trial court's disposition was in
fact just and equitable, but, rather, whether the court had the power to divide this asset in a
manner other than equally. If this were not the case, this appeal could be easily disposed of in
summary fashion for it is fairly easy to conclude that the trial court's division of the husband's
fee was not clearly erroneous. The wife centers her appeal not so much on the division itself
but rather on the proposition that Nevada case law mandates that the division of all
community property, and therefore the property in question, must be essentially equal.
How the wife can maintain that the Nevada statute which requires a division of community
property that is just and equitable, really means a division that is essentially equal would
be incomprehensible were it not for some possibly misleading language in Nevada case law.
We will undertake to clarify any misunderstanding relative to this point.
That there has been a misunderstanding of some kind cannot be doubted. The trial judge
himself questioned counsel as to whether he in fact had the power to divide it unequally
and wondered if he was permitted in this case to make an exception to the fifty-fifty rule.
There is, of course, in Nevada, no fifty-fifty rule when it comes to the disposition of
community property under NRS 125.150(1). The Nevada divorce statute directs only that a
division of community property be just and equitable and that, in making such a division, the
court must give due regard to the respective merits of the parties, to the condition in which
they are left by the divorce and to who acquired the property. Therefore, it was quite proper
for the trial court to decide that it did not have to make an equal, fifty-fifty division of this
item of property, and it was not unreasonable for the trial court to have concluded that the
husband merited or deserved to receive a larger proportion of his earned fee so that he would,
like his wife, leave the marriage with an adequate income. Both parties were left by the trial
court's action in sound economic circumstances, and the trial judge simply and properly found
in accordance with the statute that the unequal division of this asset was just and equitable.
There is much precedent for the kind of equitable disposition that took place in this case.
In Herzog v. Herzog, 69 Nev. 286, 249 P.2d 533 (1952), for example, this court stated with
approval that the trial court exercised its discretion by, in effect, awarding all of the
community personal property to the husband. . . . 69 Nev. at 290, 249 P.2d at 535. How,
then, can the wife even think to urge upon this court, as she does, that discretion has been
consistently and clearly denied by the Supreme Court? The answer may be, as observed by
the trial court in this case, that [t]he language of the statute has been ignored by the Supreme
Court.
Certainly the bar has been beset by the uncertainties bearing on the question of equitable
versus equal community property division. One Nevada Bar Journal article noted that [i]n
Nevada, the practitioner is unable to advise his or her client, with any certainty, as to what the
law provides and how the trial court would review distribution under certain circumstances.
The confusion lies in the contradiction between the distribution statute and the decisions of
the Nevada Supreme Court.
and the decisions of the Nevada Supreme Court.
2
(Our emphasis.) The author pinpoints the
problem when he says
By statute, Nevada is an equitable division community property state. This
seemingly clear pronouncement of legislative intent is now brought into question by
conflicting decisions of the appellate court and its apparent judicially created
presumption that equal is equitable in most cases.
[Headnote 5]
It is certainly true, as stated by Mr. Logar, that Nevada is by statute an equitable
distribution jurisdiction, rather than an equal distribution jurisdiction, when it comes to
distribution of community property.
3
There is not, however, as suggested in the bar journal
article, a real or apparent judicially created presumption that equal is equitable in most
cases. This court would not have taken it upon itself to make such a radical change in the
law as to institute judicially a shift in the burden of proof in divorce cases in the manner done
by statute in Idaho. (See footnote 3). The statute as it now reads requires the divorce court in
making a division equitable to consider the merits of the parties, the condition in which they
will be left by the divorce, the person who acquired the property and the needs of the
children. NRS 125.150(1).
4
An infinity of facts and circumstances bear upon these statutory
considerations, and each case must be decided individually and on its own merits, although
courts may use equal division of community property as a starting point.
5
There is nothing
in the statute that states or suggests that property must be divided evenly or that one party
or the other should have an added burden of proof in establishing what is just and
equitable.
__________

2
Logar, Equitable or Equal: Nevada's Dilemma, 52(2) Inter Alia (Journal of the State Bar of Nevada),
Forum section, F7 (March-April 1987).

3
Some states (California, Louisiana, New Mexico) have statutes that mandate non-discretionary, equal
division of community property at divorce. Other states (Arizona, Texas, Washington) require divorce courts to
apply general principles of equity and justice to the process. We are an equitable jurisdiction, and only the
legislature can make us otherwise. Idaho is somewhat of a hybrid in this regard. Idaho is an equitable
jurisdiction, but by statute Idaho has created a statutory presumption by which the burden of proof has been
shifted to the party seeking an equitable yet unequal share of the community property. Idaho Code, section
32-712.1(1) reads: Unless there are compelling reasons otherwise, there shall be substantially equal division in
value, considering debts between the spouses.

4
The statute requires consideration of the respective merits of the parties. This phrase has not been defined
by the legislature or this court. No claim has ever been made that one or the other party is more deserving or
more meritorious by reason of the fault of the other. In considering this factor we must assume that the trial court
considered only the respective economic merits of the parties.

5
Professor Mary Ann Glendon of Harvard Law School has called equitable
that property must be divided evenly or that one party or the other should have an added
burden of proof in establishing what is just and equitable.
[Headnote 6]
As there is in Nevada no judicially created presumption favoring equal distribution of
community property, neither is there a judicial "mandate" that community property must be
divided in an "essentially equal manner."
__________
distribution discretionary distribution because of the broad discretionary powers of judges to mete out
individualized justice in divorce cases. Although this breadth of discretion can bring about abuses and
injustices [t]he vast majority of states allow the divorce court much flexibility in fashioning an appropriate
division or distribution of property. Golden, Equal Distribution of Property, Family Law Series,
Shepard's/McGraw Hill, p. 240 (1984).
Courts are virtually unanimous in holding that an equitable, just, or reasonable distribution does not
necessarily mean an equal one. While an equal division may well prove to be an equitable one, the court
is not compelled to make a 50-50 split. Moreover, there is no mathematical formula for deciding what is
just and equitable. Each case must be decided on its own facts and circumstances, thus rendering
precedents of little value in evaluating what kind of award is proper. For this reason it is ill-advised and
impossible for any court to set down a flat rule concerning property division upon divorce.
Golden, at 241 (citations omitted).
Because of the very nature of community property, divorce court judges are likely in their deliberative
processes to use equal division as a starting point for equitable distribution. (See Golden, op.cit., p. 806). This
is different from there being a legal presumption, where, as a matter of law, the spouse contesting equal division
has the burden of overcoming a presumption. Using equal distribution of community property as a starting point
creates a particular structure for the judge's deliberative process but has no formal burden of proof attached to
it. Golden, at 243. The starting point approach was criticized by the New Jersey Supreme Court in Rothman
v. Rothman, 320 A.2d 496, 503 n.6 (N.J. 1974), because it seemed to be importing community property
concepts into a common law state. Such objections obviously do not apply here.
Using equal division of community property as a starting point is not the same as there being a fifty-fifty
rule in most cases. Weeks, above. Even starting at equal division has its problems. One problem is that
Family Court Judges tend to use a 50/50 rule of thumb in the division of marital property, which can leave the
wife with insufficient compensation for her contribution to the marriage and for her diminished earning capacity
due to conditions of the marriage. In some cases women ought to be awarded more than fifty percent for a truly
equitable distribution, and thus a 50/50 split is not always a fair apportionment. Final Report of the Rhode
Island Committee on Women in the Courts, p. 40 (June 1987).
Finally, laying too much stress on equal division may tend to favor the stronger party in divorce litigation.
To the party with fewer financial resources, the promise of equitable distribution is significant. In short,
equitable distribution theoretically enhances the weaker party's negotiating position, encouraging a more
equitable result to the divorce process. N. Perlberger, Pennsylvania's Equitable Distribution: Progress or
Confusion?, 60 Temple L. Rev. 293 (1987).
judicial mandate that community property must be divided in an essentially equal
manner. The trial judge in this case made a comment about the contradiction between the
distribution statute and the decisions of the Supreme Court. Any such contradiction real or
apparent is now eliminated.
[Headnotes 7-9]
A careful reading and review of our cases reveals that the confusion and contradiction
between statute and decision probably find their origin in the case of Weeks v. Weeks, 75
Nev. 411, 415, 345 P.2d 228, 230 (1959). The unfortunate language in Weeks that has led to
this apparent contradiction is this: Equal distribution of the community property appears
to be the rule in most cases. (Our emphasis.) This sentence says that when courts have
divided community property, it appears that they usually, i.e., in more than half the cases,
distribute equally.
6
The stated statistical estimate is probably true. After all, community
property is, by definition, property owned in common by a husband and wife, with each
having an undivided one-half interest. As a rule, courts, as was done with most of the
community property in this particular case, have probably used equal division of community
property as a starting point. That equal division of community property happens to be done as
a rule certainly does not mean that there is any kind of imperative fifty-fifty legal rule of
community property division which must be applied except when the one party who is
seeking justice and equity is able to demonstrate the need for an unequal division. A legal
rule as distinguished from a statement of statistical regularity is a precept attaching a definite
legal consequence to a definite, detailed state of facts. R. Pound, Hierarchy of Sources and
Forms in Different Systems of Law, 7 Tul. L. Rev. 475 (1933), reprinted in R. Aldisert, The
Judicial Process, p. 64 (1976). An example of a legal rule would be: Divorce courts must
divide community property equally between the parties. Weeks does not state such a legal
rule; and if it had, it would have been, as already pointed out, in contravention of NRS
125.150(1). To put such a burden on one who is seeking what is just and equitable according
to the terms of NRS 125.150(1) is to make a major change in the substantive law, a change
that the court in Weeks should not, could not and did not effectuate.
__________

6
Quite obviously, the phrase, appears to be the rule, means appears to be the custom or practice or as a
rule this appears to be what is happening. Certainly it is not a statement of a legal rule, precept or principle. No
appellate court intending to state a legal rule would ever say, Henceforth, the following appears to be the legal
rule which should be followed in divorce cases. Any legal rule stating that equitable means equal would be
contrary to NRS 125.150(1).
The appears-to-be-the-rule-in-most-cases language of Weeks was quoted with approval
in Stojanovich v. Stojanovich, 86 Nev. 789, 476 P.2d 950 (1970). The Stojanovich court went
on to create a judicial addendum to the statute by requiring that when the trial court makes an
equitable but unequal division of community property, it must accompany the division with a
clearly expressed reason in what manner, for what purpose, and for whose benefit the
division is made. It is true that such an explicit statement of reasons was not made in the
case now before us; but no demand was made for such a statement, and no objections were
made to the form of the findings and judgment. Further, ample reasons for the court's
equitable division of this item of community property appear in the record, and the wife was
in no way prejudiced by any absence of the Stojanovich statement-of-reasons requirement.
Neither Weeks nor Stojanovich provides any predicate for reversal in this case.
We conclude that Nevada law most certainly does not, as contended by the wife, mandate
essentially equal division of community property. A rigid fifty-fifty rule may obtain in
equal distribution jurisdictions, but does not apply in Nevada, where the division must be
just and equitable. A fifty-fifty rule as a rule of law is inherently inconsistent with our
statute. Any claimed mandate for an essentially equal division of community property is far
too mechanical to allow for the broad discretion necessary in order to permit courts to make
just and equitable divisions of property in divorce cases.
[Headnote 10]
There was no need for the trial judge to pause, as he did, before deciding upon an unequal
division of this community asset. Equal does not necessarily mean equitable. Countless
examples can be brought to mind in which equal division is not equitable. The preeminent
example is that of the wife and mother in a long-term marriage who has given up career
opportunities to devote herself to her family. Very frequently justice and equity will require a
divorce court to adjust community property in an unequal manner in these cases.
[Headnotes 11, 12]
NRS 125.150(1) requires the divorce court to consider the party through whom the
property was acquired. This does not, of course, mean that in a community property state the
party who acquires an item of community property is entitled by virtue of the acquisition to
any greater or lesser share of the community property. As a rule the husband is more
frequently the party who does the acquiring of community property. This obviously, by itself,
entitles him to nothing. It is legitimate, however, as indicated by the wording of the statute,
to consider who acquired the property when equitable considerations are being weighed.
indicated by the wording of the statute, to consider who acquired the property when equitable
considerations are being weighed. In a case like this one, where each party is economically
self-sufficient, it is permissible to consider, as a factor in deciding how property is to be
equitably distributed, how the property was acquired. If the wife had acquired a similar item
of community property under comparable conditions, she, certainly, could be expected to
seek an equitable but more than equal share.
7
If the court looked in this case to the manner in
which the property was acquired and to the fact that while unequal distribution would have
little or no effect on the wife's lifestyle, a different allocation would result in a substantial
diminution in the husband's income and standard of living, then the unequal division decided
upon would clearly be justified.
[Headnote 13]
That the unequal division of the fee acquired by the husband was clearly erroneous,
which is to say clearly unjust and inequitable, is a conclusion that an appellate court should
not reach in a case like this. That the mere failure to state reasons in accordance with the
dictum in Stojanovich should be used as an excuse for reversing the judgment of the trial
court is to ignore the basic fairness of the trial court's careful treatment of this case, the failure
of the wife to preserve any error of this nature and the lack of any prejudice to the wife related
to any failure on the part of the trial court to give a statement of reasons. There is no error on
this record. The cross-appeal is dismissed; and the judgment of the trial court is affirmed.
Mowbray, J., and Gunderson, Sr. J.,
8
concur.
The district court classified the annuity as community property subject to disposition. It
further found that awarding Laurence eighty percent and Gail twenty percent of the annuity
was just and equitable."
__________

7
An example comes to mind: If, say, during a short-term marriage the wife were to reap the financial
rewards from a novel which had been many years in the writing and each party were economically self-sufficient
at the time of the divorce, the court, in making a just and equitable distribution of the community property, could
appropriately consider an award to the wife of a larger share of this asset.

8
Oral argument in this case was held on November 12, 1987. Senior Justice E. M. Gunderson participated in
the oral argument as a justice of the Nevada Supreme Court. The Honorable Thomas L. Steffen, Justice,
appointed The Honorable E. M. Gunderson, Senior Justice, to participate in the determination of this matter.
The Honorable Robert E. Rose, Justice, did not participate in the disposition of this case.
and equitable. However, the district court gave no specific reasons for this distribution.
Instead, the court simply stated that it would not be just and equitable to divide the annuity
equally.
At the time of the divorce trial, the annuity had a present value of approximately $713,000.
By the trial court's distribution, Laurence would receive $570,000 and Gail $142,600 of the
annuity's value as of March 1986. We agree with Gail that this division constituted an abuse
of the trial court's discretion given the court's failure to set forth its reasons for the selected
distribution scheme.
Nevada law provides for a disposition of community property as appears just and
equitable, having regard to the respective merits of the parties and to the condition in which
they will be left by the divorce, and to the party through whom the property was acquired. . .
. NRS 125.150(1)(b). Our case law for nearly 30 years has reflected that [e]qual distribution
of the community property appears to be the rule in most cases. Weeks v. Weeks, 75 Nev.
411, 415, 345 P.2d 228, 230 (1959). We have consistently reaffirmed the general doctrine
expressed in Weeks. Fox v. Fox, 81 Nev. 186, 197, 401 P.2d 53, 58 (1965); Stojanovich v.
Stojanovich, 86 Nev. 789, 793, 476 P.2d 950, 952-953 (1970); Jolley v. Jolley, 92 Nev. 298,
299, 549 P.2d 1407 (1976); Schick v. Schick, 97 Nev. 352, 353, 630 P.2d 1220, 1221 (1981).
We recently overturned a district court for ignoring the general principle announced by this
courtequal division of community property as the rulewhen neither the court nor the
record provided a justification for disregarding appellant's community property interest in
respondent's home. Sly v. Sly, 100 Nev. 236, 240, 679 P.2d 1260, 1262 (1984).
The majority opinion concludes that the general rule is an innocuous statistical
observation. We disagree. Such a deprecatory label seems hardly appropriate when, in every
decision in the last three decades we have held that under normal circumstances, equitable
distribution requires an equal division of community assets. My brethren, who now
undermine the Weeks rule, participated in many of these decisions. Heretofore, there has been
no criticism of the holding in Weeks or its progeny. Moreover, although the majority opinion
censures the initial presumption of an equal division, it offers no suggestions as to what
guidelines the district courts should use when distributing community assets. There must be
some starting point in the calculus of the trial judge. If a fifty-fifty figure is unsatisfactory to
the majority, would a sixty-forty figure be preferableor, should the ratio be determined on
an ad hoc basis, after which the court could preclude rational review by merely uttering the
mystical incantation that the division is just and equitable.
The community property system is based upon the premise that spouses contribute equally
to marriage and thus deserve to share equally in the resulting gains of marriage. Marital
Property Reform, 23 B.C.L. Rev. 761, 771 (1982). As the majority opinion correctly states,
[c]ommunity property is, by definition, property owned in common by a husband and wife,
each having an undivided one-half interest.
1
Accordingly, it is difficult to see how the
starting place to determine a just and equitable distribution could be anything other than a
fifty-fifty split. Cherry v. Cherry, 421 N.E.2d 1293, 1298-1299 (Ohio 1981);
2
see Hatch v.
Hatch, 547 P.2d 1044, 1047 (Ariz. 1976) (holding that in the absence of sound reason, each
spouse must receive substantial equivalents in the division of community property).
Furthermore, after acknowledging that it is the husband who more frequently does the
acquiring of community property, the majority states that it is legitimate to consider who
acquired the property when equitable considerations are being weighed. While we may agree
that it is appropriate to consider who acquired the property, it is precisely because wives less
frequently do the acquiring that we believe anything other than an equal division starting
point may well work an inequity for women.
In Stojanovich, this court noted that although the district court is vested with broad
discretion in the division of community property, the trial court must support an unequal
disposition by a clearly expressed reason in what manner, for what purpose and for whose
benefit that division is made. 86 Nev. at 793, 476 P.2d at 953. Since Stojanovich, we have
consistently affirmed the requirement that the district court provide its reasons for deviating
from a presumptively just and equitable division: an equal disposition of community
property. Sly v. Sly, 100 Nev. 236, 240, 679 P.2d 1260, 1262 (1984); Schick v. Schick, 97
Nev. 352, 354, 630 P.2d 1220, 1221 (1981).
The majority criticizes the Stojanovich decision, stating that the court reached this
conclusion without citation of authority, statement of reasons or other discussion. However,
logic dictates that if the appellate process is to provide a meaningful review of the district
court's decision, the trial court must state its rationale for any discrepancy in the property
division. When the trial court fails to state its reasons for the selected distribution scheme, it
prevents effective review.
__________

1
NRS 123.225(1) defines the respective interests of the husband and wife in community property as
present, existing and equal interests. (Emphasis added.)

2
Although Ohio is a non-community property state, it utilizes equitable distribution, a concept similar to fair
and equitable distribution under NRS 125.150.
scheme, it prevents effective review. See Commercial Cabinet Co. v. Wallin, 103 Nev. 238,
737 P.2d 515 (1987) (remanding case when the district court's failure to make specific
findings prevented effective review of the propriety of the award). Stojanovich is consistent
with Nevada law requiring that a district court make specific findings of fact sufficient to
indicate the basis of its ultimate conclusion. NRCP 52(a); e.g., Wilford v. Wilford, 101 Nev.
212, 215, 699 P.2d 105, 107 (1985). Thus, we conclude that the district court cannot merely
rely on the magic words that a just and equitable division requires the chosen disposition.
Instead of this amorphous phrase, the court must provide appropriate reasons for a
disproportionate distribution of community property.
According to the majority opinion, the record supports the trial court's conclusion that an
equal division of the annuity income was not equitable. It lists the following three factors to
justify the trial court's manifestly unequal eighty-twenty division: (1) the parties were married
a relatively short period of time, approximately three years; (2) Gail can maintain the same
standard of living and lifestyle that she had before and during marriage despite the unequal
distribution of the annuity; and (3) the monthly annuity payments constitute a substantial
portion of Laurence's law practice income.
We conclude that the reasons stated by the majority opinion for the eighty-twenty division
do not justify the trial court's disposition of the annuity income. The factors listed by the
majority are not persuasive in supporting a deviation from the general rule. Even though the
parties were married only three years, Laurence clearly earned the annuity during his marriage
to Gail. A relatively brief marriage does not alter the annuity's community property status, so
it should not affect the distribution of the community assets.
Likewise, the second and third factors are of questionable relevance in dividing the
annuity. The record indicates that both Laurence and Gail came into their marriage with
considerable separate property. The record fails to show that either party requires the income
from the annuity to maintain the standard of living enjoyed before and during marriage.
Consequently, the last two factors do not justify the district court's deviation from an equal
disposition of the annuity income. If the gossamer reasons expressed by the trial court are
deemed adequate to validate giving Laurence $570,000 and Gail $142,600 of what was
clearly community property, we will establish precedent which may engender prolonged
litigation, the principal beneficiaries of which will most likely be the lawyers, not the
litigants. We will turn back the clock to the days prior to no-fault divorce when inordinate
amounts of time and money were consumed in trying to show which spouse was guilty of
greater fault.
turn back the clock to the days prior to no-fault divorce when inordinate amounts of time and
money were consumed in trying to show which spouse was guilty of greater fault.
____________
105 Nev. 665, 665 (1989) Brown v. Capanna
ADELAIDE BROWN and PAT JOHNSON, Heirs of Decedent Sophie Stokmans,
Appellants, v. DR. ALBERT CAPANNA, Respondent.
No. 19047
November 27, 1989 782 P.2d 1299
Appeal from judgment of the district court and order denying a new trial. Eighth Judicial
District Court, Clark County; Thomas A. Foley, Judge.
Daughters brought negligence and informed consent action against physician following
death of their mother. The district court granted summary judgment on negligence claims and
directed verdict on informed consent claim, and daughters appealed. The Supreme Court held
that: (1) motion to amend complaint to assert new causes of action for negligence was barred
by res judicata, but (2) court should have permitted deposition testimony of plaintiffs' expert
that defendant physician had failed to acquire the patient's informed consent.
Marquis, Haney & Aurbach, Las Vegas, for Appellants.
Galatz, Earl, Catalano & Smith, Las Vegas, for Respondent.
Hamilton & Lynch, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
1. Judgment.
Motion to amend complaint to allege new causes of action for negligence of physician was barred by res judicata effect of court's
prior grant of partial summary judgment in favor of the physician on negligence counts in the case.
2. Judgment.
Judgment on the merits of an issue bars further consideration of the issue based on the principles of res judicata.
In informed consent case, plaintiff must show by expert testimony that the physician did not conform to the customary disclosure
practice of physicians in the relevant community or what a reasonable physician would disclose under the circumstances.
Physician's allegations that he discussed all alternative treatments, complications, and risks associated with the surgical procedure
with the patient on the eve of surgery could not be used to support directed verdict where the claims were disputed.
5. Evidence.
Expert testimony that description assertedly given by physician to patient was not a sufficient description of the surgery was
insufficient to support a claim of failure to provide informed consent.
6. Evidence.
If admitted, testimony of physician that, under the facts of the case, defendant physician failed to acquire patient's informed
consent would be sufficient to establish a prima facie case of lack of informed consent.
7. Appeal and Error; Evidence.
Competency of an expert witness is a question for the sound discretion of the district court whose ruling will not be disturbed
absent clear abuse of discretion.
8. Evidence.
Board certified neurosurgeon who had treated tic douloureux should have been permitted to testify as an expert on the question of
whether physician obtained patient's informed consent prior to neurosurgery for that disorder, even though he had not performed the
type of surgery involved.
9. Evidence.
Fact that physician who testifies that patient's informed consent was not obtained prior to medical procedure has not performed the
specific procedure goes to the weight, not the admissibility, of his testimony.
10. Evidence.
Medical expert is normally expected to testify only to matters that conform to the reasonable degree of medical probability
standard.
11. Evidence.
Testimony that patient's informed consent was not obtained by physician prior to medical procedure need not be to a reasonable
degree of medical probability, as there are no medical probabilities involved in the inquiry as to whether physician conformed to the
customary disclosure practice in the relevant community or to what a reasonable physician would have disclosed.
Error in excluding deposition testimony of physician that defendant physician had not obtained informed consent of patient prior
to surgery required reversal as it would have helped plaintiffs prove their prima facie case of lack of informed consent.
OPINION
Per Curiam:
In this case of alleged medical negligence and lack of informed consent, the district court
properly found that the negligence counts were barred by res judicata. However, the district
court abused its discretion by excluding expert testimony that would have allowed appellants
Adelaide Brown and Pat Johnson, the daughters of deceased Sophie Stokmans, to prove their
prima facie case of failure to acquire informed consent.
facie case of failure to acquire informed consent. Based on Brown and Johnson's inability to
prove their prima facie case, the court directed a verdict for respondent Dr. Albert Capanna.
We reverse and remand.
Facts
In 1985, 82-year-old Sophie Stokmans went to the emergency room at University Medical
Center in Las Vegas to see Dr. Albert Capanna, a neurosurgeon, about facial pain known as
tic douloureux which she had experienced for ten years. Stokmans had been treated
previously with medication and with a glycerol injection. However, these treatments had been
ineffective, and Stokmans sought further treatment and specifically wanted to know about
surgical options.
Capanna briefly met with Stokmans and her daughter, Adelaide Brown, in the emergency
room. He examined Stokmans' face and prescribed further medication. He also explained a
procedure in which he would make a cut behind the ear and go in surgically to deaden the
nerves. This procedure is known as a suboccipital craniectomy. Capanna also explained that
Stokmans would be put to sleep, that she would be hospitalized for a few days, and that, if
successful, the operation would alleviate the facial pain. Stokmans decided that the pain was
intolerable and called Capanna to schedule surgery.
A few days later, Stokmans checked into the hospital in preparation for her surgery the
next day. That evening Capanna again met with Stokmans and again discussed the procedure
and, according to Capanna, discussed all alternative treatments, risks and complications. No
one but Stokmans and Capanna were present at this examination and discussion on the eve of
the surgery. Stokmans also signed a consent to surgery stating that she authorized Capanna to
perform the craniectomy. The form stated that all risks had been explained to her; however,
the form did not enumerate those risks.
Capanna performed the surgery the next day. After surgery, Stokmans developed
hydrocephalus (pressure on the brain) for which Capanna performed a shunt procedure. After
this procedure, Stokmans lapsed into a coma and died six weeks later.
Stokmans' daughters, Adelaide Brown and Pat Johnson, brought an action against Capanna
for negligence and lack of informed consent. The negligence cause of action was dismissed
on a partial summary judgment, and the court denied Brown and Johnson's motion to amend
to reallege the negligence counts. The parties went to trial on the informed consent issue. At
the conclusion of the evidence, the district court granted a directed verdict in favor of
Capanna.
Amendment of the Complaint
[Headnote 1]
Brown and Johnson contend that their motion to amend the complaint to allege new causes
of action for negligence was improperly denied by the district court. This contention is
without merit because the negligence allegations were finally adjudicated when the district
court granted partial summary judgment and were thus barred by res judicata.
The original complaint sought damages for Capanna's alleged negligence in examining,
treating, operating on, and caring for Stokmans from and after June 21, 1985, the day that
Stokmans first saw Capanna concerning her facial pain. Capanna moved for summary
judgment on these negligence allegations, and Brown and Johnson stipulated to their
dismissal, leaving only the informed consent cause of action. Later, Brown and Johnson
received more information through depositions of expert witnesses possibly indicating that
Capanna had been negligent in his examination of and advice to Stokmans before the surgery.
Based on this new information, Brown and Johnson sought leave to amend the complaint to
include new negligence causes of action. The district court denied their motion.
NRCP 15(a) dictates that leave to amend a pleading shall be freely given when justice so
requires. However, the requirement that the amending party acquire leave of the court
suggests that there are instances in which leave should not be granted. Ennes v. Mori, 80 Nev.
237, 243, 391 P.2d 737, 740 (1964).
[Headnote 2]
Judgment on the merits of an issue bars further consideration of the issue based on the
principles of res judicata. Jackson v. Hayakawa, 605 F.2d 1121, 1125 (1979), cert, denied,
445 U.S. 952 (1980). Here, Capanna moved for partial summary judgment stating that there
was no evidence of medical malpractice, and Brown and Johnson did not oppose summary
judgment on the issues of negligence. The court, therefore, granted the summary judgment on
the counts that alleged that Capanna was negligent in his treatment and care.
At oral argument, counsel for Brown and Johnson argued that the summary judgment
concerned negligence only in the surgery and the post-operative care rendered by Capanna
and that the proposed amendment sought to add a negligence cause of action for Capanna's
pre-operative care. This distinction, however, has no basis in the record. As stated above, one
of the causes of action that was adjudicated by the summary judgment alleged that Capanna
had been negligent in his care of Stokmans from the first day that he met her. Thus, the issue
of whether Capanna was negligent in his pre-operative care and treatment of Stokmans
was resolved on the merits when the court ordered partial summary judgment, and the
district court properly denied the amendment which would have once again alleged
negligence.
negligent in his pre-operative care and treatment of Stokmans was resolved on the merits
when the court ordered partial summary judgment, and the district court properly denied the
amendment which would have once again alleged negligence.
Informed Consent
After all of the evidence had been heard in the jury trial on the issue of informed consent,
Capanna moved the court for a directed verdict. The court granted Capanna's motion and
directed a verdict against Brown and Johnson, thus leaving them with no recovery. Brown
and Johnson contend that the district court should have allowed the issue to go to the jury.
A motion for a directed verdict may be made at the close of the evidence. NRCP 50(a).
The court may grant the motion when there remains no issue of material fact for the jury to
decide. See Levine v. Remolif, 80 Nev. 168, 390 P.2d 718 (1964). In determining whether a
directed verdict should be granted, the court must view all of the evidence in the light most
favorable to the nonmoving party. See Broussard v. Hill, 100 Nev. 325, 682 P.2d 1376
(1984).
We have indicated that Nevada follows the traditional rule that a plaintiff must show lack
of informed consent through expert medical testimony. Beattie v. Thomas, 99 Nev. 579, 668
P.2d 268 (1983). In Beattie, we reasoned that, because the Nevada Legislature has enacted
NRS 41A.100 requiring plaintiffs in medical malpractice cases to demonstrate negligence
through expert testimony, a plaintiff claiming that a doctor failed to acquire informed consent
must demonstrate by expert testimony that informed consent was not obtained. Id. at 584, 668
P.2d at 271.
[Headnotes 3, 4]
Holding to the Beattie view, the question on appeal is whether Brown and Johnson
presented sufficient evidence, including expert testimony, that Capanna did not conform to
the customary disclosure practice of a physician in the relevant community or to what a
reasonable physician would disclose.
1
The evidence of exactly what Capanna told
Stokmans about the surgery is disputed.
__________

1
Brown and Johnson and amicus curiae Nevada Trial Lawyers Association suggest that we should adopt a
different standard for proving lack of informed consent. They urge that we should abandon the standard in
Beattie requiring the plaintiff to show by expert testimony that the physician did not conform to the customary
disclosure practice of physicians in the relevant community,' or what a reasonable physician would disclose
under the circumstances. Beattie, above, 99 Nev. at 584, 668 P.2d at 271. Instead, Brown and Johnson and the
amicus curiae urge that we should adopt a standard that focuses on the thoughts of the patient and requires the
jury to determine what a reasonable person would have regarded as significant information upon which to base a
decision concerning treatment. We decline the invitation to overrule Beattie and to change the standard for
providing lack of informed consent.
exactly what Capanna told Stokmans about the surgery is disputed. Capanna spoke to
Stokmans and Brown in the emergency room. According to Brown, Capanna explained that
the procedure involved putting a cut in the back of the head behind the ear and going in to
deaden the nerves. He also explained that Stokmans would be put under a general anesthesia,
that she would be in the hospital for several days, and that the operation was being performed
for pain caused by tic douloureux.
2
The only expert testimony at trial that this may have been
insufficient to acquire informed consent came from Dr. Saul Frankel in the following
exchange:
A. [Dr. Frankel] He performed a major craniotomyopening the skull, it's
technically called suboccipital craniectomy, which means he opened the back of the
head, opened the skull, went in a considerable distance and approached this nerve to the
face, the trigeminal nerve, and moved away a small artery which was pulsating, which
was in contact with that nerve and which was causing pain. This is a major surgical
procedure inside the skull, the base of the brain.
Q. Let me ask you this question, Dr. Frankel: Is it a sufficient description of this
surgery to say that it is going to be a cut in the back of the head and that you will be
asleep during the operation?
A. No.
Q. Is that a sufficient description?
A. I certainly don't think that covers it.
[Headnote 5]
This is the only expert testimony from the trial concerning informed consent. Dr. Frankel
apparently was not asked whether this conformed or failed to conform to what a reasonable
physician would disclose. In addition, the hypothetical question to which Dr. Frankel
responded did not include all that Capanna disclosed to Stokmans, even viewing the evidence
in a light most favorable to Brown and Johnson. Without more, Dr. Frankel's testimony
would be insufficient to prove that Capanna did not acquire Stokmans' informed consent.
[Headnote 6]
Brown and Johnson contend that the court abused its discretion by excluding the
deposition of another expert witness. In his deposition testimony, Dr. J. DeWitt Fox testified
that under the facts of this case Capanna failed to acquire Stokmans' informed consent.
__________

2
As we stated above, Capanna claims that he discussed all of the alternative treatments, complications and
risks associated with a suboccipital craniectomy on the eve of surgery. However, this is disputed and may not be
used to support the directed verdict.
facts of this case Capanna failed to acquire Stokmans' informed consent. Viewing the
evidence in Brown and Johnson's favor, Dr. Fox's proffered testimony would have established
a prima facie case of lack of informed consent. Accordingly, if the court abused its discretion
by excluding Dr. Fox's disposition testimony, the court prejudiced the outcome of the case.
[Headnote 7]
The competency of an expert witness is a question for the sound discretion of the district
court, and we will not disturb the ruling absent a clear abuse of discretion. Lockart v.
Maclean, 77 Nev. 210, 361 P.2d 670 (1961) (overruled on other grounds by Orcutt v. Miller,
95 Nev. 408, 595 P.2d 1191 (1979)). Although Capanna agreed that Dr. Fox was unavailable,
Capanna argued that Dr. Fox's deposition testimony should not be admitted because Dr. Fox
is not qualified to testify on the subject of tic douloureux and because counsel failed to elicit
Dr. Fox's testimony that his opinion was limited to those matters about which he could testify
to a reasonable degree of medical probability.
[Headnotes 8, 9]
Dr. Fox is a board certified neurosurgeon and has treated tic douloureux, although he
apparently has not performed the type of surgery Capanna performed on Stokmans. Even
though Dr. Fox may not have performed the same type of surgery, the district court abused its
discretion when it excluded the testimony of this board certified neurosurgeon on issues
involving informed consent prior to neurosurgery. Dr. Fox's testimony based on his expertise
in his field certainly would have been helpful to the jury. It is not necessary for Dr. Fox to
have performed the surgery to know what the alternative treatments, complications and risks
of a suboccipital craniectomy are or to know what a reasonable physician or neurosurgeon
would have told Stokmans about the procedure and its risks. See Frost v. Mayo Clinic, 304
F.Supp. 285, 288 (D.Minn. 1969). While the trial court has considerable discretion in
determining whether an individual may testify as an expert, a proposed expert should not be
scrutinized by an overly narrow test of qualifications. People v. Whitfield, 388 N.W.2d 206,
209 (Mich. 1986) (citation omitted). The fact that Dr. Fox has not performed the specific
procedure goes to the weight, not the admissibility, of the evidence.
[Headnotes 10, 11]
In addition, Dr. Fox could not be expected to testify to a reasonable degree of medical
probability concerning lack of informed consent. Normally, a medical expert is expected to
testify only to matters that conform to the reasonable degree of medical probability standard.
medical probability standard. See Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191 (1979).
However, Dr. Fox was not being asked his expert opinion on the cause of Stokmans' death or
on some other factor of causation. The relevant inquiry was whether Capanna did not
conform to the customary disclosure practice in the relevant community or to what a
reasonable physician would disclose. There are no medical probabilities involved in this
inquiry. Therefore, to require that Dr. Fox's testimony be to a reasonable degree of medical
probability was an abuse of the district court's discretion.
[Headnote 12]
The district court abused its discretion when it excluded Dr. Fox's deposition testimony.
Since that testimony would have helped Brown and Johnson prove their prima facie case of
lack of informed consent, we cannot say that the abuse of discretion did not affect Brown and
Johnson's substantial rights. NRS 47.040 (error may not be predicated on exclusion of
evidence unless substantial right of party affected). Accordingly, we must reverse and remand
for a new trial.
3

__________

3
We have carefully considered the parties' other contentions and find that they are without merit.
____________
105 Nev. 672, 672 (1989) Ford v. Ford
TOMIE SUE FORD, Appellant/Cross-Respondent, v. WILLIAM R. FORD, JR., M.D.,
No. 18941
November 27, 1989 782 P.2d 1304
Appeal from an amended judgment of the district court modifying an award of alimony
and attorneys' fees at divorce, and cross-appeal from the same judgment. Second Judicial
Appeals were taken from order of the district court entered in divorce action. The Supreme
Court held that: (1) it was error for court not to consider effects of taxes on value on marital
assets when equitably distributing, and (2) court properly attributed good will to husband's
solo medical practice.
Cooke, Roberts & Reese, Reno, for Appellant/Cross-Respondent.
105 Nev. 672, 673 (1989) Ford v. Ford
Jack Sullivan Grellman and Beasley & Holden, Reno, for Respondent/Cross-Appellant.
Acceptance of benefits from a judgment generally bars an appeal therefrom, as the party may not follow two legally inconsistent
courses of action; exception arises when reversal of judgment on appeal would not affect an appellant's right to the judgment already
secured.
2. Divorce.
Fact that husband had accepted properties awarded to him under terms of divorce decree did not preclude him from asserting in
cross appeal of claim for more of the community assets.
3. Trial.
Decision to reopen a case for the introduction of additional evidence is within the sound discretion of the trial court but, in order
that justice be done, district court should freely grant leave to amend and reopen.
4. Trial.
When essential element of a party's case can easily and readily be established by reopening the case, refusal to reopen will most
often constitute an abuse of discretion.
5. Divorce.
Where, after close of testimony but before entry of judgment, wife sold stock, which had been valued at $400,000 and awarded to
her in divorce action, for $600,000, court properly reopened the case with respect to equitable distribution.
6. Divorce.
It was error for court not to hear evidence concerning tax effects of sale of the stock awarded to wife when court reopened the
equitable distribution issued because the wife had sold the stock for $200,000 more than the value of which the parties had placed on
it.
7. Divorce.
Courts can consider potential tax liability when valuing marital assets when taxable event has occurred as a result of the divorce or
of the equitable distribution of the property or is certain to occur within a time frame so the trial court may reasonably predict the tax
liability.
8. Divorce.
When dividing community property, courts must consider tax consequences if there is proof of an immediate and specific tax
liability.
9. Divorce.
It was error for court to terminate alimony based on fact that wife had sold stock which had been awarded to here for $200,000
more than the value which the parties had placed on the stock without considering that interest income which wife could receive on
that additional amount would be reduced because of capital gains taxes owed as a result of the sale and that payment from the stock
would be made by installments extending over period of ten years; it was also error to set aside award of attorney fees on the basis of
the wife's windfall.
10. Goodwill.
Goodwill is reputation that will probably generate future business.
11. Goodwill.
Goodwill in a professional practice can be established by evidence other than the amount which another professional would pay
for the goodwill in acquiring the practice.
105 Nev. 672, 674 (1989) Ford v. Ford
12. Goodwill.
Goodwill exists in a going professional practice, whether or not a sale is in the offing.
13. Divorce.
Potential problems in selling husband's medical practice did not eliminate the goodwill which attached to it nor its value as an
asset to be considered in equitable distribution.
14. Evidence.
Testimony of certified public accountant sustained trial court's determination of value of goodwill of husband's medical practice,
despite husband's testimony that majority of his private patients were referrals from his emergency room work rather than referrals
from doctors or other patients as a result of his good reputation in the community.
15. Divorce; Husband and Wife.
Goodwill in solo medical practice can constitute community property subject to distribution at divorce, even though goodwill is
dependent on continued presence of the party in the practice.
16. Divorce.
Trial court should have considered future tax liability upon maturity of note when valuing the note for purposes of dividing
community property where there was testimony by certified public accountant that the tax liability would accrue when the note was
paid off on a particular date, just over a year from trial.
OPINION
Per Curiam:
Dr. William Ford and Tomie Sue Ford were married in March 1971. Besides his private
orthopedic surgery practice, Dr. Ford is a clinical professor of medicine at the University of
Nevada-Reno, chief of orthopedic surgery at the Veterans Administration Hospital, and
responds to emergency room calls from Washoe Medical Center and Sparks Family Hospital.
At the time of their divorce trial in 1986, the total net worth of the community estate was
$2,070,717, including a note receivable (the Scanlin note) which, at maturity in 1988, would
pay $874,750. After trial, the district court awarded assets worth $1,236,417 to Dr. Ford, and
assets worth $834,300 to Tomie Sue. However, in order to effectuate a 50/50 split of the
community property, the court ordered Dr. Ford to give an equalizing promissory note worth
$201,058 to Tomie Sue. Consequently, both parties received property worth $1,035,358. The
trial court valued Dr. Ford's medical practice at $181,926, including $97,598 in goodwill. The
court also awarded the Scanlin note to Dr. Ford, without consideration for the tax
consequences that would accrue when the note came due in January 1988. Finally, the court
ordered Dr. Ford to pay $2,500 per month to Tomie Sue for six years as rehabilitative
alimony.
105 Nev. 672, 675 (1989) Ford v. Ford
At the time of the trial in October and November 1986, Dr. Ford and Tomie Sue owned, as
community property, 200 shares of stock in Sierra Management Services, Inc. (Sierra
Management). During trial, the parties stipulated that the stock was worth $400,000 or $2,000
per share. At the conclusion of the trial, in order to avoid federal income tax liability for Dr.
Ford, the district court awarded the stock to Tomie Sue.
However, in December 1986, prior to the entry of judgment, the Washoe Medical Center
purchased ninety percent of Sierra Management, including the stock held by Tomie Sue, for
$3,000 per share. Thus, before entry of the January 1987 divorce decree and judgment, Tomie
Sue sold her interest in the corporation for $600,000, $200,000 more than its stipulated value.
On December 23, 1986, Dr. Ford filed a motion requesting the district court to reopen the
divorce proceedings for the purpose of hearing additional testimony concerning the valuation
of the Sierra Management stock and the award of alimony.
Without ruling on Dr. Ford's motion to reopen, the district court entered its divorce decree
and judgment in January 1987. The district court confirmed its order to Dr. Ford to pay
Tomie Sue rehabilitative alimony in the amount of $2,500 per month. The trial court also
ordered Dr. Ford to pay $25,000 in attorneys' fees to Tomie Sue.
Eventually, on April 21, 1987, the district court granted Dr. Ford's limited motion to
reopen. After a hearing, the court found that Tomie Sue will receive $18,000 in interest each
year on the $200,000 received in excess of the stipulated value of the stock. Accordingly, the
district court held that alimony was no longer necessary. Finally, the court rescinded its award
of attorneys' fees to Tomie Sue. Tomie Sue appeals from the district court's decision, and
because she makes a meritorious challenge to the trial court's rescission of her alimony and
attorney's fees, we reverse and remand.
[Headnotes 1, 2]
In his cross-appeal, Dr. Ford argues that the district court erred by finding that his medical
practice contained goodwill worth $97,598. We believe that the better case authority supports
the district court's decision. Dr Ford also contends that the district court erred by not taking
into account the tax consequences of the upcoming maturation of the Scanlin promissory note
awarded to him. This contention has merit, and therefore, we also reverse and remand on the
cross-appeal.
1
Tomie Sue's Appeal
__________

1
Preliminarily, we reject a motion filed by Tomie Sue to dismiss Dr. Ford's cross-appeal. Tomie Sue argues
that by accepting benefits and properties under the terms of the divorce decree, Dr. Ford has waived his right of
105 Nev. 672, 676 (1989) Ford v. Ford
Tomie Sue's Appeal
Tomie Sue argues that the district court erred when it granted Dr. Ford's Motion to Reopen
Trial for the limited purpose of hearing additional testimony concerning the valuation of the
Sierra Management stock and the award of rehabilitative alimony. Specifically, she contends
that the value of the stock was a matter of stipulation and agreement between the parties, and
that the district court based its order to reopen the proceedings upon facts which occurred
subsequent to trial rather than newly discovered evidence.
2

[Headnotes 3, 4]
However, the decision to reopen a case for the introduction of additional evidence is
within the sound discretion of the trial court. Andolino v. State of Nevada, 99 Nev. 346, 351,
662 P.2d 631, 634 (1983). In order that justice be done, district courts should freely grant
leave to amend and reopen. Id. When an essential element of a party's case can be easily and
readily established by reopening the case, refusal to reopen will most often constitute an
abuse of discretion. Id.
[Headnote 5]
In the instant case, after the close of testimony but before the entry of judgment, Tomie
Sue sold the Sierra Management stock for $600,000, $200,000 more than the value given to
that community property at trial. Since the purpose of the trial was to devise an equitable
distribution of the marital property and fair provisions for spousal and child support
__________
appeal and is estopped from attempting to reverse the judgment. We disagree.
In general, the acceptance of benefits from a judgment bars an appeal therefrom because a party may not
follow two legally inconsistent courses of action. Connelly v. Connelly, 374 N.W.2d 633, 634 (S.D. 1985).
However, an exception arises when a reversal of the judgment on appeal would not affect an appellant's right to
the benefit already secured. Id.
We believe that the Connelly exception applies in the instant case. In his cross-appeal, Dr. Ford does not
challenge the validity of any award of property which he received pursuant to the divorce decree. Instead, Dr.
Ford is simply asking for more of the community assets. Accordingly, we deny Tomie Sue's motion to dismiss
Dr. Ford's cross-appeal. 374 N.W.2d at 634-635. See also Cunningham v. Cunningham, 60 Nev. 191, 197, 102
P.2d 94 (1940) (holding that when the purpose of an appeal from a divorce judgment is to secure more property
and alimony, a prior acceptance of alimony and marital property will not operate as a waiver of the right to
appeal).

2
According to NRCP 59(a)(3) and (4), the district court may grant a new trial to all or any of the parties and
on all or part of the issues because of [a]ccident or surprise which ordinary prudence could not have guarded
against, or [n]ewly discovered evidence material for the party making the motion which he could not, with
reasonable diligence, have discovered and produced at the trial.
105 Nev. 672, 677 (1989) Ford v. Ford
provisions for spousal and child support, the trial court served the interests of justice by
reopening the case. Id.
[Headnote 6]
In its order granting Dr. Ford's motion to reopen the case, the district court agreed to
consider only whether, in light of the sale of the Sierra Management stock, an award of
alimony or attorneys' fees to Tomie Sue was still appropriate. The district court refused to
hear evidence regarding the impact of the stock sale on Tomie Sue's financial status,
specifically, the $133,000 tax liability which she incurred as a result of the sale.
3
Tomie Sue
contends that the court's refusal to hear this evidence was error. We believe that her
contention has merit.
[Headnotes 7, 8]
In the instant case, Tomie Sue presented evidence of the $133,000 capital gains tax bill
which she incurred as a result of the stock sale. Courts can consider potential tax liability
when valuing marital assets when a taxable event has occurred as a result of the divorce or
equitable distribution of property, or is certain to occur within a time frame so that the trial
court may reasonably predict the tax liability. Hovis v. Hovis, 541 A.2d 1378, 1380-1381 (Pa.
1988). When dividing community property, trial courts must consider tax consequences
when, as in the case at hand, there is proof of an immediate and specific tax liability. In re
Marriage of Clark, 145 Cal.Rptr. 602, 606 (Ct.App. 1978). Accordingly, in this case, we hold
that the district court erred by refusing to consider the tax consequences when it reopened the
trial to hear testimony concerning the sale of the stock. Id.
The district court assumed that Tomie Sue would earn $18,000 in interest annually on the
$200,000 received in excess of the stipulated value of the Sierra Management stock. Because
of this increased cash flow to Tomie Sue, the court held that any further award of alimony
was unnecessary. Tomie Sue argues that the district court erred when it terminated her
remaining monthly alimony payments of $2,500. We agree.
There are limits to the district court's discretion in awarding or refusing to award alimony.
Forrest v. Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983). In Buchanan v. Buchanan, 90
Nev. 209, 215, 523 P.2d 1, 5 (1974), this court provided an inexhaustive list of factors, such
as the financial condition of the parties, which the district court should consider when making
its alimony determination. Moreover, when making decisions involving alimony and property
distribution, trial courts must form judgments as to what is just and equitable, giving regard
to the respective merits of the parties and to the condition in which they will be left by
divorce.
__________

3
If Tomie Sue must pay $133,000 in capital gains taxes, then she will realize $467,000 on the sale of the
stock instead of the $600,000 sale price.
105 Nev. 672, 678 (1989) Ford v. Ford
merits of the parties and to the condition in which they will be left by divorce. Heim v. Heim,
104 Nev. 605, 609-610, 763 P.2d 678, 680-681 (1988).
[Headnote 9]
In the case at hand, the district court made its decision to terminate the alimony based on
the $200,000 windfall which Tomie Sue received from the sale of the Sierra Management
stock. The court apparently did not consider (1) that interest income on the proceeds would be
reduced because of capital gains taxes owed as a result of the sale, and (2) that payment for
the stock would be by installments extending over a period of ten years. Nevertheless, the
district court expected this income to make up for Tomie Sue's lost alimony. Thus, the court
failed to look at the overall justice and equity of its decision and abused its discretion by
cancelling the alimony without considering the tax implications of the stock sale.
Because of the stock sale, the district court also rescinded its original award of $25,000 in
attorneys' fees to Tomie Sue. We agree with Tomie Sue's argument that the rescission of
attorneys' fees was error. The decision whether to award attorneys' fees to either party in a
divorce action lies within the sound discretion of the district court. Hybarger v. Hybarger, 103
Nev. 255, 259, 737 P.2d 889, 892 (1987). However, as discussed above, without considering
the tax consequences of the stock sale, the district court used Tomie Sue's $200,000
windfall to justify its decision to rescind Tomie Sue's award of $25,000 in attorney's fees.
Accordingly, the district court also abused its discretion when it abrogated the award of
attorneys' fees. Heim, 104 Nev. at 609-610, 763 P.2d at 680-681.
Dr. Ford's Cross-Appeal
After trial, the district court held that Dr. Ford's medical practice was community property
and had a value of $181,926, including goodwill worth $97,598. Dr. Ford argues that his
medical practice contains no goodwill, and therefore, the district court's valuation of his
practice was erroneous.
[Headnote 10]
In essence, goodwill is a reputation that will probably generate future business. Dugan v.
Dugan, 457 A.2d 1, 3 (N.J. 1983). Case law is divided as to whether professional goodwill
exists in the case of individual practitioners such as Dr. Ford.
4
However, in Matter of
Marriage of Fleege, 5SS P.2d 1136, 1139 {Wash.
__________

4
In Holbrook v. Holbrook, 309 N.W.2d 343, 354 (Wis.Ct.App. 1981), the Wisconsin court of appeal
refused to adopt the concept of professional goodwill as a divisible marital asset. The court held that although a
professional business' good reputation is a thing of value, that reputation does not create an actual, separate
property interest in those who own the business.
105 Nev. 672, 679 (1989) Ford v. Ford
However, in Matter of Marriage of Fleege, 588 P.2d 1136, 1139 (Wash. 1979), the
Washington Supreme Court observed that in a divorce proceeding, the modern trend is to
acknowledge the existence of goodwill in a professional practice, and to take such goodwill
into account when valuing the practice as part of the marital property. In Dugan, 457 A.2d at
5, the New Jersey Supreme Court held that goodwill exists in personal service enterprises
(such as a law or medical practice) as well as other businesses, and should be considered
during the equitable distribution of property at divorce. Furthermore, in In re Marriage of
Foster, 117 Cal.Rptr. 49, 52 (Ct.App. 1974), the California court of appeal held that in a
divorce case, courts should consider the goodwill found in a spouse's solo medical practice
when distributing the community property. Accordingly, we hereby adopt the modern rule
that would include a professional practice's goodwill as part of the community property estate
subject to division at divorce.
[Headnote 11]
Dr. Ford argues that when determining the existence of goodwill in a professional practice,
the only acceptable evidence of goodwill is the amount which another professional would pay
for the goodwill in acquiring the practice. Hanson v. Hanson, 738 S.W.2d 429, 435 (Mo.
1987). Accordingly, he contends that a party can show the existence of goodwill only with
evidence of a recent sale of a similarly situated professional practice or expert testimony as to
the existence of goodwill in a similar practice in the relevant geographic setting. Id. In this
case, the record contains no evidence of a recent sale of a similarly situated professional
practice or testimony as to the value of goodwill in similar practices. Thus, Dr. Ford contends
that the district court erred by using other evidence to ascertain the existence of goodwill in
his practice. We disagree and decline to follow the Hanson rationale.
[Headnotes 12, 13]
Goodwill exists in a going professional practice, whether or not a sale is in the offing.
Matter of Marriage of Fleege, 588 P.2d 1136, 1138 (Wash. 1979). In the instant case, the
district court heard evidence of Dr. Ford's ongoing medical practice. Although Dr. Ford
testified that his practice was not salable, potential problems in selling the practice will not
eliminate the goodwill which attaches to it, nor its value as an asset to be considered in
equitable distribution. Dugan v. Dugan, 457 A.2d 1, 6 (N.J. 1983). Accordingly, the district
court properly declined to follow the restrictive reasoning of Hanson and correctly found that
goodwill existed in Dr. Ford's surgical practice.
105 Nev. 672, 680 (1989) Ford v. Ford
[Headnote 14]
Alternatively, Dr. Ford testified that the majority of his private patients are referrals from
his emergency room work rather than referrals from doctors or other patients as a result of his
good reputation in the community. Thus, he argues that by its nature, his medical practice
does not generate a significant amount of recurrent customer patronage, a primary component
of goodwill. Therefore, he contends that the district court erred by finding that his medical
practice has goodwill. This contention also lacks merit.
At trial, Kenneth Fortney, a CPA called by Tomie Sue, testified as to the value of the
goodwill in Dr. Ford's medical practice. Fortney utilized three methods to make his valuation,
including the three months' gross receipt method whereby he calculated Dr. Ford's goodwill
as the equivalent of three months' gross receipts of the medical practice. In its divorce decree,
the district court accepted Mr. Fortney's three months' gross receipt valuation of $97,598 as
the value of the goodwill in Dr. Ford's medical practice. In In re Marriage of Slater, 160
Cal.Rptr. 686, 689 (Ct.App. 1979), the California court of appeal approved any legitimate
method of valuation which measures the present value of goodwill by taking into account past
earnings. Thus, the record and case authority support the district court's valuation of the
goodwill in Dr. Ford's medical practice. Accordingly, the district court did not abuse its
discretion when it held that of the $181,926 total value of Dr. Ford's practice, $97,598 was
goodwill.
[Headnote 15]
Finally, Dr. Ford argues that, as a solo practitioner, any goodwill attaching to his medical
practice is specifically dependent on his continued presence in the practice, and thus, not
marketable. Taylor v. Taylor, 386 N.W.2d 851, 858-859 (Neb. 1986). Dr. Ford claims that
such goodwill cannot constitute community property subject to distribution at divorce. Id.
Again, Dr. Ford's claim lacks merit.
In Hurley v. Hurley, 615 P.2d 256, 259 (N.M. 1980), the New Mexico Supreme Court held
that at divorce, the dispositive question is not whether a doctor can sell his goodwill. Instead,
a doctor's goodwill has value despite its immarketability. Id. As long as he maintains his
practice, the physician will continue to receive a return on the goodwill associated with his
name. Id. Under principles of community property law, a wife makes the same contribution to
that goodwill as she does to any of her husband's earnings during marriage. Golden v.
Golden, 75 Cal.Rptr. 735, 738 (Ct.App. 1969). Accordingly, upon dissolution, she deserves
compensation for that contribution. Id.
105 Nev. 672, 681 (1989) Ford v. Ford
Thus, in this case, for as long as he continues to practice medicine, Dr. Ford will continue
to receive a benefit from the goodwill associated with his business. Accordingly, the district
court correctly considered this goodwill to be part of the marital estate. Hurley, 615 P.2d at
259.
[Headnote 16]
In its divorce decree, the district court awarded the Scanlin note to Dr. Ford. At the time
of trial, this $874.750 note receivable was assigned to the Valley Bank for the payment of an
indebtedness. The note matured in January 1988. Kenneth Kenevan, a CPA testifying as an
expert witness for Dr. Ford, opined that at maturity, the bearer of the note would incur a tax
liability of $125,000. Dr. Ford argues that the district court erred by refusing to consider this
future tax liability when it valued the Scanlin note for the purpose of dividing the community
property. We agree.
We noted previously that courts can consider potential tax liability when valuing marital
assets if a taxable event has occurred as a result of the divorce or equitable distribution of
property, or is certain to occur within a time frame so that the trial court may reasonably
predict the tax liability. Hovis v. Hovis, 541 A.2d 1378, 1380-1381 (Pa. 1988). In the instant
case, testimony by Kenneth Kenevan indicated that the tax liability would accrue when the
Scanlin note pays off in January 1988. Mr. Kenevan also observed at trial that [t]he tax
liability already exists, and would follow the note regardless of who the holder was.
Accordingly, the record indicates that a taxable event pertaining to the Scanlin note was
certain to occur within a certain time frame (just over a year from the trial) so that the district
court could have reasonably predicted Dr. Ford's tax liability.
Trial courts should consider tax consequences of property distribution when proof exists
that a taxable event has occurred during marriage or will occur in connection with the
division of the community property. In re Marriage of Fonstein, 131 Cal.Rptr. 873, 879-880
n.5 (1976). In the instant case, as a result of the division of the community property, Dr. Ford
incurred a substantial tax burden upon the maturation of the Scanlin note. Therefore, the
district court erred when it refused to consider this liability in making its distribution of the
Fords' marital estate. Hovis, 541 A.2d at 1380-1381.
After careful review of the parties' other contentions, we find them to be without merit.
Accordingly, we order:
1. That the order rescinding alimony and abrogating the attorney's fee be, and hereby is,
vacated.
2. That alimony ordered in January 1987 be, and hereby is, reinstated, and Dr.
105 Nev. 672, 682 (1989) Ford v. Ford
reinstated, and Dr. Ford is directed to (a) pay all amounts in arrears after the order of
rescission, and (b) continue payments ordered by the decree and judgment of January 1987.
3. That Dr. Ford pay the attorney fee in the amount of $25,000.
4. That Dr. Ford be given credit for tax liability on the Scanlin note, in accordance with
testimony admitted at trial.
Accordingly, we remand for proceedings consistent with this opinion.
____________
105 Nev. 682, 682 (1989) Fawaz v. State
SCOTT FAWAZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19177
November 27, 1989 783 P.2d 425
Appeal from an order of the district court denying a petition for post-conviction relief.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Petitioner sought post-conviction relief. The district court denied petition. Petitioner
appealed. The Supreme Court held that remedy for counsel's prejudicial failure to file notice
of appeal from denial of motion for new trial was review of merits of claim for new trial.
Affirmed.
Laura FitzSimmons, Carson City, for Appellant.
Criminal Law.
Remedy for counsel's prejudicial failure to file notice of appeal from denial of motion for new trial was review of merits of claim
for new trial. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
On July 29, 1986, appellant was convicted, pursuant to a jury verdict, of four counts of
robbery with use of a deadly weapon, and one count each of burglary and grand larceny
auto, all in connection with a bank robbery.
105 Nev. 682, 683 (1989) Fawaz v. State
and one count each of burglary and grand larceny auto, all in connection with a bank robbery.
Appellant was sentenced to serve a total of twenty years in the Nevada State Prison.
On November 10, 1986, while his appeal from his judgment of conviction was pending
before this court, appellant filed in the district court a motion for a new trial based on the
alleged discovery of new evidence. The district court denied appellant's motion for a new
trial.
On December 31, 1987, the court dismissed appellant's direct appeal from his judgment of
conviction. Further, this court dismissed appellant's appeal from the district court's denial of
appellant's motion for a new trial for lack of jurisdiction, because appellant had not filed a
separate notice of appeal from the district court's orders. See Fawaz v. State, Docket No.
17608 (Order Dismissing Appeal, December 31, 1987).
On February 17, 1988, appellant filed a petition for post-conviction relief. The state
opposed the petition. Following a hearing, the district court denied the petition on its merits.
Appellant contends that the district court erred in denying his petition for post-conviction
relief because his attorney in the new trial proceedings was ineffective. In light of the fact that
appellant's attorney in the new trial proceedings failed to file a notice of appeal, it must be
conceded that counsel was ineffective.
1

Our conclusion that appellant's counsel was ineffective, however, does not lead us to
conclude that the district court erred in denying appellant's petition for post-conviction relief.
The district court denied the petition on its merits after a hearing. Although the district court
issued a form order of denial, the district court orally stated that the new evidence was not the
type that would warrant a new trial. No other reason for the denial was given. Thus, by
reaching the merits of appellant's petition, the district court impliedly accepted appellant's
claim that his attorney was ineffective in the new trial proceedings. Appellant was prejudiced
by the ineffective conduct of his attorney because he lost his right to review by this court.
Appellant's remedy, therefore, is a review of the merits of his claim that he was entitled to a
new trial.
Two separate district judges have determined that the alibi evidence that was belatedly
discovered by appellant was not sufficient to warrant a new trial. The granting of a new
trial in a criminal case on the ground of newly discovered evidence is discretionary with the
district court, and that court's determination will not be reversed on appeal unless an abuse
of discretion is clearly shown.
__________

1
Counsel for appellant herein did not represent appellant in the district court proceedings.
105 Nev. 682, 684 (1989) Fawaz v. State
tion will not be reversed on appeal unless an abuse of discretion is clearly shown. Lightford v.
State, 91 Nev. 482, 538 P.2d 585 (1975). Further, in determining whether to grant a new trial
based on the allegation of the discovery of new evidence, the trial court must consider
whether, under all of the circumstances of the case, the new evidence will probably change
the result of the trial. See State v. Crockett, 84 Nev. 516, 519, 444 P.2d 896, 898 (1968).
The district court's determination that the alleged new evidence was not the type of
evidence that would warrant a new trial is amply supported by the record. Specifically, the
evidence of appellant's guilt was substantial, and the likelihood that a new jury, armed with
appellant's embellished alibi, would reach a different result is remote. Therefore, the district
court did not abuse its discretion when it denied appellant's motion for a new trial. It follows
that the district court did not err when it dismissed appellant's petition for post-conviction
relief.
Young, C. J., Steffen, Mowbray, and Rose, JJ., concur.
My review of the record reveals that even the state agrees that if the alibi witness is telling
the truth, Fawaz was at Mt. Charleston at the time the robbery took place. I see no reason to
reject, out of hand, the sworn testimony of this citizen. I think that some judicial officer ought
to hear the witness and made a judgment as to whether the testimony warrants re-examination
of the facts in a new trial. It seems to me that we are ignoring the testimony of a witness who,
if believed, would cast very serious doubts about Fawaz's guilt. We know nothing of the
witness, and nothing suggests that he is dishonest or not telling the truth. I would remand the
case to the district court to resolve these doubts.
____________
105 Nev. 685, 685 (1989) Nev-Tex Oil v. Precision Rolled Products
NEV-TEX OIL & GAS, INC., and KENNETH SANTOR, Appellants, v. PRECISION
ROLLED PRODUCTS, Respondent.
No. 19472
November 27, 1989 782 P.2d 1311
Appeal from a money judgment. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Owner of interest in gas well brought action against corporate agent and corporation for
breach of gas well exploration agreement, misrepresentation, and unjust enrichment. The
district court entered judgment in favor of owner. Corporation and agent appealed. The
Supreme Court held that: (1) agent's fraud subjected him to liability, whether or not corporate
veil could be pierced, and even though fraud occurred in transaction on behalf of corporation,
and (2) owner was real party in interest as to entire damage award and did not receive
double recovery.
Affirmed.
Mark H. Gunderson, Reno, for Appellants.
Roland K. Martin, Reno; Beckley, Singleton, DeLanoy, Jemison & List and Daniel F.
Polsenberg, Las Vegas, for Respondent.
1. Corporations.
Corporate agent's fraud subjected him to liability, whether or not corporate veil could be pierced, and even though fraud occurred
in transaction on behalf of corporation.
2. Damages.
Owner who sole one-half interest in gas well after initiating suit for fraud and breach of contract was real party in interest as to
entire damage award and did not receive double recovery, even though partnership that had purchased interest was not party to lawsuit.
OPINION
Per Curiam:
This is an appeal from a money judgment entered pursuant to a bench trial. At trial
respondent asserted claims against appellants for breach of a gas well exploration agreement,
misrepresentation and unjust enrichment. The district court awarded respondent damages in
the amount of $58,000 plus $5,000 in punitive damages.
Appellants contend on appeal that the district court erred in piercing the corporate veil of
appellant Nev-Tex Oil & Gas, Inc., and awarding damages against appellant Kenneth Santor
personally.
105 Nev. 685, 686 (1989) Nev-Tex Oil v. Precision Rolled Products
ally. This argument is misplaced. Although the district court found that Nev-Tex's corporate
veil should be pierced, this finding was unnecessary to the award of damages against Santor
personally.
[Headnote 1]
The district court found that Santor intentionally misrepresented material facts to
respondent and that respondent was damaged in the amount of $58,000 because of those
misrepresentations. An agent who fraudulently makes representations is liable in tort to the
injured person although the fraud occurs in a transaction on behalf of the principal. See e.g.
Carrel v. Lux, 420 P.2d 564, 576 (Ariz. 1966); Pentacost v. Harward, 699 P.2d 696, 699
(Utah 1985). Thus appellant Santor is liable to respondent regardless of whether the corporate
veil was correctly pierced.
[Headnote 2]
Appellants next contend that the trial court erred in its calculation of damages.
Specifically, appellants note that respondent sold one-half of its interest in the gas well to a
partnership after it initiated suit. The partnership was not a party to this lawsuit. Because
respondent owned only one-half of the interest in the gas well at the time of the judgment,
appellants contend that respondent was not the real party in interest as to one-half of the
damages.
This contention lacks merit. Respondent was a party to the exploration agreement; the
partnership was not. Santor made misrepresentations to respondent, and respondent was
damaged as a result of these misrepresentations. Therefore, respondent had a significant
interest in the litigation and possessed the right to enforce the claims. See Painter v.
Anderson, 96 Nev. 941, 943, 620 P.2d 1254, 1256 (1980). Although respondent entered into
a sub-agreement with the partnership, respondent is nevertheless the real party in interest as to
the entire damage award and did not receive a double recovery. The fact that the partnership
may have some rights as against respondent resulting from their separate sub-agreement does
not affect appellants' liability to respondent for the actual amount of the damages caused in
this action. The district court's award of damages was proper in all respects. Accordingly, we
affirm the judgment of the district court.
____________
105 Nev. 687, 687 (1989) Perri v. Gubler
ROSE MARIE GUBLER PERRI, Appellant, v. REGEN CLAY GUBLER, Respondent.
No. 19627
November 27, 1989 782 P.2d 1312
Appeal from the district court's order granting respondent's request for child support.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Former husband sought child support. The district court granted request. Former wife
appealed. The Supreme Court held that husband's affidavit of financial conditions which
failed to disclose recent purchase of real estate precluded modification of divorce decree.
John & Elizabeth Foley, Las Vegas, for Appellant.
Stephen R. Minagil, Las Vegas, for Respondent.
Divorce.
Former husband's affidavit of financial conditions which failed to disclose recent purchase of real estate precluded modification of
divorce decree to require former wife to begin paying child support.
OPINION
Per Curiam:
This is an appeal from an order modifying appellant's divorce decree and requiring her to
pay child support to respondent. For the reasons set forth below, we reverse.
Appellant Rose Marie Gubler Perri (Rose) and respondent Regen Clay Gubler (Regen)
were married in November 1975 and divorced pursuant to a decree entered May 21, 1983, in
the Eighth Judicial District Court of Nevada. The decree provides in pertinent part:
[T]here are three minor children the issue of said marriage . . . now in the care, custody
and control of Defendant herein; that Defendant [Regen] is a fit and proper person to
have the care, custody and control of said minor children and is qualified and able to
support said children; the plaintiff is not able to provide support for said children and
Defendant is not only able but has agreed to provide for the total support and
maintenance of said minor children; that Plaintiff requests and Defendant is agreeable
to reasonable visitation. . . .
105 Nev. 687, 688 (1989) Perri v. Gubler
Despite the decree, visitation disputes abounded and led to the district court entering
specific visitation orders in November 1983 and in July 1987. On March 23, 1988, Regen
moved to modify the divorce decree, the specific visitation order of July 1987, and for child
support. In his supporting affidavit of financial conditions, Regen claimed his monthly
expenses exceeded his monthly income by approximately $510.00.
Rose opposed Regen's requested changes and filed a supporting affidavit in which she
claims that Regen severely understated both his income and assets. Rose included a copy of a
deed of sale to a parcel of real estate in Overton, Nevada, indicating a purchase by Regen on
February 23, 1988, and which was not included in the list of assets in Regen's March 23, 1988
affidavit of financial conditions. Rose also submitted her own affidavit of financial
conditions, indicating that Rose and her new husband's combined monthly income exceeds
total monthly expenses by approximately $535.00.
Following a hearing, the district court entered an order on September 13, 1988, requiring
Rose to pay $345.00 per month in child support pursuant to the guidelines set forth in NRS
125B.070. In this appeal Rose claims, inter alia, that Regen's false statements in his affidavit
of financial conditions may have caused the district court to err. This contention has merit.
This court has previously held that the district court's authority to modify an award
respecting custody or support must be based on changed circumstances which occur after
entry of the original decree. Harris v. Harris, 95 Nev. 214, 216, 591 P.2d 1147, 1148 (1979).
The divorce decree in the instant case reveals that, at the time the parties divorced, Regen was
able and thus agreed to provide for the total support of the three minor children.
The record in this case reveals that Regen's affidavit of financial conditions was less than
candid and did not fully apprise the district court of his financial abilities. Without accurate
information the district court would be unable to conclude that Regen was no longer able to
provide for the total support of the children. Thus, we cannot conclude that the district court
had a valid basis for modifying the original support decree. Consequently, until such time as
full and accurate information is forthcoming from Regen, the district court remains powerless
to act upon his request for child support from Rose. Because we decide that Regen's deficient
financial affidavit precluded a valid modification of the original support decree, we need not
reach Rose's other contentions.
For the foregoing reasons, we reverse the order of the district court requiring Rose to pay
child support and remand the case for further proceedings consistent with this opinion.
____________
105 Nev. 689, 689 (1989) Matter of Estate of Meredith
IN THE MATTER OF THE ESTATE OF JEAN PORTER MEREDITH, Deceased, DENNIS
MEREDITH, Co-Executor, Appellant, v. STUART A. MEREDITH, Co-Executor,
Respondent.
No. 19515
November 27, 1989 782 P.2d 1313
Appeal from a district court order construing a will and distributing the assets of an estate.
Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
On appeal from order of the district court construing will to require estate to pay to
exercise option for purchase of leased machine, the Supreme Court held that will required
estate only to pay off lease on machine, not for exercise of purchase option.
Vernon E. Leverty, Reno, for Appellant.
Eck & McCarthy, Carson City, for Respondent.
1. Wills.
Appellate court generally is not bound by interpretation accorded will by district court and undertakes independent appraisal of
will, and only to extent that construction turns on assessments of credibility or of conflicts in evidence must appellate court apply
substantial evidence standard.
2. Wills.
Will did not require estate to pay for exercise of option to purchase leased machine; terms lease, obligation, debt, and lease
obligation did not include that option, which was a contingent and future contract to purchase property.
OPINION
Per Curiam:
On April 27, 1986, Jean Porter Meredith (Jean), a resident of Jacks Valley, Nevada,
died. Jean's will nominated as co-executors Jean's two sons, appellant Dennis Meredith
(Dennis) and respondent Stuart Meredith (Stuart). Dennis and Stuart were the principal
beneficiaries of Jean's will. Under the will, Dennis and Stuart each received one-half of the
residual estate. The will leaves Dennis two single family residences, but leaves Stuart Jean's
60 percent interest in J.H. Meredith Co. (Meredith Co.). Meredith Co. is a Carson City
machine shop which Stuart and Jean had managed together for several years.
Stuart owned the other 40 percent interest in the shop. The will provides in pertinent part:
Fourth: I give to my son, Stuart Alan Meredith, if he survives me, my interest in the
partnership carried on under the name and style of J.H. MEREDITH COMPANY,
located at 4611 Goni Road, Carson City, Nevada, or any successor to the partnership.
. . . .
. . . .
. . . .
Eighth: I have among my liabilities debts owing to the Bank of America, the Yosemite
Bank, and a lease obligation to Amada Leasing for a Wasino model L3-J3.
Ninth: I direct my executors, executor or administrator with the will annexed to pay all
proper and just debts from my estate to my debtors [sic].
The Wasino referred to in paragraph eight is a computerized lathe, which is necessary to
the operation of Meredith Co. Meredith Co. leased the Wasino from Amada Leasing on June
24, 1983. On July 14, 1983, Stuart also executed an option to purchase the Wasino on behalf
of Meredith Co. The total lease payments from July 14, 1983, to October 13, 1988, were
$131,485, according to the lease payment schedule. Under the terms of the option, Meredith
could purchase the Wasino at the end of the lease period for an additional $23,950 plus
$5,278 in taxes, a total of $29,228. The value of the Wasino was estimated at approximately
$98,000.
The district court construed paragraphs eight and nine of Jean's will to require Jean's estate
to pay (1) all delinquent lease payments on the Wasino, (2) all the remaining lease payments
due on the Wasino up to the end of the lease period, even though these payments were not yet
due, and (3) the $29,228 option to purchase the lease. Dennis only challenges in this appeal
the portion of the district court's order which compels the estate to pay to exercise the option
on the Wasino. Specifically, Dennis contends that the district court erred by construing the
terms lease, obligation and debt in paragraphs eight and nine of the will to include the
option. Dennis urges that paragraphs eight and nine refer only to the lease obligation and thus
require the estate only to pay off the lease, not the option as well. Dennis alleges that the
court's error harmed him in the amount of $14,614, which represents his one-half share in the
$29,228 paid from the residuary estate to exercise the option. We hold that the district court
erred in construing the will to require the estate to pay to exercise the option, and we
remand the case for further proceedings consistent with this opinion.
the option, and we remand the case for further proceedings consistent with this opinion.
LEGAL DISCUSSION
I. Scope of appellate review of questions of will construction.
The question presented by this appeal is whether the district court erred by construing
paragraphs eight and nine of Jean's will to require the estate to pay for the exercise of the
option to purchase the Wasino machine. Stuart contends that this court must affirm the
district court's construction if the construction is supported by substantial evidence. This
contention is without merit.
[Headnote 1]
An appellate court generally is not bound by the interpretation accorded a will by a district
court; instead, the appellate court undertakes an independent appraisal of the will. Concannon
v. Winship, 94 Nev. 432, 434, 581 P.2d 11, 13 (1978). Only to the extent that the
construction turns on the assessments of credibility or of conflicts in the evidence must the
appellate court apply the substantial evidence standard. See Estate of Dodge, 491 P.2d 385,
389 (Cal. 1971). The present case did not involve any conflict in the evidence or any question
of credibility. Therefore, this court will undertake an independent review of the will, and we
are not bound by the substantial evidence standard of review.
II. Construction of paragraphs eight and nine of Jean's will.
[Headnote 2]
Dennis contends that the district court erred by construing the terms lease, obligation,
and debt in paragraphs eight and nine of the will to comprise the option to purchase the
Wasino machine. We agree.
Absent strong extrinsic evidence indicating a contrary meaning, the surest way for courts
to carry out a testator's intent is to construe a will according to the plain meaning of terms
used in the will. Accordingly, this court has stated:
A court may not vary the terms of a will to conform to the court's views as to the true
testamentary intent. The question before us is not what the testator actually intended or
what she meant to write. Rather it is confined to a determination of the meaning of the
words used by her.
Jones v. First Nat. Bank, 72 Nev. 121, 123, 296 P.2d 295, 296 (1956). Here, even though the
lease and option apply to the same piece of machinery, the term lease does not clearly
comprise the option as well. The terms lease and option denote different legal concepts.
different legal concepts. Moreover, the lease and option on the Wasino were executed one
month apart and as separate documents. Neither do the terms obligation and debt
encompass the option. An option is not an unconditional and existing debt or obligation, but,
rather, a contingent and future contract to purchase property.
Finally, we conclude that the combined term lease obligation in paragraph eight does not
include the option. This term clearly comprises the past-due lease payment obligations
existing at the time of probate, and the district court was correct to order the estate to pay off
these delinquent sums. It is less clear that this term comprised all the remaining lease
payments not yet due at the time of probate. Since Dennis does not challenge the portion of
the district court's order which required the estate to make the remaining lease payments, we
do not address that portion of the order.
The sparse extrinsic evidence in this case regarding the meaning of these terms does not
convince us to construe lease obligation and debt to include the option. The district court
heard no testimony which indicated that the testatrix ascribed any special meaning to these
terms. The fact that the lease obligation and the option opportunity relate to the same piece of
machinery does not make these distinct documents synonymous. The fact that exercising a
$29,228 option to acquire a $98,000 machine is a sound business decision for Meredith Co. is
not sufficient to alter the construction of these terms.
Accordingly, we reverse the decision of the district court and remand the case for further
proceedings consistent with this opinion.
____________
105 Nev. 692, 692 (1989) State v. American Bankers Insurance
THE STATE OF NEVADA, Appellant, v. AMERICAN BANKERS INSURANCE
COMPANY, and CAM'S BAIL BONDS, Sureties for LISA SALINAS, aka LISA DENISE
TUBBS, Respondents.
No. 19765
November 27, 1989 782 P.2d 1316
Appeal from district court order denying appellant's motion for judgment on the bail bond
and granting the sureties' motion to exonerate the bond. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
State moved to enforce forfeiture of bail bond by obtaining judgment on bond after
defendant failed to appear at scheduled criminal proceeding.
criminal proceeding. The district court denied motion for judgment on bond and exonerated
bond, and State appealed. The Supreme Court, held that six-year statute of limitations
governs actions to enforce forfeitures of bail bonds.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and Mitchell M.
Cohen, Deputy District Attorney, Clark County, for Appellant.
H. Dale Murphy, Reno, for Respondents.
1. Bail.
Bail bond is instrument in writing and therefore six-year statute of limitations for actions on written instruments, rather than
two-year period for actions on statute applies to actions to enforce forfeitures of bail bonds. NRS 11.190, subds. 1(b), 4(b), 178.506.
2. Bail.
Statutory provisions for enforcement of bail bond forfeitures create exclusive remedy for enforcement of such obligations. NRS
178.506.
OPINION
Per Curiam:
The sole question presented by this appeal is whether the statute of limitations for actions
pursuant to NRS 178.506 et seq. to enforce bail bond forfeitures is the six-year period for
actions founded upon written instruments stated in NRS 11.190(1)(b) or the two-year period
for actions upon a statute to enforce forfeitures stated in NRS 11.190(4)(b).
FACTS
Appellant State of Nevada (State) brings this appeal in order to establish its right to
enforce a bail bond executed by the respondents, American Bankers Insurance Co.
(American) and Cam's Bail Bonds (Cam's) (collectively, the sureties). On May 2, 1985, Cam's
posted bail bond number AB5-019755 in the amount of $5,000. The bond was for Lisa
Salinas (Salinas) who had been charged with sale of a controlled substance. The appearance
bond recites Cam's as the principal and American as the surety. On October 2, 1985, Salinas
failed to appear at a scheduled criminal proceeding and the court issued a bench warrant for
her arrest. On October 7, 1985, notices of intent to forfeit the bail bond were mailed to both
of the sureties. Ninety days later, on January 6, 1986, the bond was automatically forfeited
pursuant to the terms of the court's notices and the provisions of NRS 178.508.
On November 16, 1987, the State moved to dismiss the case because it could not locate a
confidential informant.
because it could not locate a confidential informant. Only on January 25, 1988, did the State
file its motion pursuant to NRS 178.514 to enforce the forfeiture by obtaining a judgment on
the bond. The sureties filed an opposition to the State's motion. In the opposition, the sureties
contended that the State's motion for enforcement was barred by the two-year statute of
limitations governing forfeitures contained at NRS 11.190(4)(b). The State filed a reply,
contending that the applicable statute of limitations period on bail forfeiture proceedings was
the six-year statute for actions based upon written contracts and obligations contained at NRS
11.190(1)(b). Although the district court admitted it had not considered the matter
thoroughly, the court concluded that NRS 11.190(4)(b)'s two-year period of limitations
governs bail forfeiture actions. The court accordingly denied the State's motion for judgment
on the surety bond and exonerated the bond since the two-year period of limitations had run
by the time the State filed its motion to enforce the forfeiture.
1
The State appeals the district
court's order.
LEGAL DISCUSSION
11.190 Periods of limitation. Actions other than those for the recovery of real
property, unless further limited by specific statute, can only be commenced as follows:
1. Within 6 years:
. . . .
(b) An action upon a contract, obligation or liability founded upon an instrument in
writing, except those mentioned in the preceding sections of this chapter. . . .
. . . .
. . . .
4. Within 2 years:
. . . .
(b) An action upon a statute for a penalty or forfeiture, where the action is given to a
person or the state, or both, except when the statute imposing it prescribes a different
limitation.
__________

1
Although we do not now decide exactly when a cause of action for enforcement of a bail bond forfeiture
accrues, it is clear that the State filed its motion more than two years after the cause of action accrued in this
case. Salinas failed to appear in court on October 2, 1985. For reasons stated above, the bond was automatically
forfeited on January 6, 1986. Assuming the cause of action to enforce the forfeiture arose on the date Salinas
failed to appear, the State's January 25, 1988, motion to enforce the forfeiture was filed more than two years
after the accrual of the cause of action. Assuming the cause of action arose on January 6, 1986, the State's
motion to enforce the forfeiture was still filed more than two years after accrual of the cause of action.
The State argues that subsection 1(b) of NRS 11.190 governs bail bond forfeiture actions.
The sureties argue that subsection 4(b) controls. The bail bond forfeiture provisions do not
contain any special limitations period.
The State urges that the bond forfeiture action is essentially a contract action, not an action
upon a statute. The State contends that the sections governing bail bond forfeiture, NRS
178.506-548, are merely procedural, the implication being that these sections are not
substantive because they do not create the right to be enforced. The State distinguishes from
the sections governing bail bond forfeitures other actions for forfeiture such as an action
based on NRS 179.121, which provides that instrumentalities of crimes are subject to
forfeiture. According to the State, rights to enforce a forfeiture under NRS 179.121 are
created solely by statute. The bail forfeiture provisions, says the State, are not based solely on
statute, but at least in part on a contractual obligation, namely the bond. It is the State's
position that this precise question was resolved by this court in the case of State v. Murphy,
23 Nev. 390, 48 P. 628 (1897). We agree.
[Headnotes 1, 2]
In Murphy, the district court had authorized a bail bond pending appeal in favor of a
defendant before the defendant had appealed. Murphy, 23 Nev. at 401-03, 48 P. at 631. The
district court entered a judgment against the bondsmen for forfeiture of the bond. Murphy, 23
Nev. at 396, 48 P. at 629. The bondsmen appealed, contending, inter alia: (1) that the
forfeiture action brought by the State to enforce the bond was barred by the statute providing
for a two-year period of limitations for [a]n action upon a statute for a forfeiture or penalty
to the state, and (2) that the bail bond was invalid because no statute authorized
post-conviction bonds until after the defendant appealed. Murphy, 23 Nev. at 398-401, 48 P.
at 629-31. This court squarely rejected the first contention, stating:
This is an action upon an obligation founded upon an instrument in writing, and the
right of action thereon is barred [i.e., governed] by the six-year clause of our statute.
Gen. St. Nev. 3644.
It is true that the obligation is authorized by statute, that it provides for a penalty for
its violation, and the right of action arises only upon a forfeiture thereof, yet without
and apart from the written obligation, there is and could be no liability whatever on the
part of the appellants. Their liability if founded upon and fixed by the obligation and,
as upon other obligations, the right of the state to sue arises under a breach thereof.
Murphy, 23 Nev. at 399, 48 P. at 630 (emphasis added). Because the six-year contracts period
of limitations applied, the statute of limitations was no bar to the action brought by the State
to enforce the forfeiture. The court ultimately ruled in favor of the bondsmen on the distinct
ground that the district court had no jurisdiction to authorize any post-conviction bail bond
until after the defendant filed an appeal. Murphy, 23 Nev. at 403, 48 P. at 631. Murphy's
statements regarding the statute of limitations issue have never been questioned or overruled.
Indeed, this court cited Murphy with approval as an example of correct construction of the
statute of limitations in El Rancho, Inc. v. New York Meat and Prov., 88 Nev. 111, 493 P.2d
1318 (1972).
2
Much more recently, the Michigan Court of Appeals reached the same
conclusion as the Murphy court in People v. Woodall, 271 N.W.2d 298 (Mich.Ct.App. 1978).
Finally, the legislature has not amended either the statute of limitations or the statutes
governing forfeiture of bail bonds in any manner material to this issue since Murphy was
decided. For these reasons, contrary to the district court, we reaffirm the reasoning of Murphy
and hold that the six-year period of NRS 11.190(1)(b) is the statute of limitations governing
actions to enforce forfeitures of bail bonds.
For the reasons stated above, we reverse the judgment of the district court and remand this
case to the district court for further proceedings to enforce the bond forfeiture.
__________

2
This dicta in El Rancho suggests, however, that there may be two causes of action available to the state to
enforce bail bonds: the forfeiture action and a subsequent contract action. Although the point is not urged in this
appeal, we note in passing that this suggestion is incorrect. The statutory provisions for enforcement of bail bond
forfeitures create the exclusive remedy for enforcement of these obligations. See, e.g., People v. Rocco, 124
N.E.2d 25, 26 (Ill. 1955).
____________
105 Nev. 696, 696 (1989) Ameritrade, Inc. v. First Interstate Bank
AMERITRADE, INC., Appellant, v. FIRST INTERSTATE BANK OF NEVADA,
Respondent.
No. 19775
November 27, 1989 782 P.2d 1318
Appeal from an order of the district court granting respondent's motion for partial
summary judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Bank filed suit asserting breach of presentment and transfer warranties. Bank's motion for
partial summary judgment was granted by the district court and defendant appealed.
granted by the district court and defendant appealed. The Supreme Court held that it was an
abuse of discretion to deny defendant additional time to obtain depositions relating to
endorsement authorization defense, prior to granting summary judgment.
Albright, Stoddard, Warnick & Albright, Las Vegas, for Appellant.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Respondent.
Judgment.
In suit brought by bank alleging breach of presentment and transfer warranties with respect to check deposited in bank, it was an
abuse of discretion to deny defendant's request for additional time to obtain the depositions prior to grant of partial summary judgment,
where only eight months had passed since filing of complaint, there was issue as to whether check was wrongfully endorsed, and
defendant was unable to present by affidavit facts supporting its endorsement authorization defense since it was not party to alleged
endorsement authorization arrangement. NRCP 56(f).
OPINION
Per Curiam:
This is an appeal from an order granting respondent's motion for partial summary
judgment. For the reasons set forth below, we reverse.
Facts
Taken in the light most favorable to appellant, the record indicates the following facts: In
February 1985, appellant Ameritrade, Inc. contracted with Stoneridge Securities, Inc. to
handle all cashiering functions related to securities transactions for Stoneridge's customer
accounts. To perform these services, Ameritrade opened an account with respondent First
Interstate Bank of Nevada. Stoneridge would deposit monies into this account and then direct
Ameritrade, through the use of trade orders, to purchase various securities for its customers.
On November 27, 1987, a check payable to Ishwar Patel, Hansa Patel, and Kangi Patel
(Patel check) was drawn on an account at a Massachusetts bank in the amount of
$236,465.41. Ameritrade alleges that the Patel check was endorsed and deposited into
Ameritrade's account at First Interstate by a Stoneridge employee, Randy Gleich. Ameritrade
then purchased various securities for the Patels pursuant to Stoneridge's directions.
On or about December 21, 1987, First Interstate advised Ameritrade that a hold was being
placed on its account because the Patels had claimed their endorsements were forged and
unauthorized. On January 6, 1988, the Patels assigned all their rights to First Interstate in the
securities purchased by Ameritrade on their behalf. First Interstate subsequently paid the
Patels $230,445.41 and received a release of all claims the Patels might have against First
Interstate.
Also on January 6, 1988, First Interstate Vice President James Howard advised Ameritrade
that the hold on its account had been released. Ameritrade subsequently transferred the
contents of the Patels' account to an account in the name of First Interstate. Ameritrade then
liquidated some of the securities in this account and by January 26, 1988, had reimbursed
First Interstate a total of $75,000.00.
On April 1, 1988, First Interstate filed suit against Stoneridge, Stoneridge President
Ronald Wheeler, Sr., and Ameritrade to recover the losses sustained due to negotiation of the
Patel check. By way of an affirmative defense, Ameritrade asserted that Randy Gleich was
authorized to endorse the Patel check.
A joint case conference report was filed August 24, 1988, by the attorneys for First
Interstate, the Patels, and Ameritrade. At this time both Stoneridge and Wheeler were in
bankruptcy. In the August 24 report, Ameritrade again asserted that Gleich was authorized to
endorse the Patel check. The report also contains a discovery plan and witness list, which
includes Gleich's name and the notation: Gleich will testify as to agreements and
transactions with the Patels, including endorsement of the check in question.
First Interstate filed a motion for partial summary judgment against Ameritrade on October
3, 1988, asserting Ameritrade's liability based on breach of the presentment and transfer
warranties contained in NRS 104.4207(1) and (2).
1
An affidavit of forgery and
non-authorization, signed by each of the Patels, accompanied First Interstate's motion.
__________

1
NRS 104.4207 adopts the provisions of the Uniform Commercial Code, 4-207, and provides in pertinent
part:
1. Each customer or collecting bank who obtains payment or acceptance of an item and each prior
customer and collecting bank warrants to the payor bank or other payor who in good faith pays or accepts
the item that:
(a) He has a good title to the item or is authorized to obtain payment or acceptance on behalf of one
who has a good title; and
. . . .
2. Each customer and collecting bank who transfers an item and receives a settlement or other
consideration for it warrants to his transferee and to any subsequent collecting bank who takes the item in
good faith that:
(a) He has a good title to the item or is authorized to obtain payment
forgery and non-authorization, signed by each of the Patels, accompanied First Interstate's
motion. In its opposition, Ameritrade requested additional discovery time pursuant to NRCP
56(f) in order to depose the witnesses listed in the joint case conference report. Despite this
request, the district court granted First Interstate's motion by order dated November 15, 1988.
Ameritrade contends that the district court erred by granting First Interstate partial
summary judgment. Specifically, Ameritrade contends that a continuance should have been
granted which would have enabled Ameritrade to depose the witnesses listed in the joint case
conference report. Ameritrade argues that without such testimony, the district court could not
fairly evaluate the factual issues raised by Ameritrade's various defenses. This contention has
merit.
Discussion
Preliminarily, we note that less than eight months had passed since the filing of First
Interstate's complaint until the time summary judgment was granted. We also note that
Ameritrade was unable to commence taking depositions until after the joint case conference
report was filed. See NRCP 26(a).
NRCP 56(f)
2
provides that the district court may order a continuance when the party
opposing summary judgment is unable to present facts which support his position. It is
apparent from the affidavit of Ameritrade President Thomas Pleiss that an issue exists as to
whether the Patel check was wrongfully endorsed or whether the Patels were attempting to
back out of the trades placed on their behalf in December 1987. It is also apparent that
Ameritrade is unable to present by affidavit facts which support its endorsement authorization
defense, since Ameritrade was not a party to any such arrangement which may have existed
between the Patels and Stoneridge.
In Halimi v. Blacketor, 105 Nev. 105, 770 P.2d 531 (1989), we held that summary
judgment was improperly granted where appellant had sought additional time to conduct
discovery in order to gather facts supporting his position. We noted in Halimi that less than
one year had transpired between the time appellant filed his complaint and the time
summary judgment was entered against him.
__________
or acceptance on behalf of one who has a good title and the transfer is otherwise rightful; and
(b) All signatures are genuine or authorized; . . .

2
NRCP 56(f) provides:
When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion
that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is just.
that less than one year had transpired between the time appellant filed his complaint and the
time summary judgment was entered against him. We also noted that Halimi's request for
additional time was reflective of his diligence in pursuing the action. Thus, the district court
had abused its discretion by refusing Halimi's request for a continuance and by granting
summary judgment at such an early stage in the proceedings. Halimi, 105 Nev. at 105, 770
P.2d at 532. See also Harrison v. Falcon Products, 103 Nev. 558, 746 P.2d 642 (1987).
In the instant case, Ameritrade has not been dilatory in pursuing discovery and has
demonstrated its diligence by requesting additional time to obtain depositions. Based on these
facts, it was an abuse of discretion to deny Ameritrade's request at such an early stage in the
proceedings. Because we hold that Ameritrade was entitled to additional discovery time, we
need not reach Ameritrade's other contentions.
Accordingly, we reverse the order granting partial summary judgment and remand the case
to the district court for further proceedings.
____________
105 Nev. 700, 700 (1989) Oakley v. State
HAROLD WAYNE OAKLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19776
November 27, 1989 782 P.2d 1321
Appeal from a judgment of conviction, pursuant to a bench verdict, on one count of
unlawful sale of a motor vehicle. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Car buyer was convicted in the district court of unlawful sale of car. Buyer appealed. The
Supreme Court held that buyer who fulfilled all conditions for purchase of car and then sold it
before State issued title certificate bearing his name was owner within meaning of statute
prohibiting sale of vehicle by person other than owner or certain others.
Reversed.
Frank J. Cremen, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Pandora Rider, Deputy District Attorney,
Clark County, for Respondent.
Automobiles.
Buyer who fulfilled all conditions for purchase of car and then sold it before State issued title certificate bearing his name was
owner within meaning of statute prohibiting sale of vehicle by person other than owner, lienholder, repossessor, manufacturer,
distributor, rebuilder, lessor, or dealer. NRS 482.085, 482.547.
OPINION
Per Curiam:
Appellant Harold Wayne Oakley (Oakley) was convicted on one of two counts charging
unlawful sale of a motor vehicle. The conviction stemmed from the resale by Oakley of a
1980 Chevrolet Monte Carlo (the Chevy). We hold that appellant was the vehicle owner for
purposes of NRS 482.547 and reverse his conviction.
Oakley traded a Chevrolet Corvette to a Las Vegas dealership for several used cars, one of
which was the Chevy. Oakley did not immediately acquire a title document to the Chevy and
testified that his acquisition of the car was conditioned upon the dealership providing him
with one. Before receiving the title, Oakley arranged to sell the Chevy to Michael Haws.
Haws made a series of payments to Oakley, and when the final payment was made, Oakley
had obtained and thus provided Haws with an open title to the Chevy. The Chevy would not
pass an emissions control test and Haws ultimately filed a complaint with the Department of
Motor Vehicles. The DMV's investigation led to Oakley's arrest and subsequent conviction.
Oakley was charged with violating NRS 482.547, which states in pertinent part:
1. It is unlawful for any person to sell, offer to sell or display for sale any vehicle
unless the person is:
(a) The lienholder, owner or registered owner of the vehicle;
(b) A repossessor of the vehicle, or holder of a statutory lien on the vehicle, selling
the vehicle on a bid basis; or
(c) A manufacturer, distributor, rebuilder, lessor or dealer licensed under the
provisions of this chapter.
(Emphasis added.)
NRS 482.085 defines owner for purposes of chapter 482 as follows:
Owner means a person who holds the legal title of a vehicle and whose name
appears on the certificate of ownership, and any lienholder whose name appears on the
certificate of ownership. If a vehicle is the subject of an agreement for the conditional
sale or lease thereof with or without the right of purchase upon performance of the
conditions stated in the agreement and with an immediate right of possession
vested in the conditional vendee or lessee, or if a mortgagor of a vehicle is entitled
to possession, then the conditional vendee or lessee or mortgagor shall be deemed
the owner for the purpose of this chapter.
for the conditional sale or lease thereof with or without the right of purchase upon
performance of the conditions stated in the agreement and with an immediate right of
possession vested in the conditional vendee or lessee, or if a mortgagor of a vehicle is
entitled to possession, then the conditional vendee or lessee or mortgagor shall be
deemed the owner for the purpose of this chapter.
At trial, Oakley did not contend that he was a lienholder, repossessor or a manufacturer,
distributor, rebuilder, lessor or dealer as those terms are used in NRS 482.547. Nor did
Oakley contend that his name appeared on the Chevy's title certificate. However, Oakley did
contend he was a conditional vendee and that he thus fell within the definition of owner
provided by NRS 482.085.
The trial court found that the evidence did not establish a conditional sale and convicted
Oakley. We interpret the lower court's ruling to mean that, at the time Oakley sold the Chevy
to Haws, Oakley had fulfilled all conditions, if any, relating to his own purchase of the Chevy
and was therefore not a conditional vendee.
The State has urged that the purpose behind the relevant motor vehicle statutes is the
State's need to determine the legal owner of a vehicle based on appropriate documentation.
Thus, the requirement that the owner's name appear on the title certificate. The State also
argues that NRS 482.085 creates one exception to the basic definition of owner; the exception
being the conditional vendee.
This court has previously stated that: When interpreting a statute, we resolve any doubt as
to legislative intent in favor of what is reasonable, as against what is unreasonable. Desert
Valley Water Co. v. State Engineer, 104 Nev. 718, 720, 766 P.2d 886 (1988), citing Cragun
v. Nevada Pub. Employees' Ret. Bd., 92 Nev. 202, 547 P.2d 1356 (1976). In Desert Valley we
also reiterated that: The words of the statute should be construed in light of the policy and
spirit of the law, and the interpretation made should avoid absurd results. Desert Valley
Water Co. v. State Engineer, 104 Nev. at 720, 766 P.2d at 887, citing Welfare Div. v. Washoe
County Welfare Dep't, 88 Nev. 635, 503 P.2d 457 (1972).
We interpret the policy behind the above cited statutes to be the prevention of vehicle sales
by anyone other than the actual owner, or a lienholder, repossessor, manufacturer, distributor,
rebuilder, lessor or dealer. A reading of the statutes suggests that one is an owner if he owes
all or part of a vehicle's purchase price. However, if the buyer resells the vehicle after all
conditions of his purchase agreement have been fulfilled, but prior to the State issuing a
title certificate bearing his name, the statutes deem him not an owner and a felony
violation results.
purchase agreement have been fulfilled, but prior to the State issuing a title certificate bearing
his name, the statutes deem him not an owner and a felony violation results. We fail to see
how a buyer loses his status as owner upon fulfillment of his purchase agreement obligations.
Such a narrow reading of NRS 482.085 and 482.547 leads to an absurd result. We therefore
decline to adopt it. Desert Valley Water Co. v. State Engineer, 104 Nev. 718, 766 P.2d 886
(1988).
For the reasons stated above, we reverse the district court's judgment of conviction.
____________
105 Nev. 703, 703 (1989) Rivera v. American Nat'l Property & Casualty
ROBERT AND BARBARA RIVERA, Appellants, v. AMERICAN NATIONAL
PROPERTY AND CASUALTY COMPANY, Respondent.
No. 19830
November 27, 1989 782 P.2d 1322
Appeal from declaratory judgment, pursuant to jury verdict, which states that respondent
insurance company has exhausted its liability to appellants on a policy of automobile
insurance. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Automobile insurer sought declaratory judgment that it had exhausted its liability for
underinsured motorist benefits and had offered higher coverage limits to insureds. The district
court entered judgment on jury verdict in favor of insurer. Insureds appealed. The Supreme
Court held that: (1) instruction that court required jury to determine whether mailing of letter
was more probable than not should have been given along with instructions on presumption
of receipt of duly directed and mailed letter, and (2) giving of instruction was harmless.
Affirmed.
Albert D. Massi and Allen A. Cap, Las Vegas, for Appellants.
W. Randolph Patton, Las Vegas, for Respondent.
1. Trial.
Instruction that court required jury to determine whether mailing of letter was more probable than not should have been given
along with instructions on presumption of receipt of duly directed and mailed letter; evidence whether letter was mailed was not
conclusive. NRS 47.180, subd. 1, 47.220, subd. 3, 47.250, subd. 13.
Erroneous failure to instruct jury to determine whether letter was mailed before it applied presumption that insureds received duly
directed and mailed letter was harmless in dispute over right to additional underinsured motorist benefits, where attorneys' opening and
closing arguments informed jury that mailed letter presumption applied only if jury believed that letter was mailed, and where insureds'
attorney argued failure to prove mailing of letter. NRS 47.180, subd. 1, 47.220, 47.220, subd. 3, 47.250, subd. 13.
OPINION
Per Curiam:
This appeal raises the question of the proper jury instructions necessary to state rebuttable
presumptions under NRS 47.220(3). The district court gave an instruction that properly stated
when a rebuttable presumption arises, but it did not also state that the rebuttable presumption
will not arise until the jury finds the basic fact upon which the presumption rests to be more
probable than not. While the failure to give this additional language in the instruction was
error, we conclude that in the context of this case such error was harmless.
THE FACTS
Robert and Barbara Rivera (Riveras) had an automobile insurance policy with American
National Property and Casualty Company (American). American paid the Riveras $50,000 in
un-/underinsured (henceforth, uninsured) motorist benefits based on an accident Mrs.
Rivera had with an underinsured motorist. The Riveras claimed American owed them an
additional $50,000 because American had failed to offer them higher uninsured motorist
coverage limits equal to the policy's bodily injury coverage limits, as required by NRS
687B.145(2) (the must offer rule). American brought an action for declaratory relief,
seeking a judicial declaration that American had exhausted its liability to the Riveras and that
American had in fact offered the Riveras the higher coverage limits.
A critical issue at trial was whether the Riveras received from American a form letter
which clearly disclosed insureds' rights to the higher coverage. Testimony did not
conclusively establish whether the letter was mailed or received. American insurance agent
Donald E. Walford (Walford) testified that on about May 1, 1985, he sent out to all his auto
insurance clients about 125 copies of the form letter. The Riveras were Walford's clients.
Walford and his wife testified that they personally addressed and mailed the letters. Although
neither Walford nor his wife specifically recalled addressing and mailing a letter to the
Riveras, Walford testified he had no reason to believe that the Riveras did not receive a
copy of the letter.
cally recalled addressing and mailing a letter to the Riveras, Walford testified he had no
reason to believe that the Riveras did not receive a copy of the letter. The Riveras, on the
other hand, testified that they never received any such letter.
Faced with this inconclusive testimony, the district court gave the jury an instruction
stating that any duly directed and mailed letter is presumed received. As submitted to the jury,
the instruction stated:
There is in force and effect a Nevada statute, N.R.S. 47.250(13) which creates a
disputable presumption that a letter duly directed and mailed was received in the
regular course of the mail. A presumption imposes on the party against whom it is
directed the burden of proving that the nonexistence of the presumed fact is more
probable than its existence.
The Riveras' attorney objected to this instruction on the basis that the instruction suggests that
a letter was mailed to the Riveras, when, in fact, there was no conclusive proof that Walford
had properly addressed and mailed the letter to the Riveras. The district court overruled the
objection. The jury returned a general verdict in favor of American and the court entered the
requested declaratory judgment, which the Riveras now appeal.
LEGAL DISCUSSION
[Headnote 1]
The Riveras raise only one meritorious challenge to the district court's judgment. The
Riveras contend that the district court erred by giving the instruction quoted above, because
the instruction precluded the jury from making the threshold determination of whether the
letter was even mailed before applying the presumption of receipt. The Riveras concede that
the first sentence of jury instruction eleven correctly states the applicable law regarding the
presumption of receipt of duly mailed letters, NRS 47.250(13). American rightly points out
that the second sentence of the instruction correctly and closely tracks the language of NRS
47.180(1) regarding the effect of presumptions. In all, then, at least in the abstract, both
sentences of the instruction correctly state applicable law.
While it was correct as far as it went, the instruction was incomplete. NRS 47.220(3)
mandates the proper form of instruction to be used in this case. NRS 47.220 provides in
pertinent part:
47.220 Determination on evidence of presumed fact: Where basic facts doubtful.
When reasonable minds would not necessarily agree as to whether the evidence renders
the existence of the basic facts more probable than not, and direct evidence is
introduced concerning the existence of the presumed fact, the question of the
existence of the presumed fact is determined as follows:
existence of the basic facts more probable than not, and direct evidence is introduced
concerning the existence of the presumed fact, the question of the existence of the
presumed fact is determined as follows:
. . . .
. . . .
3. If reasonable minds would not necessarily agree that the direct evidence renders
the nonexistence of the presumed fact more probable than not, the judge shall submit
the matter to the jury with an instruction to find in favor of the presumed fact if they
find from the evidence that the existence of the basic facts is more probable than not
and unless they find the nonexistence of the presumed fact more probable than not,
otherwise to find against the existence of the presumed fact.
(Emphasis added.)
This section means that the district court erred by failing to instruct the jury that it must
first determine whether the letter was mailed before applying the presumption of receipt. A
basic fact is simply a preliminary fact which must be found to exist before a presumption
arises. Here, the basic fact is whether or not a letter was mailed to the Riveras. The judge,
as a matter of law, or the jury, as a matter of fact, must find that this basic fact exists before
the presumption of receipt arises. The presumed fact here is whether or not the Riveras
received the letter. Reasonable minds would not necessarily agree whether or not agent
Walford and his wife mailed the letter. Walford had no written proof of mailing of this
particular letter, and the agent or his wife could have made a mistake. Additionally, testimony
of non-receipt may raise an inference that the letter was not mailed. Oaks v. Motors Insurance
Co., 595 P.2d 789, 792 (Okla. 1979). Direct evidence regarding whether the Riveras
received the letter is the Riveras' own testimony that they did not receive the letter. Finally,
reasonable minds would not necessarily agree that this direct evidence proves that the Riveras
did not receive the letter. For all these reasons, NRS 47.220(3) applies to this case and the
district court should have given the form of instruction mandated by that statute.
In summary, the evidence regarding whether the letter even was mailed was not
conclusive. Under these circumstances, giving an instruction stating the presumption of
receipt of a duly directed and mailed letter without instructing the jury first to determine
whether the letter was mailed ran the risk of convincing the jurors that they were required to
find that the letter was mailed. This is the risk which NRS 47.220(3) appears designed to
avoid.
[Headnote 2]
Despite the error in this instruction, the risk of juror confusion which NRS 47.220(3) seeks
to prevent appears extremely low in this particular case. During both opening statements and
closing arguments, counsel clearly informed the jury the mailed letter presumption applies
only if the jury believes the letter was mailed. During his closing argument, the Riveras'
counsel argued in some detail that American had failed to prove they mailed the letter. The
Walford's testimony regarding the mass mailing appears credible and probably was
considered and believed by the jury. For these reasons, we conclude that any violation of
NRS 47.220(3) was insubstantial in its effect on the verdict, and that this error was harmless
pursuant to NRCP 61. We stress, however, that curative arguments by counsel are no
substitute for the proper instruction mandated by NRS 47.220(3).
We have carefully considered the Rivera's remaining assignments of error. We conclude
that these assignments of error are either without merit or have been raised for the first time
on appeal. This court will not consider issues raised for the first time on appeal. Cummings v.
City of Las Vegas Municipal Corp., 88 Nev. 479, 482, 499 P.2d 650, 652 (1972).
For the reasons stated above, we hereby affirm the judgment of the district court.
____________
105 Nev. 707, 707 (1989) Byrd v. Lanahan
SUSAN T. LANAHAN BYRD, Appellant, v. IRENE A. LANAHAN, Executrix of the Last
Will and Testament of THOMAS J. LANAHAN, Deceased, Respondent.
No. 19847
November 27, 1989 783 P.2d 426
Appeal from a judgment of the district court granting respondent the proceeds of a savings
account. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Bank initiated interpleader action to resolve ownership of savings account funds after
depositor died. The district court awarded proceeds to depositor's wife as executrix, and
depositor's daughter by previous marriage appealed. The Supreme Court, Young, C. J., held
that: (1) depositor's savings account was valid Totten trust, and (2) depositor could dispose of
one-half of community property without wife's consent.
Reversed.
Herbert L. Waldman, Las Vegas, for Appellant.
Joseph and Daniel Foley, Las Vegas, for Respondent.
1. Wills.
Giving effect to savings account signature card that purported to make disposition of account funds contrary to depositor's
previously executed will would not effect revocation or partial revocation of will; instead, account funds would pass by devise subject
to remedies on agreement as might be had against depositor's heirs. NRS 133.140.
2. Trusts.
Where Totten trust is created after will has been executed, it is valid and transfers its proceeds to named beneficiary upon trustee's
death, unless there is intent to revoke trust following its creation.
3. Trusts.
Totten trusts are valid and enforceable under Nevada law.
4. Trusts.
To constitute Totten trust, there must be explicit declaration of trust or circumstances which show beyond a doubt that trust was
intended to be created.
5. Trusts.
Evidence established depositor's posttestamentary intent to create trust in favor of daughter, and savings account was valid Totten
trust; account designated depositor as trustee for daughter, and signature card provided that account was revocable by depositor at
any time and that funds remaining after his death belonged to daughter as beneficiary; moreover, no provision was made for daughter
in depositor's will, which had devised all property to depositor's widow.
Statute precluding spouse from making gift of community property without other spouse's consent did not preclude spouse from
disposing of one-half of community property by way of valid Totten trust; another statute gave each spouse power of testamentary
disposition over his or her interest in community property without other's consent. NRS 123.230, subd. 2, 123.250, subds. 1, 1(b).
OPINION
This appeal involves the disposition of the proceeds of a savings account established by
Thomas J. Lanahan, deceased. Thomas executed a will in 1966 that devised and bequeathed
all property owned by him, both real and personal, to his wife, Irene Lanahan, respondent and
executrix of Thomas' estate. In November 1983, Thomas opened a $50,000 savings account
at Nevada Savings and Loan Association (NSLA) in his name only. In November 1984, this
account became a one-year certificate that was renewed for one year in November 1985. In
September 1986, Thomas executed a document printed on an NSLA bank card, entitled
"Change of Ownership."
card, entitled Change of Ownership. The card instructed the bank to change the ownership
of his account to Thomas J. Lanahan as trustee for the appellant, Susan T. Lanahan Byrd,
Thomas' daughter from a previous marriage. The original signature card was also changed to
reflect the change in ownership. Thomas received all interest payments from this account
until his death in January 1987. Neither Irene nor Susan had knowledge of the account or of
the executed change of ownership card.
After Thomas died in January 1987, the bank refused to pay Irene the proceeds of the
account because the account named Susan as beneficiary. The bank filed an interpleader
action and a bench trial followed. At trial, Irene contended that Susan had no interest in or
ownership of the savings account by virtue of the change of ownership card. Susan contended
that in executing the change of ownership card, Thomas had created a valid Totten trust
which he had not revoked before his death. The district court awarded the proceeds of the
account to Irene as executrix, and Susan appealed.
Appellant contends that the district court erred in granting the proceeds of the account to
Irene. Appellant asserts that she is the beneficiary of a valid Totten trust, recognized by
caselaw and statute in Nevada, and that she is entitled to the entire proceeds of the saving
account trust. We agree.
The district court concluded that the account signature card did not constitute a will of
Thomas because it did not satisfy the statutory requisites for a testamentary transfer. The
court then concluded as a matter of law that the NSLA account signature card purported to
make a disposition contrary to Thomas' previously executed will, which, if given effect,
would at least partly revoke Thomas' will. Although the court did not specify the basis of its
conclusion, it apparently reached this conclusion either on the basis of NRS 133.140
regarding agreements by a testator to convey property previously devised or because it found
that our decision in Concannon v. Winship, 94 Nev. 432, 581 P.2d 11 (1978), did not
recognize the validity of Totten trusts in Nevada. In either case, the court erred.
[Headnote 1]
Under the terms of NRS 133.140,
1
any agreement to convey property previously devised
or bequeathed does not effect a revocation, or partial revocation, of the will.
__________

1
NRS 133.140 provides that
A bond, covenant or agreement made by a testator to convey any property devised or bequeathed in
any will previously made shall not be deemed a revocation of such previous devise or bequest; but such
property shall pass by the devise or bequest, subject to the same remedies on the bond, covenant or
agreement, for the specific performance or otherwise, against the devisees or legatees, as might be had by
law against the heirs of the testator, if the same had descended to them.
(Emphasis added.)
property previously devised or bequeathed does not effect a revocation, or partial revocation,
of the will. Rather, the statute expressly states that the property shall pass by the devise or
bequest, subject to the remedies on the agreement as might be had against the testator's heirs.
Therefore, the court's conclusion that the bank change of ownership card would, if given
effect, at least partly revoke Thomas' will, is clearly erroneous, to the extent it is based on
NRS 133.140.
[Headnotes 2, 3]
Additionally, the court may have reached its conclusion because it found that Totten trusts
were not judicially recognized in Nevada. As articulated by the New York Court of Appeals,
a Totten trust is a trust created by the
deposit by one person of his own money in his own name as trustee for another. . . . It is
a tentative trust, merely, revocable at will, until the depositor dies or completes the gift
in his lifetime by some unequivocal act or declaration, such as delivery of the passbook
or notice to the beneficiary. In case the depositor dies before the beneficiary without
revocation, or some decisive act or declaration of disaffirmance, the presumption arises
that an absolute trust was created as to the balance on hand at the death of the
depositor.
In re Totten, 71 N.E. 748, 752 (N.Y. 1904) (emphasis added).
In Concannon, we reversed a district court's probate order which gave effect to several
Totten trust accounts created prior to the decedent's will. In construing the will, we found that
the total funds available in the trust accounts existing at the time decedent drafted her will
were substantially identical to the total funds bequeathed under the terms of the will.
Moreover, the legatees under the will were also beneficiaries of the trusts. We concluded that
it was the clear intent of the testatrix to distribute under the terms of the will all the funds
available to her, and to revoke any tentative trusts inconsistent with her testamentary
directions. Concannon, 94 Nev. at 435, 581 P.2d at 13.
In examining the trust accounts in Concannon and recognizing that they were revocable at
any time during the lifetime of the depositor, we recognized a basic principle of Totten trusts.
Respondent erroneously contends that Concannon established that the provisions of a will
control any contrary dispositions made by way of a tentative trust, regardless of when those
trusts are created. However, where, as here, the Totten trust is created after the will has been
executed, it is valid and transfers its proceeds to the named beneficiary upon the depositor's
death, unless there is an intent to revoke the trust following its creation. Moreover, because a
Totten trust does not revoke a previous will, the district court erred to the extent it based
its conclusion on our holding in Concannon.
the district court erred to the extent it based its conclusion on our holding in Concannon.
Respondent contends that NRS 100.085(3) concerning joint tenancy accounts does not
contemplate the existence of Totten trusts. Appellant contends that NRS 663.025 specifically
recognizes bank deposits in trust. Regardless of whether NRS 100.085 or NRS 663.025
expressly contemplate Totten trusts, we find that nothing in their provisions precludes their
existence. We hold that Totten trusts are valid and enforceable under Nevada case law and
statutes.
[Headnote 4]
Because the district court erred in impliedly concluding that Totten trusts are not valid in
Nevada, we must determine whether the savings account in question was a valid Totten trust.
To constitute a Totten trust, as with any trust, there must be an explicit declaration of trust or
circumstances which show beyond doubt that a trust was intended to be created. In re
Madsen's Estate, 296 P.2d 518, 519 (Wash. 1956).
[Headnote 5]
In the present case, the account was designated Thomas Lanahan as trustee for Susan
Lanahan Byrd and the signature card provided that the account was revocable by Thomas at
any time and that the funds remaining after his death belonged to Susan as beneficiary. These
provisions on the signature card clearly establish that a tentative trust was intended.
Moreover, there is strong evidence of trust intent where, as here, the beneficiary is the
daughter of the decedent by his former marriage and no provision was made for her in his
will. Furthermore, there was no evidence of any objective contrary to establishing a trust.
Finally, Irene testified at trial that Thomas had never established a similar trust account,
indicating that he did not unintentionally create one for Susan.
The written declaration of trust on the bank signature card specifically identifies Thomas'
intention to create a revocable trust for Susan. We hold that the signature card, together with
the surrounding circumstances, is sufficient evidence to show Thomas' intent to create a trust
in favor of Susan. Accordingly, we hold that the savings account was a valid Totten trust.
[Headnote 6]
Nonetheless, respondent contends that the savings account signature card was invalid
because NRS 123.230(2) prohibited Thomas from making a gift of community property
without her consent.
2
However, under NRS 123.250(1)(b), each spouse has the power of
testamentary disposition over his or her interest in the community property, with or
without the other spouse's consent.3 Respondent contends that Thomas' power of
testamentary disposition was executed in her favor.
__________

2
NRS 123.230(2) provides that [n]either spouse may make a gift of community property without the
express or implied consent of the other.
the power of testamentary disposition over his or her interest in the community property, with
or without the other spouse's consent.
3
Respondent contends that Thomas' power of
testamentary disposition was executed in her favor. Furthermore, because she maintains that
the savings account signature card was not a valid testamentary instrument, respondent argues
that it was not effective at disposing of Thomas' share of the community property. However,
although a Totten trust is revocable during the decedent's life, it becomes effective as a
testamentary disposition of the assets it contains at the donor's death.
We construe NRS 123.250(1)(b) to mean that each spouse may dispose of one-half of the
total of all community property. The district court found that the total value of the community
property at the time of Thomas' death was approximately $200,000. Thus, because the
$50,000 in the trust account is less than half of $200,000, we hold that appellant is entitled to
the entire proceeds of the valid Totten trust account.
Accordingly, we reverse the district court's order and grant the entire proceeds from the
savings account to appellant.
Steffen, Springer, Mowbray, and Rose, JJ., concur.
____________
105 Nev. 712, 712 (1989) Orme v. District Court
BRENT ROBERT ORME, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK AND THE
HONORABLE JAMES BRENNAN, DISTRICT JUDGE, DEPARTMENT II
THEREOF, Respondents, and JEFFREY KAHN, Real Party in Interest.
No. 20167
November 27, 1989 782 P.2d 1325
Original petition for a writ of mandamus. Eighth Judicial District Court, Clark County;
James Brennan, Judge.
Plaintiff brought original petition for writ of mandamus challenging district court order
which granted motion to quash service of process upon out-of-state defendant. The Supreme
Court held that service of process on wife of out-of-state defendant at defendant's residence
constituted sufficient notice to defendant for purpose of long-arm statute.
__________

3
NRS 123.250(1) provides, in pertinent part:
1. Upon the death of either husband or wife:
(a) An undivided one-half interest in the community property is the property of the surviving spouse
and his or her sole separate property.
(b) The remaining interest is subject to the testamentary disposition of the decedent. . . .
defendant's residence constituted sufficient notice to defendant for purpose of long-arm
statute.
Writ of mandamus granted.
Alverson, Taylor & Mortensen, Las Vegas, for Petitioner.
Peter Flangas, Las Vegas, for Real Party in Interest.
1. Mandamus.
Failure to answer petition for writ of mandamus as ordered by Supreme Court could have been treated as confession of error, but
Court would resolve issue on the merits, where petition adequately apprised Court of pertinent uncontested facts and parties' respective
legal contentions below. NRAP 21(b).
2. Mandamus.
Service of process upon wife of out-of-state defendant at defendant's residence constituted sufficient notice to defendant for
purposes of long-arm statute. NRS 14.065; NRCP 4(d)(6).
OPINION
Per Curiam:
This original petition for a writ of mandamus challenges an order of the district court
granting a motion to quash service of process upon an out-of-state defendant. For the reasons
set forth below, we grant petitioner Brent Robert Orme's petition for a writ of mandamus
directing the district court to accept personal jurisdiction over the real party in interest, Jeffrey
Kahn.
FACTS
On December 2, 1988, petitioner filed a complaint in the district court against three
defendants, including Jeffrey Kahn. The complaint sought damages for various torts the
defendants allegedly committed within the State of Nevada. Thereafter, a process server
attempted to serve Kahn by personally delivering and leaving a copy [of the summons and
complaint] with Veronica Kahn, his wife, a person of suitable age and discretion residing at
[Kahn's] usual place of abode in San Mateo County, California.
Kahn subsequently failed to answer the complaint in a timely manner. Accordingly,
petitioner filed an entry of default and then moved the district court for entry of default
judgment on his claims against Kahn. At the hearing on petitioner's motion for default
judgment, Kahn's counsel entered a special appearance and filed a motion to quash service of
process. Petitioner duly opposed the motion, and on June 8, 1989, the district court entered
an order granting the motion.
entered an order granting the motion. The instant petition followed.
[Headnote 1]
On July 7, 1989, this court issued an order pursuant to NRAP 21(b) directing Kahn to file
an answer including points and authorities against issuance of the requested writ. Thereafter,
the clerk of this court received a letter from the attorney who represented Kahn in the
proceedings below. In that letter, Kahn's counsel represents that he has written to Mr. Kahn
advising him of the entry of this court's order of July 7, 1989, and that no response from Kahn
has been forthcoming. Further, counsel asserts since I have no client, I cannot brief the
issues.
1
Thus, no answer to the instant petition has been submitted to this court. Under
these circumstances, it is within the proper prerogative of this court to elect to treat Mr.
Kahn's failure to answer as a confession of error. See Foster v. District Court, 96 Nev. 4, 604
P.2d 359 (1980). The instant petition, however, has adequately apprised this court of the
pertinent uncontested facts and the parties' respective legal contentions below. Therefore, an
answer to the instant petition is not essential to our proper resolution of this matter. See
NRAP 21(b). Consequently, we have elected to resolve the single legal issue before us on the
merits, and none of the conclusions set forth below are premised upon Kahn's failure to
answer the petition.
DISCUSSION
In his motion below, Kahn asserted that service of process had been insufficient and, as a
result, the district court could not properly assert personal jurisdiction over him. More
specifically, Kahn contended that personal service of process outside the State of Nevada
must in fact be personal in hand service, and that, therefore, delivery of the summons and
complaint to Kahn's wife at Kahn's usual place of abode in California constituted insufficient
and ineffective substituted service of process. In support of these contentions, Kahn relied
upon this court's holding in Kelley v. Kelley, 85 Nev. 317, 318, 454 P.2d 85, 86 (1969) (in
divorce action, service of process upon defendant residing outside the state was governed by
NRCP 4(e)(2), requiring that service outside the state must in fact be personal). See also
Moran v. District Court, 72 Nev. 142
__________

1
We note, however, that, contrary to the procedure contemplated by SCR 46, no formal notice of withdrawal
or notice of change of attorney has been filed in this court, or apparently in the court below. See, e.g., Aldabe v.
Aldabe, 84 Nev. 392, 398, 441 P.2d 691, 695 (1968) (SCR 46 contemplates that once an attorney has appeared
in an action, he may be changed upon the application of the client or the attorney with the consent of the court,
or by stipulation).
District Court, 72 Nev. 142, 297 P.2d 261 (1956) (in suit for separate maintenance and
custody of minor children, substituted service on defendant's housekeeper at defendant's
Texas residence, in accordance with the method of service set forth in NRCP 4(d)(6), was
insufficient; rather, when service is made outside the state, NRCP 4(e)(2) mandates that the
summons and complaint shall be delivered in person to the person served). The district
court apparently agreed that this court's prior holding in Kelley was dispositive of the issue
before it, and, as noted, the district court granted Kahn's motion to quash service of process.
Initially, we note that, unlike the situation in Kelley and Moran, NRCP 4(e)(2) is not
specifically applicable to the instant case because Kahn is neither a resident of this state,
nor is the proceeding below an action in rem or an action affecting specific property or
status. See NRCP 4(e)(2)(i) and (ii). Therefore, to whatever extent the district court may
have premised its decision on this court's prior holdings in Kelley or Moran, such reliance
was misplaced because those holdings were limited to the specific procedures applicable
under NRCP 4(e)(2).
Moreover, as petitioner observes, our decisions in Kelley and Moran were issued prior to
the effective date of NRS 14.065, Nevada's long-arm statute.
2
NRS 14.065 provides in
pertinent part:
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) The 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. . . .
(Emphasis added.) As petitioner also notes, NRCP 4(d)(6) in turn provides that a person of
like kind to Kahn within this state may be served by personal in hand delivery, or by leaving
copies [of the summons and complaint] at his dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein. . . . Thus, petitioner argues,
delivery of the papers to Kahn's wife constituted effective personal service of process under
NRS 14.065 because the papers were served by the method provided in NRCP 4(d)(6) for
service upon a person of like kind within this state. We agree.
The primary purpose underlying the rules regulating service of process is to insure that
individuals are provided actual notice of suit and a reasonable opportunity to defend. See
Certain-Teed Prods. v.
__________

2
NRS 14.065 took effect in July of 1969. This court's decision in Kelley was issued on May 7, 1969. The
Moran decision was issued in 1956.
Prods. v. District Court, 87 Nev. 18, 21, 479 P.2d 781, 783, (1971); see also Hanna v.
Plumer, 380 U.S. 460, 462-63 n.1 (1965) (in federal diversity action, service of process was
governed by Fed.R.Civ.P. 4(d)(1), permitting service by delivery of requisite papers to
defendant's wife at defendant's usual abode, not by Massachusetts rule requiring personal in
hand delivery). In his motion below, Kahn did not allege that the method of service employed
in this instance did not provide him with actual notice of suit. Rather, he simply contended
that delivery of the summons and complaint to his wife at his usual place of abode constituted
insufficient service of process under this court's prior holding in Kelley. Thus, the issue
before the district court was a purely legal question involving no contested questions of fact
or allegations of an absence of actual notice. Similarly, in the instant petition, this court is
squarely confronted with the purely legal question of whether the legislature's enactment of
NRS 14.065 permits the method of service employed in this instance.
Under analogous circumstances, this court has previously defined the specific language in
NRS 14.065 providing that service upon an out-of-state person may be effected in the
manner provided by statute or rule of court for service upon a person of like kind within this
state. See Certain-Teed Prods., 87 Nev. at 21, 479 P.2d at 784. Although in the
Certain-Teed Prods. case, we conceded that the language in the statute was obscure, we
nonetheless recognized our obligation to give it effect if possible. Id. In so doing, we
concluded that, under the circumstances of that case, the statute provided that a foreign
corporation may be served with process under NRS 14.065 in the same manner that a
domestic corporation may be served under NRCP 4(d)(1). Thus, in Certain-Teed Prods., we
recognized that the legislature's purpose in enacting NRS 14.065 was not only to allow for
service outside the state in the same manner that it could be effected within the state, but also
to require personal service of process outside this state to afford actual notice of the pending
litigation. Id. See also Wylie v. District Court, 96 Nev. 620, 621-22, 614 P.2d 12, 13 (1980)
(NRS 14.065(2)(e), permitting personal service outside of Nevada under specified
circumstances, takes precedence over provision in NRCP 4(e)(2) requiring issuance of a
court order directing that such service is appropriate).
[Headnote 2]
In the instant case, we similarly conclude that in enacting NRS 14.065, the legislature
intended to provide that service of process upon out-of-state defendants, who have allegedly
committed tortious conduct rendering them constitutionally amenable to suit in the courts of
this state, may be effected in the same manner as service of process upon a "person of like
kind within this state." See, e.g., Vann Tool Co. v.
service of process upon a person of like kind within this state. See, e.g., Vann Tool Co. v.
Grace, 566 P.2d 93, 94 (N.M. 1977) (although New Mexico's long-arm statute did not
explicitly provide for substituted service on out-of-state resident, the legislature's purpose in
adopting the statute was to permit service of process on out-of-state persons in the same
manner that process could be served on persons residing within New Mexico). Under NRCP
4(d)(6), service of process upon a person of like kind to Kahn residing within this state may
be accomplished by the same means the process server employed in this case. If leaving
copies of the summons and complaint with a person of suitable age and discretion residing at
an in-state resident's usual place of abode is reasonably calculated to impart actual notice to
an in-state resident, then, in light of the legislative policy expressed in NRS 14.065, we fail to
discern why the same method of service upon an out-of-state defendant should not also be
considered as reasonably calculated to impart such notice.
3

CONCLUSION
In light of the above, we conclude that the district court erred in granting Kahn's motion to
quash service of process and that petitioner is entitled to the requested writ of mandamus. See
Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976) (mandamus is
appropriate remedy through which to challenge an order quashing service of process); Galatz
v. District Court, 100 Nev. 408, 683 P.2d 26 (1984) (where district court erred in quashing
service of process, mandamus will issue from supreme court to compel district court to accept
personal jurisdiction). Accordingly, we grant this petition. The clerk of this court shall
forthwith issue a writ of mandamus directing the district court to accept personal jurisdiction
over respondent Kahn.
4

__________

3
See also Korgan v. Gantenbein, 702 P.2d 427 (Or.Ct.App. 1985); Haberman v. Public Power Supply
System, 744 P.2d 1032, 1074 (Wash. 1987).

4
The Honorable John C. Mowbray, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
105 Nev. 718, 718 (1989) McGee v. State
VANCE EVANS McGEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18731
VANCE E. McGEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19164
November 27, 1989 782 P.2d 1329
Appeals from judgments of conviction. Second Judicial District Court, Washoe County;
Charles M. McGee, Judge (No. 18731), and James J. Guinan, Judge (No. 19164).
On remand from 102 Nev. 458, 725 P.2d 1215, State filed an information against
defendant adding charge of perjury to previous burglary and grand larceny charges. Following
a jury trial, the district court found defendant guilty of perjury. In the district court defendant
pled guilty to a burglary charge and one count of grand larceny. On consolidated appeal, the
Supreme Court, Steffen, J., held that: (1) a confession elicited without prior Miranda
warnings may be used as affirmative evidence to prove perjury in a trial subsequent to the one
concerning the confessed crime, and (2) defendant could not seek relief from guilty plea by
direct appeal.
Case No. 18731, affirmed; Case No. 19164, appeal dismissed.
Springer, J., and Young, C. J., dissented.
Vance E. McGee, In Proper Person, Appellant.
David Parraguirre, Public Defender, and Jane G. McKenna, Chief Appellate Deputy
Public Defender, Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Larry G.
1. Criminal Law.
A confession elicited without prior Miranda warnings may be used as affirmative evidence to prove perjury in a trial subsequent to
the one concerning the confessed crime. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Defendant could seek relief from his guilty plea through means of post-conviction proceeding in the district court, but not by direct
appeal. NRS 34.360, 177.315.
105 Nev. 718, 719 (1989) McGee v. State
OPINION
The issue in these consolidated cases is whether a confession elicited without prior
Miranda
1
warnings may be used as affirmative evidence to prove perjury in a trial
subsequent to the one concerning the confessed crime. We hold that it may and therefore
affirm the judgment of conviction for perjury in Docket No. 18731. We also dismiss the
appeal from McGee's judgment of conviction, pursuant to a guilty plea, of one count each of
burglary and grand larceny under Docket No. 19164.
The Facts
On June 6, 1985, an apartment shared by three women was burgled. McGee was arrested
and prosecuted for the crime. Following a jury trial, McGee was found guilty of one count of
burglary and two counts of grand larceny. The State sought to have McGee sentenced as a
habitual criminal. Nevertheless, the district court sentenced McGee to ten years for the
burglary and five years each for the grand larcenies. The sentences for the grand larcenies
were to run concurrently with each other and consecutively to the burglary sentence. The
record from McGee's first appeal to this court did not reflect the disposition of the habitual
criminal allegation.
On appeal, this court reversed the judgments of conviction based upon a violation of
McGee's Fifth Amendment rights, and remanded the matter to the district court for a new
trial. See McGee v. State, 102 Nev. 458, 725 P.2d 1215 (1986). Immediately following this
decision, and before McGee was again brought to trial on the burglary charge, the State filed
an information against McGee charging him with one count of perjury. The perjury charge
was based upon the fact that McGee had taken the stand in his prior burglary trial and had
denied having committed the burglary. McGee was tried on the perjury charge before a jury,
but the jury was unable to reach a verdict and a mistrial was declared.
At McGee's second perjury trial, the State first presented the testimony of the victims of
the burglary and of the police officers who investigated the burglary to establish
independently that McGee had committed the burglary. The State then called police officer
David Kuzemchak to testify. Kuzemchak testified that he had known McGee for
approximately a year to eighteen months. Over that period of time, Kuzemchak had seen
McGee thirty or forty times, and had given him citations for minor violations on fifteen or
twenty occasions.
__________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
105 Nev. 718, 720 (1989) McGee v. State
fifteen or twenty occasions. Kuzemchak had responded to the burglary call at the apartment.
Kuzemchak knew that McGee was a suspect in the burglary. Nevertheless, on the afternoon
following the burglary, before checking in to work, Kuzemchak went to see McGee, who was
already incarcerated. Kuzemchak, dressed in his uniform, met with McGee in an interview
room. Kuzemchak did not give McGee his Miranda warnings. Instead, Kuzemchak asked
McGee if he had committed the burglary in question. Kuzemchak testified that McGee
confessed to the burglary, and stated that he did it in order to pay off citations Kuzemchak
had given him earlier. Kuzemchak did not make a report concerning this alleged confession
and only brought it to the attention of the district attorney immediately before McGee's first
jury trial for the burglary. No testimony concerning McGee's alleged confession was
presented at his burglary trial.
Kuzemchak also testified that on December 26, 1986, following McGee's burglary trial,
Kuzemchak had McGee in custody for some undisclosed reason, and was transporting him to
the police department. Kuzemchak did not recall whether McGee was handcuffed at the time,
but he was under arrest and was not free to leave. Kuzemchak testified that McGee
confronted him with his trial testimony and accused Kuzemchak of lying on the stand at
McGee's burglary trial.
2
Kuzemchak said that McGee again admitted the burglary, but
insisted that he had not done it because of the traffic citations. Kuzemchak stated that he had
not informed McGee of his Miranda rights at the time he received this second alleged
confession.
The transcript of McGee's testimony at the burglary trial was admitted as an exhibit during
the perjury trial. The State then read excerpts from the transcript to the jury. In the transcript,
McGee denied having committed the burglary and the grand larcenies in issue. He also told
an incredible story about how he came to be in possession of one of the victim's rings which
had been taken in the burglary.
The defense presented no witnesses and McGee elected not to testify. The jury returned a
verdict of guilty and the district court determined that McGee was a habitual criminal and
sentenced him to serve fifteen years in the Nevada State Prison. McGee has appealed this
conviction under Docket No. 18731.
Meanwhile, the burglary prosecution had been proceeding toward a new trial. The burglary
trial had been delayed several times at McGee's request.
__________

2
Kuzemchak did not testify concerning the alleged confession at the burglary trial. During McGee's first
perjury trial, Kuzemchak testified that McGee had accused him of lying in his testimony at the preliminary
hearing on the perjury complaint. Kuzemchak was apparently mistaken when he testified in this case that McGee
had accused him of lying in his testimony at the burglary trial.
105 Nev. 718, 721 (1989) McGee v. State
times at McGee's request. After McGee was sentenced in the perjury matter, however, he
determined that it would be to his advantage to plead guilty to the burglary charge and to one
count of grand larceny. The district court sentenced McGee to serve ten years for the burglary
and a consecutive five years for grand larceny. This sentence was to run concurrently with
McGee's sentence in the perjury case. McGee's proper person appeal from his judgment of
conviction for burglary and grand larceny is before this court as Docket No. 19164.
Discussion
Docket No. 18731
[Headnote 1]
McGee insists that his perjury trial was infected with prejudicial error when the district
court allowed Officer Kuzemchak to testify concerning the two burglary confessions uttered
by McGee without benefit of the cautionary warnings mandated by Miranda. McGee is
mistaken.
It is true that un-Mirandized confessions are not admissible as substantive evidence of
guilt concerning the crime or crimes constituting the subject matter of such confessions. It is
in that sense and in those instances that confessions violative of the Miranda doctrine may
not be used offensively. Thus, the United States Supreme Court in Harris v. New York, 401
U.S. 222, 225 (1971), declared that assuming that the exclusionary rule has a deterrent effect
on proscribed police conduct, sufficient deterrence flows when the evidence in question is
made unavailable to the prosecution in its case in chief. The Court also held that every
criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that
privilege cannot be construed to include the right to commit perjury. Id.
In United States v. Havens, 446 U.S. 620, 626 (1980), the Court reaffirmed its earlier
pronouncements stressing the importance of arriving at the truth in criminal trials, as well as
the defendant's obligation to speak the truth in response to proper questions. Thereafter, the
Court emphasized there is no gainsaying that arriving at the truth is a fundamental goal of
our legal system [citation omitted]. We have repeatedly insisted that when defendants testify,
they must testify truthfully or suffer the consequences. This is true even though a defendant is
compelled to testify against his will. Id.
We decline to limit the consequences of a criminal defendant's perjurious testimony,
contradicted by his own un-Mirandized confession, to whatever impeachment opportunities
may be available to the State in the trial concerning the confessed crime. A contrary ruling
would expand the exclusionary reach of the Miranda doctrine and diminish the concept of
truth as the paramount objective of criminal trials.
105 Nev. 718, 722 (1989) McGee v. State
Miranda doctrine and diminish the concept of truth as the paramount objective of criminal
trials.
McGee testified on his own behalf during the trial concerning the charges of burglary and
grand larceny. His remarks were exculpatory, shifting guilt to an individual named Pedro.
McGee's testimony was also in direct conflict with his admissions of guilt to Officer
Kuzemchak. On the occasion of each of the two inculpatory admissions by McGee, the
officer, who knew McGee, failed to advise him of his Miranda entitlements. The
un-Mirandized confession allegedly occurring before the burglary trial was not alluded to by
the prosecution during trial. After this court reversed McGee's burglary and grand larceny
convictions for reasons unrelated to the confession, McGee v. State, 102 Nev. 458, 725 P.2d
1215 (1986), the State quite responsibly sought to hold McGee accountable to the citizens of
Nevada for his alleged attempt to frustrate the truth-seeking mechanisms of the earlier trial by
an act of perjury. During McGee's perjury trial, the State offered the un-Mirandized
confessions as evidence of McGee's perfidy in the previous trial. Because McGee did not
testify in the perjury trial, the State appropriately introduced, as a foundation for the perjury
charge, a transcript of McGee's sworn testimony in the trial involving the charges for burglary
and grand larceny.
McGee, during his previous trial, and according to the State's case, willfully committed a
new criminal offense when he sought to avoid accountability for his criminal acts of burglary
and grand larceny by means of perjured testimony. The evidence of his alleged perjury was
preserved in the certified transcript of the proceedings. The un-Mirandized confessions then
became evidence of the new crime rather than the crimes concerning which the admissions
were allegedly uttered. The State properly prosecuted McGee for the new crime. By so
doing, the State emphasized that criminal trials are not intended to be sporting contests where
anything goes. The crime of perjury is a serious and intended truth confound that should
not be countenanced by the State or this court. Harris strongly addressed the subject of a
criminal defendant's perjury, and stressed that the shield provided by Miranda cannot be
perverted into a license to use perjury by way of a defense, free from the risk of confrontation
with prior inconsistent utterances. 401 U.S. at 226. At no time did the Court indicate that the
risk of confrontation was limited to the trial in which the perjury occurred.
Moreover, if un-Mirandized confessants who perjure themselves are immune from
criminal prosecution for their perjury, and risk only the prospect of impeachment from prior
inconsistent admissions, they would enjoy a form of criminal immunity not accorded other
witnesses and defendants. The only possible justification for such preferential treatment
would be to enhance the "punishment" of police officers who elicit or listen to confessions
without previously administering the Miranda incantations.
105 Nev. 718, 723 (1989) McGee v. State
justification for such preferential treatment would be to enhance the punishment of police
officers who elicit or listen to confessions without previously administering the Miranda
incantations. As observed hereafter, we do not perceive the need to expand the punitive
aspects of Miranda beyond the existing exclusion of un-Mirandized confessions as
substantive evidence in the State's case-in-chief in trials involving prosecution for crimes
implicated in such confessions.
By analogy, the Ninth Circuit, in United States v. Raftery, 534 F.2d 854, cert. denied, 429
U.S. 862 (1976), reached the same conclusion when it refused to suppress evidence taken in
violation of the Fourth Amendment in a subsequent perjury trial. After the State suffered the
suppression of evidence in a narcotics prosecution because of an illegal search and seizure,
the defendant subsequently was indicted for perjury in testifying before a federal grand jury.
Prior to testifying in the grand jury proceeding, Raftery had been granted use and derivative
use immunity, and was ordered to testify. Raftery's testimony was undermined by the
contraband evidence excluded in the State prosecution. Although the federal district court
sustained the indictment, it ordered that the evidence suppressed in the state court prosecution
would not be admissible in the federal prosecution for perjury.
The Raftery court agreed with the Government's contention that the exclusionary rule
should not be extended to prevent a conviction for perjury occurring after the illegal seizure
has taken place. Id. at 856. Moreover, the court declared that
[T]he purpose of the exclusionary rule was satisfied when the state officials were
forbidden to use the illegally obtained evidence to prove the narcotics offenses. The
purpose of the rule would not be served by forbidding the Government from using the
evidence to prove the entirely separate offense of perjury before a grand jury occurring
after the illegal search and seizure and suppression of the evidence in the state court.
Id. at 857.
In United States v. Paepke, 550 F.2d 385 (1977), the Seventh Circuit, citing Raftery, held
that evidence seized in violation of the Fourth Amendment could be used in a subsequent
prosecution for tax fraud. Judge Tone, in a concurring opinion, stated cogently why McGee's
un-Mirandized confession was properly admitted to prove perjury in the instant case:
Inasmuch as the primary, if not the sole, function of the exclusionary rule is
deterrence, United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 3033 n.34, 49 L.Ed.2d
1046 {1976), there is as little to be said for the need to extend that rule to the facts
here as there was in Walder [Walder v. United States, 347 U.S. 62 {1954)], Harris
[Harris v. New York, 401 U.S. 222 {1971)], or Hass [Oregon v. Hass, 420 U.S. 714
{1975)].
105 Nev. 718, 724 (1989) McGee v. State
(1976), there is as little to be said for the need to extend that rule to the facts here as
there was in Walder [Walder v. United States, 347 U.S. 62 (1954)], Harris [Harris v.
New York, 401 U.S. 222 (1971)], or Hass [Oregon v. Hass, 420 U.S. 714 (1975)]. The
rule has already had its deterrent effect when the state criminal charges resulting from
the illegal search and seizure are aborted. The social value of any further deterrent
effect that would result from applying the rule to bar the use of the evidence to prove
the falsity of a later statement made under the penalties of perjury is so attenuated and
conjectural as to be entitled to little weight. On the other side of the scale, extending
the rule as defendant advocates would not only have the usual truth-suppressing effect,
see Elkins v. United States, 364 U.S. 206, 216, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960),
but would encourage the commission of a future crime of false statement, thus
converting the rule into a personal constitutional right of the defendant, which,
Calandra [United States v. Calandra, 414 U.S. 338 (1974)] tells us, it is not.
Id. at 394 (emphasis added). See also United States v. Lopez-Martinez, 725 F.2d 471 (9th
Cir.), cert. denied, 469 U.S. 837 (1984); United States v. Finucan, 708 F.2d 838 (1st Cir.
1983); United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823 (1976);
People v. Drain, 535 N.E.2d 630 (N.Y. 1989).
The Miranda sanction is one of exclusion. Its purpose is amply served by denying
prosecutors the right to use inculpatory statements taken in violation of Miranda dictates to
prove offenses implicated in such statements. To expand the benefits of the exclusionary
sanction of Miranda to protect defendants from criminal prosecution for perjury seems
difficult to justify. Subjecting police officers who violate Miranda procedures to
accountability for a new and separate offense committed by an accused is of dubious societal
value. It is arguably reasonable to attempt to discourage police disregard of Miranda
constraints by suppressing the fruits thereof in prosecutions for crimes acknowledged in
confessions violative of Miranda; reason is less discernible in a policy that compounds
punitive measures against police officers by immunizing Miranda beneficiaries from criminal
prosecution for perjury. Perjurious testimony by defendants is beyond the control of police
authorities; Miranda violations are not. Admitting un-Mirandized confessions to prove the
separate and distinct crime of perjury, committed by defendants in the act of testifying falsely
in open court, would provide little or no incentive for police misbehavior.
In short, if Miranda must retain vitality as a rule of procedure and exclusion, it should
apply only to crimes concerning which un-Mirandized confessions are taken.
105 Nev. 718, 725 (1989) McGee v. State
un-Mirandized confessions are taken. If extended to insulate against prosecution for the new
and different crime of perjury, the rule then enhances the windfall to criminal defendants at
the expense of society at large who is again deprived of the right to hold such persons
accountable for their conduct.
Docket No. 19164
[Headnote 2]
Docket No. 19164 is a proper person appeal from a judgment of conviction, pursuant to a
guilty plea, of one count each of burglary and grand larceny. The best that can be said of
McGee's effort to overturn these convictions is that he has timely filed a notice of appeal
without supplying any briefs or other authorities other than the record of proceedings in the
district court. Although the initial trial record and the present record reflect overwhelming
evidence of guilt and a knowing, voluntary plea of guilt, we prefer to adhere to our previous
rulings refusing to entertain challenges to guilty pleas on direct appeal. See Bryant v. State,
102 Nev. 268, 721 P.2d 364 (1986). McGee may seek relief from his guilty plea through
means of a post-conviction proceeding in the district court under NRS 34.360 or NRS
177.315. His proper person appeal will, therefore, be dismissed.
Conclusion
For the reasons hereinbefore specified, the judgment of conviction for perjury under
Docket No. 18731 is affirmed; the proper person appeal under Docket No. 19164 challenging
the judgments of conviction pursuant to a guilty plea is dismissed.
Mowbray and Rose,
3
JJ., concur.
Springer, J., with whom Young, C. J., agrees, dissenting:
I dissent because it is clear to me from Nevada and federal case law that the prosecution is
not allowed to use a coerced
1
confession as affirmative evidence in the state's case.
__________

3

1
Failure to give the required warnings affords a bright-line legal presumption of coercion, requiring
suppression of all unwarned statements. Oregon v. Elstad, 470 U.S. 298, 306-07 n.1 (1985) (our emphasis).
There is no doubt of the illegality of the confession used in this case. McGee was first prosecuted for burglary
and convicted by a jury. In the burglary trial the Washoe County prosecutor deliberately and repeatedly sought
to discredit [McGee's] post-arrest silence, which prosecutorial misconduct, this court held, constituted a
blatant disregard for well-established and frequently
105 Nev. 718, 726 (1989) McGee v. State
The issue has already been decided. Walker v. State, 102 Nev. 290, 720 P.2d 700 (1986).
Under Walker this kind of confession cannot be used as independent evidence.
2

The Walker rule and what should be the rule in this case is in harmony with federal
constitutional law which also holds that statements taken in violation of Miranda can be
properly considered only in passing on [the defendant's] credibility and not as evidence of
guilt. Berkemer v. McCarty, 468 U.S. 420, 430 (1984) (our emphasis). Our ruling in Walker
and the rulings of the United States Supreme Court on the point are consistent with the long
history of Anglo-American jurisprudence which forbids the introduction of forced evidence
of a crime from the mouth of the accused. The state, here, as in any criminal case, has the
burden of proving its case with competent and legal evidence. In this case, the state relied on
illegal and inadmissible evidence in its case-in-chief. The Supreme Court of the United States
forbids such practice, and so should we. Whereas the goal of the fourth amendment's
3
exclusionary rule is to deter unlawful police conduct, . . . the goal of the fifth amendment's
exclusionary rule is to assure trustworthy evidence."
__________
stated principles of fundamental fairness. McGee v. State, 102 Nev. 458, 461, 725 P.2d 1215, 1217 (1986).
After this court set aside the burglary conviction by reason of the stated deliberate and blatant disregard of
fundamental fairness, the Washoe County prosecutor decided to pursue a perjury charge against McGee based
on the charge that McGee lied during the burglary trial and used the coerced confession as a basis for this
prosecution.

2
We noted in Walker that Walker's constitutional rights were violated in a case in which [n]ot only did
Walker not testify, [but also] there is nothing inherently contradictory about the statement. . . . The majority
makes much of the fact that both the defendant's not taking the stand and the noncontradictory nature of the
statement makes Walker inapplicable to the present case. To this it must be said that the reliance in Walker on
Harris v. New York, 401 U.S. 222 (1971) (in which the United States Supreme Court held that a coerced
confession could be constitutionally employed for impeachment purposes when a defendant takes the witness
stand) and our preoccupation in Walker with federal constitutional rights belies any interpretation of Walker that
would permit coerced confessions to be used as affirmative evidence. The fact that we relied both on
constitutional grounds and on the ground that the two statements did not appear contradictory does not change
this.

3
The majority suggests that other courts have approved the use of illegal evidence at collateral trials for
crimes other than the crimes which led to the illegal actions of the police in obtaining the evidence. Without
exception, the cases cited by the majority are inapposite to the case at bar. In each of those cases, evidence
obtained in violation of the fourth amendment was used in criminal trials totally unrelated to the criminal
investigations that led to the illegal police activity. The issue that primarily concerned the courts in these cases
was whether, at the time of the illegal activity, it was foreseeable that the defendant would commit additional
crimes related to the seized evidence. All but one of those cases considered whether illegally obtained physical
evidence should be excluded at a subsequent trial. Finally, with one exception, the collateral crimes involved
were prosecuted by federal authorities after state authorities had obtained physical evidence illegally. See United
105 Nev. 718, 727 (1989) McGee v. State
duct, . . . the goal of the fifth amendment's exclusionary rule is to assure trustworthy
evidence. United States v. Sangineto-Miranda, 859 F.2d 1501, 1518 (6th Cir. 1988)
(citations omitted); see Michigan v. Tucker, 417 U.S. 433, 448 (1974). The truth or falsity of
a statement is not the determining factor in making the decision as to whether to exclude it.
Statements which have been obtained in violation of the right not to be compelled to testify
against oneself have been regarded as untrustworthy, and a system of criminal law
enforcement which comes to depend on the confession will, in the long run, be less reliable
and more subject to abuses than a system relying on independent investigation. Jackson v.
Denno, 378 U.S. 368, 388-89 (1964).
In cases of statements made without the benefit of Miranda warnings, the presumption of
coercion is unrebuttable. See United States v. Patterson, 812 F.2d 1188, 1193 (9th Cir. 1987),
cert. denied, 485 U.S. 922, 108 S.Ct. 1093 (1988). In harmony with Allan v. State, 103 Nev.
512, 746 P.2d 138 (1987), I have no quarrel with the Harris rule. I agree that [t]he shield
provided by Miranda cannot be perverted into a license to use perjury by way of a defense,
free from the risk of confrontation with prior, inconsistent utterances."
__________
States v. Raftery, 534 F.2d 854 (9th Cir.), cert. denied, 429 U.S. 862 (1976) (state authorities illegally seized
drugs and drug paraphernalia; the evidence was later used in a federal prosecution for perjury before a federal
grand jury); United States v. Paepke, 550 F.2d 385 (7th Cir. 1977) (money unlawfully seized by state authorities
in narcotics investigation was admitted as evidence in a federal prosecution for tax fraud committed months after
the illegal seizure); United States v. Lopez-Martinez, 725 F.2d 471 (9th Cir.), cert. denied, 469 U.S. 837 (1984)
(post-arrest statement allegedly taken in violation of the fourth amendment made by defendant in prosecution for
possession of marijuana was admitted to show intent in a prosecution eight years later for possession of heroin
where the sole defense was that defendant thought the heroin in his possession was marijuana); United States v.
Finucan, 708 F.2d 838 (1st Cir. 1983) (documents seized illegally by state officials in automobile fraud case
could not be used in a federal prosecution for mail fraud arising from the same conduct, but could be used in a
subsequent federal prosecution for perjury alleged to have been committed after the evidence was seized);
United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823 (1976) (state officials illegally seized
the contents of a tape recording; the tape recording and evidence obtained as a result of the illegal seizure was
admitted at a federal perjury trial of an individual identified on the tape recording after the individual testified
before a federal grand jury with full knowledge that the federal authorities were in possession of the tape
recording); People v. Drain, 535 N.E.2d 630 (N.Y. 1989) (money and checkbook illegally seized by police
officer upon suspicion of theft used in perjury trial after defendant allegedly testified falsely concerning entries
in the checkbook). In none of these cases was a testimonial admission of guilt taken in flagrant violation of the
accused's fifth amendment rights used as substantive evidence in support of a subsequent perjury charge. See
Michigan v. Tucker, 417 U.S. 433, 448 (1974); United States v. Sangineto-Miranda, 859 F.2d 1501, 1518 (6th
Cir. 1988) (distinguishing between non-testimonial physical evidence and alleged confessions of guilt).
105 Nev. 718, 728 (1989) McGee v. State
way of a defense, free from the risk of confrontation with prior, inconsistent utterances.
Under Harris and Walker, one who takes the stand may be impeached by the use of an
illegally obtained confession; but to allow a criminal conviction to be based on a coerced
statement of the accused would be to allow a criminal conviction to be based on
untrustworthy, illegally obtained evidence. Such a procedure would violate both the federal
and Nevada constitutions.
I would hold that use of the confession was reversible error and would also reverse the
conviction on the plea of guilty because it is inextricably tied to the perjury conviction.
One final note: Aside from the established legal and constitutional impermissibility of
using coerced confessions
4
as affirmative evidence in perjury prosecutions arising out of the
confessed crime, I have another reason to question the wisdom of the decision reached by the
majority. Here we have the state incapacitating its own prosecutorial processes by virtue of
coerced confessions and the mentioned deliberate and blatant disregard of fundamental
fairness. (See footnote 1). The majority opinion seems to allow the state to absolve itself of
previous sins and to procure a perjury conviction against the same defendant using the illegal
confession that could not have been admitted in the burglary prosecution. I am afraid that this
case sends a message to state's attorneys that if they lose a criminal case because of the
exclusion of an unlawfully obtained confession, they will be able to use the excluded
confession anyway simply by filing a later perjury charge against the same defendant. This
seems like subterfuge to me. This kind of procedure may never be followed, but the invitation
to do so is given by this opinion. The use of coerced confessions and engagement by the state
in deliberate and blatant disregard of fundamental fairness for an accused person may be
too high a price to pay for putting a burglar behind bars.
__________

4
The confession in this case is rather interesting. Police officer Kuzemchak claims that he interrogated
McGee in jail (without Miranda warnings) and that McGee admitted to him that he committed the burglary in
order to pay off three traffic citations issued by the officer to McGee on the day of the burglary. Kuzemchak did
not make a record of this confession and did not, according to the district attorney's office, call the matter to the
state's attention until the day of the burglary jury trial. (McGee denies ever meeting Kuzemchak until the day of
the burglary and says that although he received three traffic citations from Kuzemchak on the day of the
burglary, he could not have gotten fifteen others claimed to have been issued to him by Kuzemchak because he
was not living in the State of Nevada during the time in question.)
____________
105 Nev. 729, 729 (1989) Hickey v. District Court
GLEN HICKEY and CHRIS EDWARD HICKEY, Petitioners, v. EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY
OF CLARK, THE HONORABLE JOHN S. McGROARTY, DISTRICT JUDGE,
AND THE HONORABLE MIRIAM SHEARING, DISTRICT JUDGE, Respondents,
CONSUELO HANNL, Individually and as Administratrix of the Estate of TONY
HERNANDEZ, JR., Real Party in Interest.
No. 19659
November 27, 1989 782 P.2d 1336
Petition for writ of mandamus or, in the alternative, writ of prohibition challenging order
compelling disclosure of juvenile court records. Eighth Judicial District Court, Clark County;
John S. McGroarty and Miriam Shearing, Judges.
Father of juvenile petitioner for writ of mandamus or, in the alternative, writ of prohibition
challenging order compelling disclosure of juvenile court records in action against father
based on allegation that father negligently left son alone in home with access to gun with
which son's friend killed himself. The Supreme Court, Young, C. J., held that district court
did not exceed its jurisdiction by ordering discovery of juvenile court records.
Writ denied.
Steffen and Mowbray, JJ., dissented.
Edwards, Hunt, Hale & Hansen and Trevor Atkin, Las Vegas, for Petitioners.
Eva Garcia, Las Vegas, for Respondents and Real Party in Interest.
1. Mandamus.
Writ of mandamus is available to compel performance of act which law requires as duty resulting from an office, trust, or station,
or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
2. Prohibition.
Writ of prohibition may be issued if lower court acts in excess of its jurisdiction. NRS 34.320.
3. Mandamus; Prohibition.
Neither mandamus nor prohibition will issue where petitioner has plain, speedy, and adequate remedy, such as appeal, in the
ordinary course of law. NRS 34.170, 34.330.
4. Mandamus; Prohibition.
Mandamus and prohibition are extraordinary remedies, and decision of whether petition will be entertained lies within discretion
of Supreme Court. NRS 34.170, 34.330.
District court did not exceed its jurisdiction by ordering discovery of son's juvenile court records in action alleging that father
negligently left juvenile son alone in home with access to gun with which friend of son killed himself; records were potentially directly
relevant to negligence claim and order was narrowly tailored to safeguard confidentiality of records. NRS 62.360.
OPINION
Petitioner (Glen) and his wife took a vacation to a Mexican resort, leaving their teenaged
son (Chris) at home alone. In his parents' absence, Chris allegedly hosted a party at their
house which lasted for several days. Apparently, the primary activity at this party was the
consumption of alcohol.
On December 3, 1986, after allegedly consuming a large amount of alcohol, Chris took a
gun from an unlocked gun cabinet, loaded it, and went outside to shoot. Tony Hernandez, Jr.,
Chris' friend who had also allegedly consumed a large amount of alcohol, asked Chris if he
could shoot the gun. Hernandez obtained possession of the gun and began acting crazy.
When Hernandez complained that he could find nothing to shoot, Chris advised him to shoot
into the ground. Hernandez placed the gun under his chin and, while he was still joking, the
gun fired and killed Hernandez.
Consuelo Hannl, the administrator of Hernandez's estate, filed in the district court a
complaint alleging that Glen was negligent for leaving Chris alone in his home with access to
the gun. On April 6, 1988, Hannl petitioned the juvenile division of the Eighth Judicial
District Court for permission to inspect Chris' juvenile records. After receiving opposition to
the petition, the Honorable John McGroarty, District Judge, granted the motion to inspect
Chris' juvenile records. Judge McGroarty specified, however, that Judge Miriam Shearing,
who was presiding over Hannl's lawsuit, would have to review Chris' juvenile records to
determine if they were relevant to Hannl's action against Glen. Judge Shearing inspected the
records and, on January 4, 1989, ruled that Hannl should be permitted to copy Chris' juvenile
records. One week later, Judge Shearing entered a formal, written order granting Hannl's
motion.
After Judge Shearing announced her ruling on Hannl's motion, Glen requested a stay of
that decision. Judge Shearing denied the stay, and later that day, Glen filed in this court a
motion to stay enforcement of Judge Shearing's order. On January 5, 1989, this court granted
the motion for a stay. Counsel for Glen prepared a petition for a writ of prohibition
challenging the orders of the district court.
petition for a writ of prohibition challenging the orders of the district court. While he was
serving the petition, however, counsel learned that Hannl's counsel had already inspected and
photocopied Chris' juvenile records. Therefore, counsel drafted a supplement to the petition
which requested a writ of mandamus directing Judge Shearing to exclude Chris' juvenile
records from evidence in the lawsuit below and further directing Hannl's counsel to return to
the juvenile court the copies of Chris' juvenile records.
[Headnotes 1-4]
Initially, we note that a writ of mandamus is available to compel the performance of an act
which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to
control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981). Further, a writ of prohibition may be issued if a
lower court acts in excess of its jurisdiction. See NRS 34.320; Goicoechea v. District Court,
96 Nev. 287, 607 P.2d 1140 (1980). Neither mandamus nor prohibition will issue, however,
where the petitioner has a plain, speedy and adequate remedy, such as an appeal, in the
ordinary course of law. NRS 34.170; 34.330. See also Heilig v. Christensen, 91 Nev. 120,
532 P.2d 267 (1975), cert. denied 423 U.S. 1055 (1976). Finally, mandamus and prohibition
are extraordinary remedies, and the decision of whether a petition will be entertained lies
within the discretion of this court. See Poulos v. District Court, 98 Nev. 453, 652 P.2d 1177
(1982) (mandamus); Bowler v. District Court, 68 Nev. 445, 234 P.2d 593 (1951)
(prohibition).
[Headnote 5]
In the present case, Glen and Chris challenge orders of the district court which, taken
together, compel discovery of Chris' juvenile court records. This court has previously held
that extraordinary relief is available to challenge orders of the district court compelling
discovery in civil cases of irrelevant or privileged material where disclosure of the material
could cause irreparable harm to the party from whom the material is sought. See Schlatter v.
District Court, 93 Nev. 189, 561 P.2d 1342 (1977). Because the disclosure of otherwise
confidential juvenile court records could have far-reaching consequences on the life of Chris,
we will exercise our discretion to entertain the merits of this petition.
The parties agree that the release of Chris' juvenile records is governed by NRS 62.360.
That statute provides in pertinent part:
2. The [juvenile] records may be opened to inspection only by order of the court to
persons having a legitimate interest therein. . . .
only by order of the court to persons having a legitimate interest therein. . . .
. . . .
4. Whenever the conduct of a juvenile with respect to whom the jurisdiction of the
juvenile court has been invoked may be the basis of a civil action, any party to the civil
action may petition the court for release of the child's name, and upon satisfactory
showing to the court that the purpose in obtaining the information is for use in a civil
action brought or to be brought in good faith, the court shall order the release of the
child's name and authorize its use in the action.
Glen asserts that the statute quoted above draws a distinction between the release of a
juvenile's name and the release of that juvenile's records. He also states that this distinction is
reinforced in another statute which allows the victim of a crime committed by a child to be
informed of the disposition of the child's case in the juvenile court, but prohibits the victim
from disclosing that information to any other person. See NRS 62.193(8). Glen avers that this
distinction safeguards the legitimate interest of the state in protecting the identity of youthful
offenders and thus enhances the rehabilitative function of the juvenile justice system.
Specifically, Glen states that under NRS 62.360(2), the only persons that can have a
legitimate interest in the records of a juvenile are social workers, law enforcement agencies
and other agencies that are involved in the rehabilitation of juvenile offenders. Thus, Glen
argues that the plaintiff in a civil action may obtain only the name of a juvenile offender.
Glen's argument is without merit. Initially, we note that juvenile court proceedings were
never instituted against Chris as a result of the death of Tony Hernandez. Because NRS
62.360(4) applies only to civil actions arising out of conduct that led to the exercise of
jurisdiction by the juvenile court, it does not appear that the subdivision has any application
to the case at bar.
We also note that NRS 62.360(2) authorizes the district court to allow the inspection of
juvenile records by any person having a legitimate interest therein. See also Pickard v.
State, 94 Nev. 681, 585 P.2d 1342 (1978) (confidentiality of juvenile records must yield to
right of defendant to cross-examine witnesses regarding bias or prejudice in a criminal case).
It is well-established that when this court construes a specific portion of a statute, the statute
should be read as a whole and, where possible, the statute should be read to give meaning to
all of its parts. See Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984).
Although NRS 62.360(4) authorizes the disclosure to a civil litigant of the name of a
juvenile who has committed a tortious act, the purpose of that subdivision is "to permit
victims of juvenile offenses to seek civil redress" for their injuries by providing the victim
with the name of the person who caused the injury.
civil litigant of the name of a juvenile who has committed a tortious act, the purpose of that
subdivision is to permit victims of juvenile offenses to seek civil redress for their injuries
by providing the victim with the name of the person who caused the injury. See State in
Interest of D. H., 380 A.2d 295, 297 (N.J. Super.Ct.App.Div. 1977). Thus, the purpose of
NRS 62.360(4) is to provide the victim of tortious conduct with the name of a juvenile
tortfeasor so that the victim may seek recompense for his injuries. To hold that NRS
62.360(4) limits a person proceeding under NRS 62.360(2) to discovery of a juvenile's name
would deprive NRS 62.360(2) of any real meaning and would thus violate a basic rule of
statutory construction. See Bernhard, 100 Nev. at 351, 683 P.2d at 23.
Further, nothing in the NRS 62.360 limits the class of persons who can have a legitimate
interest in juvenile records; indeed, NRS 62.340(2) clearly vests in the district court wide
discretion to determine the persons having a legitimate interest in juvenile court records. In
exercising its discretion, the district court must balance the need of the requesting party for
the records against the interests of society in keeping confidential certain juvenile court
records. See Ex Parte State Farm Fire and Cas. Co., 529 So.2d 975 (Ala. 1988).
In the present case, Hannl alleges that Glen acted negligently when he left Chris at home
alone for several days with access to a gun. If Chris' juvenile court records reflect a pattern of
alcohol-related offenses or other reckless conduct, those records would be relevant to whether
Glen acted negligently when he allegedly entrusted his home and its contents to Chris. Thus,
the records would be directly relevant to Hannl's cause of action. Moreover, the procedure
used below, i.e., an initial determination by the juvenile court to disclose Chris' records,
subject to a subsequent in camera inspection of the juvenile records by a different district
court judge to determine the relevance of the records, was clearly designed to safeguard
society's interest in the confidentiality of the records. Finally, as noted above, Judge Shearing
specified in her order that the information contained in Chris' juvenile court records could be
used only in the litigation below, and that the use of the records at trial would be subject to a
subsequent decision by the district court on whether the material will be allowed to become a
part of the court record. Therefore, it is evident that the district court has not foreclosed the
possibility that all or part of Chris' juvenile court records will be suppressed in the future.
Under the circumstances of this case, we conclude that the district court entered an order
that was narrowly tailored to safeguard society's interest in the confidentiality of Chris'
juvenile records, while preserving Hannl's right to access information that is relevant to
her cause of action below.
nile records, while preserving Hannl's right to access information that is relevant to her cause
of action below. Therefore, we conclude that the district court did not exceed its jurisdiction
or abuse its discretion when it ordered disclosure of Chris' juvenile records. Accordingly, we
conclude that our intervention by way of extraordinary writ is not warranted at this time.
Therefore, we deny this petition.
Springer and Rose, JJ., concur.
Steffen, J., with whom Mowbray, J., agrees, dissenting:
I am unable to join in the majority opinion because of what I perceive to be a compellingly
clear statute that mandates a contrary result.
NRS 62.360(4) specifically addresses the extent to which a minor's juvenile court records
may be utilized in civil actions. By its precise terms, only the juvenile's name may be released
and used in the action. Long ago, we declared as an elementary principle of statutory
construction that if the language of a statute is susceptible of but one natural, honest
construction, that alone can be given. State v. California Mining Co., 13 Nev. 203, 217
(1878). Moreover, in State ex rel. Copeland v. Woodbury, 17 Nev. 337, 343, 30 Pac. 1006,
1008 (1883), we said that [w]here a statute is clear, plain and unambiguous, we have
repeatedly declared that there is no room for construction and the law must be followed
regardless of results. We have also expressly recognized that it is not the business of the
court to construe clear, unambiguous statutes that are impractical or unworkable, State ex rel.
Caughlin v. Alt, 22 Nev. 203, 212, 37 Pac. 486, 488 (1894), or questionably just or equitable,
In re Walter's Estate, 60 Nev. 172, 186, 104 P.2d 968, 974 (1940).
Given the clear limitations set forth in NRS 62.360(4), I am unpersuaded by the majority's
conclusion that NRS 62.360(2) also applies to civil actions. By adopting such a position, the
majority have effectively nullified NRS 62.360(4). The broad language of NRS 62.360(2), if
applied to paragraph 4, would render the specific restrictive provisions of the latter paragraph
redundant and without purpose. Obviously, if a civil litigant is accorded unlimited access and
use of a juvenile file under paragraph 2, a court order authorizing the release and use of a
child's name only, under paragraph 4, would be senseless. I therefore conclude that the rule of
statutory construction cited by the majority, requiring this court to read a statute as a whole
and, where possible, give meaning to all of its parts, Nevada Tax Comm'n v. Bernhard, 100
Nev. 348, 683 P.2d 21 (1984), has been violated by the majority's nullification of paragraph
4.
Moreover, I am unable to find within paragraph 4 a basis for the majority's conclusion that
the paragraph applies only to civil actions arising out of conduct that led to the exercise of
jurisdiction by the juvenile court. Clearly, the term conduct within paragraph 4 refers to
the basis for the civil action, not the jurisdiction of the juvenile court. Although, as a practical
matter, the conduct constituting the basis for the civil action and the juvenile court
jurisdiction may most often be identical, it seems clear from the statute that it need not be the
same conduct. I must therefore conclude that paragraph 4 is applicable in the instant case
despite the fact that juvenile proceedings were never instituted against Chris over the death of
Tony Hernandez.
In my opinion, petitioner's contention that paragraph 2 refers only to social workers, law
enforcement agencies and other agencies and individuals concerned with a juvenile's
rehabilitation and treatment within the juvenile or criminal justice system has merit. By
construing the paragraph's reference to persons having a legitimate interest to persons in the
aforementioned categories, both paragraphs 2 and 4 would retain meaningful purpose in
accordance with the legislative intent to severely restrict access to official information
concerning a minor's involvement in the juvenile justice system.
Because it is not this court's legitimate prerogative to alter the thrust of a clearly worded
statute, I have refrained from discussing my views concerning the wisdom of paragraph 4. I
nevertheless have no difficulty recognizing a reasonable social purpose within the narrow
limitations of the language selected by the legislature in its enactment of paragraph 4.
For reasons noted above, I would have granted petitioners' request for relief.
____________
105 Nev. 735, 735 (1989) Mitchell v. State
DAVID MITCHELL, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19897
November 27, 1989 782 P.2d 1340
Appeal from judgment of conviction, pursuant to jury verdict, of one count each of first
degree murder with the use of a deadly weapon, sexual assault and grand larceny. Second
Judicial District Court, Washoe County; William N. Forman, Judge.
Defendant was convicted in the district court of grand larceny, sexual assault, and murder.
Defendant appealed. The Supreme Court held that: (1) prosecution for grand larceny and
sexual assault of one victim was improperly joined with prosecution for sexual assault and
murder of another victim; {2) evidence of alleged sexual assault of one victim was not
admissible as to counts involving other victim; and {3) misjoinder was harmless.
assault of one victim was improperly joined with prosecution for sexual assault and murder of
another victim; (2) evidence of alleged sexual assault of one victim was not admissible as to
counts involving other victim; and (3) misjoinder was harmless.
Affirmed.
David Parraguirre, Public Defender, and Karen L. Grifall, Deputy Public Defender,
Washoe County, for Appellant.
Guy Sage, Deputy District Attorney, Washoe County, for Respondent.
1. Rape.
Evidence established that intercourse between defendant and homicide victim was not consensual, even though there was no
severe injury to victim's genitalia and even though witnesses testified that they had seen defendant and victim flirting with each other
on evening of crimes; physician testified that intercourse could have been nonconsensual and that victim suffered defensive wounds to
her forearms consistent with fighting off sexual attack; and one witness testified that he had seen victim resisting defendant's romantic
advances.
2. Criminal Law.
Trial of defendant for alleged sexual assault and grand larceny after taking victim dancing and drinking could not be joined with
trial of defendant for alleged murder and sexual assault after defendant took second victim dancing and drinking at same bar 45 days
later; incidents were not part of same transaction or common plan; and evidence of alleged sexual assault of initial victim was not
admissible as to counts involving subsequent victim. NRS 48.045, subd. 2, 173.115.
3. Criminal Law.
If evidence of one charge would be cross admissible in evidence at separate trial on another charge, then both charges may be tried
together and need not be severed. NRS 48.045, subd. 2, 173.115.
4. Criminal Law.
Evidence of alleged sexual assault of victim who did not even remember having sex with defendant was not clear and convincing
and, thus, was not admissible as to prosecution of defendant for sexual assault and murder of another victim. NRS 48.045, subd. 2.
5. Criminal Law.
Misjoinder of prosecution for grand larceny and sexual assault of one victim and sexual assault and murder of another victim was
harmless; defendant was acquitted of sexual assault of larceny victim; evidence of grand larceny was convincing; defendant admitted
to driving with murder victim to dirt road where her body was found; only one set of bootprints left murder scene; three inmates
testified that defendant admitted to the murder; and victim suffered wounds to her forearms consistent with person fighting off sexual
attack and had been seen fighting off defendant's romantic advances earlier that evening. NRS 48.045, subd. 2, 173.115.
6. Criminal Law.
Error due to misjoinder requires reversal only if error has substantial and injurious effect of influence in determining jury's verdict.
OPINION
Per Curiam:
In the same information, the State charged appellant David Mitchell, Jr. (Mitchell) with
four criminal counts: grand larceny from and sexual assault of Mary Beth Petz (Petz), and
sexual assault and murder of Jacqueline Brown (Brown). The Petz incidents occurred 45 days
prior to the incidents involving Brown. The two incidents do not appear connected, except
that Mitchell took the two women dancing and drinking at the same bar and is alleged to have
sexually assaulted both women. Mitchell was convicted pursuant to jury verdict of all the
counts except sexual assault of Petz.
Mitchell raises two assignments of error. First, he argues for reversal of his conviction on
the count of sexual assault of Brown on the ground that the evidence in support of that count
was insubstantial. Second, he urges this court to reverse all three convictions because the
district court committed reversible error by denying Mitchell's pretrial motion to sever the
Petz counts from the Brown counts. Although the second contention has merit, we conclude
that the error due to misjoinder was harmless as to all counts and, hence, affirm the
convictions on all counts.
[Headnote 1]
This court will not disturb a judgment of conviction in a criminal case on the basis of
insufficiency of the evidence so long as the jury verdict is supported by substantial evidence.
Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981). Contrary to Mitchell's
contention, substantial evidence supports the verdict of guilty on the count of sexual assault
of Brown. Mitchell admitted having sex with Brown. When Brown was found dead on a dirt
road, she had been stabbed 30 times, her dress was pulled down to the waist and her
underwear was torn. Despite the lack of any severe injury to Brown's genitalia, a doctor
testified that the intercourse could have been nonconsensual. The doctor further testified that
Brown suffered defensive wounds to her forearms, consistent with a person fighting off a
sexual attack. Finally, although other witnesses observed Brown and Mitchell flirting with
each other on the evening Brown was murdered, one witness testified that he had seen Brown
resisting Mitchell's romantic advances earlier that evening. These facts are substantial
evidence to support the jurors' conclusion that the intercourse between Brown and Mitchell
was not consensual.
[Headnotes 2, 3]
Mitchell's contention that it was error for the district court to deny defense counsel's
motion to sever the Brown counts from the Petz counts has merit.
deny defense counsel's motion to sever the Brown counts from the Petz counts has merit.
NRS 173.115 permits joinder of criminal counts only if the counts are based on the same
transaction or constitute part of a common scheme or plan. Being 45 days apart, these
separate incidents cannot be considered part of the same transaction. Nor can taking two
different women dancing and later attempting intercourse be considered part of a common
plan just because the women are taken in part to the same bar. See Nester v. State of Nevada,
75 Nev. 41, 334 P.2d 524 (1959). If, however, evidence of one charge would be
cross-admissible in evidence at a separate trial on another charge, then both charges may be
tried together and need not be severed. Robinson v. United States, 459 F.2d 847, 855
(D.C.Cir. 1972). Here, the district court denied the motion for severance on the basis that
evidence of the Petz counts would have been cross-admissible at a separate trial on the counts
of murder and sexual assault of Brown.
[Headnote 4]
Evidence of prior bad acts such as Mitchell's acts involving Petz is admissible only if: (1)
the prior acts are relevant to the crime charged because they show motive, intent or another
material element listed in NRS 48.045(2); (2) the prior acts are proved by clear and
convincing evidence; and (3) the prior acts are more probative than prejudicial. Berner v.
State, 104 Nev. 695, 765 P.2d 1144 (1988); NRS 48.045(2). Here, evidence of the prior
alleged sexual assault of Petz was marginal. Because she was drunk or tired, Petz did not
even remember having sex with Mitchell. Even assuming that prior incident was relevant
under NRS 48.045(2), under these circumstances the trial judge erred in concluding that the
alleged sexual assault of Petz was proved by clear and convincing evidence. Indeed, the
district court advised the jury against a guilty verdict on this count due to the paucity of
evidence of lack of consent. Under Berner, then, evidence of the sexual assault of Petz was
not cross-admissible as to the counts involving Brown, and the district court erred by denying
the motion to sever the counts.
[Headnotes 5, 6]
Although the district court erred, we conclude that the error was harmless. Faced with a
conflict among the federal circuits, the U.S. Supreme Court held that errors in joinder of
defendants are subject to harmless error analysis. U.S. v. Lane, 474 U.S. 438, 449 (1985).
Based on the reasoning of Lane, we believe that misjoinder of claims is also subject to
harmless error analysis. Other courts have since applied the harmless error standard
announced in Lane to misjoinder of claims. U.S. v. Gorecki, 813 F.2d 40, 42 {3d Cir.
F.2d 40, 42 (3d Cir. 1987); U.S. v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). Error due to
misjoinder requires reversal only if the error has a substantial and injurious effect or
influence in determining the jury's verdict. Lane, 474 U.S. at 450.
We conclude that the error in failing to sever did not have a substantial or injurious effect
or influence the jury. First, we note that the jury acquitted Mitchell of the prior sexual assault
of Petz; this indicates that joinder of this count did not have a substantial and injurious effect
on the verdicts regarding the Brown counts. Second, the evidence of sexual assault of Brown
was convincing for reasons previously stated. Third, the evidence of murder of Brown was
also convincing. Mitchell admitted to driving with Brown to the dirt road where Brown's
body was found. Testimony indicated that only one set of bootprints was in the soil
surrounding the victim and only one set of bootprints left the murder scene. Witnesses
testified that Mitchell was wearing boots on the night of the murder. All this indicates that it
could only have been Mitchell who committed the murder. Confirmation of this conclusion is
found in the facts that Mitchell's clothes were speckled with blood, that Mitchell was wearing
a knife consistent with Brown's wounds on that evening, and that three inmates testified that
Mitchell admitted to the murder. Fourth and finally, we conclude that evidence of the grand
larceny from Petz was convincing, so that joinder of the Brown counts did not prejudice the
jury's verdict as to the grand larceny count.
____________
105 Nev. 739, 739 (1989) Haberstroh v. State
RICHARD LEE HABERSTROH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18617
November 27, 1989 782 P.2d 1343
Appeal from convictions of first-degree murder with use of a deadly weapon, first-degree
kidnapping with use of a deadly weapon, sexual assault with use of a deadly weapon, and
robbery with use of a deadly weapon. Eighth Judicial District Court, Clark County; Addeliar
D. Guy, Judge.
Defendant was convicted of first-degree murder with use of a deadly weapon, first-degree
kidnapping with use of a deadly weapon, sexual assault with use of a deadly weapon and
robbery with use of a deadly weapon by a jury in the district court and was sentenced to
death. Defendant appealed. The Supreme Court, Steffen, J., held that: {1) prosecutorial
argument that imposition of the death penalty was the only way to be sure that defendant
would not kill again in light of defendant's past conduct in prison was supported by the
evidence and did not constitute prosecutorial misconduct, and {2) any error in
prosecutor's reference to jury as the "conscience of the community" was cured by court's
admonition that jury disregard statement.
Court, Steffen, J., held that: (1) prosecutorial argument that imposition of the death penalty
was the only way to be sure that defendant would not kill again in light of defendant's past
conduct in prison was supported by the evidence and did not constitute prosecutorial
misconduct, and (2) any error in prosecutor's reference to jury as the conscience of the
community was cured by court's admonition that jury disregard statement.
Affirmed.
Morgan D. Harris, Public Defender, George E. Franzen, Deputy Public Defender, and
Robert Miller, Deputy Public Defender, Clark County, for Appellant.
Tufteland, Deputy District Attorney, and Thomas L. Leen, Deputy District Attorney, Clark
1. Criminal Law.
When there was evidence of defendant's past conduct which supported a reasonable inference that even incarceration would not
deter defendant from endangering others' lives, prosecutor was entitled to ask jury to draw that inference and to consider that inference
when deciding whether to impose death penalty.
2. Criminal Law.
Evidence of defendant's past conduct in prisons and jails including masterminding an escape plot which included the taking of
hostages at gunpoint and his creation of a deadly weapon used to threaten prison guard in another escape attempt, justified prosecutor's
argument that murder defendant could continue to pose threat to lives of others if the death penalty were not imposed.
3. Criminal Law.
Any possible prejudice resulting from prosecutor's reference to jury as the conscience of the community was cured by court's
admonition that jury disregard the statement and thus statement did not deprive defendant of fair penalty hearing.
OPINION
On July 21, 1986, Richard Lee Haberstroh abducted a woman from a grocery store parking
lot. Haberstroh then took his victim into the desert outside Las Vegas, where he robbed her,
sexually assaulted her, and, finally, strangled her. The strangulation caused irreparable brain
damage, which ultimately resulted in the woman's death.
A jury found Haberstroh guilty of the murder and sentenced him to death. The jury also
convicted Haberstroh of first-degree kidnapping, sexual assault, and robbery, each with the
use of a deadly weapon. Haberstroh received four consecutive life sentences without
possibility of parole for the kidnapping and sexual assault convictions and two consecutive
fifteen-year sentences for the robbery conviction.
Haberstroh now asserts that certain of the prosecutor's arguments during the sentencing
phase of his trial constituted prosecutorial misconduct and warrant a new penalty hearing. We
disagree.
In his final argument to the jury, the prosecutor argued that in light of Haberstroh's past
conduct in prisons, the imposition of the death penalty was the only way to be sure
Haberstroh would not kill again. In support of his argument, the prosecutor relied on evidence
present in the penalty hearing which indicated that Haberstroh, while serving a term in a
federal prison, masterminded an escape plot that included the taking of hostages at gunpoint.
The prosecutor's evidence further revealed that Haberstroh, while serving yet another prison
term, had fashioned a deadly weapon out of a piece of metal and used it to threaten the life of
a prison guard in another escape attempt. The prosecutor finally pointed to evidence showing
that Haberstroh had acquired and concealed a piece of angle iron in the Clark County jail just
two days before his penalty hearing in this case.
[Headnote 1]
When there is evidence, as in this case, of a defendant's past conduct which supports a
reasonable inference that even incarceration will not deter the defendant from endangering
others' lives, a prosecutor is entitled to ask the jury to draw that inference. See State v. Green,
81 Nev. 173, 176, 400 P.2d 766, 767 (1965). The prosecutor is further entitled to ask jurors to
consider that inference when deciding whether to impose the death penalty. See Skipper v.
South Carolina, 476 U.S. 1, 5 (1986). Consideration of a defendant's past conduct as
indicative of his probable future behavior is an inevitable and not undesirable element of
criminal sentencing. Id.
[Headnote 2]
This is not a case in which the prosecutor made purely speculative predictions as to a
defendant's improbable rehabilitation and future propensity to kill in an attempt to persuade
the jury to impose the death penalty. See Flanagan v. State, 104 Nev. 105, 754 P.2d 836
(1988); Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985). Here, the evidence of the
defendant's past conduct in prisons and jails justified the prosecutor's argument that unless
executed, Haberstroh may continue to pose a threat to the lives of others.
executed, Haberstroh may continue to pose a threat to the lives of others. The prosecutor did
not, in this instance, violate the dictates of Collier.
[Headnote 3]
Haberstroh argues that the prosecutor also committed misconduct when he referred to the
jury as the conscience of the community. To the extent the comment can be considered
misconduct, the court's admonition that the jury disregard the statement cured any possible
prejudice. See Snow v. State, 101 Nev. 439, 447, 705 P.2d 632, 638 (1985). Therefore, we
conclude that Haberstroh received a fair penalty hearing.
Haberstroh also raises a number of contentions concerning the fairness of the guilt phase
of his trial. We have carefully considered these contentions and conclude that each lacks
merit. Accordingly, we affirm each of Haberstroh's convictions and the corresponding
sentences.
Young, C. J., Mowbray and Rose, JJ., concur.
Springer, J., concurring:
Our case law is well settled: a prosecuting attorney may not argue to a death penalty jury
that a murder convict should be executed because he is a threat to kill other innocent victims
in the future.
1
For example, in Collier we said it was improper for the attorney to argue that
there was but one rational' solution, namely, to execute Collier before he could kill
again. Collier, 101 Nev. at 478, 705 P.2d at 1129.
There are sound reasons for not permitting a prosecutor to make this kind of argument to a
jury that is making a life or death decision. First, it should be remembered that capital
punishment, as the term implies, is imposed in order to punish for bad deeds already
committed, not to cull out villains who are thought by state officials to be dangerous in the
future. It must also be remembered that state's attorneys are powerful authority figures,
representatives of the sovereign, and recognized as having special knowledge and sound
judgment in the field of criminal justice. So, when the attorney for the state is allowed to
stand up and address jurors, telling them that the only way to save the lives of innocent
victims in the future is to terminate the life of the offender, such rhetoric is powerful indeed,
almost irresistible. When this kind of argument is allowed, the critical decision of life or
death tends to become more the state's than the jury's. In any event, although there may be
arguments to the contrary, the established case law in Nevada bars this kind of argument
by prosecuting attorneys.
__________

1
Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988); Pellegrini v. State, 104 Nev. 625, 764 P.2d 484
(1988); Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985).
any event, although there may be arguments to the contrary, the established case law in
Nevada bars this kind of argument by prosecuting attorneys.
Today, without stating any reasons, without stating any authority
2
and without expressly
overruling Collier and the other cases, we approve the following argument: [T]here's only
one way to make sure that the person does not commit another crime like this . . . and that is
to impose the death penalty on Mr. Haberstroh. To say, as the majority opinion does, that
this kind of statement does not violate the dictates of Collier is to ignore the plain dictates
of Collier, which clearly proclaim that a prosecutor's arguing that the death penalty should be
imposed so that the defendant will not kill again is impermissible. What we disapprove of
yesterday, we approve of today.
I should probably stop here and simply say that I disagree with the majority opinion
because I believe that if we are going to overrule Collier, Flanagan and Pellegrini, we should
do so frankly and expressly and state reasons for our abrupt change of mind; but there is more
to the majority opinion than this. The majority now allows the kind of argument prohibited by
Collier but imposes a precondition, namely, that there be in the record some evidence of
past misconduct. I should think that in almost all death penalty cases there will be evidence
of aggravating circumstances in the form of past misconduct of the defendant. Thus the court
and counsel must, under the rule today announced, decide in most cases whether the evidence
supports a reasonable inference that even incarceration will not deter
3
the defendant from
endangering others' lives," before a determination can be made as to whether this kind of
argument can be properly made.
__________

2
The majority asks the reader to see the case of State v. Green, 81 Nev. 173, 400 P.2d 766 (1965). I am
not sure why. This case holds that a juror's statement that the dirty nigger got what he deserved was not jury
misconduct and that the prosecutor's argument that the defendant's drawing unemployment compensation was
evidence of robbery were proper prosecutorial arguments. I should like to know a little more about how this case
supports the majority's position.

3
I cannot imagine where the word deter comes from. The prosecuting attorney did not use the word deter
nor did he mention the idea of deterrence in his argument. He did not do so because special deterrence is not
involved in a death case. Killing Haberstroh does not deter him from future killing, it simply makes it impossible
for him to commit any more crimes. Deter comes from the same word root as terrify and means to discourage
future behavior by means of threat or fear. This, no doubt, is why the prosecutor was not talking about deterring
Haberstroh from killing againa dead person cannot be discouraged by fear of punishmentbut rather about
preventing him from ever killing again. What the majority may be, or rather must be, talking about is
permanent quarantineeradicating the undesirables of the world as a social prophylactic. If this be the case,
then, again, I say why do they not say so? The proper rule of this case then would become: If the prosecuting
attorney has reason to believe
defendant from endangering others' lives, before a determination can be made as to whether
this kind of argument can be properly made. We will now be getting appeals on whether the
evidence upon which the prosecutor makes the prediction supports a reasonable inference
that the convict must be executed. I think that if we are now going to permit the kind of
argument now prohibited by Collier, we should outrightly do so without imposing this kind
of vague and restricting condition on the district attorney and the court.
Whether we are talking about deterring Haberstroh or exterminating him because we
think he is dangerous, the fact that there may be some evidence of past misconduct in the
record should not be enough to justify departure from our well-established rule. The
prosecuting attorney may very well be a better prognosticator than the average juror and
better able to make predictions about what a given defendant is going to do in the future; but
it is the jury that should be deciding who lives and who dies and not the expert who claims
that no one will be safe for so long as the defendant lives. The prosecutor's prediction of
future homicidal conduct, however sound, does not relate to the issue faced by the jury,
namely, does this person deserve to die?
Notwithstanding the improper argument in this case I vote with the majority because I do
not think that the level of prejudice reached in Collier and Flanagan has been reached in this
case.
4
I set forth the reason for concurring rather than dissenting in the margin because I
do not want to distract the reader from the point in writing this concurrence, namely that
the majority sets out to overrule or announce a major exception to the firmly established
rule stated in Collier, Flanagan and Pellegrini, without elaborating a coherent new rule to
be followed and without stating any reasons for the changes in our law that might be
intended effected by this opinion.
__________
that the defendant is going to kill again if not eradicated, then this argument may be pressed to the jury. I do not
argue in this concurrence whether this utilitarian approach should be adopted or not. I only say that if this is what
the majority opinion is about, it should be expressed openly.

4
In Flanagan and Collier, the prosecutors improperly compared the defendants to two of Nevada's more
notable murderers, thereby implying that rehabilitation was impossible. For example, in Collier the prosecutor
sought to promote a conclusion that the defendant might kill again in prison (as had the notable murderer cited
by the prosecutor) and that he therefore should be put to death. This court found that such comments were
inappropriate and diverted the jury's attention from its proper purpose.
In the case at bar the prosecutor compared the defendant's prospects of rehabilitation to negotiating with
Libyan leader Khadafy. I do not see the use of the simile as creating the kind of prejudice created in Collier by
the prosecutor's comparing Collier to Patrick McKenna. This case does not contain the level of prejudice and
impropriety found in Collier and Flanagan. Here, the prosecutor made a general statement about Khadafy, but
he did not continue to pursue this path in such a manner as to invoke the passions and emotions of the jury to
such a degree as to render the proceedings against Haberstroh to be inherently unfair.
In Collier this court held that the trial court's failure to control the prosecutorial misconduct, and the time
limitation imposed on closing arguments, constituted errors which in combination with each other denied the
defendant a fair sentencing hearing. In Flanagan the court held that the cumulative effect of the prosecutor's
extensive misconduct was of such
set forth the reason for concurring rather than dissenting in the margin because I do not want
to distract the reader from the point in writing this concurrence, namely that the majority sets
out to overrule or announce a major exception to the firmly established rule stated in Collier,
Flanagan and Pellegrini, without elaborating a coherent new rule to be followed and without
stating any reasons for the changes in our law that might be intended effected by this opinion.
____________
105 Nev. 745, 745 (1989) Mazzan v. State
JOHN FRANCIS MAZZAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18758
November 27, 1989 783 P.2d 430
Appeal from an order of the district court denying appellant's petition for post-conviction
relief.
1
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
The Supreme Court affirmed defendant's conviction of first degree murder but vacated his
death sentence and remanded for a new penalty hearing, 100 Nev. 74, 675 P.2d 409. Jury at
the second penalty hearing also set penalty at death, and sentence was affirmed on direct
appeal, 103 Nev. 69, 733 P.2d 850. Defendant moved for post-conviction relief which was
denied by the district court. Defendant appealed. The Supreme Court, Steffen, J., held that:
(1) defendant failed to show that he was denied effective assistance of counsel at second
penalty hearing, and (2) prosecutor's conduct did not deny defendant a fair proceeding.
Affirmed.
[Rehearing denied, March 6, 1990]
Young, C. J., and Springer, J., dissented.
Donald York Evans, Reno, for Appellant.
__________
magnitude as to render the defendant's sentencing hearing fundamentally unfair. The case at bar is similarly a
case in which prosecutor misconduct appears to be the only issue. Since the degree and type of misconduct here
is not as egregious as Flanagan, and is not coupled with other errors as in Collier, Haberstroh's need not, in my
view, be set aside.

1
Although this court denied appellant leave to file papers in proper person, see NRAP 46(b), we have
reviewed appellant's proper person supplemental brief, and we have denied appellant's requests for withdrawal
of his counsel and to hold this appeal in abeyance.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary
1. Criminal Law.
Defense counsel's decision to forego presenting testimony at penalty hearing regarding defendant's lack of a violent nature before
he committed first degree murder did not necessarily constitute ineffective assistance.
2. Criminal Law.
Hope of swaying the jury not to impose death penalty by having defendant's mother express her feelings for her convicted son was
sufficiently speculative that defense counsel's failure to use her was not ineffective assistance.
3. Criminal Law.
Defense counsel's focus on presenting testimony at penalty hearing regarding defendant's character after the murder, as perceived
by prison chaplain and prison counselor and presenting testimony of victim's father that he had no desire that death penalty be imposed
was an informed, strategic choice which did not deny defendant effective assistance of counsel.
4. Criminal Law.
It was not reasonably probable that the omitted testimony of witnesses concerning defendant's peaceful character before he
committed murder or the plea for mercy by defendant's mother would have altered jury's verdict imposing death penalty and thus
defendant had not shown that but for alleged ineffective assistance of defense counsel there was a reasonable probability that jury
would have concluded the balance of aggravating and mitigating circumstances did not warrant death.
5. Criminal Law.
Prosecutor's remarks to jury at penalty hearing that its task in sentencing defendant was to make a statement or to set a standard
for the community did not mandate reversal of death sentence.
6. Criminal Law.
Prosecutor's reference during penalty hearing to notorious prison inmate, which occurred in context of rebuttal to testimony
concerning defendant's good character while in prison, was not so prejudicial as to require reversal of death sentence.
7. Criminal Law.
Although prosecutor's remark to jury during penalty hearing that according to his professional experience, defendant deserved the
death penalty was unfortunate, it was made in context of explaining his function to the jury and during his summation of proceedings
in closing argument and in this context remark was not misconduct calling for reversal.
8. Homicide.
Fact that defendant murdered his friend while a guest in the friend's house was admissible as character evidence in penalty hearing
for capital murder. NRS 175.552.
OPINION
On October 19, 1979, a jury convicted appellant of first degree murder. Following a
penalty hearing, appellant was sentenced to death. This court affirmed appellant's conviction
but vacated his sentence and remanded the case for a new penalty hearing. Mazzan v. State,
100 Nev. 74, 675 P.2d 409 (1984). Laurence McNabney, appellant's appointed counsel at his
trial and first penalty hearing, represented appellant again at the second penalty hearing.
2
The jury at the second penalty hearing also set the penalty at death, and on direct appeal, we
affirmed the sentence. Mazzan v. State, 103 Nev. 69, 733 P.2d 850 (1987). Subsequently,
appellant filed in the district court a petition for post-conviction relief and a motion for a stay
of execution. The district court granted the stay and held a hearing on appellant's petition. On
December 2, 1987, the district court entered an order denying appellant's petition for
post-conviction relief. This appeal followed.
Appellant contends that he was denied his right to effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984) and Warden v. Lyons, 100 Nev. 430, 683
P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985), at his second penalty hearing. In
particular, appellant contends that his attorney's failure to present testimony of several
character witnesses as evidence of mitigating circumstances manifests ineffective assistance
of counsel.
At the hearing on appellant's petition for post-conviction relief, appellant presented
testimony by his mother, his former wife, a business associate and some friends and
acquaintances. These witnesses provided favorable testimony regarding appellant's character
at the time they were in contact with him, and indicated they would have been willing to
testify at appellant's penalty hearing. Appellant states that he was entitled to present such
character evidence under NRS 175.552 and Eddings v. Oklahoma, 455 U.S. 104, 113-14
(1982). Appellant further asserts that his mother could have presented an effective plea for
mercy to the sentencing jury, had counsel called her to testify, and that he was entitled to have
her make such a plea under Caldwell v. Mississippi, 472 U.S. 320, 330-31 (1985).
__________

2
It is noteworthy that appellant specifically requested representation in his second penalty hearing by
counsel whose previous efforts resulted in a conviction of first degree murder, a sentence of death, and a
determination of ineffectiveness of counsel by this court.
Under the two-part test of Strickland v. Washington, 466 U.S. at 687, in order to obtain
relief, appellant must (1) [show] that counsel made errors so serious that counsel was not
functioning as the counsel' guaranteed the defendant by the Sixth Amendment, and (2)
show that the deficient performance prejudiced the defense, and that counsel's errors were
so serious as to deprive defendant of a fair trial, a trial whose result is reliable.
In deciding an ineffective assistance of counsel claim, a reviewing court must judge the
reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as
of the time of counsel's conduct and determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally competent
assistance. Id. at 690. [C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment. Id.
Moreover, the distorting effects of hindsight must be avoided in the court's review. Id. at
689.
Appellant's penalty hearing counsel testified that he made a conscious, strategic decision to
focus his presentation on evidence of Mazzan's good character while in prison, to the
exclusion of other evidence, in support of his argument for a sentence of imprisonment rather
than imposition of the death penalty. Counsel presented the testimony of a prison chaplain
and a prison counselor at the penalty hearing. Counsel intended to show by this testimony that
Mazzan's life had value and meaning in prison and should therefore not be taken. These
witnesses were in frequent contact with appellant and spoke favorably of his character as
perceived by them shortly before the time of the penalty hearing.
Appellant's counsel also presented the victim's father to the sentencing jury, who testified
that he had no affirmative desire that the death penalty be imposed upon appellant. Counsel's
strategy of thereby attempting to allay any desire or perceived need for retribution among the
jurors was reasonable.
Counsel was aware of the possibility of calling appellant's mother and some of the other
witnesses whose absence constitutes the basis for appellant's complaint; counsel had
presented their testimony at the guilt phase of appellant's trial and had discussed the choice of
witnesses at the penalty hearing with appellant. Counsel's choice of witnesses at the penalty
hearing was an informed, strategic choice, and is therefore virtually unchallengeable. See
Strickland, 466 U.S. at 690, quoted in Ybarra v. State, 103 Nev. 8, 14, 731 P.2d 353, 357
(1987). See also Griffin v. Wainwright, 760 F.2d 1505, 1514 (11th Cir. 1985), cert. denied,
476 U.S. 1123 (1986).
[Headnotes 1, 2]
The witnesses available but not called could have testified, consistent with their testimony
at the hearing on appellant's petition for post-conviction relief, regarding appellant's character
as they had perceived it as much as several years before he committed the crime. Testimony
regarding appellant's lack of a violent nature in the past, however, would likely carry little
weight in view of his recent conviction for a brutal murder. See Griffin, 760 F.2d at 1512.
Counsel's decision to forego presenting such testimony does not necessarily constitute
ineffective assistance. Id. See also Burger v. Kemp, 483 U.S. 776, 792 (1987). Further, in the
context of this case, the hope of swaying the jury with an expression of the mother's feelings
for her convicted son is sufficiently speculative that counsel's failure to use her was not
ineffective assistance. Cf. People v. Wright, 768 P.2d 72, 97 (Cal. 1989) (counsel's failure to
object to exclusion of defendant's mother from proceedings was not ineffective assistance).
[Headnote 3]
Counsel's focus on the presentation of testimony regarding appellant's character after he
committed the crime and the testimony of the victim's father was an informed, strategic
choice. Appellant has not overcome the presumption that it constituted reasonably effective
advocacy. See Strickland, 466 U.S. at 690. Appellant has not established that in light of all
the circumstances, the identified acts or omissions [of counsel] were outside the wide range
of professionally competent assistance' nor has he shown that the justice of his sentence
was rendered unreliable by a breakdown in the adversary process caused by deficiencies in
counsel's assistance.' Burger, 483 U.S. at 795-96 (quoting Strickland, 466 U.S. at 690, 700).
Therefore, appellant has not shown that he was denied effective assistance of counsel. See id.;
Strickland, 466 U.S. at 687; Griffin, 760 F.2d at 1514.
[Headnote 4]
The jury found the aggravating circumstances that appellant committed the murder in the
course of a burglary and a robbery, and found no mitigating circumstances sufficient to
outweigh the aggravating circumstances. The jury in appellant's first penalty hearing heard the
testimony of many of the witnesses, including appellant's mother, who were not called to
testify at the second penalty hearing; and the jury nevertheless imposed a sentence of death. It
is not reasonably probable that the testimony of the omitted witnesses concerning appellant's
peaceful character before he committed the crime, or the plea of mercy by appellant's mother,
would have altered the verdict at appellant's second penalty hearing.
ond penalty hearing. Thus, appellant has not shown that, but for the challenged actions of his
counsel, there is a reasonable probability that the jury would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death. See Strickland, 466 U.S.
at 695. Therefore, appellant's sentence will not be disturbed. See id. at 695, 700.
We are also mindful of the fact that appellant specifically requested a repeat performance
by counsel who represented him in his trial and first penalty hearing. Appellant sought and
obtained the same attorney notwithstanding our prior conclusion that appellant's claim of
ineffective assistance of counsel was so meritorious as to warrant our vacating his first
sentence of death. Society can ill afford the judicial endorsement of a strategy that would
enable a criminal defendant faced with a possible capital sentence to continue a repetition of
ineffective assistance by the same counsel of his choice until eventually a jury returns a
verdict other than death. It is difficult to avoid the conclusion that appellant deliberately
sought a second ineffective presentation by his chosen attorney in order to hedge against the
possibility or probability of a second death sentence. Prior to the second penalty hearing,
appellant consulted with his attorney concerning the array of witnesses to be called. The
record does not reflect contemporaneous disagreement between appellant and his counsel
regarding the staging of witnesses. We therefore do not perceive a basis for sympathizing
with appellant's belated complaints concerning the quality of his counsel's efforts the second
time around.
[Headnote 5]
Appellant further contends that misconduct by the prosecutor at his penalty hearing
deprived him of a fair proceeding and violated his constitutional rights. Appellant complains
of the prosecutor telling the sentencing jury that its task in sentencing appellant was to make a
statement or to set a standard for the community. Appellant argues that this caused the jury
to view its role improperly in that the jurors were led to disregard or misunderstand their
responsibility to make an individualized sentencing determination.
We have remanded capital cases for new penalty hearings when prosecutors threatened the
jury with social pressure or community opprobrium. See Collier v. State, 101 Nev. 473, 479,
705 P.2d 1126, 1129 (1985), cert. denied, 486 U.S. 1036, 108 S.Ct. 2025 (1988) (If we are
not angry with him [defendant] . . . we are not a moral community). The prosecutor's
remarks in the instant case are not comparable to the prosecutorial misconduct in the case
cited above. The remarks of the prosecutor do not mandate reversal of appellant's sentence.
[Headnote 6]
Appellant next argues that the prosecutor's reference to Thomas Bean, a notorious prison
inmate, inflamed the jury and prejudiced his case. See generally Bean v. State, 81 Nev. 25,
398 P.2d 251 (1965), cert. denied, 384 U.S. 1012 (1966). In the context in which it occurred,
however, as a rebuttal to testimony concerning appellant's good character while in prison, the
reference to Bean was not so prejudicial as to require reversal.
[Headnote 7]
Appellant also contends that the prosecutor impermissibly interjected his personal opinion
by telling the jury that, according to his professional experience, appellant deserved the death
penalty. The prosecutor made these remarks, however, while explaining the prosecutor's
function in the penalty hearing to the jury and during his summation of the proceedings in his
closing argument. Although the prosecutor's choice of words was unfortunate, in this context
those remarks are not misconduct calling for reversal.
[Headnote 8]
Appellant asserts that the prosecutor presented to the jury as an aggravating circumstance
the fact that appellant murdered his friend while a guest in the friend's house. Appellant is
wrong. The State did not present the evidence as an aggravating circumstance under NRS
200.033, but rather as character evidence properly admissible under NRS 175.552. See Biondi
v. State, 101 Nev. 252, 257, 699 P.2d 1062, 1065 (1985); Rogers v. State, 101 Nev. 457, 466,
705 P.2d 664, 670 (1985), cert. denied, 476 U.S. 1130 (1986).
Having reviewed the record, we conclude that the prosecutor's conduct did not impinge on
appellant's fundamental rights and did not deny appellant a fair proceeding. Therefore, it is
not a basis for relief. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). In view of our
conclusion, appellant's contention that he was denied effective assistance of counsel in his
direct appeal by his counsel's failure to present arguments concerning the prosecutor's
conduct discussed above is without merit.
Having concluded that appellant's contentions lack merit, we affirm the district court's
decision.
Mowbray and Rose,
3
JJ., concur.
Young, C. J., with whom Springer, J., agrees, dissenting:
We conclude that Mazzan's claims have merit because his attorney, Laurence McNabney,
failed to present highly favorable witnesses to testify as to his good character prior to the
crime, and because McNabney had no reasonable explanation for this omission.
__________

3
attorney, Laurence McNabney, failed to present highly favorable witnesses to testify as to his
good character prior to the crime, and because McNabney had no reasonable explanation for
this omission. Consequently, counsel's deficiencies raise serious doubt as to the reliability of
the penalty hearing results. Therefore, we would vacate Mazzan's death sentence and remand
his case to the district court for another penalty hearing.
Preliminarily, we acknowledge that the Eighth Amendment's prohibition against cruel and
unusual punishment gives rise to a special need for reliability when the jury determines that
death is the appropriate punishment in a capital case. Johnson v. Mississippi, 486 U.S. 578,
584, 108 S.Ct. 1981, 1986 (1988). Moreover, the qualitative difference of death from all
other punishments requires a correspondingly greater degree of scrutiny of the capital
sentencing determination. Caldwell v. Mississippi, 472 U.S. 320, 329 (1985) (citation
omitted). Thus, the fact that we once before reversed Mazzan's death penalty because his
counsel was ineffective should have no bearing on our review of this appeal.
We evaluate Mazzan's claim of ineffective assistance of counsel against the two-part test
announced in Strickland v. Washington, 466 U.S. 668 (1984), and recognized by this court in
Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). The test provides that in order to set
aside his death sentence, Mazzan must show: (1) that counsel's representation fell below an
objective standard of reasonableness, Strickland, 466 U.S. at 688; and (2) that but for
counsel's mistakes, a reasonable probability exists that the result of the proceeding would
have been different. Id. at 694.
The prosecution spent more than three days presenting its evidence of aggravating
circumstances, that Mazzan committed the murder in the course of a burglary and robbery.
1
However, McNabney called only three witnesses. One witness, the victim's father, testified
that he had no overriding desire to have Mazzan executed. The two character witnesses, a
prison chaplain and a prison counselor, testified to Mazzan's good character during his time in
prison. Although McNabney knew of other significant mitigating evidence available to him,
he declined to present this testimony. Specifically, McNabney decided not to have Jean
Mazzan, Mazzan's mother, testify on her son's behalf.
McNabney determined that Mrs. Mazzan did not know very much about her son because
he left home at the age of seventeen to join the Navy. McNabney reached this conclusion
despite the fact that Mazzan lived with his mother at different times during his adult life
and that, even when Mazzan lived elsewhere, they remained in constant contact, either by
letters or by telephone or by visits.
__________

1
At Mazzan's first penalty hearing, the prosecution never even attempted to prove burglary as an aggravating
circumstance.
fact that Mazzan lived with his mother at different times during his adult life and that, even
when Mazzan lived elsewhere, they remained in constant contact, either by letters or by
telephone or by visits.
McNabney thereby undermined the importance of a mother testifying before a sentencing
jury, burdened with determining the value of her son's life.
2
A defendant is entitled to
present a plea for mercy. Caldwell v. Mississippi, 472 U.S. 320, 330-331 (1985). If
McNabney had called Mrs. Mazzan, she could have presented an effective plea for mercy.
At a hearing on Mazzan's petition for post-conviction relief, McNabney minimized the
impact of Mrs. Mazzan's testimony when he stated that if you remove all the sympathy or
moving nature of it or whatever, . . . there was little substance to it. Thus, McNabney
committed an error analogous to that discussed by Justice O'Connor in California v. Brown,
479 U.S. 538 (1987). In Brown, the Supreme Court upheld an instruction that the jury not be
swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or
public feeling. In her concurring opinion, Justice O'Connor observed that a danger inherent
in attempts to remove emotion from capital sentencing procedures is that such attempts may
mislead jurors into believing that mitigating evidence about a defendant's background or
character also must be ignored. Id. at 545-546.
Furthermore, McNabney had no reasonable basis for excluding Mrs. Mazzan's testimony.
See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114 (1987) (holding that counsel's concern
that a mother's testimony might reveal a criminal offense not in the record provided a
reasonable basis for counsel's decision not to present mitigating evidence); Wilson v. State,
105 Nev. 110, 771 P.2d 583 (1989) (concluding that counsel's failure to call the family to
testify did not vitiate defendant's Sixth Amendment right to counsel when the family might
deliver damaging testimony).
Finally, McNabney refused to present the other witnesses who testified at the
post-conviction hearing, his former wife, a business associate and several friends and
acquaintances.
__________

2
The majority opinion states that the hope of swaying the jury with an expression of the mother's feelings
for her convicted son is sufficiently speculative that counsel's failure to use her was not ineffective assistance.
To support this position, it cites People v. Wright, 768 P.2d 72 (Cal. 1989). However, Wright did not involve
counsel's failure to present testimony of the defendant's mother. Rather, counsel failed to object to the trial
court's exclusion of all potential witnesses from the proceeding, including defendant's mother. Id. at 97. The
court held that the benefits of the mother's presence throughout the proceedings were too speculative to conclude
that counsel's inaction prejudiced defendant. Id.
testified at the post-conviction hearing, his former wife, a business associate and several
friends and acquaintances. All of them said that they had come voluntarily and would have
testified at Mazzan's penalty hearing, had they been asked. They stated that they felt Mazzan
should not receive the death penalty because he is basically a warm and caring individual and
would not be a threat to society. Several of them remained in contact with Mazzan after his
incarceration. Those individuals shared confidences with Mazzan and depended upon him for
advice.
The defendant must overcome the presumption that, under the circumstances, the
challenged action of counsel constituted a sound trial strategy. Darden v. Wainwright, 477
U.S. 168, 186-187 (1986). The majority opinion holds that McNabney's failure to call
Mazzan's mother and the other character witnesses represented a tactical decision. However,
McNabney's reasons for these decisions demonstrate a lack of understanding of the capital
sentencing phase and further support Mazzan's claims of ineffective assistance of counsel.
At the post-conviction hearing, McNabney testified that he knew of witnesses who would
describe Mazzan as a kind and helpful person and that he agreed with that characterization.
However, McNabney incorrectly concluded that the evidence of Mazzan's peaceful and
compassionate nature was important only at the guilt phase. Incredibly, McNabney believed
such evidence might be more damaging than helpful at the penalty phase because such
testimony would make the murder appear more heinous, more gruesome. Under this analysis,
any mitigating evidence would highlight the brutality of a homicide and would thus be
counterproductive. Therefore, McNabney chose to rely on character evidence as mitigation,
but his logic prevented the sentencing jury from hearing all available testimony of Mazzan's
good character prior to committing the crime.
The consideration of a defendant's character is a constitutionally indispensable part of the
process of inflicting the penalty of death, to be considered together with the circumstances of
the crime. Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Just as the state may not
by statute preclude the sentencer from considering any mitigating factor, neither may the
sentencer refuse to consider as a matter of law any relevant mitigating evidence. Eddings v.
Oklahoma, 455 U.S. 104, 113-114 (1982) (emphasis in original). In the instant case,
McNabney precluded the sentencing jury from considering favorable testimony of Mazzan's
character before he went to prison.
As well, McNabney's decision to focus on evidence that Mazzan was a model prisoner
resulted in testimony highly prejudicial to Mazzan. Before introducing the prison chaplain
and prison counselor, McNabney attempted to exclude evidence that Mazzan was housed
on death row.
counselor, McNabney attempted to exclude evidence that Mazzan was housed on death row.
The prosecution argued that Mazzan's position as a death row prisoner affected his conduct
while in prison. Although the district court recognized the prejudicial nature of such
evidence, the court allowed the prosecution to present this information as a motive for
Mazzan's good behavior in prison. Despite this advance knowledge, McNabney presented
these character witnesses rather than Mrs. Mazzan and the others who testified at the
post-conviction hearing. Subsequently, the prosecution revealed through cross-examination
that Mazzan was a death row inmate.
McNabney's misunderstanding of the concept and importance of mitigation resulted in the
exclusion of highly favorable character evidence. Additionally, his introduction of character
evidence from Mazzan's time in prison prejudiced the sentencing jury by informing them that
Mazzan had been previously sentenced to death. Therefore, Mazzan demonstrated that his
counsel's representation fell below an objective standard of reasonableness, satisfying the first
prong of Strickland.
Likewise, but for McNabney's omission of this character evidence, the second jury could
very well have decided against the death penalty.
3
In his closing argument, the prosecutor
acknowledged that the two aggravating circumstances, robbery and burglary, may not be
sufficient cause to impose the death penalty. However, in the prosecutor's opinion, the fact
that Mazzan killed a friend in the victim's home made this a death case.
4
Consequently,
even the prosecutor admitted
__________

3
The majority notes that at the guilt phase of appellant's trial, appellant's counsel had presented testimony of
the mother and other witnesses whose absence from the second penalty trial constitute the basis for appellant's
claim of ineffective assistance. However, the fact that the first jury heard this character evidence at the guilt
phase and still found appellant guilty and sentenced him to death does not mean the evidence had no effect. That
the first jury imposed a death sentence is more likely explained by counsel's ineffective assistance at the first
penalty phase. See Mazzan v. State, 100 Nev. 74, 657 P.2d 409 (1984). The purpose of character evidence at the
guilt phase in a capital case is entirely different from its purpose at the penalty phase. Moreover, because the
second penalty jury never heard the character evidence, even at a guilt phase, it had not opportunity to consider
this mitigating evidence. Had the jury heard the character evidence, it may well have decided against death.

4
The majority opinion justifies the prosecution's remarks as character evidence properly presented to the
sentencing jury pursuant to NRS 175.552. However, we have never allowed the prosecution to characterize
evidence as aggravating which conflicts with one of those circumstances listed as aggravating under NRS
200.033. The legislature determined that killing a person at random and without apparent motive is an
aggravating circumstance. NRS 200.033(9). Because the prosecution's argument that Mazzan's killing a friend
aggravated the seriousness of the murder controverts this statutory aggravating circumstance, we conclude that
such an argument was impermissible.
quently, even the prosecutor admitted that the two aggravating circumstances in Mazzan's
case may not warrant the death penalty.
A jury in a capital sentencing proceeding makes a highly subjective, unique,
individualized judgment regarding the punishment that a particular person deserves. Dawson
v. State, 103 Nev. 76, 80, 734 P.2d 221, 223 (1987) (citations omitted). Under Nevada law,
the jury weighs the mitigating factors against the aggravating circumstances which it finds to
determine whether the defendant shall live or die.
In the instant case, the omitted testimony would have placed the murder in its proper
perspectivea tragic but isolated event in a productive life that continues to impact
positively on many people. Thus, a reasonable probability exists that, had it heard the
additional mitigating evidence, the jury would not have imposed the death sentence.
Therefore, we conclude that McNabney's failure to present more mitigating evidence on
Mazzan's behalf was error serious enough to abrogate Mazzan's Sixth Amendment right to
counsel. Accordingly, we would vacate Mazzan's death sentence and remand to the district
court for a new penalty hearing.
____________
105 Nev. 756, 756 (1989) Buck v. Greyhound Lines
TINA BUCK and HEATHER BUCK, Minors, by JOSEPH BUCK and DEBRA BUCK,
Guardians ad litem, and DEBRA BUCK; JOSEPH BUCK; MARSHA BUCK and
HERBERT BUCK, Appellants and Cross-Respondents, v. GREYHOUND LINES,
INC., a California Corporation, LTR STAGE LINES, INC., a Nevada Corporation,
Respondents and Cross-Appellants, KTNV CHANNEL 13 and JOSEPH REIGHLEY,
Respondents.
No. 16799
November 27, 1989 783 P.2d 437
Appeal and cross-appeal from judgment. Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
Bus collision with stalled car gave rise to personal injury action by child passengers,
bystander, who was their mother, bystander's husband, car driver, and driver's spouse to
recover damages from bus company, pickup truck driver, who had stopped to assist car
occupants, and pickup truck driver's employer. The district court entered judgment on jury
verdict finding bystander and car driver to be twenty percent negligent, effectively
insulating pickup truck driver from liability under Good Samaritan statute, and finding bus
company to be forty-five percent negligent.
finding bystander and car driver to be twenty percent negligent, effectively insulating pickup
truck driver from liability under Good Samaritan statute, and finding bus company to be
forty-five percent negligent. Plaintiffs appealed, and bus company brought cross-appeal. The
Supreme Court, Steffen, J., held that: (1) Good Samaritan statute was inapplicable to insulate
pickup truck driver from liability; (2) liability to child passengers was to be joint and several,
rather than several; and (3) bystander was entitled to instruction on damages for emotional
distress.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno; Phillip S. Aurbach, Las Vegas;
Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, Philadelphia, Pennsylvania; and
Robert Land, Philadelphia, Pennsylvania, for Tina Buck, Heather Buck, Joseph Buck, Debra
Buck, Marsha Buck and Herbert Buck.
Beckley, Singleton, DeLanoy, Jemison & List and J. Mitchell Cobeaga and Daniel F.
Polsenberg, Las Vegas, for Greyhound Lines, Inc. and LTR Stage Lines, Inc.
Eugene J. Wait, Jr., Reno, for KTNV Channel 13.
Lyles, Austin & Burnett, Las Vegas, for Joseph Reighley.
1. Automobiles.
Pickup truck driver's assistance to car stalled in traffic lane did not occur during emergency within meaning of Good Samaritan
statute that would have insulated driver from liability for ordinary negligence; when truck driver arrived, there were no injured parties,
no approaching traffic, and no stressful components to interfere with deliberate, measured thought process, and there was ample time to
push car off road to be started; and emergency created by bus traveling in lane of car was product of truck driver's instruction to turn
off car lights and of his flashing truck lights at oncoming bus. NRS 41.500.
2. Negligence.
Critical ingredients of emergency situation within meaning of Good Samaritan statute are as follows: suddenness, unexpected
necessity for immediate action, lack of time for measured evaluation of alternative courses of action, and respective efficacy and
priority of alternatives. NRS 41.500.
3. Negligence.
Good Samaritan statute did not apply to emergency care or assistance to injured, healthy person. NRS 41.500.
4. Appeal and Error; Automobiles.
Instruction on inapplicable Good Samaritan statute was prejudicial error in action arising out of pickup truck driver's assistance to
stalled car and of bus collision with car. NRS 41.500.
Prejudicial instruction on Good Samaritan statute did not require new trial in action arising out of pickup truck driver's assistance
to stalled car and of bus collision with car, where jury determined that driver's negligence contributed twenty-five percent to collision.
NRS 41.500
6. Automobiles; Negligence.
Statute requiring several liability in action in which contributory negligence may be asserted as defense did not apply to injured,
infant passengers of stalled car that was struck by bus, and, thus, liability to children was to be joint and several in action by children,
their mother, and others against bus company and pickup driver who had stopped to give assistance; statute applied only if
contributory negligence could be asserted as bona fide issue in case. NRS 41.141.
7. Automobiles.
Several liability, rather than joint and several liability, was appropriate in action by bystander, who witnessed and was injured by
bus collision with stalled car, her husband, car driver, and driver's husband to recover for negligence of bus driver and pickup truck
driver who had stopped to give assistance. NRS 41.141.
8. Negligence.
Statute requiring several liability in action in which contributory negligence may be asserted as defense changed more than
procedural remedy and could not be applied retroactively. NRS 41.141.
9. Damages.
Bystander, who watched bus speed toward collision with her children in stalled car and who was seriously injured by impact of
collision as she stood directly in zone of danger, was entitled to instruction on damages for emotional distress in witnessing impending
injury to children.
Trial court's erroneous failure to instruct jury on bystander's claim to recover damages for emotional distress entitled bystander to
new trial in action arising out of bus collision with stalled car in which bystander's children were sleeping.
Trial counsel's agreement to amount of interest fixed by trial court justified decision not to consider issue on appeal.
OPINION
The central issues of this appeal concern the meaning and scope of Nevada's Good
Samaritan statute, the applicability of an amendment to the comparative negligence statute
to the instant case, and the availability of damages for emotional distress. We conclude, with
one exception, that appellants' position on each of these issues is correct and grant relief
accordingly.
conclude, with one exception, that appellants' position on each of these issues is correct and
grant relief accordingly.
Facts
Late one summer night in 1978, Debra Buck and her twin three-year-old daughters, Tina
and Heather, were passengers in a car driven by Marsha Buck. The Bucks were returning
from a camping trip a day earlier than Debra's husband and Marsha's companion, both of
whom remained at the campsite. The two young women became uncertain of the destination
their course of travel was taking them and their concerns were heightened by mechanical
abnormalities that were developing in their car. After the women decided to return to the
campsite, Marsha attempted to make a U-turn on the desolate stretch of U.S. Highway 95
north of Las Vegas on which they were traveling. In the middle of the U-turn, the car stalled,
blocking the northbound lane of the road. Debra's twin daughters remained asleep in the back
seat of the car as their mother apprehensively exited the vehicle in hopes of flagging down
someone who would give them aid.
The first passing car continued southbound. Then Joseph Reighley, a former highway
patrol officer, driving a pickup truck for KTNV, stopped to help. He instructed Debra to tell
Marsha to turn off the lights of the car to save the battery for starting purposes. Reighley said
that he would protect them with his own headlights. He stayed in his truck in the southbound
lane for a short while, shining his lights toward the south. He intended to push the car if it
would not start.
Shortly thereafter, the lights of a Greyhound bus came into view, a mile or two away. The
bus was northbound. Reighley started flashing his lights to warn the driver of the bus, but the
bus maintained its speed. At about eighty feet from the Bucks' car, the lights from the pickup
truck temporarily blinded the bus driver. He slowed to about fifty miles per hour. Then, as he
drove past the spot where the lights were hitting his eyes, he saw the stalled car and vainly
tried to stop.
Debra saw the bus coming. She tried at the last instant to brace the car with her body in a
desperate attempt to save her children. The attempt, of course, was futile. The bus hit the car
and Debra and the occupants of the car were severely injured. Tina is now a paraplegic.
On the separate claims of the two young adult women, the jury found that they were each
twenty percent negligent. Of the remaining degree of fault on each claim, Greyhound was
adjudged to be seventy-five percent at fault and Reighley's fault was assessed at twenty-five
percent. The jury found, however, that Reighley was not grossly negligent and that he was
acting in an emergency within the meaning of NRS 41.500.
that Reighley was not grossly negligent and that he was acting in an emergency within the
meaning of NRS 41.500. Reighley and his employer, KTNV, thus were excused from
liability.
Discussion
Appellants contend that the trial court erred in giving the jury an instruction on NRS
41.500, Nevada's Good Samaritan statute.
1
Although the specificity with which appellants
objected to the instruction left much to be desired, we nevertheless conclude that the trial
court was adequately alerted to the issue of the statute's applicability to the facts of the
case.
__________

1
As of the date of the accident, NRS 41.500 read as follows:
1. Except as provided in NRS 41.505, any person in this state, who renders emergency care or
assistance in an emergency, gratuitously and in good faith, shall not be held liable for any civil damages
as a result of any act or omission, not amounting to gross negligence, by such person in rendering the
emergency care or assistance or as a result of any act or failure to act, not amounting to gross negligence,
to provide or arrange for further medical treatment for the injured person.
2. Any person in this state who acts as an ambulance driver or attendant on an ambulance operated by
a volunteer ambulance service or as a volunteer driver or attendant on an ambulance operated by a
political subdivision of this state, or owned by the Federal Government and operated by a contractor of
the Federal Government, and who in good faith renders emergency care or assistance to any injured or ill
person, whether at the scene of an emergency or while transporting such injured or ill person to or from
any health facility, clinic, doctors's office or other medical facility, shall not be held liable for any civil
damages as a result of any act or omission, not amounting to gross negligence, by such ambulance driver
or attendant in rendering the emergency care or assistance, or as a result of any act or failure to act, not
amounting to gross negligence, to provide or arrange for further medical treatment for the injured or ill
person.
3. Any duly appointed member of a volunteer ambulance service or a duly appointed volunteer
member of an ambulance service operated by a political subdivision of this state, other than an ambulance
driver or attendant, shall not be held liable for any civil damages as a result of any act or omission, not
amounting to gross negligence, by such member whenever he is performing his duties in good faith as a
member of such volunteer ambulance service or ambulance service operated by a political subdivision.
4. Any person who is a member of a search and rescue organization in this state under the direct
supervision of any county sheriff who in good faith renders emergency care or assistance to any injured
or ill person, whether at the scene of an emergency or while transporting such injured or ill person to or
from any health facility, clinic, doctor's office or other medical facility, shall not be held liable for any
civil damages as a result of any act or omission, not amounting to gross negligence, by such person in
rendering the emergency care or assistance, or as a result of any act or failure to act, not amounting to
gross negligence, to provide or arrange for further medical treatment for the injured or ill person.
statute's applicability to the facts of the case. We therefore conclude that the issue has been
preserved for review on appeal. See NRCP 51; cf. Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d
855 (1969); Tidwell v. Clarke, 84 Nev. 655, 447 P.2d 493 (1968).
[Headnotes 1, 2]
There are two reasons why NRS 41.500 should not have been a factor in the jury's
deliberations. First, as argued by appellants below, a requisite emergency did not exist at the
time Reighley stopped to provide assistance. For our purposes, it is sufficient to consider the
elements of an emergency by reference to the subject as contained in the case of Dahl v.
Turner, 458 P.2d 816 (N.M.App. 1969). The Dahl court, after quoting the New Mexico
statutory definition of emergency (an unexpected occurrence involving injury or illness to
persons, including motor vehicle accidents and collisions, disasters, and other accidents and
events of similar nature occurring in public or private placesN.M.S.A. 1953 (Repl.vol. 3)
12-12-4), also noted:
Emergency has been defined as unforeseen circumstances or the resultant state
that calls for immediate action. Webster's Third New International Dictionary. It has
been defined as a sudden or unexpected occasion for action; a pressing necessity.
Black's Law Dictionary (4th ed. 1951). See also, Good Samaritan Legislation: An
Analysis and a Proposal, 38 Temple Law Quarterly 418 n.41 at 424 (1964-65).
Id. at 824. Obviously, the critical ingredients of an emergency situation include: suddenness,
the unexpected, necessity for immediate action, and lack of time for a measured evaluation of
alternative courses of action, their respective efficacy and priority. Although the emergency
equation will most often involve injured or ill persons, it may also involve persons who are in
imminent peril of injury or death.
In the instant case, as Reighley arrived at the scene, there were no injured parties, no
oncoming traffic, no stressful components to interfere with deliberate, measured thought
processes, and ample time to simply push the Bucks' Mustang automobile off the road where
attempts to restart the car could be safely undertaken. The emergency that eventually arose
was the product of Reighley's own negligence. Rather than assist in the simple task of
pushing the car to a safe location, Reighley instructed the women to turn off the lights and
save the battery for the continuing attempts by Marsha to restart the car. The dark-colored
Mustang that was positioned sideways to oncoming traffic was thus made all the more
difficult to see. Reighley compounded the problem he was creating by blocking the other
lane of traffic with his own vehicle and shining his lights at any northbound traffic, thus
making it even more difficult to see the unlit Mustang that was in the northbound lane.
problem he was creating by blocking the other lane of traffic with his own vehicle and
shining his lights at any northbound traffic, thus making it even more difficult to see the unlit
Mustang that was in the northbound lane. The situation escalated into a harrowing emergency
when the Greyhound bus approached the complex of danger and disaster fostered by
Reighley. Reighley's alternating lights drew the bus driver's attention to Reighley's vehicle in
the southbound lane and away from the darkened Mustang that sat motionless in the path of
the oncoming bus. Reighley's lights eventually temporarily blinded the driver of the bus who,
after recovering, then saw, too late, the Mustang directly in front of him.
It is true that the jury entered a special finding that Reighley rendered emergency
assistance in an emergency. However, Reighley himself admitted that there was no
emergency when he stopped to assist the Bucks. For the reasons previously mentioned, we
hold that there was no emergency as a matter of law, and it was error to give the issue to the
jury. Cf. Egede-Nissen v. Crystal Mountain, Inc., 606 P.2d 1214, 1220 (Wash. 1980) (the
emergency doctrine is not available to those who, in whole or in part, cause the emergency).
Second, both the history and the language of the statute, NRS 41.500(1), make clear its
intended purpose to insulate from liability for ordinary negligence persons who render
emergency care or assistance in an emergency to injured persons. Three key prerequisites to
the protection of the statute are: (1) rendering emergency care or assistance, (2) in an
emergency (3) to injured persons. The statute thus encourages passersby to involve
themselves in emergencies where injured persons are in need of emergency care or assistance.
In insulating such Good Samaritans
2
from liability for damages or injuries resulting from
their ordinary negligence, the statute recognizes that in emergency situations there are factors
operating that militate against calm, orderly reasoning that persons of ordinary care and
intelligence would normally exercise under emergency-free circumstances.
[Headnote 3]
NRS 41.500(1) identifies only one category of recipient of emergency care or
assistancethe injured person. Limiting the intended beneficiaries of the Good Samaritan's
care or assistance to injured persons is entirely consistent with the remaining paragraphs of
NRS 41.500 which are also confined to injured or ill persons. If we were to expand the scope
of NRS 41.500(1) to include emergency care or assistance to uninjured, healthy persons,
indeed to all persons caught up in an emergency, references to injured persons both
under section 1 and the remaining sections of the statute would be redundant and
meaningless.
__________

2
The reference to beneficiaries of NRS 41.500 and similar statutes in other states as Good Samaritans is
derived from the Biblical parable contained in Luke 10:30-37.
include emergency care or assistance to uninjured, healthy persons, indeed to all persons
caught up in an emergency, references to injured persons both under section 1 and the
remaining sections of the statute would be redundant and meaningless. Moreover, such a
construction would attribute a high degree of inexactitude, if not ineptitude, to the statute. We
decline to so construe it.
If the legislature desires to expand the statutory protection to cover emergency situations
involving persons who are injured or not, we leave it to that body to so provide.
[Headnotes 4, 5]
Because the Good Samaritan statute did not apply to the involvement of Reighley in the
instant case, it was prejudicial error to instruct the jury on the subject. Moreover, because the
jury specifically found that Reighley's negligence contributed twenty-five percent to the
collision, it is unnecessary to order a new trial to determine the extent of Reighley's liability.
Similarly, it is unnecessary to retry the case against KTNV because the jury determined that
Reighley was acting within the course and scope of his employment with KTNV at the time
of the accident. Obviously, KTNV's liability is coextensive with that of its employee,
Reighley.
[Headnotes 6, 7]
Appellants also argue that the judgment against all defendants below should have been
joint and several rather than just several as determined by the district court. We agree as to
the injured infants, Tina and Heather.
Under the common law, liability was joint and several where two or more tortfeasors
caused injury through their combined or concurrent tortious conduct. See Prosser, Law of
Torts, 5th Ed. (1984), p. 328. Thus, any one of several tortfeasors whose comportment
contributed to a plaintiff's injuries could be tapped for the entire amount of damages. Id.
However, the Nevada Legislature modified the common law rule in situations where the
injured plaintiff was partly responsible for his own injuries. Under NRS 41.141 (1973 Nev.
Stats., Ch. 787, p. 1722), actions involving injuries to persons or property in which
contributory negligence may be asserted as a defense imposed several liability on defendants
against whom judgments were entered.
The referenced statute, as it existed on the day of the collision, applied only to actions for
the recovery of damages for injuries to persons or property under circumstances that justified
an adjudication of the plaintiff's role in the composite of causes of his injuries. Respondents
suggest that the statutory language referring to actions in which contributory negligence may
be asserted as a defense" {emphasis supplied) constitutes only a generic reference to
"fault-based tort actions" in which the defense of contributory negligence may,
theoretically or actually, be legally asserted.
asserted as a defense (emphasis supplied) constitutes only a generic reference to fault-based
tort actions in which the defense of contributory negligence may, theoretically or actually, be
legally asserted. Such a contention is untenable. Neither attorneys nor parties are authorized
to plead defenses that are not well grounded in fact or warranted by law. See NRCP 11. The
statute must be read as applying to situations where a plaintiff's contributory negligence may
be properly asserted as a bone fide issue in the case. In the instant case, claims asserted on
behalf of the three-year-old twins sleeping in the Bucks' Mustang at the time of the collision
would not, as a matter of law, be subject to the defense of contributory negligence. Therefore,
the statute has no application to Tina and Heather and the judgments entered and to be
entered in their favor are to be joint and several as to all defendants
We realize that the result of the entry of joint and several judgments against all defendants
may cause substantial inequities. Such a contingency has always been a possible if not
probable result of the application of the common law rule. It is apparent, however, that the
rule favored the proposition that it is better to fully compensate an innocent victim of the
combined negligence of multiple defendants than to assure that each defendant is held
responsible only for his proportionate share of the plaintiff's damages. If the general rule is to
be changed, we are content to leave it to the Legislature to do so.
[Headnote 8]
Appellants' contention that the amended version of NRS 41.141 in effect at the time of
trial should be applied retroactively to benefit the adult appellants is without merit. This court
has consistently held that statutes are to be given prospective effect only unless the
Legislature has clearly manifested its intent that the statutes operate retrospectively. Rice v.
Wadkins, 92 Nev. 631, 555 P.2d 1232 (1976). We do not agree that the general rule against
retroactivity is inapplicable in the instant case because it relates merely to remedies and
procedures.
In Holloway v. Barrett, 87 Nev. 385, 390, 487 P.2d 501, 504 (1971), we noted that as a
general rule a statute affecting rights and liabilities, should not be so construed as to act
upon those already existing. To give it that effect the statute should in express terms declare
such to be the intention. Modifying the liability of multiple defendants from several to joint
and several can hardly be described as a change in procedure or remedy. It may greatly
increase the exposure of one or more defendants to satisfy an entire judgment as opposed to
an aliquot share. There would be few aspects of an action that could have greater substantive
impact on a defendant than to apply a statute retrospectively in order to hold a judgment
debtor responsible for the payment of all damages even though his or her contribution to
the damages may be among the least of the tortfeasors.
impact on a defendant than to apply a statute retrospectively in order to hold a judgment
debtor responsible for the payment of all damages even though his or her contribution to the
damages may be among the least of the tortfeasors. We decline to give NRS 41.141
retrospective effect so as to adversely affect existing liabilities.
[Headnote 9]
Appellants next contend that the district court erred in refusing to instruct the jury on
Debra's entitlement to damages for emotional distress in witnessing the impending injury or
death of her twin daughters as the bus moved swiftly and surely to the point of collision with
the small car in which the two three-year-olds were sleeping. We agree. This court, in State v.
Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), formally declared Nevada's recognition of a
cause of action for emotional distress suffered by a witness to the death or injury of a loved
one. Specifically, we adopted the reasoning of Dillon v. Legg, 441 P.2d 912 (Cal. 1968),
which rejected both the traditional impact rule and the zone of danger rule. Although this
court had not previously resolved the law concerning the actionability of a claim for
emotional distress by a bystander, in Eaton we did note that although the plaintiff was in the
zone of danger when her child was killed, [f]uture plaintiffs . . . need not prove that they
were in the zone of danger to recover for negligently inflicted emotional distress in Nevada.
101 Nev. at 714, 710 P.2d at 1376. It thus appears that we impliedly recognized the zone of
danger rule as the basis for bystander relief for emotional distress at the time of the collision
in the instant case. In any event, whether under the old impact rule, the zone of danger
rule, or the Dillon and Eaton rule, Debra was clearly entitled to have the jury instructed on
damages for emotional distress. The evidence reflects Debra's heightened level of anxiety and
distress as the bus sped towards a certain impact with her and her sleeping babies. Debra was
seriously injured by the impact of the collision as she stood directly in the zone of danger.
[Headnote 10]
Because Debra's claim for emotional distress damages was erroneously excluded from
consideration by the jury, a new trial on that limited issue will be necessary.
Appellants contest the allowance of attorney's fees awarded Reighley by the district court.
We need not consider the propriety of the award under the judgment entered below. Because
we have determined that a joint and several judgment must be entered against Reighley and
KTNV on behalf of the infants Tina and Heather, and a several judgment against Reighley
and KTNV as to the adult plaintiffs below, the award of attorney's fees may not stand.
Heather, and a several judgment against Reighley and KTNV as to the adult plaintiffs below,
the award of attorney's fees may not stand.
[Headnote 11]
On cross-appeal, Greyhound/LTR contend that the interest award in the judgment is
improper as to both the rate and the amount. We decline to consider the issue because trial
counsel for cross-appellants expressly agreed to the rate and amount of interest fixed by the
district court. Moreover, cross-appellants have raised the issue for the first time on appeal.
See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).
Other issues raised by cross-appeal are either premature or of no merit.
For the reasons specified above, we remand this matter to the district court for purposes of
entering a joint and several judgment against Reighley and KTNV as to Tina and Heather
Buck and a several judgment favoring the adult plaintiffs; the judgment against
Greyhound/LTR shall also be modified so as to be joint and several as to Tina and Heather; a
new trial shall be ordered for Debra Buck on the limited issue of damages for emotional
distress and the award of attorney's fees in favor of Reighley is vacated; in all other respects
the judgment upon the verdict entered below is affirmed.
3

Young, C. J., and Springer, J., concur.
Respectfully, I dissent. In my opinion the district judge correctly charged the jury in the
application of the Good Samaritan Rule. The jury after hearing the testimony, observing the
witnesses and examining the evidence found Reighley who had stopped to give aid a Good
Samaritan within the meaning of the Rule. While the jury found Reighley guilty of ordinary
negligence, the jury did not find Reighley guilty of gross negligence and consequently
assessed no damages against him.
The Legislature in its wisdom passed into law the Good Samaritan Statute. This law
encourages passers-by, as its title implies, to give aid to fellow travelers in emergency
situations. Reighley was attempting to do precisely that in the instant case when the
Greyhound Bus smashed into the victims' car causing the resulting catastrophic injuries.
Nevada has many miles of long lonely highways. If one wishes to stop to give aid to
those in emergency situations that person should feel secure in knowing that he or she is
shielded by the Good Samaritan Rule.
__________

3
to stop to give aid to those in emergency situations that person should feel secure in knowing
that he or she is shielded by the Good Samaritan Rule. Otherwise, such a person may elect to
ignore those in distress with a wave of the hand as they proceed down the highway. Such
conduct hardly seems to be in the spirit of the West, particularly Nevada.
____________
105 Nev. 767, 767 (1989) Barron v. State
BARBARA LYNCH BARRON, CAROL LYNN TOMLINSON, Appellants, v. THE STATE
OF NEVADA, Respondent.
No. 18837
November 27, 1989 783 P.2d 444
Appeal from a judgment of conviction for multiple counts of embezzlement and obtaining
money under false pretenses, and one count of racketeering. Second Judicial District Court,
Washoe County; Jerry C. Whitehead, Judge.
Defendants were convicted in the district court of embezzling and obtaining money under
false pretenses. Defendants appealed. The Supreme Court held that: (1) good faith was not
complete defense to obtaining money under false pretenses; (2) character evidence alone
could not create reasonable doubt; and (3) prosecutor's improper comments did not require
reversal.
Affirmed.
Lawrence J. Semenza, Reno, for Appellant Barron.
Lawrence D. Wishart, Reno; Hager, Oakes & Mausert, Reno, for Appellant Tomlinson.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, David
Thompson and Gary H. Hatlestad, Deputy District Attorneys, Washoe County, for
Respondent.
1. Criminal Law.
If proffered instruction misstates law or is adequately covered by other instructions, it need not be given.
2. False Pretenses.
Good faith was not complete defense to obtaining money under false pretenses. NRS 205.380.
3. False Pretenses.
Instructions adequately stated elements of obtaining money under false pretenses. NRS 205.380.
4. Embezzlement.
Intent to steal or to deprive owner permanently of property is not element of embezzlement. NRS 205.300, subd. 1.
5. Criminal Law.
Character evidence alone could not create reasonable doubt; it was not to be considered in isolation.
6. Criminal Law.
Defendants were entitled to instruction on legal effect of character evidence.
7. Criminal Law.
Instruction on effect of good character evidence could be included within credibility instruction; conviction did not turn on
defendants' credibility.
Prosecutor's hearsay objections and statements that defendants could themselves produce declarants if they desired, attempted to
shift burden of proof and violated due process. U.S.C.A.Const. Amends. 5, 14.
9. Criminal Law.
Prosecutor's indirect reference to defendants' ability to testify when prosecutor raised his objections and stated that defendants
could themselves produce declarants if they desired, was not intended to convey that defendants would fail to testify and did violate
privilege against self-incrimination. U.S.C.A.Const. Amend. 5.
10. Criminal Law.
Prosecutor's improper attempt to shift burden of proof by raising hearsay objections and stating that defendants could have
produced declarants, themselves, if they desired, did not require reversal in prosecution for embezzling and obtaining money under
false pretenses; defendants were employees of real estate lender and admitted knowing over assignment of investors' funds to deeds of
trust.
11. Criminal Law.
Prosecutor's comments during case-in-chief and closing argument comparing defense theory to a hustle were improper in
prosecution for embezzling and obtaining money under false pretenses.
12. Criminal Law.
Prosecutor's improper comments during case-in-chief and closing argument comparing defense theory to a hustle did not require
reversal in prosecution for embezzling and obtaining money under false pretenses; evidence against defendants was substantial.
13. Criminal Law.
Prosecutor's closing argument that, if jury believed defendant's testimony or theory, then prosecutor had some ocean front
property in Tonopah for sale was improper statement of personal opinion and violated duty not to ridicule or belittle defendants.
14. Criminal Law.
Prosecutor's improper closing argument that, if jury believed defendants' testimony or theory, then he had some ocean front
property in Tonopah for sale did not require reversal in prosecution for embezzling and obtaining money under false pretenses.
15. Criminal Law.
Appropriate way for defendant or prosecutor to comment is simply to state that prosecution's case or defendant is not credible and
then to show how evidence supports that conclusion.
16. Criminal Law.
Evidence failed to establish that the same funds were basis for convictions for embezzling and obtaining money under false
pretenses. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Appellants Barbara Lynch Barron and Carol Lynn Tomlinson were convicted of multiple
counts of embezzlement and obtaining money under false pretenses, and one count of
racketeering arising out of their conduct as loan brokers at the failed mortgage brokerage firm
of Lemons and Associates. Appellants submit: (1) that the district court erred by not properly
instructing the jury; (2) that improper jury instructions resulted in parallel convictions for
embezzlement and obtaining money by false pretenses; and (3) that the district attorney
engaged in such numerous instances of prosecutorial misconduct as to mandate reversal with
prejudice. We hold: (1) that the jury was adequately instructed; (2) that the appellants could
be convicted of both embezzlement and obtaining money by false pretenses involving the
same investor; and (3) that the prosecutorial misconduct that occurred does not mandate
reversal of this case.
FACTS
Appellants Barbara Lynch Barron (Barron) and Carol Lynn Tomlinson (Tomlinson) were
employed at the mortgage brokerage firm of Lemons and Associates (L&A). L&A began
business in 1977 as a small mortgage brokerage firm. In less than eight years L&A expanded
from a small firm on Washington Street in Reno, to a multi-state, multi-function financial
conglomerate, with offices in Reno, Las Vegas, Phoenix, Scottsdale, Tucson, and Boise.
While L&A held itself out as a mortgage broker, it is clear from the manner of business
conducted by L&A that the operation was distinct from that of a traditional mortgage broker.
A traditional mortgage broker acts as a middleman between the lender and a borrower,
making its profit by taking a commission from the amount of the loan. Once the brokering
has been done, the lender and borrower deal face to face. The borrower's name appears on the
deed of trust taken back by the lender, with the risk of foreclosure or declining value falling
on the lender. L&A was different in that L&A itself would fund the loan from internal
sources, and would receive additional money from investors to maintain internal funds. The
loans were made prior to the receipt of the investments and without obtaining
commitments for participating investments as a predicate to the issuance of loans.
receipt of the investments and without obtaining commitments for participating investments
as a predicate to the issuance of loans. Investors placed their money with L&A, for which
they received interest payments (18 percent per annum or more) within thirty days. They
continued to receive interest payments regardless of loan performance, and received
repayment of principal, regardless of whether principal had been paid to L&A. Barron and
Tomlinson touted the risk-free character of investing with L&A, and in several cases took the
life savings of those who invested.
By no later than 1982, L&A was experiencing financial difficulty. This was due to the
number of nonperforming loans in L&A's portfolio. There was testimony that L&A had made
several loans to preferred customers who were not expected to be able to repay any portion
of the loans. The preferred loans totalled close to ten million dollars. L&A was unable to
continue to pay 18 percent interest and to repay principal to investors, and simultaneously
carry millions of dollars worth of bad loans.
By late 1982, L&A was operating a Ponzi or Pyramid scheme. L&A began to use the
funds contributed by new investors to pay the previous investors. Additionally, L&A would
over-assign investors into deeds of trust, selling greater than 100 percent of the value of the
trust deed, as a regular policy. As an example of over-assignment, Tomlinson induced
investor R.J. to invest $5,000 on August 31, 1983, with L&A to be secured by trust deed No.
456. The total value of the property securing trust deed No. 456 was $198,000. Tomlinson
had assigned $199,000 worth of investment to No. 456 by September 9, 1982. By the time
Tomlinson accepted R.J.'s investment, however, the level of investment assigned to trust deed
No. 456 was already $298,884.
L&A's investment counselors would sell full or fractionalized interests in loans
represented as secured by deeds of trust. From 1984 on, there were only three investment
counselors in the Reno officeGary Hill, who subsequently pleaded guilty to criminal
charges arising out of his activities with L&A, and the appellants, Barron and Tomlinson.
In 1984 and 1985, the appellants counseled the vast majority of the Reno branch investors.
The evidence introduced at trial showed that appellants knew the investments made through
the Reno branch office were extraordinarily risky, yet they made no mention of this fact when
soliciting investors. The evidence clearly demonstrated that appellants knowingly and
regularly over-assigned by 400 percent, and sometimes more, loans secured by underlying
trust deeds. By the time L&A went bankrupt early in 1985, at least 50 percent of all loans
from the Reno branch were over-assigned. A report completed shortly before L&A closed its
doors revealed that over-assignment of loans at the Reno branch had become an eleven
million dollar problem.
L&A closed its doors revealed that over-assignment of loans at the Reno branch had become
an eleven million dollar problem.
By 1983 the policy of over-assigning loans was the rule and not the exception in the Reno
branch. As a result, appellant Barron instructed office employees to set up a double filing
systemthe pink and green file systemfor present and future investment. The green file
contained the paperwork for investors who had purchased up to 100 percent of the face value
of the loan. The pink file was the overflow file, containing the paperwork of the oversold
investments. In 1984, when state examiners requested to see the information on a particular
file, they were only given the green file to review. Barron's testimony strongly suggested that
the purpose of the dual filing system was to mislead the state examiners.
When L&A went bankrupt on April 10, 1985, 898 investors from the Reno branch
discovered the true value of their investments. The bankruptcy estate showed a $26 million
loss, of which only one-half was recoverable, resulting in a total loss to the investors of $13
million.
Barbara Barron was convicted of 14 counts of embezzlement or obtaining money under
false pretenses, and one count of racketeering, and was sentenced to six years in the Nevada
State Prison on each count to be served concurrently, with a $4,000 fine on each count. Carol
Tomlinson was convicted of 20 counts of embezzlement or obtaining money under false
pretenses, and one count of racketeering, and was sentenced on each count of embezzlement
and obtaining money under false pretenses to three years in the Nevada State Prison to be
served concurrently, with a $2,000 fine on each count. Tomlinson received a five-year
suspended sentence for the racketeering conviction, with a $2,000 fine.
During trial, District Attorney Mills Lane made numerous remarks which appellants cite as
prosecutorial misconduct. Mr. Lane made several objections to witnesses' testimony as being
hearsay, stating in his objection that, if the defendants wished, they could produce that
evidence or the hearsay declarant. Mr. Lane even made direct reference to the appellants'
ability to testify. On cross-examination, one of the defense attorneys asked Alma Walsh, an
investor, who testified as a witness in the State's case-in-chief, what Tomlinson said to her
about the strength and security of L&A. Mr. Lane objected to this question:
The question was what Ms. Tomlinson said. Tell me what Ms. Tomlinson said. That is
hearsay. If Miss Tomlinson has something to say, she can say it, not through this
witness.
(Emphasis added.) Later in the State's case-in-chief, a defense attorney asked Mary DeLa
Cruz, Barron's secretary, when Barron told her that there was a problem with the financial
stability of L&A. Mr. Lane again objected:
Your Honor, if it please the Court, we haven't objected, but counsel knows
statementsif Miss Barron has got something to say, there's a way for her to say it.
You don't get in through defense what Miss Barron says through this witness. That's
hearsay.
(Emphasis added.) The court instructed Mr. Lane to phrase his objections in legal terms and
to refrain from other comments and arguments.
During closing argument Mr. Lane made statements that the appellants assert were
improper because they expressed the prosecuting attorney's personal opinion and were
disparaging of the appellants' case.
Mr. Lane: I suggest to you, ladies and gentlemen, these people tried to hustle you just
like they hustled those investors.
Mr. Wishart: Objection, Your Honor, that's improper argument.
Mr. Lane: I don't think it is improper argument. I will say it again. They tried to hustle
you.
Mr. Semenza: May we have a rule and admonition.
The Court: You may proceed.
Mr. Lane: They tried to hustle you, just like they tried to hustle those victims. . . .
Mr. Lane's rhetoric continued:
Mr. Lane: Let me tell you something, based upon the facts in this case, and the
evidence which was testified to by those victims, and the people that work there, we
talked for 30 days thereabouts, about real estate. And based upon the facts, if you accept
what Barbara Barron and Carol Tomlinson told you, I got some ocean front property
for you in Tonopah.
Mr. Wishart: Objection, improper argument.
Mr. Semenza: Join in that, Your Honor.
The Court: Let's move on from that Mr. Lane.
(Emphasis added.) Mr. Lane, however, insisted on repeating the substance of this statement a
short time later:
Mr. Lane: Well, I submit to you, if you believe that, based upon the evidence, I got
ocean front property for you in Tonopah.
Mr. Wishart: I am going to object to that as improper argument.
The Court: Sustained. I previously directed you not to refer to that.
Mr. Semenza: Admonish the jury, please, Your Honor.
The Court: Ladies and gentlemen, when objections to argument are sustained, you are
admonished not to consider the comments in argument.
LEGAL DISCUSSION
I. Jury Instructions
First, appellants contend that the district court erred by refusing to instruct the jury on their
theory of the case. At trial, appellants attempted to portray themselves as loyal but unwitting
employees who solicited investments with a good faith belief that L&A was conducting
business in a legitimate manner. Appellants offered an instruction stating that good faith is a
complete defense to the charge of obtaining money under false pretenses.
[Headnote 1]
This court has held that a criminal defendant is entitled to have the jury instructed on the
defendant's theory of the case, no matter how weak or incredible the evidence supporting the
theory may be. Brooks v. State, 103 Nev. 611, 613, 747 P.2d 893, 895 (1987). The holding in
Brooks is limited by the requirement that the instruction must correctly state the law. Id. at
614, 747 P.2d 895. Additionally, if a proffered instruction misstates the law or is adequately
covered by other instructions, it need not be given. Cutler v. State, 93 Nev. 329, 335, 566
P.2d 809, 813 (1977). The district court concluded that appellants' proffered instruction
misstated the law, and therefore rejected it.
[Headnote 2]
Appellants offer no authority supporting their proposition that good faith is a complete
defense to a charge of obtaining money under false pretenses. In Adler v. State, 95 Nev. 339,
344, 594 P.2d 725, 729 (1979), this court considered the relevancy of good faith to a charge
of obtaining money by false pretenses. We upheld the trial court's instruction allowing the
jury to consider the issue of good faith as bearing only on the question of intent. Id. at 344,
594 P.2d at 729. Additionally, we concluded that good faith was not a complete defense to a
charge of obtaining money by false pretenses. Id. at 346, 594 P.2d at 730. Further, the
remaining portions of appellants' rejected instruction were adequately covered by the
instructions given. Accordingly, the district court properly rejected appellants' proffered
instruction stating, that good faith was not a complete defense.
Appellants next contend that the district court failed to properly instruct the jury on the
elements of the crimes of obtaining money under false pretenses and embezzlement. This
contention is without merit.
[Headnote 3]
Jury Instruction No. 13 set forth the statutory definition of the crime of obtaining money
under false pretenses. See NRS 205.380. Instruction No. 14 set out the specific elements of
the crime.
1
Instruction No. 15 defined the necessary intent to defraud.
2
These instructions
standing alone adequately instructed the jury on the elements of the crime of obtaining money
under false pretenses. Accord, Bright v. Sheriff, 90 Nev. 168, 170, 521 P.2d 371, 372 (1974)
(Elements of crime of false pretenses are: (1) intent to defraud; (2) a false representation; (3)
reliance on that representation; and, (4) that the victim be defrauded.)
[Headnote 4]
Appellants' contention that the court improperly instructed the jury on the required intent
necessary to sustain a conviction for embezzlement must also fail. Appellants' argument that
the instructions as given allowed for conviction of innocent misusers, and therefore were
defective and prejudicial, is not persuasive. The requisite intent as enunciated by statute and
this court makes no requirement of an animus furandi. See Rose v. State, 86 Nev. 555, 557,
471 P.2d 262, 263 (1970); NRS 205.300(1). The act of diverting carries its built-in intent
that speaks for itself, that is, the performance of the act, such as using money . . . for a
purpose other than for which it was designated, makes the crime."
__________

1
Jury Instruction No. 14 provided:
In order to prove the commission of the crime of obtaining money by false pretenses each of the
following elements must be proved:
1. That a person made or caused to be made to another person, by word, conduct or writing,
a.) a representation which was not true, or
b.) a concealment of a material fact, which above action was calculated to mislead the other.
2. That such person represented or concealed with the intent to defraud, (this intent to defraud
required herein is defined in Instruction No. 15).
3. That the false representation or concealment was believed and relied upon by another and was a
material cause of inducing the other person to part with his money or property, even if the false
representation was not the sole cause, and
4. That the fraud was accomplished in that the other person parted with his money or property.

2
Jury Instruction No. 15 provided:
An intent to defraud is an intent to deceive another person for the purpose of inducing him to part
with property or to alter his position to his injury or risk, and to accomplish that purpose by some false
statement, false representation of fact, wrongful concealment or suppression of truth, or by any other
artifice or act calculated to deceive.
of diverting carries its built-in intent that speaks for itself, that is, the performance of the act,
such as using money . . . for a purpose other than for which it was designated, makes the
crime. 86 Nev. at 557, 471 P.2d at 263. The jury instructions pertaining to the crime of
embezzlement, when read together as they must be, sufficiently instructed the jury upon the
law as to intent. See Cupp v. Naughten, 414 U.S. 141, 38 L.Ed.2d 368, 94 S.Ct. 396 (1973)
(jury instruction may not be read in isolation, but must be viewed in context of the overall
charge). Further, we do not perceive any indication that the jury was confused or
misinstructed.
[Headnote 5]
Appellants also contend that the district court failed to properly instruct the jury regarding
the weight and importance to be given evidence of good character, and that this error
mandates reversal with prejudice. The basis of this contention is that the court failed to give
the instruction proffered by appellants and that the instruction ultimately given and contained
in Instruction No. 26, should have been placed elsewhere.
3

Appellants argue that the instruction should have included the sentence, Character
evidence alone may create a reasonable doubt of the defendant's guilt. They argue that the
instruction as given told the jury to consider the character evidence together with, and in the
same manner as, all other evidence in the case, and that no mention was made of reasonable
doubt or that such evidence may justify acquittal. According to appellants, this deficiency
amounts to reversible error.
[Headnote 6]
Appellants correctly point out that an accused is permitted a jury instruction on the legal
effect of good character evidence produced at trial. See Emerson v. State, 98 Nev. 158, 162,
643 P.2d 1212, 1214 {19S2); Beddow v. State, 93 Nev. 619, 624
__________

3
Instruction No. 26 provided:
The degree of credit due a witness should be determined by his or her character, conduct, manner
upon the stand, fears, bias, impartiality, reasonableness or unreasonableness of the statements he or she
makes, and the strength or weakness of his or her recollections, are viewed in the light of all the other
facts in evidence.
You have heard evidence of defendant's character, that is, opinion evidence about a character trait of
honesty. You should consider character evidence together with and in the same manner as all the other
evidence in the case.
If you believe that a witness has lied about any material fact in the case, you may disregard the entire
testimony of that witness or any portion of his testimony which is not proved by other evidence.
(Emphasis added.)
P.2d 1212, 1214 (1982); Beddow v. State, 93 Nev. 619, 624, 572 P.2d 526, 529 (1977).
The district court's decision in this case to reject the proposed instruction, however, was
not error because the proposed instruction was not a correct statement of the law. An
instruction that states, character evidence alone may create a reasonable doubt, allows the
jury to consider character evidence in isolation, to the exclusion of everything else. There is
no good reason to consider any evidence standing alone. If a jury should ever consider
evidence in isolation, character evidence is the wrong kind to single out. United States v.
Burke, 781 F.2d 1234, 1239 (7th Cir. 1985). We agree with the court in Burke, which rejected
an instruction identical to the proposed instruction in the instant case. The court of appeals
stated:
The standing alone instruction could readily be understood by the jury as permission
(even a command) to acquit a defendant of good general character, even if the jurors are
convinced that the defendant committed the acts with which he was charged. The
instructions should not send this message. They should keep the jury's focus squarely
on what mattersdid the defendant commit the act charged, with the necessary mental
state?
Id. at 1239. Appellants were entitled to an instruction on the legal effect of character
evidence. Beddow, 93 Nev. at 626, 572 P.2d at 529. The district court did instruct the jury on
the weight to be afforded evidence of good character. Had the judge failed to give the
instruction, and had the evidence supporting conviction been weak, this issue would pose a
more compelling argument for reversal. See Emerson v. State, 98 Nev. 158, 643 P.2d 1212
(1982) (conviction reversed because evidence was weak and the judge refused to give any
instruction on good character).
[Headnote 7]
Appellants also object to the placement of the instruction on good character evidence.
Preliminarily, we observe that no authority supports the proposition that placement of a jury
instruction is a matter for review, let alone a predicate for judicial error. That the instruction
was included with a credibility instruction is not error. United States v. Marquardt, 786
F.2d 771, 783-84 (7th Cir. 1986). In Marquardt, a false pretenses case, the judge failed to
give an instruction on character evidence after such evidence was presented at trial. Holding
that the judge's failure to give the character instruction was not error, the court of appeals
stated: [T]he court's instruction "to consider all the evidence . . . ." was sufficient and
proper and the court's failure to specifically instruct the jury regarding character evidence
was not error.
[T]he court's instruction to consider all the evidence . . . was sufficient and proper
and the court's failure to specifically instruct the jury regarding character evidence was
not error. Furthermore, assuming arguendo that the court's failure to so instruct the jury
was erroneous, we fail to understand how the giving of the requested instruction would
have had a probable impact on the jury's finding that Marquardt is guilty.
Id. at 784.
In this case the court instructed the jury on character evidence. Additionally, much of the
evidence supporting conviction was documentary. There was testimony by office employees
that appellants knew of and used a dual filing system in an effort to mislead investors and
state investigators, and that they knowingly and substantially over-assigned trust deeds. The
convictions did not hinge on the appellants' credibility alone and the evidence supporting the
convictions was not weak.
Looking to Marquardt, if failure to give any instruction on character evidence is not error,
where the conviction did not turn on the defendant's credibility, then it can hardly be error to
give a character instruction, albeit arguably in the wrong place, where the conviction also did
not turn on the appellants' credibility. Appellants have not sustained their burden of showing
that a different result would have been obtained had the proposed instruction been given.
Therefore, we hold that the district court did not err in the manner in which it instructed the
jury regarding the weight to be given evidence of good character.
II. Prosecutorial Misconduct
Appellants contend that the trial was infected with instances of prosecutorial misconduct
of the type and in such quantity so as to mandate reversal with prejudice. The trial transcript
contains several instances of misconduct committed by the District Attorney, Mills Lane.
However, we conclude that in light of the overwhelming evidence supporting the convictions,
the misconduct does not mandate reversal. See United States v. Hastings, 461 U.S. 499, 103
S.Ct. 1974, 76 L.Ed.2d 96 (1983).
By their own testimony, appellants admitted to knowingly over-assigning deeds of trust by
as much as 400 percent. Documentary evidence suggested that in some instances the policy of
over-assignment reached a level of 700 percent. Both appellants testified that they knew of
and used the dual filing systems as a method of misrepresenting the true condition of the
offered investments.
investments. A more compelling case of guilt would be difficult to imagine.
While we recognize that reversal is an option where prejudicial prosecutorial misconduct
is found, we realize that such is not the only remedy, nor the most appropriate. Reversal due
to prosecutorial misconduct may prejudice society more than the prosecutor and increase the
expense of the state and all concerned. Yates, 103 Nev. at 202, 734 P.2d at 1253.
[Headnote 8]
With the foregoing in mind we address the issues appellants raise. The first area of
prosecutorial misconduct results from Mr. Lane objecting to testimony as hearsay, and then
stating that the defendants could have produced the declarant if they desired. These improper
statements create two legal problems: first, they tend to shift the burden of proof from the
State to the defendant; and second, when the reference is that the defendant can testify and
establish such evidence, it is a reference to the defendant's ability or reluctance to take the
stand and testify, which is forbidden by the Fifth Amendment of the United States
Constitution.
It is a fundamental principle of criminal law that the State has the burden of proving the
defendant guilty beyond a reasonable doubt and that the defendant is not obligated to take the
stand or produce any evidence whatsoever. The tactic of stating that the defendant can
produce certain evidence or testify on his or her own behalf is an attempt to shift the burden
of proof and is improper. It suggests to the jury that it was the defendant's burden to produce
proof by explaining the absence of witnesses or evidence. This implication is clearly
inaccurate. See Mullaney v. Wilbur, 421 U.S 684 (1975); In re Winship, 397 U.S. 358 (1970);
Griffin v. California, 380 U.S. 609 (1965); Emerson v. State, 98 Nev. 158, 643 P.2d 1212
(1982).
[Headnote 9]
The more serious problem created by the prosecutor's reference to the appellants' being
able to testify is that it is an indirect reference to the appellants' ability and possible reluctance
to take the stand and testify. The United States Constitution states that a defendant shall not
be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V.
The United States Supreme Court has held that direct references by a prosecutor to a
defendant's decision not to testify, at any stage of the proceeding, is always a violation of the
defendant's fifth amendment right against self-incrimination, and mandates reversal of the
case. Griffin v. California, 380 U.S. 609 (1965); see also Franklin v. State, 98 Nev. 266, 642
P.2d 543 (1982).
Indirect references to a defendant's failure to testify are constitutionally impermissible if
the language used was manifestly intended to be or was of such a character that the jury
would naturally and necessarily take it to be a comment on the defendant's failure to testify.
See Barnes v. State, 97 Nev. 354, 630 P.2d 1221 (1981) (quoting United States v. Lyon, 397
F.2d 505, 509 (7th Cir. 1968), cert. denied sub nom. Lysczyk v. United States, 393 U.S. 846
(1968)).
In Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979), we considered a similar remark
made by a prosecutor in closing argument and the test to determine if the comment requires
reversal of the case. We stated:
The second comment occurred during the prosecutor's final argument when he said,
[The defendant] testified he thenexcuse me. He stated during the video interview. . .
. This vague reference to the appellant's confession cannot be construed as a direct
reference to his failure to testify. Layton v. State, 87 Nev. at 600, 491 P.2d at 47. The
established test is whether the language was manifestly intended or was of such
character that the jury would naturally and necessarily take it to be a comment on the
failure of the accused to [respond]. Knowles v. United States, 224 F.2d 168, 170 (10th
Cir. 1955). This non-deliberate, self-corrected statement by the prosecutor does not
constitute a sufficient comment to mandate reversal. See Sanchez v. Heggie, 531 F.2d
964 (10th Cir. 1976).
95 Nev. at 682, 601 P.2d at 416.
[Headnote 10]
While the district attorney unequivocally said that the defendants could testify to such
facts if they wanted to, we do not find that these remarks were manifestly intended to convey
to the jury that the defendants would fail to testify. Further, Barron and Tomlinson did
ultimately testify, although claiming they were, in part, forced to do so by Mr. Lane's
statements. Viewing the comments about the appellants being able to testify in the total
context in which they were made and mindful of the overwhelming evidence of guilt in this
case, we hold that such improper comments do not mandate reversal.
[Headnotes 11, 12]
In the State's case-in-chief Mr. Lane compared the defense theory to a hustle. Mr. Lane
repeated the hustle comment in closing argument, notwithstanding that he had been
directed by the court to proceed with his argument. We believe this comment to be equal to
the "red herring" remark in Pickworth v. State, 95 Nev. 547
to be equal to the red herring remark in Pickworth v. State, 95 Nev. 547, 598 P.2d 626
(1979). The prosecutor in the Pickworth case told the jury in closing argument that the
defendant's drug intoxication defense was a red herring interposed only in the hope that the
jury would return a compromise verdict of second degree murder. We indicated that the
remark was improper, and we were critical of the prosecution for disparaging legitimate
defense tactics. As with this case, in Pickworth we affirmed the conviction because the
evidence against the defendant was substantial, and there was very little evidence supporting
the defense theory. Id. at 550, 598 P.2d at 627.
[Headnotes 13-15]
Mr. Lane argued twice during final argument that if the jury believed the defendants'
testimony or defense theory, then he had some ocean front property in Tonopah that he
wanted to sell. Mr. Lane repeated this comment after it was objected to as improper, and the
court directed him to refrain from making such comments. Such statements may be good
news copy or acceptable cocktail chatter, but they are improper when used in court by a
prosecuting attorney. A criminal jury trial is not a verbal free-for-all. A prosecutor may not
offer his personal opinion of the guilt or character of the accused. See Emerson v. State, 98
Nev. 158, 643 P.2d 1212 (1982); Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966). Mr.
Lane's statements were also a violation of a district attorney's duty not to ridicule or belittle
the defendant or his case. Accord, McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984).
The appropriate way to comment, by the defense or the State, is simply to state that the
prosecution's case or the defendant is not credible and then to show how the evidence
supports that conclusion.
In Yates, supra, we admonished Mr. Lane for stating his own personal opinion on a
defendant's guilt and making disparaging remarks about a defense witness and the defense
attorney. While the improper remarks in this case are not as serious as those made in Yates,
we caution Mr. Lane to avoid such improper comments.
III. Parallel Convictions
[Headnote 16]
Appellants contend that the separate charges of obtaining money by false pretenses and
embezzlement arise out of alleged misappropriation of the same funds and resulted in two
convictions for the same act. The third and final amended indictment charged 32 counts of
embezzlement and false pretenses. Counts I through XVI charged false pretenses from
particular investors on particular dates.
particular dates. Counts XVII through XXXII renamed the same investors in the same order
and charged embezzlement. The time frame in which the embezzlement took place for each
investor began on the day of the investment as charged in the parallel count for false
pretenses and ended uniformly on the date of bankruptcy, April 10, 1985.
Appellants contend that they were convicted of obtaining money by false pretenses and
later embezzling the same funds. In Ex Parte Ricord, 11 Nev. 287, 292 (1876), this court
agreed with the petitioner that he could not have both the authority to obtain the money
lawfully, satisfying an element of the crime of embezzlement, and, at the same time, obtain
the same money by false pretenses. In Point v. State, 102 Nev. 143, 147, 717 P.2d 38, 41
(1986), this court stated, Where the accused cannot be convicted of both crimes, both
convictions are reversible when the reviewing court cannot ascertain what verdict would have
been returned by a properly instructed jury. Milanovich v. United States, 365 U.S. at 551.
Respondent submits that appellants were not held accountable for the same money in the
parallel charges. We agree. Sufficient evidence supports the jury's conclusion that appellants
did obtain some funds by false pretenses, and embezzle other funds from the same parties.
Specifically, Counts I and XVII charge false pretenses and embezzlement respectively.
Both crimes were alleged to have been committed against W. H. Marke, and to have occurred
on March 28, 1985. Because Marke's total investment of $327,000 was made over a period of
time, in the form of several separate investments, appellants could have placed the earlier
investments in honest accounts, rendering that money legally obtained. Then, on March
28, when Marke entered into a $40,000 bogus investment, with a $15,000 personal check and
a $25,000 rollover from an earlier investment, appellants could have embezzled the $25,000
and obtained the $15,000 by false pretenses. This explanation is applicable to the other three
instances of parallel charges.
Additionally, the jury did find appellant Barron guilty of embezzlement as charged in
Counts XXVIII through XXXI, while finding Barron not guilty of false pretenses in Counts
XII through XV. The counts were parallel, in that they related to the same victims. Barron
was found guilty of false pretenses in Count III, and not guilty of embezzlement in Count
XIX, both relating to transactions with Mr. R. Talley. Based on this differentiation in
conviction, we hold that the jury was capable of understanding the differences between the
two offenses.
CONCLUSION
The appellants, Barron and Tomlinson, were given a fair trial and abundant evidence
supports the judgments of conviction. The instructions given when viewed as a whole were
adequate and delineated the crimes of embezzlement and obtaining money by false pretenses.
There was sufficient evidence to support each conviction involving the same investor when
such parallel convictions were returned by the jury.
The prosecutorial misconduct, while substantial, does not require the reversal of this case
in view of the overwhelming evidence of guilt.
Accordingly, we affirm the judgments of conviction.
____________
105 Nev. 782, 782 (1989) Shannon v. State
JOHN ROBERT SHANNON aka KURT KENYA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 18316
December 6, 1989 783 P.2d 942
Appeal from judgment of conviction in case C74463 of lewdness with a minor, two counts
of sexual assault, and two counts of solicitation of minor to engage in the infamous crime
against nature and from judgment of conviction in case C76901 of one count of lewdness
with a minor. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Defendant was convicted by jury in the district court of seven counts of lewdness with a
minor, two counts of sexual assault, and two counts of solicitation of minor to engage in
infamous crime against nature, and he appealed. The Supreme Court, Stringfield, District
Judge, held that: (1) amendment to information that transposed factual sequence in which act
of sexual assault was perpetrated did not have effect of charging different offense and did not
prejudice defendant's substantial rights; (2) while prosecutor's comments during closing
argument that jury should be insulted at fact defendant had been putting on show for
them during entire trial were improper, error was harmless beyond a reasonable doubt; (3)
Nevada retained jurisdiction over crimes committed during canoe trip on Arizona side of
lake; and (4) defendant could not be convicted of both sexual assault and solicitation of minor
by infamous crime against nature, under the circumstances.
Peter L. Flangas, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Michael N.
O'Callaghan, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Amendment to information charging defendant with sexual assault, effectively transposing factual sequence in which act of sexual
assault was perpetrated, did not have effect of charging different offense and did not prejudice defendant's substantial rights. NRS
173.095, subd. 1.
2. Indictment and Information.
Case involving charges of lewdness with minor boy was properly joined with case charging defendant with eleven counts of sexual
crimes involving another boy, although acts involved were different in time and place; acts were part of common scheme or plan, given
their closeness and similarity of circumstances and of modus operandi. NRS 173.115.
3. Criminal Law.
Trial court does not commit reversible error in refusing to instruct jury on defendant's theory of case where offered instructions are
substantially covered by instructions given to jury.
4. Criminal Law.
In prosecution for lewdness with a minor and other offenses arising out of scheme involving formation of canoe club comprised of
young boys, expert could offer her opinion that one of alleged victims showed symptoms of sexual abuse and could respond to
hypothetical that befriending of young men, isolation, sexual humor, and creation of teaching situations as means of touching young
men were all consistent with pedophilia; expert also clearly stated that she was only testifying as to characteristics of victim and of
somebody with pedophilic disorder and that she had never met defendant and could make no assumptions as to who abused victim.
NRS 50.345.
5. Criminal Law.
Trial judge's comments during prosecution for lewdness with a minor, that we know he was masturbated a minimum of three
times and ejaculated did not deny defendant a fair trial; comments were made in conversation between court and defense counsel
during course of formulating hypothetical question for expert witness and were not susceptible of charging jury on facts so as to require
a curative instruction, though trial judges would be cautioned against making comments concerning facts of any case at trial. NRS
3.230; Const. art. 6, 12.
6. Criminal Law.
Prosecutor's comments during closing argument that jury should be insulted at fact defendant had been putting on show for
them during entire trial were clearly improper.
7. Criminal Law.
Error from prosecutorial misconduct during closing argument, in form of comments that injected prosecutor's personal beliefs and
inflamed passions of jury, was harmless beyond a reasonable doubt absent indication that defendant was prejudiced thereby.
8. Sodomy.
Sexual assault convictions were supported by evidence that defendant orally copulated minor boy who was feigning sleep;
defendant knew or should have known that minor was mentally or physically incapable of resisting or understanding nature of conduct.
NRS 200.366.
9. Criminal Law.
Whether statute providing for retained jurisdiction allows Nevada jurisdiction over crimes occurring in another state is question of
jurisdiction rather than element of crime charged and, as such, is to be decided by court rather than submitted to jury. NRS 171.020.
10. Criminal Law.
Nevada retained jurisdiction over crimes of lewdness with minor taking place on canoe trip on Arizona side of lake on
Nevada-Arizona border; defendant's criminal intent was carried out when he formed canoe club in Nevada as part of elaborate scheme
to separate vulnerable children from their parents for purpose of subjecting them to his perverted sexual desires. NRS 171.020.
11. Criminal Law.
Defendant could not be convicted of both sexual assault and solicitation of minor to engage in infamous act, absent evidence that
his preliminary non-verbal conduct that aroused child and resulted in solicitation charge incited, inticed, or solicited child to engage in
any act.
OPINION
By the Court, Stringfield, D. J.
1
:
This is an appeal from judgments of conviction in cases C74463 and C76901 which were
consolidated for trial. Appellant (henceforth referred to simply as Shannon) was convicted of
seven counts of lewdness with a minor (felonies), two counts of sexual assault (felonies), and
two counts of solicitation of a minor to engage in an infamous crime against nature (felonies).
FACTS
This appeal involves sexual acts perpetrated by Shannon upon two boys (both age thirteen)
while on canoe outings with Shannon. The boys will be identified as Minor A and Minor L.
Shannon was convicted in case C74463, involving Minor A, of six counts of lewdness with a
minor, two counts of sexual assault and two counts of solicitation of a minor to engage in an
infamous crime against nature. Shannon was convicted in case C76901, involving Minor L,
of one count of lewdness with a minor.
The record reflects that Shannon developed an intricate scheme to provide himself with
access to young boys for the purpose of eventually molesting them. This scheme involved the
formation of a canoe club comprised of young boys, many of whom came from disintegrated
families or had other physical, psychological or emotional vulnerabilities.
__________

1
The Honorable Bob Miller, Governor, designated The Honorable Thomas L. Stringfield, District Judge of
the Fourth Judicial District, to sit in this case in the place of The Honorable John Mowbray, Justice, who
voluntarily disqualified himself. Nev. Const., art. 6, 4.
or emotional vulnerabilities. Shannon targeted these vulnerabilities and, in turn, created a
pseudo-parent dependency. Once this was accomplished, Shannon utilized sexual humor and
his role of teacher as a tool to molest sexually the boys.
ISSUES
Shannon raises the following issues on appeal.
Amendment of the Information
[Headnote 1]
After the trial had commenced, the state moved to amend the information in Counts VIII
and IX, in case C74463, which charged Shannon with sexual assault. Over Shannon's
objections, the court allowed the amendment. The effect of the amendment was to transpose
the factual sequence in which the act of sexual assault was perpetrated.
2

Shannon contends that the amended information had the effect of charging a different
offense. This, Shannon claims, wrongfully denied him a preliminary examination on the new
charge, an arraignment and the right to plead. See NRS 171.196(2); NRS 174.015; Snyder v.
State, 103 Nev. 275, 738 P.2d 1303 (1987).
The trial court may permit an indictment or information to be amended at any time before
a verdict or finding if no additional or different offense is charged and if substantial rights of
the defendant are not prejudiced. See NRS 173.095(1).
The amended information in this case conforms with this criteria. First, no additional
offense was charged in this case. The original information charged Shannon with sexual
assault which may be accomplished by a person who subjects another person to sexual
penetration, or who forces another person to make a sexual penetration on himself. See NRS
200.366(1). The original information alleged that the act of sexual penetration was
accomplished by fellatio. After the amendment, Shannon's charged offense remained sexual
assault accomplished by fellatio. The substantial rights of the defendant were not prejudiced
by the amendment of this information.
Joinder of the Cases
[Headnote 2]
Shannon next argues that it was prejudicial to join case C76901, in which Shannon was
charged with two counts of lewdness with a minor upon child L, with case C74463 in
which Shannon was charged with eleven counts of sexual crimes involving Minor A.
__________

2
The original complaint alleged that Shannon committed sexual assault by inserting his penis into the mouth
of the said Minor A. The amended information transposed the sequence by stating that Minor A's penis was
inserted into the mouth of defendant.
C76901, in which Shannon was charged with two counts of lewdness with a minor upon child
L, with case C74463 in which Shannon was charged with eleven counts of sexual crimes
involving Minor A. Shannon asserts that the two cases are not proper for joinder because they
fail to meet the criteria set forth in NRS 173.115 which states that:
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 transactions; or
2. Based on two or more acts or transactions connected together or constituting
parts of a common scheme or plan.
Shannon asserts that the incidents with Minor A and Minor L are distinct in nature and
time. Shannon also claims that the act between him and Minor L was an act of horseplay
but when joined with Minor A's eleven counts of sexual crimes created sufficient prejudice to
obtain a conviction in Minor L's case.
These acts, although different in time and place, are part of a common scheme or plan
devised by Shannon. This is evident by the identical modus operandi utilized with each child.
Both boys were members of Shannon's Canoe Club. Both boys were victims of sexual crimes
perpetrated by Shannon while on canoe outings. Both boys were of the same age group.
Given the closeness of the acts, the similar circumstances, and the same modus operandi, the
criterion of a common scheme or plan was sufficiently satisfied.
Joinder is within the discretion of the trial court and will not be reversed absent an abuse
of that discretion. See Lovell v. State, 92 Nev. 128, 546 P.2d 1301 (1976). The joinder of
these two cases was properly within the trial court's discretion.
Jury Instructions
[Headnote 3]
Shannon next contends that it was reversible error for the court to give jury instruction 13
while refusing Shannon's requested instruction M in case C74463.
3
The instruction given
in this case accurately and amply covered the law.
__________

3
Instruction 13 recited the language of NRS 171.020. Proposed instruction M stated:
The term act in this instruction means either (1) an element of the crime charged, or (2) an attempt to
commit the crime charged, or (3) a criminal act constituting, at the least, a crime itself, committed in this
State in partial execution of the crime charged and is substantial and integral part [sic] of an overall
continuing crime plan.
The instruction given in this case accurately and amply covered the law. The trial court
does not commit reversible error in refusing to instruct the jury on defendant's theory of the
case where the offered instructions are substantially covered by the instructions given to the
jury. The effect of giving instruction M would have been cumulative and was properly
refused. See Ford v. State, 99 Nev. 209, 660 P.2d 992 (1983); Roland v. State, 96 Nev. 300,
608 P.2d 500 (1980); Passarelli v. State, 93 Nev. 292, 564 P.2d 608 (1977).
Expert Testimony
[Headnote 4]
Shannon's next claim of error is that expert testimony on pedophilia was impermissibly
allowed because it was introduced to show evidence of Shannon's character or a trait of his
character to prove that he acted in conformity therewith. See NRS 48.045. Shannon asserts
that this testimony resulted in a trial by a psychologist.
In essence, the expert witness testified that in her opinion Minor A showed symptoms of
one who was sexually abused. In response to a hypothetical, she also responded that the
befriending of young men, isolation, sexual humor, and creating teaching situations as a
means of touching young men were all consistent with pedophilia. The expert also clearly
stated that she was only testifying as to characteristics of a victim and to characteristics of
somebody with a pedophilic disorder. When asked if she thought that Shannon committed the
offenses, she stated that she had never met Shannon and could make no assumptions as to
who abused the child.
Contrary to Shannon's assertions, we find that this was acceptable expert testimony.
Shannon mischaracterizes the testimony set forth at the trial. Pursuant to NRS 50.345, if
relevant, expert testimony is allowable to show that the victim's behavior or mental condition
is consistent with the behavior or condition of a victim of sexual assault. It is equally proper
for the state's expert to express an opinion about whether or not a child has been sexually
abused. As we stated in Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987): [s]uch an
opinion, although embracing an ultimate issue, represents both the peculiar expertise and
consummate purpose of an expert's analysis.
Expert testimony is proper only when it is more relevant than prejudicial and helps educate
lay jurors on specific areas of expertise. The objective is to aid jurors in their fact finding
process. One clear limitation on such testimony is the conclusion of facts that are within the
jury's province. The expert testimony in this case stayed within the boundaries of relevant,
informative and permissible testimony.
in this case stayed within the boundaries of relevant, informative and permissible testimony.
There was no error in allowing such testimony.
Judge's Comment
[Headnote 5]
An additional claim of error made by Shannon is that comments made by the trial judge in
the jury's presence denied him a fair trial in case C74463, involving Minor A.
The comments at issue were made during the course of formulating a hypothetical
question for the expert witness. The trial judge's statement was as follows:
It says, Well, we don't know three to four, we know it was during the course of the
night. We know he was masturbated a minimum of three times and ejaculated and he
could not recall if he did it the second time and fell asleep.
Shannon contends that the Judge's comments prefaced with the words we know
unequivocally informed the jury that the facts of masturbation and fellatio had been proven.
After a careful review of the comments in their full context, it appears that they were made
in a conversation between the court and defense counsel in order to settle properly a
hypothetical posed to the expert witness, not as a comment on the facts. In fact, defense
counsel made his objection to the hypothetical because it was not based on the facts of the
case. Counsel also offered additional facts that had been left out of the hypothetical.
Stating the evidence is permissible pursuant to NRS 3.230. In contrast, charging the jury as
to facts is specifically prohibited by article 6, section 12 of the Nevada Constitution and its
statutory counterpart NRS 3.230. This court cautions trial judges against making comments
concerning the facts of any case at trial. Additionally, when a judge's comments may be
susceptible of charging juries on the facts, a curative instruction is required. Such actions are
necessary in order to prevent the invasion of the jury's province. However, the facts in this
case do not constitute a violation.
Prosecutorial Misconduct
[Headnote 6]
Shannon next asserts that the prosecutor's closing argument amounted to misconduct
mandating reversal. During his closing, the prosecutor made the following comments:
Mr. Flangas has been insulting to me, personally, on the way this case has gone.
way this case has gone. You should be insulted at the fact that the Defendant has been
putting on a show for you during this entire trial. You can tell by the way he's testified
up there because you've witnessed when I was putting on our case the defendant sitting
down at the desk where he's at now taking copious notes like he always does. When
Mr. Flangas gets hung up, Mr. Flangas goes walking on back here and Mr. Shannon's
there giving him the questions. Now, that's important because Mr. Flangas put those
two victims, those two boys through such havoc. He manipulated them, he's
embarrassed them. He's made them cry, particularly [Minor A].
[objection made and overruled]
I was hoping I'd get the last word like I'm suppose [sic] to. Those kids were abused
up on that stand. Mr. Flangas's questions were all directed from Mr. Shannon. You can
tell that from watching in court what Mr. Shannon was doing the whole time. When
there was a certain issue that was brought up, it was brought up by Mr. Shannon
through his counsel. He got in another little knife and dug it in the boys' guts one more
time and twisted it. You could see the boys' agony up there.
(Emphasis added.)
Essentially, Shannon argues that the statements were an improper appeal to sympathy
resulting in prejudice and an unconstitutional attack on the right of an accused to appear and
defend.
This court does not condone and has repeatedly admonished prosecutors against making
such comments. See Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986); Collier v. State,
101 Nev. 473, 705 P.2d 1126 (1985); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984).
Any inclination to inject personal beliefs into arguments or to inflame the passions of the jury
must be avoided. Such comments clearly exceed the boundaries of proper prosecutorial
conduct.
[Headnote 7]
Although such conduct is discouraged, a review of the record does not show any indication
that Shannon was prejudiced thereby. Therefore, the error is harmless beyond a reasonable
doubt. Pasgrove v. State, 98 Nev. 434, 651 P.2d 100 (1982); Sanders v. State, 96 Nev. 341,
609 P.2d 324 (1980).
Sufficiency of the Evidence
[Headnote 8]
Shannon's next claim of error is that there was insufficient evidence adduced at trial to
support a conviction on the sexual assault charges {case C74463, Counts VII and XI).4
evidence adduced at trial to support a conviction on the sexual assault charges (case C74463,
Counts VII and XI).
4

These charges stem from a February 1986 canoe trip that Minor A took with Shannon. On
the second night of the trip, while the child feigned sleep, Shannon unzipped the child's
sleeping bag and twice orally copulated him by the act of fellatio. This same incident resulted
in the sexual solicitation conviction which will be discussed below.
It is Shannon's contention that because the child feigned sleep, thereby not resisting, that
the act was not against the child's will. Also, because the child testified at trial that the child
knew what Shannon did was wrong, the child did not lack understanding. Thus, Shannon
contends, a reasonable jury could not have reached a guilty verdict on sexual assault had they
followed the jury instructions.
Shannon interprets against one's will to mean physical force, threats of death or great
bodily harmexclusively. We are not willing to interpret against one's will so narrowly.
There are other actions equally capable of impinging on one's free will.
In this factual scenario, the relationship between Shannon and the child must be taken into
account. Shannon, through his perfidious conduct, created a false sense of trust with the child
and his parents. Shannon assumed a role of pseudo-parent and confidant which encouraged
the child to become dependent in a falsely created atmosphere. Shannon manipulated his
influence and imposed his sexual will on the child.
Other factors must also be taken into consideration, such as the child's age and his maturity
level. In fact, the child's reaction of feigning sleep is a clear attempt to avoid the situation and
is indicative of a child's expression of unwillingness. In light of all of the circumstances, the
element of against the victim's will is satisfied in this case. A contrary finding would give
an unscrupulous individual carte blanche for cleverly executing a well thought out plan upon
innocent children.
These circumstances support a finding of sexual assault because Shannon knew or should
have known the child was mentally or physically incapable of resisting or understanding the
nature of the conduct. See NRS 200.366. In fact, Shannon's elaborate scheme was designed to
achieve this very end.
__________

4
A person who subjects another person to sexual penetration, or who forces another person to make a
sexual penetration on himself or another, or on a beast, against the victim's will or under conditions in
which the perpetrator knows or should know that the victim is mentally or physically incapable of
resisting or understanding the nature of his conduct, is guilty of sexual assault.
Where, as here, the verdict is supported by substantial evidence in the record it will not be
disturbed on appeal. McKinney v. State, 95 Nev. 494, 596 P.2d 503 (1979); Sanders v. State,
90 Nev. 433, 529 P.2d 206 (1974).
Jurisdiction over Arizona Crimes
Shannon was convicted in case C74463 of Counts II, III, and IV (three counts of lewdness
with a minor) based upon three acts that took place on a January 1986 trip with Minor A.
Shannon and the prosecution stipulated that these crimes took place on the Arizona side of
Lake Mead. Such a stipulation by the parties must be accepted as a conclusive fact. See
Gottwals v. Rencher, 60 Nev. 35, 92 P.2d 1000 (1939). The lower court ruled that Nevada
retained jurisdiction pursuant to NRS 171.020 which states that:
Whenever a person, with the intent to commit a crime, does any act within this state in
execution or part execution of such intent, which culminates in the commission of a
crime, either within or without this state, such person is punishable for such crime in
this state in the same manner as if the same had been committed entirely within this
state.
Shannon challenges the finding of jurisdiction over these crimes in light of our past judicial
interpretation of this statute.
We have limited the scope of NRS 171.020 in the cases of Vincze v. Sheriff, 86 Nev. 474,
477, 470 P.2d 427, 429 (1970) and Smith v. State, 101 Nev. 167, 697 P.2d 113 (1985) based
on the possible imposition upon the sovereignty of a sister state, (see People v. Buffum, 256
P.2d 317, 320 (Cal. 1953)).
[Headnote 9]
We further hold that whether NRS 171.020 allows Nevada jurisdiction over crimes
occurring in another state is a question of jurisdiction, not an element of the crime charged.
As such, it is a question of law to be decided by the court, not to be submitted to a jury.
Vincze and Smith are the only two cases in which we have construed the boundaries of
state criminal jurisdiction under NRS 171.020. However, since these cases were decided, the
United States Supreme Court has ruled, under the dual sovereignty doctrine, that successive
prosecutions by two states for the same conduct are not barred by the double jeopardy clause
of the Fifth Amendment. See Heath v. Alabama, 474 U.S. 82 (1985). As a result, the
prosecution of cases such as Shannon does not bar similar prosecutions by the State of
Arizona. Therefore, we are now of the opinion that NRS 171.020 should be given the full
interpretation intended by the Nevada Legislature.
[Headnote 10]
The language of the statute gives jurisdiction to Nevada courts whenever the criminal
intent is formed and any act is accomplished in this state in pursuance or partial pursuance of
the intent. The statute does not require that there be partial execution of the actual crime; it
only requires some carrying out of the criminal intent. In this case the facts clearly show that
Shannon developed an elaborate scheme to separate vulnerable children from their parents for
the purpose of subjecting them to his perverted sexual desires. This scheme involved the
forming of a canoe club aimed at potential victims. All of these acts occurred in the State of
Nevada and were clearly committed in pursuance of Shannon's intent to commit the crimes
for which he was convicted of at trial. Therefore, the jurisdictional requirements of NRS
171.020 were met and the trial court correctly ruled that Nevada retained jurisdiction over the
crimes which were consummated in the State of Arizona.
Conflict Between Sexual Assault and Solicitation
[Headnote 11]
Shannon's last contention is that his conviction of soliciting a minor to engage in an
infamous crime against nature (Counts X and XI) and of sexual assault (Counts VIII and IX)
are mutually exclusive under the facts of this case. Shannon argues that a finding of guilty on
one charge implies a finding of not guilty on the other. Both convictions stem from the act of
fellatio committed against Minor A on the February 1986 canoe trip previously discussed
above.
The state argues that Shannon incited the child to engage in fellatio by his preliminary
non-verbal conduct which aroused the child and resulted in the solicitation charge. The state
describes this preliminary non-verbal incitement as defendant's fondling of the child's genitals
and eventual performance of fellatio on the child. The state further argues that after this initial
non-verbal conduct, Shannon's oral copulation of the child accomplished the act of sexual
assault.
On the other hand, Shannon contends that because the child testified that he knew the act
of fellation was wrong, the sexual assault charge based on lack of knowledge is erroneous.
Therefore, to show sexual assault, the jury must have found that the act was against the child's
will. The argument continues that if it was against the child's will he could not have been
solicited.
Shannon's argument has merit. Sexual assault and solicitation of a minor to engage in an
infamous act against nature, under the facts of this case, cannot coexist.
Our decision is a narrow one, however, based only on the facts before us.
It is conceivable for a person to be solicited and initially consent to engage in an act but
before the act is executed to withdraw consent. If the act is completed after the withdrawal of
consent, it would be against the will of the person. That is not the situation presented for our
review. The evidence is insufficient to establish that Shannon's preliminary non-verbal
conduct incited, enticed or solicited the child to engage in any act. The child's only
acknowledgment of Shannon's presence was to feign sleep. As previously stated this
sufficiently established an unwillingness on the child's part. Because the facts underlying the
sexual assault charges are indistinguishable from the solicitation charge, the felony
convictions of the solicitation must be vacated.
CONCLUSION
Therefore, we affirm all judgments of conviction except Counts X and XI (solicitation of a
minor to engage in an infamous crime against nature) of case C74463. The two felony
solicitation convictions are hereby vacated.
Young, C. J., Steffen, Springer and Rose, JJ., concur.
____________
105 Nev. 793, 793 (1989) Karadanis v. Sourwine
GEORGE KARADANIS, ROBERT MALOFF, dba SUNDOWNER CASINO, Appellants, v.
JULIEN SOURWINE, FAHRENKOPF, MORTIMER, SOURWINE, MOUSEL AND
SLOAN, L. TIMOTHY TERRY, and TERRY AND WINTER, Respondents.
No. 19074
December 6, 1989 783 P.2d 454
Appeal from an order granting respondents' motions for summary judgment. Second
Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Premises owner and its partners brought malpractice action against attorneys for failing to
raise workers' compensation defense of absolute immunity in negligence suit brought by
subcontractor's employee. The district court granted summary judgment for attorneys, and
appeal was taken. The Supreme Court, Springer, J., held that immunity conferred upon
general contractor and its partners did not extend to premises owner and its partners even
though two partners were members of both partnerships.
Affirmed.
Cal Hoover, Reno; Herman L. Koelewyn, Sacramento, California, for Appellants.
Georgeson, McQuaid, Thompson & Angaran, Reno; Rawlings Olson & Cannon, Las
Vegas, for Respondents.
Workers' Compensation.
Absolute immunity conferred upon general contractor and its partners under workers' compensation law did not extend to premises
owner and its partners simply because two partners were members of both partnerships. NRS 616.270, 616.560.
OPINION
This is an attorney malpractice case. The trial court granted summary judgment to the
respondent attorneys, ruling that the attorneys could not be held liable for their failure to
prosecute in favor of their clients the defense of immunity under the Nevada Industrial
Insurance Act (NIIA) because the clients did not, as a matter of law, enjoy such immunity
under the facts of this case.
One Larry Newcomb sued Karadanis and Maloff, doing business as Sundowner Casino,
for negligence in their capacity as proprietors of the Sundowner Hotel and Casino, where
Newcomb was injured. In the Newcomb lawsuit Karadanis, Maloff and their casino
partnership, to be called clients, were represented at varying stages of the litigation by
respondent attorneys, to be called attorneys. After Newcomb won a large money judgment
against the clients, the clients sued the attorneys for negligent malpractice based upon the
attorneys' failure to prosecute a defense of absolute immunity under the Nevada Industrial
Insurance Act (NIIA) on behalf of the clients.
As indicated above, this case turns on whether the NIIA immunity was available to clients
and not on whether the attorneys were negligent in failing to assert the defense. We affirm the
summary judgment in this case solely on the ground that under the facts of this case
Karadanis, Maloff and the Sundowner Casino firm were not, as a matter of law, immune from
suit by reason of NIIA immunity.
At the time he was injured, personal injury claimant Newcomb was an employee of
Cartwright Drywall, a subcontractor on a construction project involving the Sundowner
Hotel. The general contractor was a partnership called HKM Cal-Neva Construction
Company, the partners of which were Karadanis, Maloff and one Jack Powers.
contractor was a partnership called HKM Cal-Neva Construction Company, the partners of
which were Karadanis, Maloff and one Jack Powers. Newcomb was covered by the
construction firm's industrial insurance, and there is no question but that the construction
partnership and its partners, Karadanis, Maloff and Powers, were immune from common law
liability. NRS 616.270; NRS 616.560. The only question is whether the immunity of the
construction company partnership and its partners carries over in some way to the Sundowner
Casino partnership and its partners, who were sued for their negligence as occupiers of the
premises where Newcomb was injured.
The clients claim that once immunity attaches to Karadanis and Maloff as partners in the
construction firm that immunity also immunizes them as partners in the casino partnership
and protects the Sundowner Casino partnership as well. The clients cite Frith v. Harrah South
Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), in which an injured worker attempted to sue
Harrahs as an owner of the premises where the injury occurred even though the Harrahs
corporation was immune as the statutory employer of the injured worker. We held in Frith
that Harrahs did not lose its immunity as an employer just because it was also the owner of
the real property where the injury occurred. 92 Nev. at 453, 552 P.2d at 341.
Our rejection of the so-called dual capacity doctrine
1
is of no help to Karadanis, Maloff
and the Sundowner Casino partnership in this case because the employer in this case,
Cal-Neva, is not acting in a dual capacity. It is acting in only one capacity, that of employer,
and in that capacity is immune from suit. The construction company is not acting in the
capacity of owner, and the Frith and Noland cases simply have no application to the facts
of this case. The owner in this case is an entirely different partnership, respondent Sundowner
Casino.
We have a much different situation here from what we had in Frith and Noland.
__________

1
In refusing to permit Harrahs to be sued in negligence just because it acted as both an employer and an
owner, this court rejected what has been called the dual capacity doctrine. The doctrine was defined and
explained in Noland v. Westinghouse Elec. Corp., 97 Nev. 268, 628 P.2d 1123 (1981). The Noland opinion
quoted this definition of the dual capacity doctrine:
[A]n employer normally shielded from tort liability by the exclusive remedy principle may become liable
in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that
confers on him obligations independent of those imposed on him as employer.
Noland, 97 Nev. at 269, 628 P.2d at 1124 (quoting 2A A. Larson, Workmen's Compensation, sec. 72.80 at
14-112 (1976)).
Frith and Noland. Here we have two different and distinct firms
2
engaged in two entirely
different kinds of business enterprise. The Sundowner Casino, the firm that owns the
hotel-casino, is not the employer of Newcomb and does not have a contract of hire with
Newcomb. Sundowner can gain immunity against Newcomb only if the immunity of the
construction firm, Cal-Neva, can in some way be said to give immunity to the casino firm,
thus investing the casino firm, which is not Newcomb's employer, with a kind of immunity
that is designed for the protection of employers against suits by their employees.
The only way to claim that the casino firm should be able to take advantage of the
construction firm's immunity is to say that, because Cal-Neva and Sundowner Casino have in
common two partners, both firms enjoy statutory immunity. This does not make sense. The
hotel firm and the construction firm do not become a unity because they have common
partners. There is no reason why they should become a unity for the purpose of setting
employers' immunity under NIIA.
In claiming that such a unity exists, in asserting that if Cal-Neva is immune, Sundowner
must also be immune, the clients rely heavily on Watson v. G.C. Associates Ltd., 100 Nev.
586, 691 P.2d 417 (1984). In that case, even though general partners were dismissed as being
immune statutory co-employees, the plaintiff tried to sue the partnership itself as an owner.
We understandably refused to treat the partnership as such an entity independent from its
immune partners as to be subject to suit when the partners themselves were not.
Watson is not much help to the clients in this case. Our holding in Watson, that a
partnership made up of immune partners cannot be sued as an independent entity, does not
address the issue here, namely, whether two different partnerships engaged in two different
businesses will both be held immune just because one of the two partnerships is immune
under the NIIA, and two of the partners in the immune partnership are also partners in a
partnership that otherwise would not enjoy immunity.
__________

2
NRS 616.090(2) includes in the definition of employer [e]very person [or] firm . . . which has in service
any person under a contract of hire. The statutory definition of employer does not include the word partnership
but we assume that the two partnerships involved in this case, Cal-Neva and Sundowner, can properly be
characterized as firms who can act as employers under NIIA. We would note at this juncture that we have here
two different firms, a construction firm and a hotel firm. Each is an employer with its own identity and with its
different employees and different contracts of hire. That these two firms should be considered as one, merely
because they share common partners, does not appear to be a reasonable assumption.
It is true that in Watson we invoked the aggregate theory of partnership in refusing to let
the partnership in that case be held independently liable, we certainly did not hold that a
partnership may have under no circumstances and for no purposes an identity of its own. In
Nevada a partnership can acquire and hold title to real property, NRS 87.080; a partnership is
a legal entity for purposes of pleading and defending litigation, Richard Mathews, Jr., Inc. v.
Vaugh, 91 Nev. 583, 540 P.2d 1062 (1975); a partnership is bound by a partner's wrongful act
or omission done in the ordinary course of the partnership's business, NRS 87.130, but the
partnership is not bound if the partner's wrongful act is not done in the course of the
partnership's affairs, NRS 87.090; and a partnership may be an employer under the NIIA,
NRS 616.090(2). See footnote 2, above. The attorneys maintain that since the Cal-Neva and
Sundowner partnerships, conducted totally different business enterprises, had separate
employees and payrolls, maintained different business locations, and had separate workmen's
compensation accounts with the State Industrial Insurance System they should be treated as
separate and distinct business entities in deciding the present case. We must agree.
Case law in other jurisdictions supports the position that multiple partnerships formed by
common partners are separate and distinct business enterprises.
3
Certainly, if Sundowner and
Cal-Neva were corporations rather than partnerships, there would be no question but that
Sundowner would not have been immune in the Newcomb negligence case.
The purpose of employers' immunity under the NIIA is to allow an employer to provide
workmen's compensation coverage in return for which that particular employer's liability is
limited to the workmen's compensation benefits. Because the casino firm and the construction
firm were each operated independentlyeach kept its own books, hired its own employees,
had separate business premises, pursued different purposes and required a different business
licensegranting immunity to the casino firm in this case would not be consistent with the
stated purpose of NIIA immunity.
Because an immunity defense was not available to the casino-owning firm, Sundowner
Casino, the failure of the attorneys to interpose the immunity defense on behalf of the casino
partnership could not have caused monetary damage to the clients.
__________

3
Cases to this effect include the following: Michigan Employment Sec. Comm'n v. Crane, 54 N.W.2d 616
(Mich. 1952); Monson v. Arcand, 58 N.W.2d 753 (Minn. 1953); Toenberg v. Harvey, 49 N.W.2d 578 (Minn.
1951); Crall v. Hockman, 460 S.W.2d 668 (Mo. 1970); Billy v. Consolidated Machine Tool, 412 N.E.2d 934
(N.Y. 1980); Church Budget Envelope Co. v. Cornell, 136 N.E.2d 101 (Ohio 1955).
ship could not have caused monetary damage to the clients. Since there can be no causal
relationship between the attorneys' not interposing the immunity defense and the damages
claimed to be suffered by the clients, it is not necessary to consider whether or not the
attorneys' conduct fell below the standard of care expected of attorneys in this state. The
attorneys in this case were entitled to judgment as a matter of law; the summary judgment of
the trial court, hence, will be affirmed.
4

Steffen, A. C. J., Mowbray and Rose, JJ., and Zenoff, Sr. J., concur.
____________
105 Nev. 798, 798 (1989) State, Purchasing Div. v. George's Equipment
STATE OF NEVADA, NEVADA STATE PURCHASING DIVISION, Appellant, v.
GEORGE'S EQUIPMENT COMPANY, INC., Respondent.
No. 18911
December 6, 1989 783 P.2d 949
Appeal from an order granting respondent's petition for writ of mandamus and permanent
injunction. Second Judicial District Court, Washoe County; Robert Schouweiler, Judge.
Disappointed bidder brought action against State Purchasing Division seeking injunctive
relief and writ of mandamus. The district court entered judgment in favor of disappointed
bidder. Division appealed. The Supreme Court, Rose, J., held that: (1) Division's hearing was
not governed by Nevada Administrative Procedure Act; (2) fact that specifications were
drawn primarily from one bidder's manufactured product or tended to favor one bidder was
not sufficient in itself to declare bid specifications illegal; and (3) agency could consider
postbid information.
Reversed.
Brian McKay, Attorney General, and Debra Winne Jeppson, Deputy Attorney General,
Woodburn, Wedge & Jeppson and W. Chris Wicker, Reno, for Respondent.
__________

4
The Honorable Cliff Young, Chief Justice, has voluntarily disqualified himself from consideration of this
case.
The Honorable Robert E. Rose, Justice, participated in the decision upon the briefs, record and recording of
the oral argument.
1. States.
Appeal and hearing afforded unsuccessful bidder on government contract did not constitute a contested case as defined by
Nevada Administrative Procedure Act. NRS 233B.032, 233B.130, 333.370.
2. States.
Fact that specifications for public contract were drawn primarily from one bidder's manufactured product or tended to favor one
bidder was not sufficient, in itself, to declare bid specifications illegal or improper.
3. Public Contracts.
Public agency should be given some latitude in drawing bid specifications.
Bid specifications and resulting contract will be set aside and declared improper only if specifications are so arbitrarily drawn in
favor of manufacturer as to bar or present major impediment to others bidding.
Even if specifications for public contract eliminate all but one bidder, that bid and resulting contract can be sustained if it is shown
that specifications are necessary in the public interest, as where product is manufactured by only one company.
6. States.
State agency's pursuing and receiving additional information on performance or reliability of bid equipment after bids were opened
was not improper.
Determining which bid on public contract is responsible encompasses many factors concerning bid equipment, such as
performance, reliability, and costs.
Court should be reluctant to interfere with discretion exercised by governmental agency in its determination of who was lowest
responsible bidder.
OPINION
Appellant, State of Nevada, Nevada State Purchasing Division (State Purchasing),
awarded a contract to supply the Nevada Division of State Parks (State Parks) with a backhoe
to a bidder who did not submit the lowest bid, and determined that the lowest bidder,
respondent George's Equipment Company, Inc. (George's), did not meet all specifications in
the bid it submitted and had not submitted a responsible bid because of the unreliability of its
product. George's challenged the bid award first at a hearing before the Director of State
Purchasing and then in district court. After a hearing, the district court held that the bid
specifications were improper because they favored the successful bidder and directed the
State to rebid the contract. State Purchasing has appealed the district court's decision.
We conclude that the hearing held by State Purchasing is not governed by the Nevada
Administrative Procedure Act, that the bid specifications were proper as drawn, and that
consideration of information secured subsequent to the bids being opened was proper. We
affirm the awarding of the bid by State Purchasing and reverse the district court's order
directing State Purchasing to rebid the contract.
FACTS
In August, 1987 State Parks requisitioned a backhoe from State Purchasing. State Parks'
maintenance manager, Robert Howard (Howard), developed the required bid specifications
from a John Deere 310C backhoe specification sheet provided to him by a John Deere dealer.
He did this because his department had used a John Deere backhoe for years and was satisfied
with its performance.
On September 3, 1987, State Purchasing sent out an invitation to bid on a backhoe, John
Deere 310C or approved equal. In addition to the specifications, the invitation to bid stated
that the contract will be awarded to that responsible bidder whose bid conforms to the
Invitation and Bid and will be most advantageous to the State, price and other factors
considered. State Purchasing received five responses and the bids were opened on
September 21, 1987.
George's bid was to provide a JCB 1400 B-CM-4WD-Turbo backhoe (JCB) to the State.
The only exceptions to the required specifications that George's listed were the JCB not
having a shift differential lock and the JCB having different tires. Gail Tenk (Tenk), State
Purchasing's senior buyer, was present when the State opened the bids and heard other
bidders comment upon George's lack of exceptions.
George's was the lowest bid at $28,790.22. Burkes' Tractor Company was next lowest with
a bid offer of a Case 580K backhoe for $34,300.00. Weaver Equipment Company (Weaver)
was third lowest with a bid offer of a John Deere 310C backhoe for $35,470.00.
Tenk subsequently contacted Howard with questions regarding George's bid specifications
on the JCB. Howard informed Tenk that he lacked information on the JCB and would make
inquiries. Thereafter, Howard contacted a Mr. Smith who was employed by Humboldt
County at the county yard in Winnemucca. Smith stated that his equipment included a JCB
backhoe, but even though it had less than one thousand hours of service, he did not use it
because it was unreliable. Howard also contacted Wilson's Construction Company and was
informed that they owned two JCBs which were unreliable.
JCBs which were unreliable. In addition, Howard visited the Washoe County yard, inspected
one of two JCBs there, and received maintenance printouts which detailed the problems
Washoe County had experienced with the machine. Finally, Howard visited a JCB dealer and
inspected an older model.
As a result of Howard's inquiries, Tenk confirmed that George's did not list all of the JCB
bid specification exceptions. Tenk obtained the Washoe County JCB maintenance reports
from Howard. The reports indicated the maintenance problems, down time, parts cost, and
work performed by Washoe County on the JCB. Tenk then conferred with her supervisor,
Alvin Craig (Craig), and discussed with him the exceptions contained in the bids. According
to Tenk, her initial concern was with George's failure to meet several of the bid
specifications; subsequently this was overshadowed by a concern of the equipment's
reliability as evidenced by Washoe County's service records.
1
Prior to the contract's award,
Tenk gave consideration to State Parks' particular needs, including their unique situation,
their intended use of the equipment, and the likelihood that it would again be some time
before they received another legislative appropriation for a backhoe.
2

Tenk asked Craig's opinion regarding whether sufficient grounds existed to award the
contract to Weaver. In Craig's opinion, sufficient grounds did exist based on George's failure
to meet bid specifications and JCB's questionable reliability.
On October 2, 1987, George's received notice that the State had awarded Weaver the
contract for the backhoe. Bud Wade, George's branch manager, wrote Tenk on October 6,
1987, and requested a meeting to review Washoe County's maintenance reports and to
present his own data concerning the JCB backhoe. In a letter dated October 14, 1987, Terry
Sullivan (Sullivan), Director of the Department of General Services, gave George's notice
of the time and place set for the hearing on George's appeal. Thereafter, Bud Wade wrote
Sullivan in a letter dated October 20, 1987, and requested that the award as placed, be
rescinded, and placed with George's Equipment Co., Inc. . . .
The October 21, 1987, hearing on George's appeal began with the following comments
from Sullivan: For the record, this is an appeal of #77S9 by George's Equipment Company.
__________

1
Tenk memorialized her concerns with the two lowest bids on a bid tabulation sheet. Among her concerns
with the JCB backhoe were: (1) the cost and availability of parts, (2) down time, (3) Washoe and Humboldt
counties' dissatisfaction with the machines, and (4) JCB's variance with bid specifications. Tenk also noted that
the Case 580K backhoe did not have a wet sleeve engine as required by the specifications.

2
State Parks' backhoe at the time was twenty years old, and it had sought an appropriation for a new backhoe
for five consecutive legislative sessions.
For the record, this is an appeal of #7789 by George's Equipment Company. Just so
you'll know, this is an informal hearing. The rules of evidence do not apply. Are you the
attorney? You don't have an attorney here, you, of course, are welcome to have one.
The way we conduct the hearing is that I'll let George's Equipment Company present
their side, the State will present their [sic] side and then we can have an open
discussion about it, if that's agreeable with everybody. I'd like you to, for the record,
identify yourself before you speak, because if we need the record later, then it will be
proper. . . .
No one was placed under oath to testify. During the hearing differences were noted between
the specifications contained in the State's invitation to bid and George's bid. Apart from the
locking shift differential exception, none of the exceptions discussed at the hearing were
noted on George's bid, nor did George's bid explain, as required by the State's invitation to
bid, how JCB's torque proportioning system was equal to the specified locking shift
differential.
In a letter dated October 29, 1987, Sullivan notified George's that he was upholding the
award of the contract to Weaver and stated the basis for his decision. According to Sullivan,
the JCB did not meet specifications in two prime areas: (1) the absence of a locking shift
differential, and (2) the JCB's turning radius was larger than the John Deere's. However, the
State's invitation to bid did not list a specification for the backhoe's turning radius.
On November 3, 1987, State Purchasing ordered the John Deere backhoe from Weaver.
State Parks accepted delivery on November 12, 1987, and Weaver was paid in full at that
time. State Parks began using the tractor on November 20, 1987.
On November 25, 1987, George's filed a complaint for injunctive relief, a motion for
temporary restraining order and preliminary injunction, and a petition for writ of mandamus.
At a hearing on December 11, 1987, the district court entertained and denied the State's
motion to dismiss George's petition for a writ of mandamus, complaint for injunctive relief
and to dissolve the temporary restraining order issued November 25, 1987. The district court
found that the parties' actions were not governed by the Nevada Administrative Procedure Act
and that a writ of mandamus was a proper remedy in seeking review of the State's actions.
The hearing was continued and held on December 22, 1987.
In an order filed January 27, 1988, the district court held that the contract entered into
between the State and Weaver was void and unenforceable because the bid specifications had
been improperly tailored to fit the John Deere backhoe.
improperly tailored to fit the John Deere backhoe. The district court enjoined the State from
accepting Weaver's bid, and further enjoined the State from entering into any contract for the
purchase and delivery of the backhoe with Weaver. The district court also enjoined State
Parks from using the backhoe. In addition, the district court granted George's petition for a
writ of mandamus, and ordered that the Director of State Purchasing submit the backhoe
contract for re-bidding.
LEGAL DISCUSSION
I. Whether the hearing held pursuant to NRS 333.370 was governed by the Nevada
Administrative Procedure Act.
[Headnote 1]
The first question presented by this appeal is whether the hearing Sullivan conducted as
head of the State Purchasing Department pursuant to NRS 333.370 was a contested case as
contemplated in the Nevada Administrative Procedure Act. NRS 233B.032 of that Act
defines a contested case: Contested case' means a proceeding, including but not restricted
to rate making and licensing, in which the legal rights, duties or privileges of a party are
required by law to be determined by an agency after an opportunity for hearing, or in which
an administrative penalty may be imposed. If a hearing held by an administrative body is
considered a contested case and the agency is not exempt from the operation of the
Administrative Procedure Act, judicial review of an agency's final decision is governed by
NRS 233B.130. The district court determined it was not and held a de novo trial on the
matter.
The State argues that while an unsuccessful bidder may appeal to the Purchasing Director,
once that appeal is lodged, the director must hold a hearing within ten days, and this fits
within the definition of a contested case as one where rights or privileges of a party are
required by law to be determined by an agency. The State further cites the fact that the
legislature did not specifically exempt the State Purchasing Department from the ambit of the
Nevada Administrative Procedure Act in NRS 233B.039.
George's counters that the language of NRS 333.370 permitting an appeal by an
unsuccessful bidder simply states that an unsuccessful bidder may file a notice of appeal and
the director, after holding a hearing, may cancel the award for lack of compliance with the
statutory bidding provisions. This, George's argues, does not require the director to determine
an unsuccessful bidder's rights, duties or privileges. Further, George's argues that the notice,
hearing and decision that the Purchasing Director issued did not comply with the
requirements set forth for the adjudication of a contested case pursuant to NRS
233B.121.
issued did not comply with the requirements set forth for the adjudication of a contested case
pursuant to NRS 233B.121.
While this is a close question, we conclude that the appeal and hearing afforded an
unsuccessful bidder pursuant to NRS 333.370 does not contemplate a contested case as
defined by NRS 233B.032. In a contested case, each party is given a chance to prepare
evidence and subpoena witnesses, if necessary. The requirement that the Purchasing Director
conduct a hearing within ten days of its request militates against affording the parties
sufficient time to meet the due process requirements set forth in NRS 233B.121. Further, the
Purchasing Director obviously did not consider the hearing he conducted a contested case.
The notice, conduct of the hearing and decision did not meet any of the requirements of
Nevada law for a contested case.
The statutory scheme of NRS Chapter 333 (State Purchasing) provides a way for an
unsuccessful bidder to bring his complaint about the bidding process to the director of the
department and let him or her determine if he or she wants to stand by the bid award or rebid
the contract. It is designed to be quick and easy. We believe this hearing process to be more
akin to a license denial, as we considered in Private Inv. Licensing Bd. v. Atherley, 98 Nev.
514, 654 P.2d 1019 (1982), than a contested matter where the legal rights, duties and
privileges of the parties must be determined. We conclude that the district court was correct
in determining that the hearing which the Purchasing Director held pursuant to NRS 333.370
was not a contested case and any appeal from such bid affirmation is not governed by NRS
233B.130.
II. The Bid Specifications.
[Headnote 2]
The district court determined that the bid specifications and resulting contract to John
Deere must be set aside because the specifications were drawn largely from the specifications
of the successful bidder's product. We disagree.
[Headnotes 3-5]
The fact that specifications were drawn primarily from one bidder's manufactured product
or tended to favor one bidder is not sufficient, in itself, to declare the bid specifications illegal
or improper. A public agency should be given some latitude in drawing bid specifications.
Bid specifications and the resulting contract will be set aside and declared improper only if
the specifications are so arbitrarily drawn in favor of one manufacturer as to bar or present a
major impediment to others bidding. Southern Steel Co. v. County of Suffolk, 273 N.Y.S.2d
99 {1966); American Institute for Imp.
(1966); American Institute for Imp. Steel v. County of Erie, 297 N.Y.S.2d 602 (1968). And
even if the specifications eliminate all but one bidder, that bid and resulting contract can be
sustained if it is shown that such specifications are necessary in the public interest, as where
the product is manufactured by only one company. See J.I. Case Co. v. Town Bd. of Town of
Vienna, 482 N.Y.S.2d 599 (1984); Southern Steel Co., supra.
The State readily admits that it tailored its specifications after the John Deere backhoe it
had used in the past. The State was familiar with the reliability and suitability of the John
Deere in servicing the needs of State Parks. Moreover, the bid specifications did not preclude
others from bidding; in fact, there were five bidders. The district court erred when it
determined that the contract to John Deere had to be set aside because the bid specifications
were taken primarily from the specifications of the John Deere backhoe.
III. Consideration of post-bid information.
[Headnote 6]
After the bids were opened but before the final award was made, the State secured
additional information from other governmental agencies about the performance and
reliability of the equipment with the lowest bid. Our inquiry must then focus on determining
whether pursuing and receiving additional information on the performance or reliability of the
bid equipment was improper.
[Headnote 7]
The State did not know a great deal about the JCB backhoe. The State is directed by law to
accept the lowest responsible bid. Determining which bid is responsible encompasses many
factors concerning the bid equipment, such as performance, reliability, and cost. See
McCallin's Appeal, 1 Monag. 596 (Pa. 1889); Application of Glen Truck Sales & Service,
Inc., 224 N.Y.S.2d 199 (1961). To make a determination on the responsibility of a bidder and
its equipment, information about the products to be supplied or company rendering a product
or service is helpful, and at times essential. The law does not direct that the State, in
determining who is a responsible bidder, should base its decision only on information known
or garnered before the bids are opened, and common sense directs that it should not.
A public agency that puts a product or service to bid does not know who will submit a bid,
let alone which bid will be the lowest. Once the bids are received, the agency may need
additional information about the lowest bid or bids to discharge its responsibility.
responsibility. As long as this inquiry is made in good faith and related to the products or the
bid specifications, the public agency should be free to secure additional information.
Other courts have generally agreed that additional information other than that contained in
or requested by the specifications or the bids received can be used if it aids a public agency in
making an informed decision and has a reasonable relationship to the specifications and bids
received. In Application of Glen Truck Sales & Service, Inc., supra, public bids were received
for five dump trucks. To assist in determining the quality of the dump trucks manufactured by
the two bidders and whether compliance with the specifications was met, the commissioner
of public works retained an engineer experienced with dump trucks who gave his opinion on
a variety of matters. The higher bidder objected to the expert's report on the ground that it was
based on documents and material not part of the bid documents and instructions. In rejecting
this argument the court held: The Court holds in relation to the petitioner's objection as to
the consideration of documents not a part of the bid that the Board is not estopped from
attempting to get full facts, and information before consideration of the bids. . . . Id. at 202.
State Purchasing considered additional information obtained after the bids were opened to
inform itself about the performance and reliability of the equipment described in the lowest
bid. There is nothing in the record to indicate that this was done in bad faith or for any reason
other than to become better informed about the backhoes involved. Under these
circumstances, State Purchasing acted properly and within its discretion in rejecting the
lowest bid and accepting the bid for the John Deere backhoe.
[Headnote 8]
Courts should be reluctant to interfere with the discretion exercised by a governmental
agency in its determination of who is the lowest responsible bidder.
Courts should not be zealous to interfere with letting contracts, unless they are satisfied
that the public has been made to suffer, either through fraud or bad faith or careless
attention to business. The presumption is that the acts of executive officers are done for
public good. When their actions are challenged, the burden of showing to the contrary
rests on those asserting it, and it is a heavy burden; courts can and will interfere only
when it is made apparent that discretion has been abused.
Barnes v. Scranton Poor District, 160 A. 241, 242 (Pa.Super. 1932).
CONCLUSION
The district court properly held that the bid review hearing permitted by NRS 333.370 was
not a contested hearing as defined in the Nevada Administrative Procedure Act and a trial de
novo challenging the bid award was appropriate. The bid specifications were not so arbitrarily
drawn as to preclude George's or other bidders and the district court erred in concluding that
the bid documents illegally favored Weaver and its John Deere backhoe. Having determined
that the bid specifications were fatally drawn, the district court directed that State Purchasing
rebid the backhoe contract. Since we conclude that the bid specifications and the subsequent
inquiry concerning the reliability of the lowest bid product were proper, State Purchasing
correctly exercised its discretion in selecting the Weaver bid to supply the John Deere
backhoe.
Accordingly, the district court decision is reversed, the injunctions entered against State
Purchasing are dissolved, and the writ of mandate directing State Purchasing to rebid the
backhoe contract is cancelled. State Purchasing's acceptance of Weaver's bid is confirmed.
Young, C. J., Steffen, Springer and Mowbray, JJ., concur.
____________
105 Nev. 807, 807 (1989) Lucky v. State
RANDY LUCKY, KENNETH WILLIAM ANGLE and LARRY CLYDE SALISBURY,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 20048
December 6, 1989 783 P.2d 457
Appeal from order denying a petition for a writ of habeas corpus. Second Judicial District
Court, Washoe County; Robin A. Wright, Judge.
Bribery defendants petitioned for writ of habeas corpus challenging decision of the
justice's court to hold them in contempt. The district court denied petitions. Defendants
appealed. The Supreme Court held that statute providing that [e]very person [violating] law
relating to bribery or corruption shall be competent witness against another so offending and
shall not be excused from giving testimony tending to criminate himself, but such testimony
shall not afterward be used against him . . . was properly interpreted to confer derivative use
immunity.
Affirmed.
105 Nev. 807, 808 (1989) Lucky v. State
Paul A. Sherman, Carson City, for Appellant Lucky.
Daniel Wong, Reno, for Appellant Angle.
Martillaro & Martillaro, Carson City, for Appellant Salisbury.
Guy Sage, Deputy District Attorney, Washoe County, for Respondent.
Witnesses.
Statute providing that [e]very person [violating] law relating to bribery or corruption shall be a competent witness against another
so offending and shall not be excused from giving testimony tending to criminate himself, but such testimony shall not afterward be
used against him . . . was properly interpreted to confer derivative use immunity; accordingly, bribery defendants were properly held
in contempt for their refusal to testify against one another. NRS 197.020, 197.040, 199.090; U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
On April 16, 1987, the state filed in the justice's court criminal complaints against
appellants. One complaint charged appellant Angle with four counts of asking or receiving a
bribe by a public officer in violation of NRS 197.040. Another complaint charged appellant
Salisbury with four counts of bribing a public officer in violation of NRS 197.020. The third
complaint charged appellant Lucky with one count of bribing a public officer in violation of
NRS 197.020.
On May 1, 1987, at the scheduled preliminary hearing for appellants Angle and Lucky, the
state called all three appellants to testify. Each of the appellants invoked their rights against
self incrimination under the fifth amendment of the United States Constitution, and each of
the appellants was thereafter held in contempt of court by the justice of the peace. Although
the justice's court remanded appellants to the custody of the Washoe County Sheriff, it also
released appellants on their own recognizance and prohibited them from leaving the State of
Nevada. The justice's court also stayed the preliminary hearing to permit appellants to
challenge the contempt citations.
On May 13, 1987, and August 7, 1987, respectively, appellants filed in the district court
the instant petitions for writs of habeas corpus challenging the decision of the justice's court
to hold them in contempt of court. The state opposed the petitions, and the petitions were
later consolidated for disposition by the district court.
105 Nev. 807, 809 (1989) Lucky v. State
and the petitions were later consolidated for disposition by the district court. On July 31,
1987, the district court held a hearing on appellants' petitions and on April 20, 1989, entered
an order denying appellants' petitions. This appeal followed.
The state called appellants to testify at the preliminary hearing pursuant to NRS 199.090.
That statute provides:
Every person offending against any of the provisions of law relating to bribery or
corruption shall be a competent witness against another so offending and shall not be
excused from giving testimony tending to criminate himself, but such testimony shall
not afterward be used against him in any judicial proceedings, except for perjury in
giving such testimony.
Appellants contend that NRS 199.090 provides only use immunity to a defendant who is
compelled to testify against himself in a criminal proceeding that involves bribery or
corruption. Because the statute does not prohibit the use of evidence derived from the
compelled testimony, appellants contend that the immunity provided by NRS 199.090 is
constitutionally inadequate to protect their fifth amendment rights. See Kastigar v. United
States, 406 U.S. 441 (1972). Therefore, they argue that the district court erred when it denied
their petitions for writs of habeas corpus challenging the contempt citations of the justice's
court. We disagree.
In its order denying appellants' petitions, the district court determined that NRS 199.090
should be read to include both use and derivative use immunity so as not to violate
[appellants'] constitutional rights. It is well-settled in this state that [w]here 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 to nullify, its manifest purpose.
Sheriff v. Lang, 104 Nev. 539, 542, 763 P.2d 56, 58 (1988), quoting Sheriff v. Luqman, 101
Nev. 149, 155, 697 P.2d 107, 111 (1985). Courts presume that a statute is constitutional, and
are reluctant to invalidate a statute when the purpose of that statute is in the best interests of
the public. See Ex parte Iratacable, 55 Nev. 263, 276, 30 P.2d 284, 287 (1934).
Crimes involving the bribery and corruption of public officials are invariably committed in
secret; the participants are usually the only persons that know the facts of the offense.
Because of this, such crimes can be extraordinarily difficult to prosecute. NRS 199.090 was
clearly intended by the legislature to ease the burden of prosecuting offenses that involve the
corruption of public officials in this state. A statute can serve no higher public purpose.
105 Nev. 807, 810 (1989) Lucky v. State
purpose. Under the circumstances of this case, we conclude that the district court did not err
when it interpreted NRS 199.090 to confer derivative use immunity on appellants. To hold
otherwise would have rendered the statute unconstitutional and defeated the legislative intent
to facilitate the prosecution of crimes involving the corruption of public officials. Because the
district court correctly interpreted NRS 199.090 to provide appellant's with derivative use
immunity, we conclude that appellant cannot demonstrate error in the justice's court's
contempt citations. Thus, the district court properly determined that appellants are not entitled
to writs of habeas corpus. Accordingly, we affirm the judgment of the district court.
1

____________
105 Nev. 810, 810 (1989) Whitney v. State, Employment Security Dep't
RICHARD A. WHITNEY, Appellant, v. STATE OF NEVADA, DEPARTMENT OF
EMPLOYMENT SECURITY, Respondent.
No. 19611
December 6, 1989 783 P.2d 459
Appeal from district court order affirming decision of the Nevada Employment Security
Department Board of Review. Eighth Judicial District Court, Clark County; Addeliar D. Guy,
Judge.
Unemployment compensation claimant sought review of State Employment Security
Department Board of Review's determination that he was ineligible for unemployment
compensation and had willfully and fraudulently withheld the fact of his self-employment.
The district court affirmed. Claimant appealed. The Supreme Court, Springer, J., held that:
(1) claimant's promotional activities on behalf of corporation did not constitute
employment or self-employment, and (2) absent duty to report his activities to
Employment Security Department, claimant's failure to report could be neither fraudulent nor
willful.
Reversed.
Steffen, J., dissented.
Beury & Schubel, Las Vegas, for Appellant.
Crowell, Susich, Owen & Tackes, Carson City; Jeffrey L. Eskin, Las Vegas, for
Respondent.
__________

1
In light of this disposition, we note that appellants can purge themselves of their contempt by testifying at
the preliminary hearing.
Unemployment compensation claimant's promotional activities on behalf of unsuccessful corporation did not constitute
employment or self-employment so as to render him ineligible for unemployment benefits. NRS 612.065.
Because unemployment compensation claimant was not engaged in any type of employment, he had no duty to report his activities
to State Employment Security Department and, accordingly, his failure to report could be neither fraudulent nor willful.
Absent definition of self-employed, unemployment compensation claimant charged with failing to report employment activities
to State Employment Security Department could not be considered self-employed. U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
Basic concepts of fairness and due process require that one who is charged with wrongdoing be put on notice as to what conduct
constitutes wrong. U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
OPINION
Richard A. Whitney appeals an order of the district court which affirmed a decision by the
Nevada Employment Security Department Board of Review that he was ineligible for
unemployment compensation and had willfully and fraudulently withheld the fact of his
self-employment.
Whitney, together with a business associate, Oded S. Kleinbaum, formed Griffin
Helicopters International, Inc., a corporation whose goal was to operate a helicopter cargo
service. Although the incorporators filed articles of incorporation, they did not follow all of
the required corporate formalities. The corporation did have a telephone, bank account, and
post office box. Attempts to obtain financing to purchase a helicopter necessary to conduct
the corporate business failed. As a result, the corporation never actually entered into the
business activity for which it was formed and consequently became defunct. Although
Kleinbaum received regular compensation from the corporation, Whitney received none. The
corporation did, however, reimburse Whitney for expenses he incurred while attempting to
procure investors and business equipment for the corporation.
During the time of Whitney's promotional activities for the corporation, Whitney applied
for and received unemployment benefits from the Nevada Employment Security Department
(NESD). He did not report his activities related to the corporation at that time. After the
corporation's activities ceased, Whitney voluntarily went to the NESD to report that
Kleinbaum had been drawing a salary from the corporation and at the same time had
been drawing unemployment benefits.
voluntarily went to the NESD to report that Kleinbaum had been drawing a salary from the
corporation and at the same time had been drawing unemployment benefits.
Following Whitney's report, the NESD initiated an investigation. The NESD determined
that Whitney had been self-employed and ordered him to pay back funds received while so
employed. Whitney requested a hearing. The hearing referee not only upheld the
determination of self-employment but also determined that Whitney willfully and
fraudulently failed to report his so-called self-employment. As a result, the referee declared
him to be ineligible for benefits for one year and ordered him to repay all benefits received.
The referee's determinations were upheld on administrative appeal and again by the district
court. Whitney now contends that the district court's affirmance was in error. We agree.
A court reviewing an administrative decision of the NESD is limited to the record below
and to a determination of whether the board acted arbitrarily or capriciously. NRS
233B.140(4)-(5). Nev. Employment Sec. Dep't v. Nacheff, 104 Nev. 347, 349, 757 P.2d 787,
788 (1988); State Employment Sec. Dep't v. Taylor, 100 Nev. 318, 320, 683 P.2d 1, 2 (1984);
State Employment Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984);
McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). If the agency's findings of
fact are supported by substantial evidence, they are conclusive. NRS 233B.140(5); NRS
612.530(4); Nacheff, 104 Nev. at 349, 757 P.2d at 789.
[Headnotes 1, 2]
We conclude that, in this case, there is no substantial evidence to support the NESD's
decision. The promotional activities engaged in by Whitney did not constitute employment
or self-employment; therefore, he was not ineligible for unemployment compensation.
Because Whitney was not engaged in any type of employment, he had no duty to report his
activities to the NESD; thus, his failure to report could be neither fraudulent nor willful. In
addition, Whitney's voluntary reporting and cooperation with the investigation evidence a
lack of intent to commit fraud.
The NESD determination incorrectly assumes that Whitney's activities were either
employment or self-employment. It is clear from the record that Whitney was not
employed by the corporation, nor was he employed by himself. Unlike his associate,
Kleinbaum, Whitney was not working for wages or under any contract of hire . . . , which is
the statutory definition of employment. See NRS 612.065.
[Headnotes 3, 4]
In addition, Whitney could not be considered self-employed, because self-employment is
undefined. Basic concepts of fairness and due process require that one who is charged with a
wrongdoing be put on notice as to what conduct constitutes the wrong. U.S. Const. amend.
XIV; Nev. Const. art. 1, 8; Eaves v. Bd. of Clark County Comm'rs, 96 Nev. 921, 923, 620
P.2d 1248, 1249-50 (1980). The attorney for the NESD stated at oral argument that the NESD
has no statutory, regulatory or commonlaw definition of self-employment and conceded that
it was unclear whether Whitney's activities constituted self-employment.
1
Although Whitney
was fully aware of the nature of his activities, he could not be expected to realize that what he
was doing would later be characterized by NESD officials as self-employment. We, too, are
hard pressed to determine which of Whitney's activities might be said to have constituted
self-employment. He did not work for wages or under contract, either for himself or the
corporation. Instead, he engaged in activities as a promoter for a fledgling corporation in the
hope that eventually his efforts might bring about some reward. Under such circumstances it
would be unreasonable to conclude that Whitney was self-employed and that his failure to
report was fraudulent. If the NESD expects to punish recipients for failure to report
self-employment, it should at least provide them with a definition of that term.
The NESD determination also incorrectly assumes that because Whitney certified on his
weekly claim forms that he was not self-employed, he fraudulently and willfully
misrepresented the facts of his self-employment. This assumption is flawed for two reasons.
First, as discussed above, Whitney was not engaged in any type of employment. He was under
no obligation to report non-employment activities to the NESD; thus, his failure to report his
involvement with Griffin Helicopters could not have been fraudulent.
Second, the reasoning behind the NESD determination is circularit assumes Whitney
did not report because he was attempting fraud; it assumes he was attempting fraud
because he did not report.
__________

1
It can be argued that one who works for a corporation can never be self employed because a corporation
is an entity distinct from the individual. However, other jurisdictions will consider whether a person is self
employed when the connection between the individual and the corporation is so close that the corporation would
likely not exist without the involvement of that particular individual. In this case, however, because Griffin
Helicopters had not succeeded in obtaining the one asset essential to its purpose, a helicopter, it was incapable of
being a source of self-employment. See Kenna v. Employment Sec. Dep't, 545 P.2d 1248 (Wash.App. 1976).
circularit assumes Whitney did not report because he was attempting fraud; it assumes he
was attempting fraud because he did not report. Other evidence in the record counters the
assumption that Whitney was motivated by an intent to defraud the system. He voluntarily
informed the NESD of Kleinbaum's improper claim. He volunteered information regarding
his own involvement in Griffin Helicopters. He cooperated with the investigation and
voluntarily turned over records. Such evidence runs contrary to the conclusion that Whitney
was attempting to commit fraud by knowingly making a false representation regarding his
employment.
Having found no substantial evidence to support the NESD's decision, we reverse the
decision of the district court, both as to the determination that appellant was self-employed
and the determination that his failure to report was fraudulent and willful.
Young, C. J., Mowbray and Rose JJ., concur.
Steffen, J., dissenting:
The majority has concluded that there is no factual or legal basis for affirming the rulings
of the hearing referee, the Nevada Employment Security Department Board of Review and
the district court. I disagree.
I suggest that there are two fundamental weaknesses in the majority opinion that render it
unsound. First, the majority equates promotional activities with non-employment. Second, the
majority concludes that promoters cannot be considered self-employed,' because
self-employment is undefined.
Historically, many individuals in this state and nation have spurned secure, gainful
employment in favor of promotional ventures having speculative potential for greater
promise. Obviously, some succeed and many fail in such endeavors. Whitney and his
business associate, Kleinbaum, chose to concentrate their time, talents and other assets in
the pursuit of a personal commercial enterprise which they expected to yield greater financial
reward than a salaried position with another employer. I seriously question whether either of
them genuinely believed that they could legitimately devote their time and energies in such an
enterprise at the expense of the state's unemployment compensation fund.
Nevada's unemployment compensation scheme denies extended benefits to individuals
who fail to actively engage in systematic and sustained effort to obtain work or fail to
provide tangible evidence of such efforts. NRS 612.392(1)(b) and (c). If, as the majority
contends, promotional efforts do not constitute "employment," neither would they
constitute "systematic and sustained effort to obtain work."
employment, neither would they constitute systematic and sustained effort to obtain
work. If Whitney's time and efforts were directed to and consumed by activities that did not
qualify as employment or actively engag[ing] in systematic and sustained effort to obtain
work, he failed to engage in effort requisite to unemployment compensation eligibility.
Whitney also failed to forthrightly report the nature and extent of his activities as required by
the statute.
Moreover, the majority refuses to recognize Whitney's promotional endeavors as
self-employment simply because self-employment is undefined in the statute. The majority
thus denies meaning or effect to NRS 612.185(3)(a) which specifies that no person shall be
deemed to be unemployed in any week in which he is self-employed.
In State ex rel. Cooper v. Roth, 44 N.E.2d 456, 458 (Ohio 1942), the court said the term
employment' connotes service or that which engages one's time or attention. It may be with
or without compensation. The term employment is also defined in part as that which
engages or occupies; that which consumes time or attention. Black's Law Dictionary 471
(5th ed. 1979).
It seems apparent that one who consumes his time and resources on his own behalf in
activities calculated to provide personal financial gain is self-employed. Under the majority's
ruling, an individual could engage in a wide variety of activities, such as landscaping or
carpet-cleaning, and be subsidized in even the most profitable of such activities by
unemployment compensation because the term self-employment is not defined in the
statute. I simply cannot endorse such a myopic and obstructive view of the statutory scheme.
If the statute requires a degree of interpolation based upon what is obvious, natural and
reasonable to achieve its intended purposes, then this court should accommodate that need
rather than partially nullify the statute or transmute it into an operational absurdity. By virtue
of the majority opinion, individuals in Nevada may engage in any form of self-employment,
no matter how lucrative, and concomitantly qualify for unemployment compensation until the
legislature supplies a statutory definition of self-employment.
The majority secondarily maintains that Whitney could not have been self-employed
because his activities were under the auspices of Griffin Helicopters International, Inc., a
corporation. Thus, because he was not working for wages or under any contract of hire,
NRS 612.065, and could not be self-employed because he was working for a corporation,
Whitney had managed to place himself within the interstices of a faulty statute where
reporting was obviated and benefits accommodated. With due respect to my brethren, I
cannot accept such reasoning. Whitney himself described Griffin as a "research shell."
himself described Griffin as a research shell. He further stated that he was in business as
Griffen [sic] Helicopter but it was in the beginning stages. I owned no machine. It was more
an exploration than an actual business. It seems clear to me that Whitney was self-employed
in promoting what he hoped would be a profitable foundation for a corporate vehicle that
would provide him financial benefits.
Finally, the majority ascribes virtue to Whitney's belated revelation of Kleinbaum's
fraudulent receipt of unemployment compensation. I suggest that Whitney, who certainly
must have known all along that both he and Kleinbaum were receiving unemployment
benefits, was motivated more by spite or retribution than feelings of civic duty as he revealed
Kleinbaum's fraud only after the two had severed their business connections.
For the reasons noted above, and because the evidence substantially supports the rulings of
the hearing referee and the Nevada Employment Security Department Board of Review, I
agree with the decision of the district court and would affirm.
____________
105 Nev. 816, 816 (1989) United Ass'n of Journeymen v. Manson
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY, Appellants, v. DOROTHY JEAN MANSON,
GARY L. MANSON and GREGG W. MANSON, Respondents.
No. 19623
December 6, 1989 783 P.2d 955
Appeal from orders of the district court granting summary judgment and dismissing the
third-party claim. Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Former wife brought action against union after union paid former husband's death benefits
to funeral home and husband's son in accordance with change of beneficiary executed by
another son under power of attorney. Union answered and later filed third-party complaint
against sons. The district court granted wife's motion for summary judgment and dismissed
third-party claim. Appeal was taken. The Supreme Court held that: (1) wife's submission of
motion for summary judgment, which was subsequently granted, constituted bringing action
to trial for purpose of rule requiring that action be brought to trial within five years of filing,
and (2) dismissal of third-party claim was mandatory when not brought to trial within five
years of wife's filing original action, although dismissal did not have to be with prejudice.
original action, although dismissal did not have to be with prejudice.
Affirmed with modification.
Langton & Kilburn, Reno, for Appellants.
James C. Van Winkle, Reno, for Respondent Dorothy Jean Manson.
Hamilton & Lynch, Reno, for Respondents Gary L. Manson and Gregg W. Manson.
Submission of motion for summary judgment before expiration of five-year period for bringing action to trial
constituted bringing action to trial where motion was subsequently granted, although motion standing alone would not
be sufficient. NRCP 41(e).
Rule giving five years for trial of action mandated dismissal of third-party claim that was not brought to trial
within five years of filing of original action, notwithstanding third-party plaintiff's contention that it should have been
given five years from date it filed its claim; unlike claim, action included original claim as well as crossclaims,
counterclaims, and third-party claims. NRCP 41(e).
Dismissal of third-party plaintiff's claim because it was not brought to trial within five years of date original
complaint was filed did not have to be with prejudice, and could be without prejudice if trial court, in its discretion,
determined that justice so required. NRCP 41(e).
OPINION
Per Curiam:
NRCP 41(e) mandates dismissal of an action that has not been brought to trial within five
years of the filing of the plaintiff's complaint.
1
In this case, the district court correctly held
that the submission of a motion for summary judgment which is subsequently granted
constitutes bringing an action to trial. The district court also correctly held that dismissal of a
third-party claim becomes mandatory when the claim has not been brought to trial within five
years of the time the original plaintiff commenced the action.
__________

1
NRCP 41(e) provides, in pertinent part, as follows:
Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall
have been commenced or to which it may be transferred on motion of any party, or on the court's own
motion, after due notice to the parties, unless such action is brought to trial within five years after the
plaintiff has filed his action.
action. The district court, however, erred in believing that NRCP 41(e) mandates dismissal
with prejudice. We modify the dismissal with prejudice to a dismissal without prejudice and
affirm the district court's orders in all other respects.
Facts and Procedural History
Gerald Manson and respondent Dorothy Manson were divorced on January 11, 1983.
Respondents Gary and Gregg Manson were the sons of Gerald Manson but were not related
to Dorothy Manson after their father divorced her in 1983. Gerald Manson died on March 5,
1983. At the time of his death, his designated beneficiary was entitled to death benefits of
$3,000 from a fund managed by appellant United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry, Local 350 (Local 350).
On February 24, 1983, while in St. Mary's Hospital in Reno, Gerald executed a power of
attorney to his son Gary. And on March 4, 1983, Gary executed a death benefit beneficiary
designation card naming his brother Gregg as the beneficiary of Gerald's death benefits in the
place of Dorothy Manson and delivered it to Local 350. Gary had executed this card under the
power of attorney.
On March 5, 1983, Gerald died. Gregg then assigned the proceeds of the death benefit to a
funeral home for his father's funeral. Local 350 paid approximately $2,100 to the funeral
home and paid the remaining $900 to Gregg.
Dorothy Manson filed a complaint against Local 350 on April 14, 1983, claiming that the
death benefits should have been paid to her because the death beneficiary designation card
executed by Gary Manson was invalid. Local 350 answered the complaint and later filed a
third-party complaint against Gary and Gregg Manson on August 3, 1983, to recover any
amount that Dorothy Manson might obtain from Local 350.
Dorothy Manson filed a motion for summary judgment on October 17, 1986, but the court
denied that motion. On January 20, 1988, Dorothy Manson again filed a motion for summary
judgment. The district court granted this motion in favor of Dorothy Manson on June 10,
1988. Before the district court entered this order, however, five years had passed since
Dorothy Manson had filed her complaint.
On June 22, 1988, the court scheduled a trial on Local 350's third-party claim against Gary
and Gregg Manson for July 15, 1988. But on July 14, 1988, Gary and Gregg Manson moved
that the third-party claim be dismissed because it had not come to trial within five years of the
filing of the original complaint in the action.
action. The next day, Local 350 was ready to go to trial, but the court dismissed the
third-party claim because it had not been brought to trial within five years of the filing of
Dorothy Manson's complaint, even though five years had not elapsed since Local 350 had
filed its third-party complaint against Gary and Gregg Manson.
Denial of Local 350's Motion to Dismiss Dorothy Manson's Claim
[Headnote 1]
Local 350 first contends that Dorothy Manson did not bring her action to trial within five
years as required by NRCP 41(e) and that the court should have dismissed the case rather
than granting Dorothy Manson's motion for summary judgment. As can be seen from the
procedural history in this case, Dorothy Manson brought two motions for summary judgment
against Local 350 before the five years expired. The first motion was denied. The second
motion was granted after the five years had expired, even though the motion had been
submitted before the five years had expired.
The California courts have dealt with the question of whether a motion for summary
judgment amounts to bringing the case to trial, and they have hinged their answer on whether
the motion was granted.
2
In no instance have those courts found that the filing of a motion
for summary judgment that was eventually denied constituted bringing the case to trial. See,
e.g., Bella Vista Dev. Co. v. Superior Court, 36 Cal.Rptr. 106, 112 (Cal.App. 1963) (holding
that denial of motion for summary judgment merely a determination that there remain issues
of triable fact and, therefore, not a trial). Thus, a motion for summary judgment, without
more, is insufficient to constitute bringing the case to trial. However, the California courts
have unanimously held that, when a motion for summary judgment has been granted, the case
has been brought to trial. Bella Vista, above; Southern Pac. Co. v. Seaboard Mills, 24
Cal.Rptr. 236 (Cal.App. 1962); see also Berri v. Superior Court, 279 P.2d 8 (Cal. 1955)
(ruling that court's sustaining of demurrer to complaint without leave to amend constituted
bringing the case to trial). These courts have come to this conclusion by defining a trial as
the examination before a competent tribunal, according to the law of the land, of questions
of fact or of law put in issue by pleadings, for the purpose of determining the rights of the
parties."
__________

2
NRCP 41(e), mandating dismissal of an action not brought to trial within five years, is virtually the same as
the former 1943 NCL 9932 which was adopted from California Code of Civil Procedure 583 in 1943. See
Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 (1948).
pleadings, for the purpose of determining the rights of the parties. Bella Vista, above, at 109,
quoting Adams v. Superior Court, 345 P.2d 466, 469 (Cal. 1959). Since the denial of a
motion for summary judgment merely involves a finding that there remain triable issues of
fact, it is not a trial. On the other hand, the granting of a motion for summary judgment
involves first finding that no triable issues of fact remain and then determining the rights of
the parties by applying the law to the facts. Bella Vista, above, at 109.
In this case, Dorothy Manson moved for summary judgment, and that motion was
submitted to the court before the five years had expired. Since the court ruled in her favor, the
submission of the motion for summary judgment before the expiration of the five-year period
for bringing the case to trial constituted bringing the case to trial. The court properly denied
Local 350's subsequent motion to dismiss for failure to bring the case to trial within five
years.
Dismissal of Local 350's Third-Party Claim
[Headnote 2]
This issue again deals with NRCP 41(e) which mandates dismissal if a case is not brought
to trial within five years. Local 350 did not attempt to bring its third-party claim against Gary
and Gregg Manson to trial until after five years had passed from the time Dorothy Manson,
the original plaintiff, had filed her complaint. Upon Gary and Gregg Manson's motion, the
court dismissed the case. Local 350 now contends that it should have had five years to bring
the case to trial from the time it filed its third-party complaint against Gary and Gregg
Manson, rather than from the time Dorothy Manson filed her complaint.
NRCP 41(e) gives five years for trial of an action, not of a claim. Unlike a claim, an
action includes the original claim and any crossclaims, counterclaims, and third-party claims.
In fact, NRCP 41(c) specifically states that the rule applies to crossclaims, counterclaims, and
third-party claims. NRCP 2 states that [t]here shall be one form of action to be known as
civil action'. NRCP 3 states that [a] civil action is commenced by filing a complaint with
the court. NRCP 14(a) then provides for a third-party claim, stating that a defending party,
[a]t any time after the commencement of the action, . . . may cause a summons and
complaint to be served upon a person not a party to the action. . . . (Our emphasis.) Thus,
the original claim and any crossclaims, counterclaims and third-party claims are all part of
one action. Under the language of NRCP 41(e), the action commences when the plaintiff
files a complaint, and the five-year period for bringing the action to trial begins to run.
[Headnote 3]
This action commenced on April 14, 1983, when Dorothy Manson filed her complaint.
The five years for bringing the action to trial expired on April 14, 1988, and Local 350 had
not brought the action to trial. Therefore, the district court was correct that dismissal was
mandatory under NRCP 41(e). However, the court in its order stated that the expiration of
five years makes dismissal with prejudice mandatory. . . . This is an incorrect statement of
the law and reveals the court's basic misunderstanding of NRCP 41(e). The last sentence of
NRCP 41(e) states that dismissal under this subdivision (e) is a bar to another action upon
the same claim for relief against the same defendants unless the court otherwise provides.
The district court had no choice but to dismiss the action, but when justice so requires the
court may dismiss the action without prejudice. See Schramm v. El-Khatib, 82 Nev. 22, 409
P.2d 888 (1966). The district court's misapprehension of NRCP 41(e) and the failure to
exercise the discretion given by the rule were plain error. See Bradley v. Romeo, 102 Nev.
103, 716 P.2d 227 (1986).
Local 350's claim against Gary and Gregg Manson did not ripen until the court granted
summary judgment for Dorothy Manson on June 10, 1988. On that date, however, the five
years for bringing the action to trial had already expired. Under NRCP 41(e), Local 350 had
to bring its third-party claim to trial before it ripened. Accordingly, justice would require that
the district court exercise its discretion by dismissing Local 350's third-party claim without
prejudice.
We have considered all of Local 350's contentions on appeal, and we hold that the district
court erred only in dismissing Local 350's third-party claim with prejudice. We therefore
modify the order of the district court to state that the third-party claim is dismissed without
prejudice, instead of with prejudice. And with that modification, we affirm.
____________
THE STATE OF NEVADA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE AND
THE HONORABLE ROBERT L. SCHOUWEILER, DISTRICT JUDGE,
Respondents, and THADDEUS GILES, Real Party in Interest.
No. 19995
December 6, 1989 783 P.2d 463
Petitioner for a writ of mandamus compelling respondents Second Judicial District Court
and Robert L. Schouweiler, Judge, to vacate an order sealing the criminal records of real party
in interest Thaddeus Giles and to establish an evidentiary hearing on Giles' petition to seal his
records.
The State petitioned for writ of mandamus compelling district court to vacate order sealing
a person's criminal records and to conduct an evidentiary hearing. The Supreme Court held
that, unless the parties stipulate otherwise, it is error for district court to grant a record sealing
petition without first conducting an evidentiary hearing.
Petition granted.
Guy Sage, Deputy District Attorney, Washoe County, for Petitioner.
Dean R. Heidrich, Reno, for Respondents.
1. Criminal Law.
Unless the parties stipulate otherwise, it is error for district court to grant a petition to seal a person's criminal records without first
conducting an evidentiary hearing. NRS 179.255, 179.255, subd. 3.
2. Criminal Law.
Once the prerequisite findings have been made pursuant to statute, the decision whether to grant a petition sealing a person's
criminal records is within the sound discretion of the district court. NRS 179.255.
OPINION
Per Curiam:
In this mandamus proceeding, petitioner challenges an order of respondent district court
granting the petition of real party in interest and ordering certain criminal records sealed. We
hold that the underlying order was improperly issued and therefore grant the petition.
[Headnote 1]
On July 14, 1988, Giles filed a petition to seal the records of his arrests and of the
proceedings leading to the district court's March 30, 1987 dismissal of all charges against
him. The State opposed the motion. The district court, without having conducted an
evidentiary hearing, granted Giles' petition by order entered August 3, 1988. The State filed
the instant petition on May 9, 1989, and urges that, unless the parties stipulate otherwise, it is
error for the district court to grant a record sealing petition pursuant to NRS 179.255 without
first conducting an evidentiary hearing.
1
We agree.
[Headnote 2]
NRS 179.255(3) provides that the district court may order a person's criminal records
sealed only if, after a hearing, the court finds that there has been an acquittal or that the
charges were dismissed and there is no evidence that further action will be brought against
the person. Once the prerequisite findings have been made, the decision whether to grant the
record sealing petition is a matter within the sound discretion of the district court. A hearing
may illuminate facts and circumstances which would assist the district court in exercising its
discretion. See Collier v. Legakes, 98 Nev. 307, 311, 646 P.2d 1219, 1221 (1982).
For the foregoing reasons, we grant the State's petition. The clerk of this court shall
forthwith issue a writ of mandamus directing respondents to vacate the record sealing order
and to conduct an evidentiary hearing on the underlying petition.
__________

1
Sealing records after dismissal or acquittal: Petition; notice; hearing; order.
1. A person who has been arrested for alleged criminal conduct, where the charges were dismissed or
such person was acquitted of the charge, may after 30 days from the date the charges were dismissed or
from the date of the acquittal petition the court in and for the county where such arrest was made for the
sealing of all records relating to the arrest.
2. The court shall notify the district attorney of the county in which the arrest was made, and the
district attorney and any person having relevant evidence may testify and present evidence at the hearing
on the petition.
3. If after hearing the court finds that there has been an acquittal or that the charges were dismissed
and there is no evidence that further action will be brought against the person, the court may order sealed
all records of the arrest and of the proceedings leading to the acquittal which are in the custody of the
court, of another court in the State of Nevada or of a public or private company, agency or official in the
State of Nevada.
____________
105 Nev. 824, 824 (1989) Sheriff v. Marcum
SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant v. LAWRENCE CARL
MARCUM, Respondent.
No. 19701
SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant v. PAUL KNIGHT HARBIN,
Respondent.
No. 19856
December 20, 1989 783 P.2d 1389
Consolidated appeals from a decision granting respondents' petition for a writ of habeas
corpus. Sixth Judicial District Court, Humboldt County; Llewellyn Young, Judge.
Defendants filed pretrial petition for writ of habeas corpus on ground of lack of reasonable
notice of grand jury proceedings at which they were indicted. Petition was granted by the
district court and Sheriff appealed. The Supreme Court held that reasonable notice is required
before a defendant is indicted by grand jury, and one-day notice was unreasonable.
Affirmed.
Jack T. Bullock, District Attorney and Edward T. Reed, Deputy District Attorney,
Humboldt County, for Appellants.
Virginia R. Shane, Winnemucca, for Respondent Marcum.
Terri Steik Roeser, State Public Defender and John C. Lambrose, and Jeffrey M. Evans,
Deputy State Public Defenders, Carson City, for Respondent Harbin.
Brian McKay, Attorney General and David Sarnowski, Deputy Attorney General, Carson
City, for Amicus Curiae.
1. Statutes.
When language of statute is ambiguous, court will construe it in line with legislative intent, reason and public policy.
2. Grand Jury.
Reasonable notice is required before a defendant is indicted by a grand jury, in light of statutes giving target defendants right to
testify in front of grand jury, and one-day notice was unreasonable. NRS 172.095, subd. 1(d), 172.241.
OPINION
Per Curiam:
Appellant Sheriff of Humboldt County (State) asks this court to reverse the district
court's decision granting respondents' {Harbin and Marcum) petition for a writ of habeas
corpus.
reverse the district court's decision granting respondents' (Harbin and Marcum) petition for a
writ of habeas corpus. We affirm the district court's decision.
FACTS
On May 29, 1987, Harbin and Marcum were arrested in Humboldt County and charged
with various offenses. The grand jury indicted both men on all charges. The district court
granted Harbin's and Marcum's petition for a writ of habeas corpus because, among other
reasons, the district attorney failed to give them reasonable notice of the grand jury
proceedings in which they were indicted. The State appealed to this court and we dismissed
the appeal.
On January 12, 1988, the district attorney informed Harbin's and Marcum's prior attorneys
that he would ask the grand jury to indict their former clients the next day. Harbin's attorney
requested more time and advised the district attorney that he could not reach his former client.
Marcum was in prison at the time. No notice was personally given to either Harbin or
Marcum before the grand jury hearing at which they were indicted for grand larceny and
possession of burglary tools.
Harbin and Marcum filed a pretrial petition for a writ of habeas corpus contending that the
district attorney had not given them reasonable notice of the grand jury proceedings at which
they were indicted. The district court held that pursuant to NRS 172.095(1)(d) and NRS
172.241 a target defendant has the right to testify before the grand jury. The court reasoned
that since a target defendant has the right to testify before the grand jury, it follows that he has
a right to be notified that the grand jury is about to indict him. Without such notice, the right
to testify would be meaningless and the statute allowing it would be a nullity. Finally, the
court held that five days notice to a target defendant is reasonable notice. Thus, the district
court granted Harbin's and Marcum's petition for a writ of habeas corpus. The State now
appeals that decision.
LEGAL DISCUSSION
The State agrees that a target defendant has a right to testify before a grand jury indicts
him, but maintains that this right is contingent upon his knowledge of the grand jury
proceedings. Thus, the State contends that notice to a grand jury defendant is permissive, not
mandatory. The State maintains that the legislative history of Senate Bill 103, which deals
with grand jury hearings, supports its contentions.
[Headnote 1]
We note that although both NRS 172.095(1)(d)
1
and NRS 172.241
2
give a defendant the
right to testify before a grand jury, both statutes are silent regarding a defendant's right to
have notice of the grand jury proceedings at which he may be indicted. Since these statutes
could be interpreted differently by reasonable people, we conclude that they are ambiguous in
regard to whether notice is mandatory or permissive. When the language of a statute is
ambiguous, the court will construe it in line with legislative intent, reason and public policy.
Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983).
We have investigated the legislative history of Senate Bill 103 and find no clear intent on
the part of the legislature as to whether a target defendant must be given notice before a grand
jury indicts him. Therefore, we will construe these statutes in line with reason and public
policy.
[Headnote 2]
NRS 172.095(1)(d) and NRS 172.241 clearly give a defendant the right to testify in front
of a grand jury before he is indicted. This right would be meaningless if a defendant is not
given notice that a grand jury will meet and consider returning an indictment against him.
Without the right to notice, a defendant has only two ways of finding out an indictment
against him is being considered. The first is by accident. A defendant's right to testify should
not depend on luck. The second way a defendant might learn of a grand jury proceeding
against him is from the district attorney. This would give the district attorney the power to
inform or not inform any target defendant against whom an indictment is requested. To give
the district attorney such discretion is unreasonable.
Finally, we conclude that giving a defendant notice that he is a target of a grand jury
investigation is consistent with the policy of avoiding unnecessary trials. A defendant who
has notice that he is the subject of a possible indictment may present the grand jury with
evidence which exonerates him.
__________

1
NRS 172.095(1)(d) provides that in its charge to the grand jury, the court shall:
Inform the grand jurors that the failure of a person to exercise his right to testify as provided in NRS
172.241 must not be considered in their decision of whether or not to return an indictment.
(Emphasis added.)

2
NRS 172.241 provides that:
A person whose indictment the district attorney intends to seek or the grand jury on its own motion
intends to return, but who has not been subpenaed to appear before the grand jury, may testify before the
grand jury if he requests to do so and executes a valid waiver in writing of his constitutional privilege
against self-incrimination.
(Emphasis added.)
the subject of a possible indictment may present the grand jury with evidence which
exonerates him. Hence, in some instances notice to the target defendant will eliminate the
need for a trial.
For the above reasons, we conclude that the district court correctly found that reasonable
notice is required before a defendant is indicted by a grand jury, and the court was correct in
finding that a one-day notice was unreasonable. Therefore, we affirm the district court's
decision.
Steffen, A.C.J., Springer, Mowbray, and Rose, JJ., and Zenoff, Sr. J.,
3
concur.
__________

3
The Honorable Thomas L. Steffen, Acting Chief Justice, appointed the Honorable David Zenoff, Senior
Justice, to sit in place of the Honorable Cliff Young, Chief Justice.
____________
105 Nev. 827, 827 (1989) Bonds v. State
KEVIN BONDS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19353
December 20, 1989 784 P.2d 1
Appeal from judgment of conviction of one count of driving under the influence of
alcohol, a felony. Third Judicial District Court, Lyon County; Archie E. Blake, Judge.
Defendant was convicted in the district court of driving under the influence of alcohol, and
he appealed. The Supreme Court held that one prior DUI conviction should not have been
used to enhance current offense to a felony.
Terri Steik Roeser, Nevada State Public Defender and John C. Lambrose, Chief Deputy,
Brian McKay, Attorney General, Carson City; William G. Rogers, District Attorney and
Eileen Barnett, Deputy District Attorney, Lyon County, for Respondent.
1. Automobiles.
Prior misdemeanor conviction that was obtained pursuant to guilty plea may not be used to enhance a DUI conviction to a felony
unless the district court determines that the records supporting the conviction demonstrate that defendant was either represented by
counsel or formally waived his right to counsel; once that preliminary determination is made, validity of the prior guilty plea is
established if the records of the misdemeanor prosecution reflect that spirit of constitutional principles was respected in that
proceeding. NRS 484.3792.
105 Nev. 827, 828 (1989) Bonds v. State
2. Automobiles.
Record of defendant's prior DUI conviction pursuant to guilty plea did not establish that defendant waived his right to counsel, and
the conviction could not be used to enhance his subsequent DUI offense to a felony, where defendant initialled paragraph indicating
that he waived his right to representation by an attorney and paragraph indicating that he did not waive his right to be represented by
an attorney.
OPINION
Per Curiam:
On March 19, 1988, at approximately 3:00 a.m., appellant was arrested for driving under
the influence of intoxicating liquor (DUI). Because appellant had two prior convictions for
DUI within the last seven years, the state charged appellant with felony DUI. See NRS
484.3792. Appellant then waived his right to a preliminary hearing and proceeded directly to
arraignment where, pursuant to negotiation, he pleaded guilty to one count of DUI.
Appellant objected at his sentencing hearing to the admission of his prior DUI convictions.
Specifically, appellant argued that neither of the two exhibits offered by the state to prove the
existence of appellant's two prior DUI convictions met the standard set forth by this court in
Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983). The district court disagreed, admitted both
exhibits, and sentenced appellant to a term of three years in the Nevada State Prison. The
district court also ordered appellant to pay a fine of $2,000.00. This appeal followed.
[Headnote 1]
Appellant first contends that the district court erred when it determined that the documents
used by the state to evidence appellant's 1987 conviction were sufficient to establish that the
conviction was constitutionally obtained. We agree. Appellant's 1987 conviction for
misdemeanor DUI was obtained pursuant to a guilty plea. In Koenig v. State, 99 Nev. 780,
672 P.2d 37 (1983), this court held that the records supporting a misdemeanor conviction
obtained pursuant to a guilty plea need not meet the same stringent standard as the records
supporting a felony conviction that was obtained pursuant to a guilty plea. 99 Nev. at 789,
672 P.2d at 43. This court recognized, however, that a prior misdemeanor conviction that was
obtained pursuant to a guilty plea may not be used to enhance a DUI conviction to a felony
unless the district court determines that the records supporting the conviction demonstrate
that the defendant was either represented by counsel or formally waived his right to counsel.
Id. at 788, 672 P.2d at 42. See also Baldasar v. Illinois, 446 U.S. 222 {19S0), reh. den.
105 Nev. 827, 829 (1989) Bonds v. State
(1980), reh. den. 447 U.S. 930 (1980). Once this preliminary determination is made, the
validity of the prior guilty plea is established if the records of the misdemeanor prosecution
reflect that the spirit of constitutional principles was respected in that proceeding. Koenig,
99 Nev. at 788-790, 672 P.2d at 43.
[Headnote 2]
In the present case, the record of appellant's 1987 conviction contains a waiver of rights
form which reflects that appellant was advised of the following rights in that proceeding:
1. The right to plead guilty or not guilty;
2. The right to trial by jury or the court;
3. The right to confront the witnesses against him;
4. The right to present evidence and to testify on his own behalf or to remain silent;
5. The right to have witnesses subpoenaed and to obtain evidence on his behalf;
6. The right to have counsel of his own choosing or court-appointed counsel if he was
unable to afford counsel;
7. The right against self-incrimination.
On page two of that form, however, appellant initialed both of the following paragraphs:
9. Defendant waives (gives up) his right to be represented by an attorney.
10. Defendant does not waive (give up) his right to be represented by an attorney.
Under these circumstances, it is impossible to conclude that appellant knowingly waived
his right to counsel prior to entering his guilty plea in the 1987 prosecution. Therefore, we
conclude that appellant's 1987 conviction should not have been used to enhance appellant's
present DUI offense to a felony.
Appellant also contends that the district court erred when it determined that the records
supporting his 1983 conviction for misdemeanor DUI were sufficient to enhance appellant's
present conviction to a felony. We have reviewed those records, however, and we have
determined that they reflect that appellant was represented by counsel in the 1983
prosecution, and that the spirit of constitutional principles was respected in that proceeding.
See Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983). Therefore, the district court did not err
when it determined that appellant's 1983 conviction was constitutionally obtained. Id.
Because the district court erred when it determined that appellant's 1987 conviction was
constitutionally obtained, we reverse appellant's conviction for felony DUI, and we remand
this case to the district court with instructions to sentence appellant as a second-time DUI
offender.
____________
105 Nev. 830, 830 (1989) Westergard v. Barnes
ROLAND D. WESTERGARD, Chairman of the Department of Personnel
Employee-Management Committee; DEPARTMENT OF PERSONNEL; and
DEPARTMENT OF MOTOR VEHICLES and PUBLIC SAFETY, HIGHWAY
PATROL DIVISION, Appellants, v. GERALD BARNES, Respondent.
No. 19752
December 20, 1989 784 P.2d 944
Appeal from judgment of the district court. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
State trooper filed petition for review of Department of Personnel decision upholding
denial of his grievance brought on grounds that Highway Patrol failed to follow proper
procedure for promotion and reinstatement and breached covenant of good faith and fair
dealing by reinstating former highway patrol officer to position sought by trooper. The district
court entered judgment in favor of trooper, and Department appealed. The Supreme Court
held that: (1) inadequate findings of fact required remand to Department, and (2) former
highway patrol officer could be reinstated without participation in competitive process.
Reversed and remanded with instructions.
Brian McKay, Attorney General, Chan G. Griswold, Deputy Attorney General, Carson
City, for Appellants.
Walter R. Tarantino, Carson City, for Respondent.
1. Administrative Law and Procedure; Officers and Public Employees.
Failure of Employee-Management Committee (EMC) to list date on which sergeant's position became open and location of
opening, facts crucial to determination of whether Highway Patrol acted lawfully and whether it breached its covenants of good faith
and fair dealing with state trooper, required remand of trooper's grievance arising out of denial of the appointment, for factfinding on
this issue. NRS 233B.140, subd. 5 (1967).
2. Administrative Law and Procedure; Officers and Public Employees.
Employee-Management Committee's (EMC) failure to issue finding of fact on issue of whether former highway patrol officer was
qualified for sergeant's position also sought by state trooper, required remand of trooper's grievance arising out of denial of the
appointment, for factfinding on this issue. NRS 233B.140, subd. 5 (1967).
3. Officers and Public Employees.
Former highway patrol officer could be reinstated without participation in competitive process in light of longstanding Department
of Personnel interpretation that reinstatement appointments were noncompetitive process. NRS 284.250, 284.305, 284.330.
4. Statutes.
An administrative construction of the language of a statute will not be readily disturbed by courts.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court holding that the Highway Patrol
Division of the Department of Motor Vehicles and Public Safety (Department) failed to
follow proper statutory procedures for promotion and reinstatement and that the department
breached its covenant of good faith and fair dealing with Trooper Gerald Barnes. Because the
Employee-Management Committee (EMC) did not adequately address the issues and because
both the EMC and the district court rendered findings of fact and conclusions of law based
upon erroneous law, we reverse and remand.
On September 26, 1986, a statewide divisional promotional list (hereinafter referred to as
the list) was established containing the names of sixteen individuals, including Barnes,
eligible for promotion to sergeant. On February 19, 1987, five names remained on the list.
The Department then made two appointments to sergeant, one in Fernley and one in Las
Vegas. On October 19, 1987, three names remained on the list, and the Department made two
more sergeant appointments: one to Winnemucca and one to Indian Springs. Barnes declined
appointment to both the February 19, 1987, and October 19, 1987, positions.
Following the October 19, 1987, appointment, the only name remaining on the original list
of sixteen was that of Trooper Barnes. Barnes had made it clear to the Department that he
desired a sergeant's position within the Reno/Carson City area only. He rejected the
appointments of February and October because the positions were not in the desired
locations.
On October 28, 1987, a Sergeant Allen vacated a sergeant's position. (Barnes contends the
vacancy opened a position in Carson City, but the state contends it opened in Las Vegas.) One
week later the Department of Motor Vehicles requested the Department of Personnel to
abolish the list that contained just one name: Gerald Barnes.
On November 23, 1987, former Nevada Highway Patrol Lieutenant William Garteiz
submitted an employment application. On December 3, 1987, the Department offered him the
position of sergeant, and he accepted. Although there is a dispute as to where the position
opened, Garteiz was in fact assigned to Carson City. At the time of his reinstatement, Garteiz
had not worked for the Department for six years.
Department for six years. During this absence Garteiz had allowed his Police Officer Service
and Training Certificate (P.O.S.T. Certificate) to lapse.
On December 22, 1987, Trooper Barnes filed a grievance with the Department asserting
that on December 21, 1987, Garteiz was improperly appointed to the position of sergeant in
Carson City. Barnes' grievance alleged that the appointment was in violation of specific
statutory provisions under NRS Chapter 284 and various rules and regulations of the Nevada
Administrative Code.
Barnes' grievance was denied, and he then appealed the denial to the EMC, which held a
hearing on March 22, 1988. After considering the testimony taken and the other evidence
presented at the hearing, the EMC split in a 2-2 vote on April 19, 1988, thereby upholding the
denial of Trouper Barnes' grievance and the appointment of Garteiz as sergeant in Carson
City.
On May 17, 1988, Barnes filed a petition for judicial review of the EMC's decision. The
district court conducted a hearing on November 3, 1988, and entered findings of fact,
conclusions of law and judgment in favor of Barnes. The district court found in pertinent part:
1. that the EMC made an incorrect determination that reinstatement to a classified
position may be made outside the competitive process as required by Chapter 284;
2. that NRS 284.330 in its application is subject to all other conditions of Chapter
284, including the competitive employment process;
3. that the State of Nevada, as Barnes' employer, breached a covenant of good faith
and fair dealing (a) by abolishing the list of which Barnes was the last remaining
member, and (b) by failing to consider Barnes for the sergeant's position; and
4. that Garteiz was not qualified for the sergeant's position because (a) at the time of
his appointment he was not minimally qualified by having obtained a P.O.S.T.
certificate and (b) he did not take the competitive examination for sergeant as required
by NRS 284.250 to be placed on the eligible list.
The following review of the issues presented will show that the EMC could not render a
proper decision due to a split in interpretation of the applicable law. Additionally, the district
court based its decision on an erroneous application of the law; thus, we shall remand the
matter to the district court with instructions to conform with the mandate of NRS
233B.140{5) which provides for judicial remand to the administrative body.
form with the mandate of NRS 233B.140(5) which provides for judicial remand to the
administrative body.
[Headnote 1]
The court found that on October 28, 1987, a sergeant's position became available in
Carson City, Nevada. However, EMC did not list a date on which the position became open
in either Carson City or Las Vegas. The date the position became open and its location are
crucial to the determination of whether the Department acted lawfully and whether it
breached its covenant of good faith and fair dealing with Barnes. Although the district court
may not have substituted its own judgment for that of the EMC, we find that this issue should
have been remanded to the EMC. The EMC should have the opportunity to address
adequately the factual question of where and when the sergeant's position opened. NRS
233B.140(5) provides that the judicial remedy for factual lacunae resulting from an
administrative hearing is a remand to the fact finding administrative body. See Nevada Indus.
Comm'n v. Horn, 98 Nev. 469, 653 P.2d 155 (1982).
[Headnote 2]
The second issue before this court regards Garteiz's qualifications to hold the sergeant's
position. The district court found that Garteiz' P.O.S.T. had lapsed and that, therefore, Garteiz
was not eligible for the sergeant's position. Although Garteiz' qualifications are extensively
discussed in the record, the EMC made no specific finding as to his qualifications for the
sergeant's position.
Based on the record, it appears as though the EMC discussions regarding Garteiz'
qualifications were based upon hearsay, inadequate evidence, and witnesses who were not
qualified to testify on this matter. Since the EMC did not issue a finding of fact on this issue,
the district court should have remanded the matter to the EMC so that the EMC could hear
witnesses familiar with the P.O.S.T. requirements.
[Headnote 3]
The next issue we address regards that district court's finding that the EMC erred in
determining that reinstatement to classified positions may be made outside the competitive
examination process. The court reasoned that the only non-competitive appointments that are
allowed by statute are those contained in NRS 284.305. The court concluded that the
legislature did not intend to include reinstatements such as that of Garteiz under NRS
284.330 as an exception to the competitive examination.
A recent amendment of NRS 284.305 clarifies the exceptions to the requirement that
appointments in the classified service be filled by competition.
1
1989 Nev. Stats. ch. 591.
Section 2 of Chapter 591 specifically ratifies any appointment made without competition
pursuant to NRS 284.330. The state maintains that this section applies to the appointment of
Garteiz, which was found by the district court to be unlawful. The state submits that the
district court erred as a matter of law in concluding that reinstatement of a former employee is
subject to the competitive process in NRS 284.250. We agree.
[Headnote 4]
The legislature was within its province in amending and clarifying the applicable statute.
There was a great deal of confusion regarding the reinstatement provisions, and it appears as
though there had been a long standing interpretation of the Department of Personnel that
reinstatement appointments are a noncompetitive process. An administrative construction of
the language of a statute will not be readily disturbed by the courts. Department of Human
Resources v. UHS of the Colony, Inc., 103 Nev. 208, 211, 735 P.2d 319, 321 (1987). We
conclude that the Department did not act improperly when it determined that Garteiz could be
reinstated without making him participate in the competitive process.
Conclusion
Because the EMC did not adequately address the issues presented by the parties in this
case and because both the EMC and the district court rendered findings of fact and
conclusions of law based upon a misunderstanding of the law, we reverse the judgment of the
district court in all respects and remand this case to the district court with instructions to
return the case to the EMC as indicated above.
__________

1
In Roberts v. State, 104 Nev. 33, 752 P.2d 221 (1988), we discussed the effect of a legislative clarification
of existing law. We stated: Where a former statute is amended, or a doubtful interpretation of a former statute
rendered certain by subsequent legislation, it has been held that such amendment is persuasive evidence of what
the Legislature intended by the first statute. Id. at 38, 752 P.2d at 224.
____________
105 Nev. 835, 835 (1989) All Minerals Corp. v. Kunkle
ALL MINERALS CORPORATION, a Nevada Corporation, Appellant, v. ROBERT P.
KUNKLE, FRANCES KUNKLE, GERALD J. DALTON and M. JOYCE DALTON,
Respondents.
No. 19413
December 20, 1989 784 P.2d 2
Appeal from order denying motion for summary judgment and declaring matter moot.
Fifth Judicial District Court, Nye County; William P. Beko, Judge.
Action was begun to decide ownership of mining rights. The district court denied mining
company's motion for summary judgment and declared company's new claim invalid as result
of violation of preliminary injunction. Mining company appealed. The Supreme Court held
that competing claimants to mining rights had not obtained the preliminary injunction and,
thus, had no standing to challenge mining company's relocation of its claims.
Vargas & Bartlett and Scott Glogovac, Reno; Hugh C. Garner & Associates, Salt Lake
City, Utah, for Appellant.
Bible, Hoy, Miller, Trachok & Wadhams, Elko; Kimball, Parr, Crockett & Waddops and
Michael M. Later, Salt Lake City, Utah; Parsons, Behle & Latimer and Stephen J. Hull, Salt
Lake City, Utah, for Respondents.
1. Injunction.
Competing claimants to mining rights did not have standing to challenge mining company's relocation of claim to mining rights
which allegedly violated injunction that prohibited company from entering property where claimants had not sought original
injunction.
2. Injunction.
Trial court may not nullify action taken in violation of preliminary injunction unless party that obtained injunction properly attacks
validity of act.
OPINION
Per Curiam:
In this case, we are asked whether the district court has the power to declare the actions of
a party a nullity when the party acts in violation of a preliminary injunction. We hold that the
district court may not nullify an action taken in violation of a preliminary injunction unless
the party that obtained the injunction properly attacks the validity of the act.
district court may not nullify an action taken in violation of a preliminary injunction unless
the party that obtained the injunction properly attacks the validity of the act. Under this rule,
the district court in the case at bar did not have the power to nullify an action that was a
violation of the preliminary injunction. Consequently, we reverse.
Facts
In 1967, respondents Dalton and Kunkle entered land in Nye County owned by the federal
government and posted notices that stated that they were claiming the right to mine in that
area. At some point, NL Industries also staked its claim to the mining rights on the same land.
Later, Dalton and Kunkle sold the rights that they had to All Minerals, the appellant, subject
to the reservation to Dalton and Kunkle of a royalty on all ores and minerals removed from
the claims by All Minerals. Finally, in 1978, NL Industries sued Dalton and Kunkle and All
Minerals in a quiet title action to determine who owned the right to mine from the location.
NL Industries and All Minerals agreed that, until the district court had decided which of
the companies owned the mining rights, it would be best if neither company did any mining.
They put this agreement into writing, and they asked the district court to order both
companies to obey the agreement. The district court then ordered both parties to refrain from
mining at the location in Nye County and also to stay off that land completely. This order was
an extension of the court's earlier temporary restraining order acquired by NL Industries at the
beginning of the litigation. Dalton and Kunkle were not involved in the agreement, and the
district court's order did not include them.
Soon after the district court ordered All Minerals to stay off the land, All Minerals
discovered that it had failed to file affidavits of labor with the BLM which are necessary to
preserve a mining claim.
1
The result of this failure to file was that All Minerals no longer
had any mining claims to protect. Instead of telling this to the district court, All Minerals
entered the land in violation of the district court's order and posted notices that it was making
new claims of the mining rights on the same land.
NL Industries had also failed to file the required papers with the BLM. After All Minerals
had entered the land in violation of the preliminary injunction, NL Industries also attempted
to relocate its claims.
__________

1
The federal government required that each mining claimant file an affidavit of labor with the BLM in order
to show that the claimant had not abandoned the mine. Failure to file would result in an automatic finding of
abandonment and forfeiture of mining rights.
cate its claims. In the midst of this Nevada litigation, NL Industries and All Minerals sought
to challenge the BLM's determination that the claims were void because of the failure to file
the affidavits of labor. This delayed the state litigation and eventually ended in a holding
against NL Industries and All Minerals in the Ninth Circuit. See NL Industries v. Secretary of
Interior, 777 F.2d 433 (9th Cir. 1985). NL Industries decided not to pursue its claim further
and withdrew from the Nevada litigation, leaving All Minerals to litigate against Dalton and
Kunkle.
When the district court found out that All Minerals had violated the order, the district
court stated that All Minerals' new claim was invalid because it had been obtained in
violation of the preliminary injunction. Upon hearing this, Dalton and Kunkle went out to the
land and posted notices that they were claiming the right to mine in that area. Dalton and
Kunkle's actions did not violate the district court order because the district court order only
involved All Minerals and NL Industries. Therefore, the district court concluded that Dalton
and Kunkle held superior mining rights because All Minerals' violation of the order had made
its actions in relocating the claims invalid. The district court denied All Minerals' motion for
summary judgment and declared the matter moot.
Discussion
All Minerals argues that the court could not enforce its preliminary injunction by declaring
All Minerals' attempts to relocate the mining claims invalid. This argument rests on the
nature of the court's enforcement powers and punishment powers when a party violates an
order.
Since All Minerals violated the preliminary injunction when it relocated its claims, the
court certainly had power to punish All Minerals for contempt. NRS 22.100 provides that the
penalty for contempt is a fine of up to $500 or imprisonment or up to twenty-five days or
both. While the statutes provide no other penalty for contempt, we have held that a court may
take other measures to insure that the parties obey the court's order. Noble v. Noble, 86 Nev.
459, 470 P.2d 430 (1970) (remanded on other grounds). In Noble, a divorced mother ignored
the orders of the court granting visitation of the child to the father. The court suspended its
order of alimony in order to sanction the mother. We held that courts have always had the
inherent power to maintain and enforce the dignity and decency in their proceedings. Id. at
463, 470 P.2d at 432. We went on to explain that this inherent power goes beyond the power
that may be granted by the legislature. Id.
In the specific realm of injunctions, courts have held that they had inherent power to
nullify acts that were violations of injunctions. However, this power has been limited.
Specifically, an act done in violation of an injunction is not a nullity except as to the party
that obtained the injunction when that party attacks the action in a proper manner. Candler v.
Wallace Candler, Inc., 113 N.W.2d 901 (Mich. 1962) (stating that transfer in violation of
injunction invalid as to opposing party); Town of Fond du Lac v. City of Fond du Lac, 126
N.W.2d 206 (Wis. 1964) (stating that act in contempt of court's order not invalid because
injunction has no in rem effect).
The basis for not permitting courts to nullify acts done in violation of an injunction is that
an injunction is in personam, not in rem. In other words, the court may punish the party that
violates the injunction with a fine or imprisonment but may not alter property rights resulting
from the violation. The exception to this general rule that a court does not have the power to
nullify an action that is a violation of an injunction is necessary in order to permit the court to
maintain its control over the subject matter of the proceedings.
[Headnote 1]
In the case at bar, the court's purpose in ordering the preliminary injunction was to
maintain the status quo until the case could be adjudicated. The court did not want either
party to mine on the land in controversy until the court could determine who held superior
title to the mining rights. The court was under the mistaken belief, as were the parties, that
either NL Industries or All Minerals held a valid claim to mine on the land in controversy;
however, neither party held such a right due to the failure to file the affidavits of labor with
the BLM. The status quo when NL Industries commenced its action was that the district court
could not rule in favor of either party with respect to superior title to mining rights. When All
Minerals entered and posted its notices, it did not undermine the authority of the court,
especially with respect to the rights of Dalton and Kunkle. In fact, Dalton and Kunkle's only
interest in the outcome of the proceedings at that point was the royalties it might obtain from
All Minerals' future mining. NL Industries was the only party that arguably would have had
standing to challenge All Minerals' actions; however, NL Industries has not properly attacked
All Minerals' actions. While it is true that All Minerals' actions were an attempt to establish
superior title to the mining rights, the original dispute, and consequently the preliminary
injunction, involved only NL Industries and All Minerals and was moot due to the failure of
both parties to file the affidavits of labor.
[Headnote 2]
An act done in violation of an injunction is valid unless the party that obtained the
injunction properly attacks the validity of the act. Dalton and Kunkle did not obtain the
injunction. Thus, the court acted beyond its power by declaring All Minerals' relocation of the
claims invalid. The court should not have nullified the relocation of the claims, and the
federal laws should be applied to determine superior title to the claims.
Conclusion
We have considered the parties' other contentions on appeal, and we find either that they
are without merit or that we need not reach them because of the resolution above. The district
court attempted to nullify All Minerals' relocation of the mining claims even though the
nullification was beyond the court's power under the circumstances of this case. Therefore,
we reverse the order of the district court and remand for further proceedings consistent with
this opinion.
____________
105 Nev. 839, 839 (1989) Hanks v. State
WAYNE ALAN HANKS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19683
December 20, 1989 784 P.2d 5
Appeal from judgment of conviction, election of civil commitment and order of probation.
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of drug offense and elected civil
commitment, and he appealed. The Supreme Court held that defendant who was civilly
committed after pleading guilty to drug offense could be placed on probation.
Affirmed.
Terri Steik Roeser, State Public Defender and Jeffrey M. Evans, Deputy, Carson City, for
Appellant.
Brian McKay, Attorney General, Carson City; Noel S. Waters, District Attorney and
Allison W. Joffee, Deputy, Carson City, for Respondent.
Criminal Law.
Court which deferred sentence following defendant's conviction on drug offenses to allow civil commitment could
impose probation upon the defendant and require the Department of Parole and Probation to supervise
defendant.
105 Nev. 839, 840 (1989) Hanks v. State
drug offenses to allow civil commitment could impose probation upon the defendant and require the Department of Parole and
Probation to supervise defendant. NRS 458.300.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
conspiracy to possess a controlled substance, a gross misdemeanor. NRS 199.480; NRS
453.336. The district court allowed appellant to elect civil commitment under NRS 458.300,
and deferred sentencing appellant. Finally, in connection with the civil commitment, the
district court placed appellant on probation.
On September 28, 1988, appellant was charged by information with two felony counts of
possessing a controlled substance. Pursuant to plea negotiations, appellant agreed to plead
guilty to one count of conspiracy to possess a controlled substance, a gross misdemeanor, in
exchange for the district attorney's agreement not to press other charges and to recommend
that appellant be allowed to elect treatment as a drug addict pursuant to NRS 458.300.
Appellant filed the required notice of election and, on October 18, 1988, pleaded guilty as
agreed.
On December 6, 1988, following arguments from counsel, the district court adjudged
appellant guilty of the crime of conspiracy to possess a controlled substance. The district
court deferred sentencing, and allowed appellant to elect treatment. As conditions of the
election, the district court ordered that (1) appellant submit to a warrantless search of his
person or property at any time by a probation officer; (2) appellant continue therapy; and (3)
appellant have no contact with the other persons who were arrested along with appellant in
connection with the charge. The district court indicated that appellant's probation would
continue for a period of three years. The district court entered a judgment of conviction
memorializing this action on December 8, 1988. This timely appeal followed.
Appellant contends that the district court cannot impose probation on a person who has
elected civil commitment under NRS 458.300. Appellant admits that the district court can
impose any condition of probation on a civilly committed defendant, but argues that
probation itself cannot be imposed. Specifically, appellant does not like being supervised by a
probation officer.
Pursuant to NRS 458.300, an alcoholic or drug addict as defined by NRS 458.290 who has
been convicted of a crime may elected treatment before he is sentenced.1 A judgment of
conviction is an absolute prerequisite to such an election.
105 Nev. 839, 841 (1989) Hanks v. State
elect treatment before he is sentenced.
1
A judgment of conviction is an absolute prerequisite
to such an election. If the defendant successfully completes the treatment to the satisfaction of
the district court, the judgment of conviction will be set aside. NRS 458.330(1).
NRS 458.320(3)(a) provides, however, that if the district court determines that a defendant
should be allowed to elect treatment, the district court may [i]mpose any conditions to the
election of treatment that could be imposed as conditions of probation. . . . Thus, the district
court acted as directed by statute when it entered a judgment of conviction against appellant,
deferred sentencing to allow appellant to obtain treatment, and placed appellant on probation.
Appellant's contention that the Department of Parole and Probation cannot be required to
supervise a civilly committed defendant pursuant to a lawfully imposed probation is entirely
without merit. Accordingly, we affirm the judgment of the district court.
____________
105 Nev. 841, 841 (1989) Tandy Computer Leasing v. Terina's Pizza
TANDY COMPUTER LEASING, A DIVISION OF TANDY ELECTRONICS, INC., fka A
& A FINANCIAL CORPORATION, Appellant, v. TERINA'S PIZZA, INC., and
MATTHEW MOONEY, Respondents.
No. 19556
December 20, 1989 784 P.2d 7
Appeal from an order of the district court setting aside the registration of a foreign
judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Computer lessor obtained judgment against lessee in Texas and sought to enforce
judgment in Nevada. The district court granted lessee's motion to set aside judgment, and
lessor appealed. The Supreme Court held that Texas court lacked personal jurisdiction over
lessee, despite provision in lease agreement that jurisdiction for lawsuits arising thereunder
would be in Texas.
Affirmed.
__________

1
NRS 458.300 (emphasis added) provides in part:
Subject to the provisions of NRS 458.290 to 458.350, inclusive, an alcoholic or drug addict who has
been convicted of a crime is eligible to elect treatment under the supervision of a state-approved facility
for the treatment of abuse of alcohol or drugs before he is sentenced unless . . . (a list of exceptions not
relevant to this case follows).
Mahan & Ellis, Las Vegas, for Appellant.
Mark Brandenburg & Associates and Carlene Star, for Respondents.
Contracts.
Texas court lacked personal jurisdiction over Nevada computer equipment lessee, even though clause in lease agreement provided
that jurisdiction of lawsuits arising under agreement would be in Texas; provision was in small print at bottom of contract form, under
heading designated miscellaneous, and did not form part of the bargain as neither lessor's agent nor representatives of lessee knew it
existed.
OPINION
Per Curiam:
This litigation arose from a lease agreement between a Texas lessor of computer
equipment and Nevada respondents as lessees of the equipment. Through the Radio Shack
Computer Center in Las Vegas, respondents leased computer equipment for use in their pizza
parlors. Appellant owns Radio Shack. Respondent, Matthew Mooney and his wife, Flora
Mooney, are the sole shareholders of Terina's Pizza. The lease agreement contained a forum
selection clause which stated jurisdiction would be in Texas and venue in Fort Worth, Texas,
where appellant does business. The clause is in very small print, on the back of the one page
lease agreement, in the second sentence of the last paragraph. The paragraph is labelled
MISCELLANEOUS. Neither Tandy's agent nor respondents knew the clause existed.
Consequently, the forum selection clause was not negotiated between the parties. All of the
bargaining, the signing of the lease agreement, and delivery of the equipment took place in
Nevada. After the computer equipment was installed, a dispute arose concerning its
performance. Respondents then defaulted on their lease payments.
Appellant initiated an action in Texas to recover the equipment and amounts due under the
lease. Appellant asserted personal jurisdiction over respondents in Texas because of the
forum selection clause. Appellant personally served respondents in accordance with Texas
law. Respondents did not appear in Texas to contest the action, and a default judgment was
entered against them in Texas. Appellant then attempted to enforce the Texas judgment in
Nevada under Nevada's Enforcement of Foreign Judgments (Uniform Act). Respondents
made a collateral attack on the Texas judgment by filing a motion that asserted lack of
personal jurisdiction.
personal jurisdiction. Respondents' motion was granted and the Texas judgment was set
aside.
Appellant contends the lower court erred in setting aside the foreign judgment.
Specifically, appellant argues the lower court abused its discretion in setting aside the foreign
judgment.
Appellant's argument lacks merit. The Due Process Clause of the 14th Amendment
requires that a defendant be subject to the personal jurisdiction of the court. World Wide
Volkswagen v. Woodson, 444 U.S. 286, 291 (1981), citing International Shoe Co. v.
Washington, 326 U.S. 310 (1945). Furthermore, [a] judgment rendered in violation of due
process is void in the rendering state and is not entitled to full faith and credit elsewhere.
World Wide Volkswagen v. Woodson, 444 U.S. at 291, citing Pennoyer v. Neff, 95 U.S. 714,
732-733 (1877). While some forum selection clauses are sufficient to subject parties to the
personal jurisdiction of out-of-state courts, not all forum selection clauses are enforceable.
Where such forum selection provisions have been obtained through freely negotiated'
agreements and are not unreasonable and unjust,' their enforcement does not offend Due
Process. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, n.14 (1985). (Citation
omitted.)
Here, there were no negotiations over this forum selection clause. As noted, neither
appellant's agent nor respondents knew the clause existed. Thus, the clause was not a vital
part of the agreement. where the consequences of the forum clause [figured] prominently in
their calculations. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13, 15 (1972). In The
Bremen, the forum selection clause preceded the date and signature and could hardly by
ignored. Id. at 12-13, n.14. This clause was buried on the very bottom of the back page of
the lease agreement, in very fine print, in a paragraph labelled MISCELLANEOUS. The
signatures are on the front page of the agreement. Nothing on the front page notifies the
reader of the specific forum selection clause on the back page. The clause is not even in bold
print.
It is unrealistic for a consumer to expect to defend himself in Texas under these facts. All
of the transaction elements took place in Nevada. There was no notice of the forum selection
clause. Respondents dealt with a local Radio Shack in Las Vegas, Nevada, not Tandy.
According to Radio Shack's sales agent, neither Tandy nor Radio Shack told her to advise
customers they should read the back terms of the lease agreement. Therefore, because of these
reasons, enforcement of this particular clause would be both unreasonable and unjust. Id. at
15.
Also, this clause should be held unenforceable [because] enforcement would contravene
a strong public policy of . . ."
enforcement would contravene a strong public policy of . . . [Nevada]. Id. at 15, citing Boyd
v. Grand Trunk W. R. Co., 338 U.S. 263 (1949). Nevada favors decisions on the merits. See
generally Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987). Upholding the
clause would defeat this policy by giving appellant an unfair advantage in legitimate
litigation. In this case, the computer equipment was not very expensive. Defending in Texas
would probably cost more for respondents than to just cave in. We cannot allow parties to
bury important clauses in fine print, then spring the clause on unknowing litigants when it is
time for litigation. Litigants, in effect, would be deprived of their day in court.
Respondents have thus met their burden of proof with a strong showing this forum
selection clause should be set aside. The Bremen, 407 U.S. at 15. We therefore hold the Texas
judgment should not be granted Full Faith and Credit. This particular forum selection clause
is unenforceable. It was not freely negotiated and enforcement would be both
unreasonable and unjust. Id. at 14. Thus, it does not grant personal jurisdiction to the Texas
courts over the Nevada respondents. Because there is no personal jurisdiction, the Texas
judgment is in violation of due process. Without due process, the judgment is void. The
district court did not abuse its discretion in setting aside the void foreign judgment.
Accordingly, we affirm the district court's order.
____________
105 Nev. 844, 844 (1989) Sacco v. State
RON SACCO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19562
TONY BALLESTRASSE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19563
December 28, 1989 784 P.2d 947
Consolidated appeal from two judgments of conviction of bookmaking without a license
and a district court denial of a motion to suppress. Eighth Judicial District Court, Clark
Defendants conditionally plead guilty and were convicted in the district court of
bookmaking without a license, and they appealed preserved issues and denial of suppression
motion. The Supreme Court held that: {1) neither Fifth Amendment double jeopardy nor
Nevada statute prohibiting multiple prosecutions barred Nevada prosecution of
defendants following California prosecution for crime of bookmaking, and {2) district
court properly suppressed only records from which gross wager information required by
Internal Revenue Service could be extrapolated and properly admitted records shown to
be useful for operational purposes only.
105 Nev. 844, 845 (1989) Sacco v. State
Supreme Court held that: (1) neither Fifth Amendment double jeopardy nor Nevada statute
prohibiting multiple prosecutions barred Nevada prosecution of defendants following
California prosecution for crime of bookmaking, and (2) district court properly suppressed
only records from which gross wager information required by Internal Revenue Service could
be extrapolated and properly admitted records shown to be useful for operational purposes
only.
Affirmed.
Michael V. Stuhff, James R. Lucas, and Harry E. Claiborne, Las Vegas, for Appellant
Sacco.
Michael V. Stuhff and James R. Lucas, Las Vegas, for Appellant Ballestrasse.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and Thomas L.
Leen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Fifth Amendment double jeopardy clause did not bar Nevada prosecution for bookmaking without a license following California
prosecution for illegal bookmaking that was based on the same acts. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Statute prohibiting multiple prosecutions did not bar Nevada prosecution for bookmaking without a license following illegal
bookmaking prosecution in California that was based on the same acts. NRS 171.070.
3. Criminal Law.
In prosecution for bookmaking without a license, defendant's right against self-incrimination was not violated by admission of
records other than betting slips and tape recordings of bets being made and accepted; records from which gross wager information
required by Internal Revenue Service (IRS) could be extrapolated were suppressed, and records that were useful for operational
purposes only were admitted. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
In the spring of 1987, appellants Sacco and Ballestrasse operated a major bookmaking
empire in Las Vegas and Los Angeles. Appellants maintained various records of their
operations, which contained information used for monthly tax reports required by federal law.
Pursuant to IRS regulations, the tax reports required anyone involved in the business of
accepting wagers to report the gross amount of wagers and to keep a daily record.
105 Nev. 844, 846 (1989) Sacco v. State
anyone involved in the business of accepting wagers to report the gross amount of wagers and
to keep a daily record.
Subsequent to a joint investigation by law enforcement in Los Angeles and Las Vegas,
appellants' records were seized and they were arrested and charged with illegal bookmaking
in California. The seized records included betting slips, bookmaking ledger sheets, cassette
tape recordings of bets being phoned in, tape recorded telephone conversations among the
bookmaking operators including appellants, computer data, sports schedules, handwritten
notes, and bottom line tallies or accounts showing total amounts owed.
Thereafter, appellants were indicted in Nevada for operating an unlicensed race book.
Appellant Sacco filed a motion to suppress all the records seized, contending that they were
kept under compulsion of federal law and could not be used against him without violating his
right against self-incrimination. At the hearing on the motion, detailed testimony was
presented regarding the nature of the various records seized as to whether they were kept for
IRS reporting purposes or for business operational purposes. The district court suppressed
only the betting slips and all the tape recordings of bets being made and accepted.
Both appellants subsequently pleaded guilty to the charges in California and filed motions
to dismiss in the district court on the grounds that the Nevada prosecution was barred by NRS
171.070 and double jeopardy. They argued that the same acts of bookmaking constituted the
acts charged in California and those charged here. After these motions were denied,
appellants entered guilty pleas to the Nevada charges upon agreement that the issues of
self-incrimination and double jeopardy would be preserved for appeal.
[Headnote 1]
Initially, we note that the Fifth Amendment double jeopardy clause does not bar the
Nevada prosecution because separate prosecutions in two states are permissible under the
dual sovereignty theory. In a series of cases, the United States Supreme Court has made
clear that an act considered a crime by two sovereignties is an offense that may be punished
by each. See, e.g., United States v. Lanza, 260 U.S. 377 (1922); Bartkus v. Illinois, 359 U.S.
121 (1959); Abbate v. United States, 359 U.S. 187 (1959); United States v. Wheeler, 435
U.S. 313 (1978).
[Headnote 2]
However, through NRS 171.070, Nevada grants greater protection with respect to multiple
prosecutions than does the double jeopardy clause of the Fifth Amendment. We have held
that under NRS 171.070, "a defendant may not be prosecuted after a prior conviction or
acquittal 'in another jurisdiction if all the acts constituting the offense in this state were
necessary to prove the offense in the prior prosecution.'" Turner v. State, 94 Nev. 51S,
519, 5S3 P.2d 452, 453 {197S) {quoting People v. Belcher, 520 P.2d 3S5, 390-391 {Cal.
105 Nev. 844, 847 (1989) Sacco v. State
NRS 171.070, a defendant may not be prosecuted after a prior conviction or acquittal in
another jurisdiction if all the acts constituting the offense in this state were necessary to prove
the offense in the prior prosecution.' Turner v. State, 94 Nev. 518, 519, 583 P.2d 452, 453
(1978) (quoting People v. Belcher, 520 P.2d 385, 390-391 (Cal. 1974)).
The parties apparently agree that the elements constituting the crime of bookmaking in
California and in Nevada are the same, other than the fact that in Nevada the prosecution
must show that the bookmaking activities are unlicensed. Appellants contend that the
unlicensed aspect of bookmaking in Nevada is fortuitous, a factor only because our
legislature made a policy decision to legalize licensed gambling which incidentally made
unlicensed gambling criminal. Appellants maintain that the licensing question is
jurisdictional.
However, we do not consider the unlicensed nature of these bookmaking charges merely a
technical or jurisdictional question. Rather, because licensed gaming is indispensable to
Nevada's economy, we believe that the legislature proscribed unlicensed gaming because it
represents a serious threat to the state's economic base. Consequently, unlicensed
bookmaking in Nevada is distinctly different from unlicensed bookmaking in California for
the simple reason that in Nevada it is possible to engage in licensed, legal bookmaking.
Accordingly, we hold that these acts of bookmaking are different under California and
Nevada law because the acts constituting the offense in this state were [not] necessary to
prove the offense in California. See Turner, 94 Nev. at 519, 583 P.2d at 453. Therefore,
appellants' prosecution in Nevada is not barred by NRS 171.070.
[Headnote 3]
Appellant Sacco also contends that the seizure and use of his bookmaking records violated
his constitutional right not to incriminate himself. He contends that the district court erred in
suppressing only some of the records seized during the investigation because he alleges that
all the records were kept solely to comply with federal laws requiring reports of wagering
activity. He contends that the state is prohibited from using any of these records to prosecute
him because he was compelled to keep them by federal law.
Sacco urges this court to follow the holding in United States v. Haydel, 486 F.Supp. 109
(M.D.La. 1980), in which the court ruled that gamblers must be given a choice: either they
may rightfully refuse to file wagering tax returns and keep records of their gambling activities
or, if such information is nevertheless compelled for revenue purposes it may not be
constitutionally used against them in criminal prosecutions for non-wagering tax
offenses." Id. at 115 {citations omitted).
105 Nev. 844, 848 (1989) Sacco v. State
used against them in criminal prosecutions for non-wagering tax offenses. Id. at 115
(citations omitted).
Respondent contends that we should follow the holding in United States v. Brian, 507
F.Supp. 761 (D.R.I. 1981). In Brian, the court explained that consistent with the Fifth
Amendment, the government may not take the information that [bookmaking] taxpayers
have provided under compulsion and use it outside the tax context to convict them of the
underlying criminal activity. Id. at 768 (citing Marchetti v. United States, 390 U.S. 39
(1968)). Although the court approved the rationale of Haydel, it went on to reject a per se rule
of exclusion in cases such as this one.
The Brian court found that, for purposes of the Fifth Amendment, it is the motivation of
the defendant rather than the character of the evidence that is important. Id. at 768
(emphasis in original). Thus, [w]hen a document has been created voluntarily, . . . the fifth
amendment does not bar its use in a prosecution provided the document has been obtained by
a lawful seizure. Id. (citation omitted). The court ruled that whether a particular bookmaker
kept records because of the compulsion of federal law as opposed to voluntarily in the
ordinary course of business presented a question of fact. The court then adopted a procedure
whereby at a suppression hearing, the defendant must initially come forward with some
evidence that the seized records were kept because of the statutory mandate. Upon such a
showing, the government then bears the burden of proving that the reporting requirement was
not the motivating force for the record-keeping, i.e., that the records were voluntarily
maintained. Id. at 769-70.
Sacco contends that the IRS regulations do not specify any particular format for the
records a taxpayer is required to maintain and leaves to the individual the appropriate method
of bookkeeping. Sacco alleges that, regardless of their form, all of the records seized
consisted of raw data from which the required IRS returns could be prepared or which would
support and verify the figures in an eventual audit. Thus, Sacco contends that all the records
should have been suppressed pursuant to Haydel.
However, to adopt Sacco's position could effectively eliminate any prosecutions for illegal
bookmaking activity in Nevada. Under his view, all a bookmaker has to do to avoid
prosecution is claim that whatever records were kept, whether gross wager reports or
additional operational records, were maintained for purposes of federal tax reports. Especially
here, where none of the records seized were in the form appropriate for filing with the IRS,
we will not disturb the district court's decision to suppress only those records which yielded
the required gross wager information.
105 Nev. 844, 849 (1989) Sacco v. State
only those records which yielded the required gross wager information.
Moreover, we are persuaded that the approach taken in Brian is the better one. Contrary to
Sacco's assertion that to follow Brian would effectively overrule the United States Supreme
Court's decision in Marchetti, we find that the procedure proposed in Brian takes into
consideration the competing interests of the defendant bookmaker and the state and permits
only those prosecutions to proceed in which the bookmaking records seized were not kept
pursuant to federal tax laws.
Although the district court did not explain the basis for its order regarding the scope of
suppression, the court's decision is supported under a Brian analysis, because it suppressed
only the records from which gross wager information required by the IRS could be
extrapolated. The remainder of the records were properly admitted because testimony at the
suppression hearing showed that these records were useful for operational purposes only.
Therefore, we hold that Sacco's right against self-incrimination was not violated by the
district court's order suppressing only the betting slips and tape recordings of bets being made
and accepted. Having found appellants' convictions not barred by NRS 171.070 and no error
in the district court's order, we affirm the judgments of conviction.
Young, C. J., Steffen and Springer, JJ., and Zenoff, Sr. J.,
1
and Torvinen, D. J.,
2
concur.
__________

1
The Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in this case in place of The
Honorable John C. Mowbray, Justice, who voluntarily disqualified himself. Nev. Const., art. 6, 19; SCR 10.

2
The Honorable Bob Miller, Governor, designated the Honorable Roy L. Torvinen, District Judge of the
Second Judicial District, to sit in this case in place of The Honorable Robert E. Rose, Justice, who voluntarily
disqualified himself. Nev. Const., art. 6, 4.
____________
105 Nev. 850, 850 (1989) Ford v. State
PRISCILLA FORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19744
December 28, 1989 784 P.2d 951
Appeal from the denial of a petition for post-conviction relief. Second Judicial District
Court, Washoe County; Charles M. McGee, Judge.
Defendant was convicted of six counts of first degree murder and twenty-three counts of
attempted murder and was sentenced to death, and she appealed. The Supreme Court, 102
Nev. 126, 717 P.2d 27, affirmed. Defendant petitioned for post-conviction relief. The district
court denied petition, and defendant appealed. The Supreme Court held that neither trial nor
appellate counsel were ineffective.
Affirmed.
Norman Y. Herring, Riverside, California, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gregory
R. Shannon, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial counsel in murder prosecution was not ineffective in failing to further investigate possibility that mechanical defect in
defendant's car caused her to lose control of it, in view of evidence that defendant acted with intent to kill when she drove five blocks
on and off crowded sidewalks. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Trial counsel in murder prosecution was not ineffective in making tactical decision not to interview potential witnesses, victims,
and families of victims based on belief they would be of no help to defendant at all. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Appellate counsel is most effective when she does not raise very conceivable issue on appeal. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
No detailed standards from any organization are to be used to determine attorney's effectiveness at trial, which is measured by
whether he gave reasonable assistance to his client considering totality of circumstances in case. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant, Priscilla Ford (Ford) was convicted of six counts of first degree murder,
twenty-three counts of attempted murder, and sentenced to death.
105 Nev. 850, 851 (1989) Ford v. State
first degree murder, twenty-three counts of attempted murder, and sentenced to death. Ford
filed a post-conviction petition in district court claiming ineffective assistance of counsel and
various other allegations of error. The district court dismissed the petition. We affirm the
district court's dismissal of Ford's petition.
FACTS
On November 27, 1980, Ford drove her car onto a crowded Reno sidewalk killing seven
people and injuring many others. She was represented at her trial for murder and attempted
murder by Lew Carnahan (Carnahan) of the Washoe County Public Defender's Office. After
considering various defenses, Carnahan decided that Ford's only plausible defense was
insanity. He had two psychiatrists interview Ford and they found her to be incompetent to
stand trial. On January 29, 1981, the trial court declared that Ford was mentally incompetent
to stand trial and stayed all proceedings against her.
The district court found Ford competent to stand trial on August 6, 1981. At Ford's trial
Carnahan attempted to prove that Ford was not guilty by reason of insanity. Four psychiatrists
and nineteen other witnesses testified for the defense. Additionally, Carnahan presented
extensive evidence concerning Ford's previous hospitalizations, arrest records, medical
history, employment and education.
Carnahan decided not to interview all the victims and their families believing that this
could not contribute to Ford's defense. He also decided not to use the defense that Ford's
actions were caused by a mechanical defect in her car because he did not believe that the jury
would accept such an explanation for Ford's behavior. Therefore, he did not have Ford's car
examined until two months after Ford's trial began. The investigator who examined Ford's car
found nothing wrong with it. An expert, hired by the district attorney, examined Ford's car
shortly after the November incident and also found nothing wrong with it.
Ford was convicted of six counts of first degree murder and twenty-three counts of
attempted murder. She was sentenced to death. This court affirmed the district court on both
the guilt and penalty phases of Ford's trial.
Ford then filed a post-conviction petition in district court alleging ineffective assistance of
trial counsel and various other defenses. The district court dismissed Ford's petition. Ford
appeals that decision.
LEGAL DISCUSSION
Ford contends that she was denied effective assistance of counsel.
105 Nev. 850, 852 (1989) Ford v. State
sel. The standard to be applied to determine a criminal attorney's effectiveness when a client
alleges ineffective assistance of counsel was enunciated in Strickland v. Washington, 466
U.S. 668 (1984).
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687. Strickland also held that overwhelming evidence of guilt is relevant to the
question of whether a client had ineffective counsel. Strickland, 466 U.S. at 697.
[Headnote 1]
Ford contends that Carnahan provided ineffective counsel because he failed to adequately
investigate the possibility that a mechanical defect in Ford's car caused her to lose control of
it, drive five blocks on and off the sidewalks of Reno, kill seven people and injure many
others. Ford stresses that Carnahan waited more than two months after the start of the trial to
have the car examined by an investigator who was not an expert in mechanics.
Ford's contention that she had an accident and that Carnahan erred in not hiring an expert
to investigate her car is without merit. All of the evidence points to the fact that Ford drove
onto the sidewalks of Reno with the intent to kill pedestrians. This evidence includes
inculpatory statements made by Ford both before and after the November incident and the
statements of witnesses to the incident. There is no proof that Ford's car was defective. An
expert hired by the district attorney shortly after the accident examined Ford's car and found
nothing wrong with it. Finally, Carnahan had Ford's car inspected and nothing was found
wrong with it. Carnahan reasonably believed that his only defense was the insanity defense
and did not want to detract from it by asserting a meritless defense. Pursuant to Strickland,
Carnahan made no error which deprived Ford of effective counsel in respect to his
investigation of the accident.
[Headnote 2]
Ford next argues that Carnahan provided ineffective counsel because he did not interview
potential witnesses. Ford's argument lacks merit. First, Carnahan traveled to Idaho, Michigan,
and New York to interview all witnesses who could help Ford with her insanity defense.
105 Nev. 850, 853 (1989) Ford v. State
and New York to interview all witnesses who could help Ford with her insanity defense. He
failed to interview witnesses to the November incident, victims and families of victims
because he did not believe they could help Ford at all. This was a reasonable choice given the
circumstances of the case. It is difficult to understand how interviewing these witnesses could
have helped Ford. This is not the type of case where defense counsel might wish to destroy
the credibility of the victims or impeach the witnesses. Finally, we note that Carnahan's
decision not to interview all of the witnesses was a tactical decision. Tactical decisions are
virtually unchallengeable absent extraordinary circumstances. Strickland, 466 U.S. at 691.
Ford's contention that Carnahan failed to prepare a witness named John Rickman
(Rickman) to testify is also without merit. Rickman was called to testify by Carnahan to show
that Ford had shot a previous husband in self-defense. Rickman testified that he had seen
Ford's previous husband hit her. Rickman, however, denied speaking to Carnahan about the
case. The district attorney proved that Rickman had spoken with Carnahan about Ford's case.
First, Ford fails to prove that Carnahan's performance had anything to do with Rickman's
poor performance as a witness. Secondly, Ford fails to demonstrate any prejudice from
Rickman's testimony pursuant to Strickland.
Ford next contends that she was denied effective assistance of appellate counsel. Ford's
claim lacks merit. Strickland states that a fair assessment of an attorney's performance
requires that every effort be made to eliminate the distorting effects of hindsight. . . . 466
U.S. at 689. We have reviewed Ford's appellate counsel's performance and conclude that it is
adequate pursuant to Strickland.
[Headnote 3]
Ford's contention that her appellate counsel failed to raise all meritorious issues is also
without merit. First, we note that Ford's counsel stated that she did not disregard any crucial
issue in Ford's appeal. Second, we note that appellate counsel is most effective when she does
not raise every conceivable issue on appeal. See Jones v. Barnes, 463 U.S. 745, 752. We have
reviewed the record and conclude that Ford's counsel adequately raised the relevant issues on
appeal.
[Headnote 4]
Ford next contends that Carnahan's lack of experience in capital murder cases denied her
effective assistance of counsel. Ford asserts that Carnahan's experience in defending clients in
capital cases does not measure up to the Standards for Appointment of and Performance of
Counsel in Death Penalty Cases" as defined by the National Legal Aid and Defender
Association {NLADA).
105 Nev. 850, 854 (1989) Ford v. State
ment of and Performance of Counsel in Death Penalty Cases as defined by the National
Legal Aid and Defender Association (NLADA). Ford's argument lacks merit. The NLADA's
standards are not controlling in this case. Strickland holds that no detailed standards from any
organization are to be used to determine an attorney's effectiveness. Strickland, 466 U.S. at
688, 689. An attorney's effectiveness at trial is measured by whether he gave reasonable
assistance to his client considering the totality of circumstances in the case. Id. at 688. There
is nothing in the record to show that Carnahan failed to give Ford reasonable assistance.
Finally, Ford claims that the post-conviction court unreasonably limited the use of an
attorney hired to serve as an expert witness because it did not give him all volumes of the
record on appeal. This argument is without merit. A review of the record shows that the
expert witness was supplied with all pertinent parts of the record. We are satisfied that the
expert witness had an adequate record to work with.
We conclude that Ford's remaining contentions lack merit and that the district court
correctly rejected them.
It is well-settled that this court will not reverse a district court's holding if substantial
evidence supports the court. See Mitchell v. State, 92 Nev. 458, 552 P.2d 1378 (1976).
Substantial evidence supports all of the district court's holdings. Therefore, we affirm the
district court's decision.
Young, C. J., Steffen and Rose, JJ., and Guy, D. J.,
1
and Bonaventure, D. J.,
2
concur.
__________

1
The Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable John C. Mowbray, Justice. Nev. Const. art. 6, 4.

2
The Honorable Joseph T. Bonaventure, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
____________
105 Nev. 855, 855 (1989) Mort Wallin v. Commercial Cabinet
MORT WALLIN OF LAKE TAHOE, INC., Appellant/Cross-Respondent, v.
COMMERCIAL CABINET CO., INC., a Nevada Corporation, Respondent/Cross-Appellant.
No. 19266
December 28, 1989 784 P.2d 954
Appeal and cross-appeal from supplemental findings of fact and conclusions of law
awarding damages. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Construction contractor brought action against store owner for monies due, and store
owner filed complaint for compensatory and punitive damages for defective work and
materials. The district court awarded $116,714 to contractor and $110,000 to owner, and
appeals were taken. The Supreme Court, 103 Nev. 238, 737 P.2d 515, affirmed damage
award to contractor, but remanded for district court to set out more clearly the basis for store
owner's award. After remand, the Supreme Court held that: (1) award of $10,000 damages for
remedial repairs to defective wall panels was adequately supported in the record, and (2)
damage award for diminution of value of property caused by breach of contract was not
supported by the record.
George E. Graziadei and Scott M. Cantor, Las Vegas, for Appellant/Cross-Respondent.
Lang & Leeds, Las Vegas, for Respondent/Cross-Appellant.
1. Damages.
Award of $10,000 damages for remedial repairs to defective wall panels was adequately supported in the record.
2. Damages.
Where cost of removal and completion of project would have been economically wasteful, appropriate measure of damages for
breach of construction contract was diminution of value of property caused by breach.
3. Damages.
Damage award for diminution of value of property caused by breach of construction contract was not supported by the record,
absent evidence as to diminished value of the premises as a result of contractor's actual performance, compared with anticipated value
of premises if performance had been rendered as required.
4. Damages.
Amount of damages need not be met with mathematical exactitude, but there must be an evidentiary basis for determining
reasonably accurate amount.
5. Damages.
Judge's personal visit to work site may have been helpful in analyzing or understanding evidence of diminution of value, but could
not alone be the source of evidence to support award of damages for breach of construction contract.
OPINION
Per Curiam:
This is an appeal from the district court's Supplemental Findings of Facts and Conclusions
of Law rendered in response to our original order of remand. In that order, we affirmed the
district court's damage award to Commercial Cabinet but remanded for the district court to set
out more clearly the basis for Wallin's award. Commercial Cabinet Co. v. Wallin, 103 Nev.
238, 737 P.2d 515 (1987). From the record before us at that time, we could not effectively
review the lump sum award to Wallin. Id. at 240, P.2d at 517.
[Headnote 1]
Upon remand, the district court determined that $10,000.00 of Wallin's award was for
remedial repairs to the defective wall panels and $100,000.00 was for diminution in value to
the store. We affirm the $10,000.00 award for cost of remedial repair. Such an award is more
than adequately supported in the record, was not contested on appeal and therefore will stand
undisturbed by this court. Brandon v. Travitsky, 86 Nev. 613, 615, 472 P.2d 353, 355 (1970).
[Headnotes 2, 3]
The defect we perceive in the proceedings below is in the basis for the $100,000.00 award
for diminution of value. We agree with the district court that on these facts the award of
approximately $350,000.00 sought by Wallin for the cost of removal and completion would
have been economically wasteful. Because we agree with the district court's economic waste
conclusion, we discern no error in its determination that the appropriate measure of damages
is the diminution in the value of the property caused by the breach.
Having agreed with the district court's reasoning and determination regarding the measure
of damages, we nevertheless conclude that there is insufficient support in the record for the
damages awarded. Appellant claims that there is substantial evidence to support the district
court's award. We disagree.
The fact that the property suffered at least some diminution in value seems obvious.
However, the record reveals no evidence directed to an evaluation of the diminished value
of the premises as a result of Commercial Cabinet's actual performance compared with
the anticipated value of the premises if performance had been rendered as required by
the contract between the parties.
directed to an evaluation of the diminished value of the premises as a result of Commercial
Cabinet's actual performance compared with the anticipated value of the premises if
performance had been rendered as required by the contract between the parties.
[Headnote 4]
The party seeking damages has the burden of proving both the fact of damages and the
amount thereof. Kelley Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 193-194, 606 P.2d
1089, 1093 (1980); Alper v. Stillings, 80 Nev. 84, 86-87, 389 P.2d 239, 240 (1964). The
latter aspect of the burden need not be met with mathematical exactitude, but there must be an
evidentiary basis for determining a reasonably accurate amount of damages. Central Bit
Supply v. Waldrop Drilling, 102 Nev. 139, 142, 717 P.2d 35, 37 (1982); Haner v. Quincy
Farm Chemicals, Inc., 649 P.2d 828, 830 (Wash. 1982); Reposa v. Buhler, 770 P.2d 235, 230
(Wyo. 1989). Therefore, evidence going only to the fact of diminution in value alone will not,
without more, establish a basis for an award of substantial damages.
The plaintiff must provide to the court an evidentiary basis upon which it may properly
determine the amount of plaintiff's damages. Short v. Wise, 718 P.2d 604, 609 (Kan. 1986);
State ex rel. Stephan v. Wolfenbarger and McCulley, P.A., 690 P.2d 380, 385 (Kan. 1984).
This case required qualified expert testimony about diminution in value or other equally
competent evidence on the issue. There is no requirement that absolute certainty be achieved.
Obviously, once the fact of damage has been established, some uncertainty in the amount is
allowed. Bader v. Cerri, 96 Nev. 352, 357-58, 609 P.2d 314, 318 (1980). However, here there
is a complete absence of any competent evidence to allow the trier of fact to arrive at any
sustainable amount of diminution in value, much less $100,000.00.
[Headnote 5]
Wallin failed to establish a proper evidentiary foundation for the $100,000.00 diminution
award granted by the district court. In an attempt to reach fairness and bridge the evidentiary
gap in Walling's evidence, the trial judge personally visited the work site. Such a visit may be
helpful in analyzing or understanding evidence of diminution in value; however, it alone
cannot be the source of the evidence. The court cannot assume the role of an expert and
thereby relieve plaintiff of the need to present evidence in support of its claim. Evidence
essential to sustain a damages award must be in the record and available for meaningful
appellate review.
Because Wallin failed to carry its burden to reasonably establish the amount of the
diminution in property value, it is only entitled to the $10,000.00 for remedial repairs.
We have considered all other issues and objections raised by Wallin but not discussed
herein and conclude that they lack merit.
For the reasons noted above, we vacate the $100,000.00 award and affirm the $10,000.00
award for remedial repairs.
____________
105 Nev. 858, 858 (1989) Emil v. State
RODNEY LYN EMIL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19431
December 28, 1989 784 P.2d 956
Appeal from judgment of conviction of first degree murder with use of a deadly weapon
and imposition of the death penalty. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted of murder in the first degree with use of deadly weapon and the
jury imposed the death penalty. Judgment was entered in the district court. Defendant
appealed. The Supreme Court held that: (1) testimony of witness that he heard defendant state
that his mother had hired him to kill his stepfather was admissible, even though witness could
not see defendant; (2) results of polygraph test were properly excluded in penalty phase of
trial; (3) evidence of prior murder conviction could be admitted as aggravating factor in
penalty phase through testimony as well as through certified copy of conviction; (4) court
committed harmless error by admitting evidence from earlier conviction which was intended
to inflame and agitate jury; (5) defendant was given adequate notice of State's intention to
introduce prior conviction; and (6) prosecution did not commit misconduct by arguing that
defendant's youth was not a mitigating factor.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant.
105 Nev. 858, 859 (1989) Emil v. State
1. Criminal Law.
Testimony of witness who knew defendant, that he overheard defendant stating that his mother had hired him to kill his stepfather,
was admissible in murder trial even though witness could not see defendant. NRS 52.065.
2. Homicide.
Evidence supported conviction for murder in the first degree with the use of a deadly weapon; a witness testified that he saw
defendant fire revolver and saw victim fall, and testimony was corroborated by the presence at the scene of the crime of broken glass
from the truck in which victim was sitting when shot.
3. Homicide.
Results of polygraph examination are not admissible at penalty phase of capital murder trial, absent stipulation by both parties.
4. Homicide.
Evidence of conviction for a prior murder was admissible as an aggravating factor in the penalty phase of a capital murder trial,
even though at the time the second murder was committed defendant had not been convicted, charged or even arrested for the first
murder. NRS 200.033, subd. 2.
5. Homicide.
Testimony regarding prior murder was admissible at penalty phase of capital murder case, to establish aggravating circumstances,
despite claim that evidence on point should have been limited to certified copy of conviction. NRS 200.033, subd. 2.
6. Homicide.
Trial court committed harmless error by admitting, as evidence of prior murder offered as aggravating circumstances in capital
murder case, autopsy photographs of victim's body, evidence of discernible odor coming from car where body had been kept for several
days, and testimony of victim's former roommate that victim was nice guy.
7. Homicide.
Defendant in capital murder case who had been given twenty-nine days notice that the State planned to offer evidence of his prior
murder conviction as an aggravating circumstance received adequate time to develop mitigating circumstances in response.
8. Criminal Law.
Argument by prosecutor in penalty phase of capital murder case, that twenty-three-year old defendant should not have his youth
considered as a mitigating factor, was not impermissible. NRS 200.035, subd. 6.
OPINION
Per Curiam:
On June 17, 1984, Charles Emil, appellant's stepfather, was shot and killed.
Appellant, Rodney Lyn Emil (Emil), was eventually arrested and charged with the murder
of his stepfather. Following a trial, the jury returned a verdict of guilty of murder in the
first degree with use of a deadly weapon.
105 Nev. 858, 860 (1989) Emil v. State
the jury returned a verdict of guilty of murder in the first degree with use of a deadly weapon.
After a June 8, 1988, penalty hearing, the jury determined that Emil should be sentenced to
death. This appeal followed.
Facts
The facts adduced at trial presented a scenario that commenced on June 17, 1984, when
Frederick Woodall, Alan Carmack and Emil met at Woodall's home for a barbecue. When
Emil arrived, he explained that he needed to meet with his stepfather, Charles Emil. Shortly
thereafter, Carmack, Emil and Woodall left in Carmack's pickup truck to go purchase
barbecue supplies. At the grocery store, Emil told Woodall that he had to call his stepfather.
After purchasing the supplies, Carmack and Woodall entered the cab of Carmack's truck
and Emil climbed into the truck's bed. The trio then drove to a desert area south of Tropicana
Road on Rainbow Boulevard in Las Vegas. Carmack pulled his truck alongside a white
pickup truck parked just off the road. Woodall testified that Emil immediately stood up in the
back of Carmack's truck, pulled a revolver from a paper bag and fired four shots at the
occupant of the white truck. The victim moved toward the passenger door and slumped down
onto the floor. One of the shots shattered the passenger window.
Woodall testified that when he realized what had happened he and Carmack left the scene
as Emil jumped from Carmack's truck and proceeded to chase them in the victim's truck.
Woodall stated that Emil forced Carmack off the road at gunpoint and then told Woodall and
Carmack that their families would be harmed if they ever told anyone about the shooting.
Emil then entered Carmack's truck and the three men drove away, leaving the victim's truck
behind.
Officer Dennis Cobb of the Las Vegas Metropolitan Police Department was the first police
officer to arrive at the crime scene. Cobb observed a white male lying on the floorboard of the
white truck. The passenger window was broken but no glass fragments were found outside of
the vehicle. The registered owner of the vehicle was Charles Emil.
The body in the vehicle was later identified as Charles Emil. An autopsy revealed that the
victim had been shot four times. Death was the result of a bullet that passed through the
victim's neck, cutting his carotid artery, causing massive hemorrhaging.
A little over a year after Charles Emil was killed, Woodall, who had been incarcerated for
a probation violation, told police officers that he had information regarding the June 17, 1984,
Rainbow Boulevard shooting.
105 Nev. 858, 861 (1989) Emil v. State
Rainbow Boulevard shooting. Woodall testified that he waited a year because he feared for
the safety of his girlfriend and their son. When he finally reported the details of the shooting,
he also directed a Las Vegas Metropolitan Police Department detective, Michael Geary, to the
crime scene where Geary discovered broken automotive glass fragments. Woodall also told
police that approximately two weeks before the victim was killed, Emil told Woodall that
$10,000 could be made if his stepfather was killed.
Martin Koba, who knew Emil, testified that in May or June, 1986, he came upon a group
of three or four people, including Emil, and although he was three or four feet away from
them, he was able to overhear the conversation and specifically heard a voice that sounded
like Emil's saying something to the effect that my mother hired my buddy and me to kill my
stepfather. He then heard the same person refer to the purpose for the killing in terms of a
possible recovery of insurance policy proceeds.
Guilt Phase
[Headnote 1]
Emil contends that it was reversible error to admit the testimony of Martin Koba without
proper foundation during the guilt phase of the trial. He challenges the conversation as
analogous to a telephone conversation which is admissible only if the identity of the caller is
satisfactorily established by circumstantial or other competent evidence. Longley, 86 Nev.
599, 472 P.2d 350 (1970); King v. State, 80 Nev. 269, 392 P.2d 310 (1964).
Koba knew Emil. Koba testified that in May or June of 1986, he was about four feet away
from a group that included Emil, and that he overheard an incriminating statement from a
speaker who sounded like Emil.
1
Emil argues that because Koba did not positively identify
his voice, proper foundation was not established and that it was error not to exclude
Koba's testimony.
__________

1
Specifically, the following exchange took place at trial
Q Did you hear the defendant say something about his stepfather?
A At the time I overheard this conversation, I was not visibleI was not in on part of the conversation,
nor was I visibly in sight of the participants. I heard a voice that sounded like Rodney, relating a murder.
Q You say that you weren't actually participating in the conversation per se?
A I was about four feet away.
Q What did you hear?
Mr. SCHIECK: Your Honor, I'm going to object at this time. This witness indicated he is unable to
identify the speaker. All he can say is it sounded like a particular person. I don't believe he's competent to
give testimony as to what he overheard.
MR. HARMON: Your Honor, he said that the voice sounded like
105 Nev. 858, 862 (1989) Emil v. State
Emil argues that because Koba did not positively identify his voice, proper foundation was
not established and that it was error not to exclude Koba's testimony.
This contention lacks merit. NRS 52.065 provides that [a] voice, whether heard first hand
or through mechanical or electronic transmission or recording, is sufficiently identified by
opinion based upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.
Additionally, federal courts interpreting Federal Rules of Evidence 901(a) and 901(b)(5),
2
a rule almost identical to NRS 52.065, have interpreted it according to its plain meaning. See,
e.g., United States v. Alvarez, 860 F.2d 801, 809 (7th Cir. 1988) (where government
witnesses had considerable opportunity to become familiar with the voices of appellants,
attacks on the accuracy of voice identification goes to the weight of the evidence); United
States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987) (Any person may identify a speaker's
voice if he has heard the voice at any time.).
Our reading of NRS 52.065, buttressed by federal decisions concerning the similar federal
rule of evidence, compels us to conclude that the State laid the proper foundation under NRS
52.065 to admit Mr. Koba's testimony.
Although Koba's credibility was subject to challenge, questions concerning Koba's
credibility simply went to the weight to be accorded his testimony and not to its admissibility.
See Azbill v. State, 88 Nev. 240, 352 P.2d 1064 (1972).
__________
Rodney Emil. Having laid that foundation, I think it goes to weight, not admissibility.
THE COURT: I do too. The objection is overruled. You may answer the question.
MR. HARMON: Thank you.
BY MR. HARMON:
Q What did you hear the person say, whose voice sounded like that of Rodney Emil?
A This is not an exact quote, but to the effect, My mother hired me and my buddy to bump off my
stepfather. Again, it's been two years. I can't give you a verbatim quote on it. That's the gist of it.
Q Did you hear the voice which sounded like that of the defendant say why his mother had done this?
A Yes. For the insurance money.

2
Federal Rule of Evidence 901(a) provides:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Federal Rule of Evidence 901(b)(5) provides:
Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under circumstances connecting it with
the alleged speaker.
105 Nev. 858, 863 (1989) Emil v. State
[Headnote 2]
Emil next argues that the evidence adduced at trial was insufficient as a matter of law to
establish his guilt beyond a reasonable doubt. In reviewing trial evidence, the question is not
whether this court is convinced of a defendant's guilt beyond a reasonable doubt, but whether
the jury, acting reasonably, could have been convinced to that certitude by the evidence it had
a right to consider. Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
Based on the foregoing standard and the evidence in this case, the jury reasonably could
have found Emil guilty of first degree murder with use of a deadly weapon. First, Frederick
Woodall testified that on June 17, 1984, he saw Emil fire at the victim three or four times
with a revolver. Woodall further stated that the passenger window of the truck occupied by
the victim was shattered by the gunshots and that the victim fell onto the floorboard.
Woodall's observations were consistent with the police and autopsy reports.
Second, Detective Geary of the Las Vegas Metropolitan Police Department testified that
Woodall directed him to the murder site which was due south of the place where Charles
Emil's truck and dead body were discovered. At the murder site identified by Woodall,
Detective Geary discovered fragments of broken automotive glass which corroborated the
testimony explaining why no glass fragments were found next to the vehicle where it was first
discovered by the police.
Third, Woodall stated that on the day of the murder, Emil told him that he needed to call
his stepfather and that he later observed Emil making a call from a public telephone shortly
before he, Carmack and Emil met the victim's vehicle.
Fourth, Woodall testified that two or three weeks before the shooting Emil told him that it
would be financially beneficial for Emil to kill his stepfather. Woodall also stated that on the
day the victim was buried, Emil boasted that he was a good shot, having hit his stepfather
three times in the heart and once in the brain.
Fifth, as previously noted, Martin Koba, one of Emil's associates, testified to overhearing
someone whose voice sounded like Emil's state that he had been hired to kill his stepfather.
The foregoing notwithstanding, Emil correctly points out that there are time discrepancies
in Woodall's testimony relating to the day of the murder. Hence, Emil argues that his
conviction should be overturned for want of sufficient evidence. Woodall explained,
however, that he was not wearing a watch on the day of the murder and had no reason to pay
particular attention to the time. Furthermore, discrepancies in testimony are relevant to the
witness' credibility, a matter left to the jury. Ward v. State, 95 Nev. 431, 596 P.2d 219 (1979).
On appeal, this court will not overturn a verdict because of inconsistencies already
resolved by the jury as the trier of fact. Id., 596 P.2d at 221.
105 Nev. 858, 864 (1989) Emil v. State
overturn a verdict because of inconsistencies already resolved by the jury as the trier of fact.
Id., 596 P.2d at 221.
Penalty Phase
[Headnote 3]
Emil contends that a polygraph exam taken by Woodall and ruled by the trial judge to be
incompetent and inadmissible, should have been admitted during the penalty phase of his
trial. Emil argues that this evidence would have gone to mitigation because Woodall allegedly
failed the polygraph exam.
According to statute, questions concerning the admissibility of evidence during the penalty
phase of a capital murder trial are generally left to the trial judge's discretion. NRS 175.522.
See Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985). Although this court has never ruled
on the admissibility of polygraph test results at a penalty hearing, such results are admissible
at the guilt phase of trial only if both parties have signed a written stipulation to that effect.
Santillanes v. State, 102 Nev. 48, 714 P.2d 184 (1986).
In the instant case, Woodall's polygraph examination results were not admissible at the
guilt phase of trial because the parties did not stipulate to their admission. The test results did
not come in at Emil's penalty hearing for the same reason. This was a correct ruling by the
trial judge. If polygraph results were available to defendants when deemed to be favorable to
their cause, an equal entitlement should be accorded the prosecutor when favorable to the
State's case. We are not persuaded that the degree of reliability of such examinations warrants
a unilateral right of admissibility in the penalty phase of a capital case. Therefore, Woodall's
polygraph examination results were properly excluded.
[Headnote 4]
Next, Emil insists that the lower court erred in denying his motion to strike and in
admitting evidence of a prior conviction at his penalty hearing. Emil argues that at the time of
his stepfather's murder he had not been convicted, charged or even arrested for a March, 1983
murder. Emil contends, therefore, that under NRS 200.033(2),
3
the 1983 murder should not
qualify as an aggravating circumstance.
__________

3
Circumstances aggravating first degree murder. The only circumstances by which murder of the first
degree may be aggravated are:
. . . .
2. The murder was committed by a person who was previously
105 Nev. 858, 865 (1989) Emil v. State
In Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985), the defendant made a similar
argument. However, this court stated in response:
Aggravating circumstances, as defined by the statute, provide direction to the
sentencing authority as it considers an appropriate punishment for the defendant. The
statute was never intended to operate on the vagaries of conviction sequences. Instead,
the focal point is the time of sentencing. The sentencing panel is entitled to consider all
relevant aspects of the defendant's criminal background prior to rendering sentence.
Id. at 792, 711 P.2d at 863-864.
Emil urges this court to overrule Gallego and reinterpret NRS 200.033(2). He argues that
the proper interpretation of the statute is that only prior felony convictions existing at the time
of the murder under consideration can be used as an aggravating circumstance. We disagree.
It would be both absurd and counterproductive for this court to construe the plain language of
the statute so as to exclude murders occurring before the primary offense and for which
convictions are obtained prior to the penalty phase of a defendant's trial. Cf. Gallego, 101
Nev. at 793, 711 P.2d at 864.
[Headnote 5]
Emil further contends that it was error for the trial court not to limit the evidence of his
prior murder conviction to entry of a certified copy of the conviction. Twenty-nine days prior
to Emil's penalty hearing, he was provided with notice from the State that evidence would be
presented surrounding the prior murder consisting of both testimony and the certified record
of conviction.
Under NRS 200.033(2), prior murder convictions constitute aggravating circumstances. In
Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985), this court held that questions
concerning the admissibility of evidence during the penalty phase are largely left to the trial
judge's discretion. In Jones v. State, 101 Nev. 573, 707 P.2d 1128 (1985), a first degree
murder and death penalty case, we determined that the penalty phase testimony of the victims
of three prior felonious assaults was proper even though defense counsel offered to stipulate
to the convictions. Specifically, we stated:
It is well established in Nevada that evidence of prior convictions is admissible at
penalty hearings when relevant and credible and not dubious or tenuous.
__________
convicted of another murder or of a felony involving the use or threat of violence to the person of
another.
105 Nev. 858, 866 (1989) Emil v. State
and credible and not dubious or tenuous. See Biondi v. State, 101 Nev. 252, 699 P.2d
1062 (1985); Allen v. State, 99 Nev. 485, 488, 665 P.2d 238 (1983). See also NRS
175.552. Although details of prior crimes undoubtably have a greater impact on a jury
than a bare record conviction, their admission may aid the trier in assessing the
character of a defendant. A defendant's character and his record are relevant factors to
be considered by a jury in imposing a penalty for a capital crime. . . . Allen, 99 Nev. at
488. See also Woodson v. North Carolina, 428 U.S. 280 (1976).
Id. at 578, 707 P.2d at 1132.
Under Jones, it cannot be said that the admission of testimony concerning the prior murder
conviction was an abuse of discretion. Specifically, it is reasonable to assume, as the State
asserts, that the testimony was helpful in assessing Emil's character and in affixing the proper
punishment. See also Woodson v. North Carolina, 428 U.S. 280 (1976) (relevant factors to be
considered by jury in imposing a penalty for a capital crime include the character and record
of the individual offender). Therefore, we hold that it was proper to allow testimony relating
to Emil's prior murder conviction.
[Headnote 6]
We note, however, that the lower court erred in admitting three particular items of
evidence, over Emil's objection, concerning the prior murder conviction. First, admission of
the autopsy photographs taken of the victim's body after it had been bludgeoned about the
head, shot, partially burned and left in the trunk of a car for several days; second, evidence of
the discernible odor coming from the car where the body was found; and finally, the
testimony of the victim's former roommate that the victim was a nice guy. Although a trial
court may admit evidence or testimony of the facts and circumstances concerning a prior
murder conviction, such evidence or testimony must be helpful in assessing the defendant's
character and determining the proper punishment. It may not be admitted to essentially and
primarily inflame and agitate the jury. The aforementioned evidence was of that basic nature
and purpose. However, we have determined that the error in admitting the referenced
evidence was harmless beyond a reasonable doubt. The evidence of aggravation so clearly
outweighed that of mitigation that the error did not impair the jury's function in determining
Emil's punishment.
[Headnote 7]
Emil knew for over twenty-nine days that the State planned to offer evidence of his prior
murder conviction as an aggravating circumstance.
105 Nev. 858, 867 (1989) Emil v. State
circumstance. His claim that the notice he received was inadequate is therefore without merit.
See Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985) (two and one-half weeks was
adequate time to develop mitigating circumstances in response to anticipated aggravating
circumstances).
[Headnote 8]
Finally, Emil contends that prosecutorial misconduct during final argument of the penalty
hearing deprived him of a fair hearing because the prosecutor argued the circumstances of
Emil's prior murder conviction to inflame the passion of the jury.
4
Moreover, Emil claims
that he was prejudiced by the prosecutor impermissibly misleading the jury on the question of
youth as a mitigating factor.
5
In Flanagan v. State, 104 Nev. 105
__________

4
Emil did not object to the alleged misconduct below. However, under Flanagan v. State, 104 Nev. 105, 754
P.2d 836 (1988), it is not clear that compliance with the contemporaneous objection rule is invariably required in
a death case.
In any event, Emil specifically objects to the following references to the prior murder and suggests that they
were made solely to inflame the jury:
Ross Tolley, who was in his early 20's, who had lived for a short time in this community, and who
obviously had shortcomings like we all do, but was entitled to live out his life.
. . . .
And you can look, as you have already done, at the one photograph, after the hair was shaved back
which shows the head, and you can see the ferocity of those blows which undoubtedly disarmed Ross
Tolley.
. . .
. . . .
You can see evidence of the vehicle, evidence on the body of what occurred. The murder of Ross
Tolley was suspicious. It was brutal, [sic] There can be no justification for the murder of a 21 or 22 year
old man. Now, the State of Nevada draws a line; the line has been drawn, sir, Rodney Emil.
. . . .
This man, who claims he had an alibi in connection with the Tolley killing, who claims he was in
Idaho picking up a load of hay, could have told the police that, could have testified to the other jury.

5
Specifically, Emil identifies the following remarks as objectionable:
Number Six, the youth of the Defendant at the time of the crime. Well, when you are my age, 23 is
young. However, I wonder if the legislature contemplated 23 years of age, a person who had been on his
own since he was 14 or 15, as being youthful. Mr. Schieck says he was a young 23. On the contrary,
when we hear what happened to Mr. Emil, I argue he was an old 23, and if we're talking about a 14 or 15
year old boy, if we were talking about Mr. Emil committing this crime shortly after his stepfather
disowned him and forced him to leave the family home, then I could appreciate it that the conduct may
have been a reaction to what occurred by an immature, youthful mind. We wouldn't justify it
MR. POTTER: Your Honor, I'm going to object at this point, and I'd
105 Nev. 858, 868 (1989) Emil v. State
In Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988), a death penalty case involving
prosecutorial misconduct, this court stated that [a]t the sentencing phase, it is most important
that the jury not be influenced by passion, prejudice, or any other arbitrary factor.
Nonetheless, this court has also stated that details of prior crimes may assist the jury in
evaluating the character of the defendant. Jones, 101 Nev. at 578, 707 P.2d at 1132. And, a
defendant's character is a relevant factor to be considered in imposing a penalty for a capital
crime. Allen, 99 Nev. at 488, 665 P.2d at 240.
We hold that the prosecutor was not impermissibly attempting to inflame the jury with
passion or prejudice in the penalty hearing. Rather, the prosecutor was simply drawing
inferences concerning Emil's character based upon the record evidence. Details of prior
crimes and a defendant's character are relevant factors to be considered by a jury in imposing
a penalty in a capital case.
The comments regarding Emil's youth likewise do not rise to the level of prosecutorial
misconduct. Clearly, the youth of the defendant at the time of the commission of a crime is a
mitigating circumstance in a capital murder case. See NRS 200.035(b). The challenged
exchange suggests that the defense was hoping to establish youth as a mitigating factor by
characterizing Emil as a young twenty-three-year old. The State merely countered defense
counsel's portrayal by suggesting that Emil was in fact old for his age, and by pointing out
that the mitigating circumstance contemplated by NRS 200.035(b) is an age younger than
twenty-three. In short, defense counsel invited the State's remarks concerning Emil's age and
it was not error to permit the prosecutor to so respond.
__________
like to make a record on this. You cannot seek the death penalty on a 14 or 15 year old child in this state.
MR. HARMON: I wasn't arguing we were going to impose the death penaltyexcuse me, your Honor,
I'm saying 14 or 15
THE COURT: Do you want to have a session outside the presence of the jury, is that what you're saying?
MR. POTTER: No. I'm making that for the record, Your Honor. You cannot seek the death penalty on
an individual unless they are over the age of 16.
MR. HARMON: Well, it's true you have to be 16 or older, that wasn't the point at all. I'm saying 14 or
15 is young. 14 or 15 is a situation where we would way, [sic] Yes, you mitigate, perhaps you're lenient,
perhaps you give him life with parole'. [sic] We're talking about a 23 year old man, a 23 year old man
who had the maturity to procure a firearm, who obviously reloaded the firearm, who then orchestrated a
situation where he was taken to a scene, knowing his stepfather would be there, who had a partner pull up
to where he would be even with the cab, and began to fire.
105 Nev. 858, 869 (1989) Emil v. State
In conclusion, we hold that Emil's sentence of death was not the result of passion,
prejudice or any arbitrary factor and that it was not excessive, considering both the crime and
the defendant. Having concluded that Emil was fairly tried, convicted and sentenced, we
affirm in all respects the judgment of conviction and sentence imposed thereon.
____________
105 Nev. 869, 869 (1989) Bias v. State
HENRY LEE BIAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19469
December 28, 1989 784 P.2d 963
Appeal from a conviction upon a jury verdict of robbery with the use of a deadly weapon
and first degree kidnapping with the use of a deadly weapon. Eighth Judicial District Court,
Clark County; Miriam Shearing, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon and
first degree kidnapping with use of a deadly weapon, and sentences were enhanced based on
use of a deadly weapon. Defendant appealed. The Supreme Court held that: (1) use of toy gun
that was not shown to be capable of being used in deadly manner could not support enhanced
sentences; (2) show-up identification was sufficiently reliable to overcome unnecessarily
suggestive procedures; and (3) evidence supported kidnapping conviction.
Reversed in part, affirmed in part.
Colucci & Amador, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Bradford R. Jerbic, Deputy District Attorney, Clark
1. Criminal Law.
Absent evidence that toy gun used by defendant in kidnapping and robbery could be used in a deadly manner, defendant's
sentences could not be enhanced based on use of a deadly weapon.
2. Criminal Law.
Circumstances surrounding suspect's detention some four hours after robbery did not justify unnecessarily suggestive procedure of
victim being taken to detention scene and being shown suspect by suspect having spotlight directed into his face while he stood
handcuffed in front of squad car.
105 Nev. 869, 870 (1989) Bias v. State
3. Criminal Law.
Robbery victim's show-up identification of defendant as perpetrator was sufficiently reliable to overcome unnecessarily suggestive
procedure involving spotlight being shone into defendant's face while he stood handcuffed in front of squad car; show-up took place
only four hours after crime, and victim recognized defendant's features and clothing, as well as gun found at scene of show-up.
4. Kidnapping.
Evidence that defendant used toy gun to hold convenience store patron from behind while he demanded money from cashier
supported conviction for first degree kidnapping.
OPINION
Per Curiam:
Shortly after midnight on October 22, 1987, a man using a toy gun held a 7-Eleven store
patron from behind while he demanded money from the cashier, McClure. After obtaining a
bag of money from McClure, the man forced the patron outside at gunpoint and ran off.
When the police arrived, McClure described the gun as being black with a small green mark
on the side, and said he was unsure whether it was real or a toy.
Several hours later, the police officer who made the robbery report noticed appellant and a
companion in another part of town. Because appellant fit the description of the robbery
suspect, the officer approached the men. When he saw appellant throw a gun into the bushes,
he ordered both men in front of his car and handcuffed them. Upon retrieving the gun, the
officer discovered that it was a toy gun with a green plastic projectile showing on the side.
An assisting officer went to the 7-Eleven and told McClure that they had someone they
wanted him to identify. McClure rode in the squad car to where the suspects were standing
handcuffed in front of another police vehicle. While McClure remained seated in the police
car, an officer shined a spotlight into appellant's face and asked McClure if the black guy
was the one. Appellant was arrested after McClure made an identification from inside the
vehicle.
At trial, McClure made an in-court identification of appellant. The jury found Bias guilty
of robbery with use of a deadly weapon and first degree kidnapping with use of a deadly
weapon. Pursuant to NRS 193.165, the trial court added consecutive ten year sentences for
use of a deadly weapon to his sentences for robbery and kidnapping.
[Headnote 1]
On appeal, Bias contends that because the gun used during the robbery was a toy, his
convictions for use of a deadly weapon and the corresponding enhancements must be
vacated pursuant to our recent decision in McIntyre v. State, 104 Nev. 622
105 Nev. 869, 871 (1989) Bias v. State
robbery was a toy, his convictions for use of a deadly weapon and the corresponding
enhancements must be vacated pursuant to our recent decision in McIntyre v. State, 104 Nev.
622, 764 P.2d 482 (1988). We agree.
In McIntyre, we held that absent proof of deadly capabilities, the use of a toy gun cannot
support an enhanced sentence for the commission of the crime with the use of a deadly
weapon. Id. at 623, 764 P.2d at 483. Here, as in McIntyre, the toy gun did not warrant per se
deadly status because it was not a firearm. Moreover, there was no evidence that appellant
used or could have used the toy gun in a deadly manner. Even the trial judge noted at
sentencing that she did not think the gun could be used as a blunt instrument because it was
very light and just a little plastic thing.
We decline the State's invitation to overrule our decision in McIntyre. Accordingly, we
vacate the sentences imposed against appellant for use of a deadly weapon.
Appellant also contends that McClure's in-court identification of appellant was
impermissibly tainted by the earlier identification at the 5:00 a.m. show-up. He contends that
the district court's denial of his motion to suppress violated his due process rights because the
show-up procedure was unnecessarily suggestive and because McClure's identification was
unquestionably unreliable.
Nevada case law concerning pre-trial identification is governed by the standard of Stovall
v. Denno, 388 U.S. 293 (1967). See, e.g., Jones v. State, 95 Nev. 613, 617, 600 P.2d 247, 250
(1979). Considering the totality of the circumstances, the test is whether the confrontation
conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken
identification that [appellant] was denied due process of law. See Jones, 95 Nev. at 617, 600
P.2d at 250 (quoting Stovall, 388 U.S. at 301-02).
The inquiry is two-fold: (1) whether the procedure is unnecessarily suggestive and (2) if
so, whether, under all the circumstances, the identification is reliable despite an unnecessarily
suggestive identification procedure. Banks v. State, 94 Nev. 90, 94, 575 P.2d 592, 595
(1978). We have previously recognized that [a]n on-the-scene confrontation between
eyewitness and suspect is inherently suggestive because it is apparent that law enforcement
officials believe they have caught the offender. Jones, 95 Nev. at 617, 600 P.2d at 250.
However, we also recognized in Jones that countervailing policy considerations may justify
such a procedure. Id.
[Headnote 2]
Appellant contends that the show-up identification was not justified by circumstances or
considerations such as those we found in Jones and Banks.
105 Nev. 869, 872 (1989) Bias v. State
justified by circumstances or considerations such as those we found in Jones and Banks. We
agree that the circumstances of appellant's show-up are similar to those in Gehrke v. State, 96
Nev. 581, 613 P.2d 1028 (1980), in which we held that the identification procedure was
unnecessary. Id. at 584, 613 P.2d at 1030. Here, the show-up occurred about four hours after
the robbery at approximately 5:00 a.m. McClure was brought to where the appellant was
detained after being told by the police that they had someone they wanted him to identify. A
spotlight was directed into appellant's face while he stood handcuffed in front of the squad
car. McClure made an identification while seated in the police vehicle. We hold that this
show-up procedure was unnecessarily suggestive because there were no countervailing policy
considerations to justify it. See Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
[Headnote 3]
However, as we noted in Gehrke, despite the unnecessarily suggestive procedure, the key
question is whether the identification was reliable. Id. at 584, 613 P.2d at 1030. Here,
McClure recognized several of appellant's features. In addition, only about four hours had
elapsed since the robbery. McClure testified at trial that he was almost certain appellant was
the robber and was 100 per cent sure upon hearing appellant's voice. He further testified
that the appellant was wearing clothing similar to that of the robber's and identified the gun
found at the show-up as the same as that used in the robbery. Based on the totality of the
circumstances, we hold that the show-up identification was sufficiently reliable to overcome
the unnecessarily suggestive procedure and was not conducive to irreparable
misidentification.
[Headnote 4]
Appellant further contends that insufficient evidence exists to support the jury's verdict of
guilty of first degree kidnapping. However, a jury verdict in a criminal prosecution will not be
reversed if there is any substantial evidence to sustain it. Criswell v. State, 84 Nev. 459, 465,
443 P.2d 552, 556, cert. denied, 400 U.S. 946 (1968). We have previously held that [i]n
reviewing the evidence supporting a jury's verdict, the question is not whether this Court is
convinced of the defendant's guilt beyond a reasonable doubt, but whether the jury, acting
reasonably, could have been convinced to that certitude by the evidence it had a right to
consider. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980) (citations omitted).
After reviewing the record, we hold that the evidence was sufficient to convince a reasonable
jury beyond a reasonable doubt that the appellant in this case committed first degree
kidnapping.
105 Nev. 869, 873 (1989) Bias v. State
Finding no error with respect to appellant's second and third claims, we affirm his
convictions of robbery and kidnapping but strike the deadly weapon language and vacate the
enhanced sentences based thereon.
____________
105 Nev. 873, 873 (1989) James v. State
LOWELL JAMES and SIDNEY KIRKLAND, Appellants, v. THE STATE OF NEVADA,
Respondent.
No. 19603
December 28, 1989 784 P.2d 965
Appeal from (1) a conviction of appellant James for aiding and abetting a false insurance
claim and conspiracy to make a false insurance claim and (2) a conviction of appellant
Kirkland for aiding and abetting a false insurance claim. Eighth Judicial District Court, Clark
Defendants were convicted in the district court for their involvement in making false
insurance claim for loss of airplane. Defendants appealed. The Supreme Court, Young, C. J.,
held that trial court's errors in admitting evidence of drug smuggling investigation to show
motive or similar circumstances and in failing to give special cautionary instruction regarding
credibility of paid informant's testimony were harmless.
Affirmed.
Rose and Springer, JJ., dissented.
Goodman, Stein & Chesnoff, Kenneth G. Freitas, and Patricia Erickson, Las Vegas, for
Appellants.
Brian McKay, Attorney General, Carson City; Gregory J. Barlow, Deputy Attorney
General, and Stephanie Tucker, Deputy Attorney General, Las Vegas, for Respondent.
1. Criminal Law.
Evidence of out-of-state drug smuggling investigation that did not result in any charges being filed against defendants was
admissible in prosecution for making false insurance claim on loss of airplane under rule dealing with evidence of closely related
crimes inasmuch as plane was alleged to have been involved in drug smuggling activity. NRS 48.035, subd. 3.
2. Criminal Law.
Evidence of out-of-state drug smuggling investigation that did not result in charges being filed against defendants was not
admissible in prosecution for making false insurance claim on loss of airplane under rule permitting admission of other crimes
evidence to show motive, intent, opportunity, knowledge, or similar circumstances even though drug smuggling
was alleged to involve use of airplane; State did not establish by clear and convincing evidence that
defendants committed offenses.
105 Nev. 873, 874 (1989) James v. State
intent, opportunity, knowledge, or similar circumstances even though drug smuggling was alleged to involve use of airplane; State did
not establish by clear and convincing evidence that defendants committed offenses. NRS 48.045, subd. 2.
3. Criminal Law.
Trial court's error in admitting other crimes evidence under rule making such evidence admissible for purpose of showing intent,
motive, or similar circumstances was harmless where same evidence was admissible under rule involving evidence of closely related
crimes. NRS 48.035, subd. 3, 48.045, subd. 2.
4. Criminal Law.
Trial court should have given special cautionary instruction regarding credibility of paid informant's testimony even where
testimony was corroborated by testimony from law enforcement officers.
Error was harmless in trial court's failure to give special cautionary instruction regarding credibility of paid informant's
testimony; evidence against defendant was overwhelming, there was general instruction on witness credibility, and there was full
cross-examination and argument pertaining to informant's character and credibility.
5. Criminal Law.
Error was harmless in trial court's failure to give special cautionary instruction regarding credibility of paid informant's testimony;
evidence against defendant was overwhelming, there was general instruction on witness credibility, and there was full
cross-examination and argument pertaining to informant's character and credibility.
6. Criminal Law.
Venue may be established by circumstantial evidence and need not be shown beyond a reasonable doubt.
OPINION
At appellant's joint trial, a confidential police informant testified about meetings and
conversations he had with appellants James and Kirkland in Florida and Arizona concerning
their plans to use a small Nevada airplane for a trip from Arizona to Mexico. An Arizona
police officer testified that he arrested the appellants upon their arrival in Arizona in the
airplane. He also testified that Arizona and federal authorities were pursuing a drug
smuggling investigation of appellants.
[Headnotes 1-3]
Appellants contend that the district court erred in admitting evidence of the drug
smuggling investigation in Arizona. During cross-examination, defense counsel established
that no charges were ever filed against appellants in Arizona and requested that the Arizona
police reports be made available. Despite a warning from the the court that they were close to
raising collateral issues, defense counsel elicited further testimony concerning the Arizona
arrests and related matters. Thereafter, the State requested a hearing outside the presence of
the jury regarding whether defense counsel had opened the door on the underlying facts and
circumstances of the Arizona investigation and arrests. The court ruled that, pursuant to
NRS 4S.035{3) and NRS 4S.045{2), the State could proceed with questions concerning
the matters raised by defense counsel's cross-examination.
105 Nev. 873, 875 (1989) James v. State
ruled that, pursuant to NRS 48.035(3) and NRS 48.045(2), the State could proceed with
questions concerning the matters raised by defense counsel's cross-examination.
Because the trial judge reasonably determined that defense counsel's cross-examination
raised new issues that warranted further inquiry by the prosecution, there was no abuse of
discretion in finding the testimony admissible under NRS 48.035(3). However, because the
State did not establish by clear and convincing evidence that appellants committed conspiracy
to import marijuana or other drug offenses, the testimony was not admissible under NRS
48.045(2). Nevertheless, because the testimony was properly admitted under NRS 48.035(3),
the district court's error was harmless. Furthermore, because the trial judge was not manifestly
wrong in finding that several issues were raised by defense counsel's cross-examination
which were confusing and misleading to the jury, there was no abuse of discretion in his
deciding that the probative value of the testimony outweighed its prejudicial effect.
[Headnotes 4, 5]
Appellants also contend that the district court erred in refusing to give a special cautionary
instruction to the jury regarding the credibility of a paid informant's testimony. Although the
informant's testimony was corroborated by testimony from law enforcement officers, the
district court should have given the jury such a cautionary instruction. See Williams v. State,
103 Nev. 106, 112, 734 P.2d 700, 704 (1987). However, as in Williams, we find the error
harmless because the evidence of appellants' involvement in a false insurance claim was
overwhelming, there was a general instruction on credibility given to the jury, and through
cross-examination and closing arguments the informant's character and credibility were
effectively exposed.
[Headnote 6]
Appellants further contend that their convictions should be reversed because the State
failed to prove that the crimes occurred in the proper venue. In Dixon v. State, 83 Nev. 120,
424 P.2d 100 (1967), we stated the general rule that it is sufficient if it can be concluded from
the evidence as a whole that the act was committed at the place alleged in the indictment. We
held that venue may be established by circumstantial evidence and need not be shown beyond
a reasonable doubt. Id. at 121-122, 424 P.2d at 100-101 (citations omitted). Although
appellants assert that a majority of states require that venue be proved beyond a reasonable
doubt, we believe that any change in the level of proof currently required would more
appropriately be made by the legislature.
105 Nev. 873, 876 (1989) James v. State
legislature. Furthermore, there was ample circumstantial and direct evidence to prove proper
venue here.
Appellants finally contend that seven other errors, combined with the errors alleged above,
require reversal of their convictions under the cumulative error doctrine. However, because
none of appellants' additional contentions have merit, the cumulative error doctrine does not
apply.
Because we hold that appellants' contentions lack merit, we affirm the district court's
judgment.
Steffen and Mowbray, JJ., concur.
Rose, J., dissenting, with whom Springer, J., agrees:
The appellants were on trial in Nevada for aiding and abetting and conspiring in the
making of a false insurance claim on the loss of an airplane. Once the plane was to be taken
from Las Vegas, there was some indication that it was to be used for drug smuggling in
Arizona and Mexico. The district court permitted the receipt of the suspected drug smuggling
investigation and the arrest of the appellants in Arizona on this charge. This is obviously
evidence of collateral bad acts committed by the appellants. Since I do not find their
admission permitted by NRS 48.035(3) (Nevada's res gestae statute) or the exceptions stated
in NRS 48.045(2) (to establish motive, intent, knowledge and the like), the evidence was
improperly received and had to prejudice the appellants. For this reason, I dissent.
A confidential informant told Arizona law enforcement authorities that the appellants and
others were planning to take a plane from Las Vegas with the owner's consent. They were to
use the plane for two or three days before it would be destroyed. The owner would then make
a false report that the plane had been stolen. Before the plane was destroyed, the appellants
would fly to Mexico and bring back a load of marijuana to an airship in Chandler, Arizona.
Arizona law enforcement officers told Las Vegas police authorities of the plan and Las
Vegas Metropolitan police officers surveilled the appellants when they arrived in Las Vegas
and flew the plane from Las Vegas. Arizona officers observed the appellants arrive with the
airplane in Chandler and then leave the next day. The appellants returned with the plane to
Chandler, Arizona, several days later and they were arrested on Arizona charges of drug
smuggling and possession of stolen property.
Arizona law enforcement authorities searched the plane and no narcotics or narcotic
residue was found anywhere in the airplane or on the appellants. Since there was no evidence
to support the Arizona charges, the appellants were released a few hours later without posting
any bail and these charges were never pursued.
105 Nev. 873, 877 (1989) James v. State
Shortly after the Arizona arrests, appellant Kirkland was offered immunity from the
federal authorities if he would help law enforcement identify all others involved. He refused
this offer. In Nevada, the owner reported the plane stolen three days after the appellants had
taken it.
The Clark County grand jury indicted both appellants on the charges of aiding and abetting
the owner in making a false insurance claim and conspiracy with the owner to make a false
insurance claim. No Nevada charges were made against the appellants concerning the
possession or transportation of narcotics.
At trial, the State established through several witnesses that the owner had purchased a
policy of insurance covering a theft of the Nevada-based airplane and that the owner reported
it stolen several days after appellants flew the plane from Las Vegas. The State then called
Michael Stevens (Officer Stevens), an officer with the Arizona Department of Public Safety,
who had been working with the confidential informant. He indicated that he called Las Vegas
law enforcement authorities and told them that the appellants had travelled to Las Vegas and
where they could be located. In response to a direct question concerning what he did as a
result of the information from the confidential informant, he testified that he arrested the
appellants in Arizona, but did not specify on what charges. He further testified that he had
observed the appellants fly the plane into Arizona several days earlier and leave the next day.
Before the plane took off, presumably on its trip to Mexico, Officer Stevens indicated that he
placed a transponder, a locating beacon, on the aircraft. No objections were lodged to this
testimony.
On cross-examination of Officer Stevens, the appellants' attorneys brought out that formal
charges against the appellants were never pursued after their Arizona arrests and that some
sort of federal immunity was offered to appellant Kirkland shortly after his arrest.
At this stage of the trial, the jury was excused and the district court heard arguments
concerning the scope of redirect examination that the prosecutor would be permitted. It was
the State's position that by inquiring into the failure to charge and prosecute after the Arizona
arrest and the questions concerning immunity, the defense had opened the facts of the arrest
and the grant of immunity to full development on redirect examination. The appellants
strenuously objected to this because it would bring out evidence of other bad acts in violation
of NRS 48.045(2).
The district court ruled that since the appellants had made further inquiry into the facts
subsequent to arrest and particularly because the question concerning a grant of immunity had
been raised, the State would be permitted to inquire into the entire facts and
circumstances concerning the investigation of drug smuggling and the offer of immunity.
105 Nev. 873, 878 (1989) James v. State
raised, the State would be permitted to inquire into the entire facts and circumstances
concerning the investigation of drug smuggling and the offer of immunity. This was pursuant
to NRS 48.035(3), Nevada's res gestae statute and the exceptions stated in NRS 48.045(2),
which permits introduction into evidence of prior bad acts to establish motive, intent,
preparation, plan, knowledge, identity, absence of mistake, or accident.
On redirect examination before the jury, Officer Stevens testified that he arrested the
appellants at the Chandler airport because he had been informed that the appellants had gone
south to pick up a load of marijuana and he thought that the marijuana would be aboard when
the plane landed. This was part of a drug smuggling investigation that the Arizona authorities
were actively pursuing. He then stated that both appellants were placed under arrest for
conspiracy to import marijuana and possession of a stolen aircraft. Officer Stevens also
testified that the day after the arrests, Mr. Kirkland was offered immunity from the charges
filed against him if he would cooperate, but he never accepted it.
On recross-examination, the attorneys for the appellants established that no marijuana
whatsoever was found on the plane and a number of facts provided by the confidential
informant turned out to be false.
When the district court met outside the presence of the jury, evidence had been presented
that appellants had been arrested in Chandler, Arizona, that the charges on which they were
arrested had never been pursued, and that some sort of immunity had been offered to
appellant Kirkland. The fact of the Arizona arrests had been brought out by the prosecution,
the issue of immunity established by the appellants.
Rather than open the redirect examination to the entire facts surrounding the drug
smuggling investigation and arrests, another avenue was available to the district court. This
was to permit the State to establish that the Arizona arrests were not for the charges for which
appellant was on trial in Nevada and that the immunity offered involved those other charges.
This would have permitted the State to show that the arrests that were not pursued and the
immunity offer related to other charges, but it would also have kept out the fact that the
appellants were involved in some sort of major drug smuggling operation and then arrested
for drug smuggling. While members of the jury may have had an idea that the appellants were
using the plane for an illegal purpose, they would never have known for certain of the
investigation and arrest.
Evidence of drug smuggling was not admissible under any of the exceptions stated in NRS
48.045(2); and such facts were not established by clear and convincing evidence as is
required for the admission of such collateral bad acts.
105 Nev. 873, 879 (1989) James v. State
established by clear and convincing evidence as is required for the admission of such
collateral bad acts. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
Additionally, the admission of evidence of drug smuggling was clearly outweighed by its
prejudicial effect.
Admitting the evidence pursuant to NRS 48.035(3) is equally flawed. Participation in the
submission of a false insurance claim and drug smuggling are two distinct crimes that were
alleged to have happened at different times. One crime could be described without reference
to the other. In fact, the confidential informant testified of his knowledge of the plan to take
the plane to Mexico and to submit a false insurance report without referring to narcotics or
drug smuggling.
There was a reasonable way to let the jury know that the arrest and immunity offer
involved other charges unrelated to the Nevada prosecution without going into the other bad
act of drug smuggling. I believe the district court erred by permitting the prosecution to bring
before the jury collateral facts of the drug smuggling investigation and that both appellants
were arrested in Arizona on that charge. The fact of the appellants' Arizona arrest was
brought out by the prosecution, and the appellants' attorneys merely established that those
charges were not pursued. This did not open any new area for redirect examination. The issue
of immunity was brought out by the appellants and the State should have been permitted to
establish that the immunity offer was unrelated to the Nevada charges. The fact that the
appellants may have opened the door for additional examination on the immunity issue does
not mean that the door should have been thrown wide open on redirect examination and all
facts concerning the drug investigation and arrest presented to the jury.
For the reasons stated, evidence of collateral bad acts was admitted in violation of NRS
48.045(2), and I would reverse this case and remand it to the district court for a new trial. I,
therefore, dissent from the majority opinion affirming the appellants' convictions.
____________
105 Nev. 880, 880 (1989) Klein v. State
NOLAN EDWARD KLEIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20078
December 28, 1989 784 P.2d 970
Appeal from a judgment of conviction. Second Judicial District Court, Washoe County;
Charles M. McGee, Judge.
Defendant was convicted by jury in the district court of two counts of robbery with use of
deadly weapon, one count of burglary, and one count of sexual assault with use of deadly
weapon, and he appealed. The Supreme Court held that: (1) defendant failed to preserve error
regarding prosecutor's remarks during closing argument, and remarks were not in any event
improper, and (2) conviction for two separate counts of robbery was proper.
Affirmed.
David Parraguirre, Public Defender and Karen Grifall, Deputy Public Defender, Washoe
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney and Larry Guy
1. Criminal Law.
Prosecutor's closing comments, allegedly vouching personally for credibility of State's witnesses and accusing defense witnesses of
having motives to lie, were not so prejudicial and inflammatory as to require sua sponte intervention of court; thus, defendant failed to
preserve issue for appellate review by neglecting to tender any contemporaneous objections to those comments below.
2. Criminal Law.
Prosecutor's remarks during closing argument, reminding jury of court's instruction that nothing counsel might say during trial was
to be considered as evidence in case and arguing that facts and evidence established that victims had no motive to lie, that another
witness was candid in her testimony, and that defendant's mother and sister had something to gain from their testimony while
victims and defendant's former girl friend did not, were not improper; remarks did not divert jury's attention from its proper focus on
facts in evidence reflecting on issue of credibility of witnesses.
3. Robbery.
Conviction of two counts of robbery was supported by evidence that defendant took $198 from store at closing time even though
he left behind $600 in daily receipts that store employee had been counting, and that defendant ordered employee to put down
telephone when she attempted to summon help, while holding knife to store manager. NRS 200.380, subd. 1.
105 Nev. 880, 881 (1989) Klein v. State
OPINION
Per Curiam:
Nolan Edward Klein appeals his conviction, upon a jury verdict, of two counts of robbery
with the use of a deadly weapon, one count of burglary, and one count of sexual assault with
the use of a deadly weapon. See NRS 193.165; NRS 200.366; NRS 200.380; NRS 205.060.
For the reasons set forth below, we affirm Klein's conviction in all respects.
FACTS
On May 9, 1988, shortly after the 9:00 p.m. closing time of the Payless Shoe Store in
Sparks, Nevada, a man accosted the 21-year old manager as she was cleaning the outside
windows. Holding a knife to her stomach, he directed her back into the store where another
employee was counting out the daily receipts from the register. The second employee reached
for the telephone to summon help, but the man instructed her to put it down. Waiving the
knife, he demanded and received a bag containing $198. He then forced the two women to
enter a bathroom at the rear of the store. After locking themselves in, the women attempted to
summon the police by activating a portable alarm.
The alarm apparently failed to function, however, and a short time later, the man returned
and ordered the manager out of the bathroom. Frightened, she complied. Announcing that he
had to do something that would put him away for a long time, he sexually assaulted her while
holding a knife to her throat. The assailant then returned his victim to the bathroom and,
expressing remorse for his actions, promised to call the police to report his crimes. A short
time later, the Sparks Police Department received and tape recorded a telephone call from an
individual who reported that he had just robbed the store and left two women locked in the
bathroom. Several weeks after the crimes occurred, the store manager identified appellant as
the perpetrator from a police photograph. Appellant was subsequently arrested and brought to
trial.
At trial, the two women both positively identified appellant as the robber and assailant.
Additionally, the state presented the testimony of appellant's former girlfriend who stated that
she was familiar with appellant's telephone voice and, after having heard the police tape
recording of the telephone call reporting the robbery, she had no doubt that appellant had
placed that call.
Although appellant elected not to testify at his trial, his counsel presented numerous
witnesses in an effort to establish that appellant had an alibi on the night of the crime.
Through the testimony of appellant's mother and sister, as well as others acquainted with
appellant and his mother, the defense attempted to show that on the night of May 9,
19S9, appellant was in Jack's Bar in Carson City.
105 Nev. 880, 882 (1989) Klein v. State
of appellant's mother and sister, as well as others acquainted with appellant and his mother,
the defense attempted to show that on the night of May 9, 1989, appellant was in Jack's Bar in
Carson City. Four of appellant's alibi witnesses testified that they specifically recalled being
with appellant in the bar on the night in question. They explained that they remembered
appellant's presence on that particular evening because the group at the bar had joked about a
prophecy of Nostradamus, reportedly foretelling the occurrence of a great disaster on the
following day.
The jury, however, apparently found the prosecution's witnesses more credible than the
witnesses for the defense. It returned verdicts of guilty on all counts. The district court
sentenced appellant to serve consecutive terms totalling thirty years in the Nevada State
Prison for the robberies with the use of deadly weapon, along with a concurrent five-year
term for the burglary. In addition, the district court imposed two consecutive life terms with
the possibility of parole for the sexual assault with the use of a deadly weapon. This appeal
followed.
DISCUSSION
[Headnote 1]
Appellant first contends that prosecutorial misconduct fatally infected the proceedings
below. While conceding that defense counsel tendered no contemporaneous objections to any
of the challenged remarks of the prosecutor, appellant argues that our reversal of his
conviction is warranted because the prosecutor committed patently prejudicial and
inflammatory misconduct during his closing argument to the jury. See, e.g., Sipsas v. State,
102 Nev. 119, 716 P.2d 231 (1986) (general rule that prosecutorial misconduct will not be
reviewed on appeal in absence of a contemporaneous objection did not preclude supreme
court's consideration of alleged error where highly prejudicial and inflammatory remarks
required sua sponte intervention of court). Specifically, appellant argues, the prosecutor
improperly prejudiced appellant's defense and inflamed the jury by personally vouching for
the credibility of the state's witnesses and by accusing the defense witnesses of having
motives to lie.
1
In our view, however, the prosecutor's closing comments to the jury can
hardly compare to the remarks we condemned in Sipsas. No sua sponte intervention of the
court was therefore required. Cf. Sipsas, 102 Nev. at 125, 716 P.2d at 234-35.
__________

1
The specific prosecutorial remarks at issue in this appeal include the prosecutor's statements that the
victims had no motive to come in here and lie, that it made no difference to [the victims] whether or not
[appellant was] convicted except as a victim of crime and that the victims only sought justice. Appellant also
complains that the prosecutor improperly told the jury that appellant's former girlfriend was candid with you.
Additionally,
105 Nev. 880, 883 (1989) Klein v. State
sas, 102 Nev. at 125, 716 P.2d at 234-35. Consequently, by neglecting to tender any
contemporaneous objections below, appellant failed to preserve the issue for our review. See
Hooper v. State, 95 Nev. 924, 604 P.2d 115 (1979); Kelso v. State, 95 Nev. 37, 588 P.2d
1035 (1979), cert. denied, 442 U.S. 921 (1979). Nonetheless, in light of the frequency with
which this issue has recently arisen in this court, we take this opportunity to examine the
permissible boundaries of allowable argument where, as here, the credibility of the witnesses
is of primary significance to the jury's ultimate determination of guilt or innocence.
[Headnote 2]
Appellant argues that the prosecutor's closing remarks violated the Supreme Court Rules
and the holdings of numerous recent decisions of this court. See SCR 173(5) (a lawyer shall
not express a personal opinion as to the justness of a cause, the credibility of a witness, . . .
or the guilt or innocence of an accused); Witherow v. State, 104 Nev. 721, 765 P.2d 1153
(1988) (prosecutor improperly and specifically stated his personal opinion that a witness had
lied on the stand); Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988) (prosecutor
improperly interjected his personal beliefs and invoked the authority of his office by telling
the jury that he did not take his responsibility to decide whether or not to seek the death
penalty lightly and that the death penalty was the only penalty he would even suggest the jury
consider); Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986) (prosecutor improperly,
repeatedly and specifically stated his personal opinion and beliefs respecting factual issues
and the credibility of witnesses). In the instant case, however, the comments at issue are
clearly distinguishable from those condemned in the above cited cases.
Like the situation in Witherow the jury's determination of guilt at appellant's trial was
necessarily and primarily dependent upon its assessment of the credibility of the respective
witnesses. Simply put, in resolving the question of appellant's guilt or innocence, the jury was
squarely confronted with the factual question of who was more believable, the state's
witnesses or appellant's alibi witnesses. Statements by either counsel conveying a personal
opinion as to the veracity of witnesses in circumstances where veracity may determine the
ultimate issue of guilt or innocence" clearly constitutes improper argument.2 See Harris v.
United States, 402 F.2d 656, 657 {D.C. Cir.
__________
appellant maintains that, in characterizing the testimony of appellant's mother and sister, the prosecutor
improperly stated:
It's wrong to get on the stand and not tell the truth and the whole truth. It's for you to determine
whether or not they were. It's understandable if they didn't. But they're the ones that have got something
to gain by this, not the two victims that testified, not [appellant's former girlfriend.]
105 Nev. 880, 884 (1989) Klein v. State
stances where veracity may determine the ultimate issue of guilt or innocence clearly
constitutes improper argument.
2
See Harris v. United States, 402 F.2d 656, 657 (D.C. Cir.
1968). Unlike the censured statements in Harris and Witherow, however, the prosecutor's
comments in issue here did not divert the focus of the jury's consideration of the case from
the facts in evidence to the attorney's personal evaluations of the weight of the evidence.
Harris, 402 F.2d at 659; Witherow, 104 Nev. at 724, 765 P.2d at 1155.
To the contrary, the prosecutor began his closing argument by reminding the jury of the
court's instruction that nothing counsel might say during the trial was to be considered as
evidence in the case. Moreover, rather than stating a personal opinion respecting the veracity
of the respective witnesses, the prosecutor merely proceeded to argue to the jury that the facts
in evidence established that the victims had no motive to lie, that another witness was
candid in her testimony, and that appellant's mother and sister had something to gain
from their testimony, while the victims and appellant's former girlfriend did not. It was
entirely permissible for the prosecutor to argue the evidence before the jury in such a fashion
and to suggest reasonable inferences that might be drawn from that evidence. See generally
Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987). See also Harris, 402 F.2d at 659 (the
prosecutor is free to strike hard blows at witnesses whose credibility he is challenging)
3
;
Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971) (statements made by the prosecutor, in
argument, when made as a deduction or conclusion from evidence introduced in the trial, are
permissible). The prosecutor's comments in this instance did not divert the jury's attention
from its proper focus on the facts in evidence reflecting on the issue of credibility of the
witnesses. Therefore, we conclude that the challenged remarks were well within the
boundaries of acceptable argument and comment.
[Headnote 3]
Appellant also contends that insufficient evidence was presented to the jury to support
appellant's conviction of the robbery of both store employees.
__________

2
We note, for example, that during defense counsel's closing argument in the instant case, the district court
quite properly sustained the prosecutor's objection to a statement by defense counsel conveying her personal
beliefs. The district court immediately instructed the jury not to pay any attention to the personal opinions of
counsel.

3
As the court also noted in Harris, the universally accepted and proper form of comment on the
contradictions in testimony entails argument focusing the jury's attention on the fact that if it believes one
witness, it must also disbelieve the contradictory testimony of the other witness. Id. at 658, n.3.
105 Nev. 880, 885 (1989) Klein v. State
sented to the jury to support appellant's conviction of the robbery of both store employees.
Specifically, appellant argues, the state's evidence demonstrated that only the store manager
had a possessory interest in the stolen money, and the state completely failed to prove that the
other employee had any possessory interest in the $198 that was actually taken from the store.
See Phillips v. State, 99 Nev. 693, 669 P.2d 706 (1983) (conviction for robbery of customer
of jewelry store reversed where customer had no possessory interest whatsoever in stolen
property).
Our review of the record on appeal, however, reveals sufficient evidence to establish
appellant's guilt beyond a reasonable doubt as determined by a rational trier of fact. See
Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980). Specifically, testimony was presented to
the jury indicating that, when the one employee attempted to summon help, appellant ordered
her to put down the telephone while holding a knife to the store manager. Testimony also
established that appellant waived the knife, ordered both women to the floor, and demanded
money. Further, the one victim testified that she was an employee, that as part of her job she
was counting out the daily receipts on the counter when appellant appeared, that the safe was
open and that [w]e told [appellant] all the money was on the counter, he could just have it.
(Emphasis added.) Although appellant only took $198 and left behind the $600 in daily
receipts that the employee had been counting, her testimony alone constituted substantial
evidence from which the jury could reasonably infer that both women were in joint
possession and control of all of the store's money. See NRS 200.380(1); People v. Ramos,
639 P.2d 908, 927-29 (Cal. 1982) (conviction for two separate counts of robbery was proper
where property was taken from co-employees who had joint possession of property), rev'd on
other grounds, 463 U.S. 992 (1983). Further, on the basis of the evidence before it, the jury
could have reasonably inferred that appellant effected the taking or prevented or overcame the
employee's resistance to the taking by means of threats of force directed to both her and the
store manager. Robertson v. Sheriff, 93 Nev. 300, 302, 565 P.2d 647, 648 (1977) (for
purposes of robbery statute, a thing is in the presence of a person, in respect to robbery of that
person, if it 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). Under these
circumstances, and where, as here, substantial evidence supports the jury's finding of guilt, we
will not disturb the jury's verdict. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Accordingly, we affirm the judgment of the district court.
____________
105 Nev. 886, 886 (1989) City Council of Reno v. Reno Newspapers
THE CITY COUNCIL OF THE CITY OF RENO, Appellant, v. RENO NEWSPAPERS,
INC., a Nevada Corporation, Respondent.
No 18206
December 28, 1989 784 P.2d 974
Appeal from a district court contempt citation. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Action was brought to hold members of city council in criminal contempt for violating
injunction that prohibited them from conducting closed meetings for purpose of selecting
public officers. The district court entered order finding members in contempt, and appeal was
taken. The Supreme Court, Rose, J., held that council members did not willfully violate
state's open meeting law and could not be held in criminal contempt of injunction.
Patricia Lynch, City Attorney and Carl F. Hylin, Assistant City Attorney, Reno, for
Appellant.
Hardesty & Moss, Reno, for Respondent.
1. Injunction.
District court could enforce injunction which was entered in case involving selection of city manager, whereby city council
members were enjoined from thereafter violating Nevada's open meeting law, even though it expressly reserved jurisdiction of case
only until city manager was selected. NRS 241.010 et seq.
2. Injunction.
District court may enforce injunction by subsequent contempt proceeding.
3. Injunction.
Sufficient basis existed for issuance of permanent injunction to prevent city council members from violating Nevada's open
meeting law in future, where court had clear indication that members had violated law in their selection of city manager. NRS 241.010
et seq.
4. Injunction.
Supreme Court would deny effect to language of permanent injunction, to the extent that injunction was overly broad and
prohibited city council members from holding closed meetings even when such meetings were allowed by Nevada's open meeting law.
NRS 241.010 et seq.
5. Injunction.
Public officers can be enjoined only from acts that are unlawful or in excess of their authority.
Provision of Nevada's open meeting law, which permitted closed meetings to consider the character, alleged misconduct,
professional competence, or physical or mental health of person, would be harmonized with second provision that required open
meetings to discuss any appointment to public office by interpreting second provision as limitation on first. NRS 241.030, subd. 1.
7. Statutes.
When language of statute is plain and unambiguous, court should give that language its ordinary meaning and not go beyond it.
8. Statutes.
Statutory provisions should, whenever possible, be read in harmony, provided that doing so does not violate the ascertained spirit
and intent of legislature.
9. Injunction.
Contempt proceeding which results in imposition of fine as punishment for violation of injunction is criminal in nature.
10. Contempt.
Criminal contempt of court concerns violation of penal statute, and must be strictly construed in favor of those accused.
11. Contempt.
Members of city council did not willfully violate Nevada's open meeting law when, on advice of counsel, they conducted closed
meeting to consider qualifications of possible appointee to public office, and they could not be held in criminal contempt for violating
court order requiring them to comply with open meeting law. NRS 199.340, subd. 4, 241.030, subd. 1.
OPINION
1

The City of Reno City Council (the Council) appeals a district court citation holding five
members of the Council in contempt for violating an injunction that prohibited them from
conducting closed meetings for the purpose of selecting public officers. We conclude that
although the Council members violated Nevada's Open Meeting Law there is insufficient
evidence to support the district court's criminal contempt citation.
FACTS
Reno Newspapers, Inc. (Reno Newspapers) sued the Council in 1986 to force it to select
Reno's new city manager in a session open to the public. At the time of the suit, the Council
had eliminated all but two of the 75 city manager candidates and was about to make its final
decision.
__________

1
The parties eventually settled their dispute by entering into a stipulation to judgment. In
the stipulation, the Council admitted that it had violated Nevada's Open Meeting Law in its
city manager selection process and it agreed to entry of a permanent injunction restraining it
from conducting any closed sessions in violation of Chapter 241 of the Nevada Revised
Statutes in the future in connection with the selection of a public officer, as that term is
defined in NRS 281.005. Pursuant to this stipulation, the district court entered a judgment
permanently enjoining and restraining the Council from conducting any closed meetings in
the future for the purpose of selecting a public officer, as that term is defined in NRS
281.005. The district court also expressly reserved jurisdiction over the city manager
selection process until June 1, 1986.
Approximately ten months after entry of the injunction, the Council selected a new city
clerk. The Council conducted the initial interviews of the applicants in a public session, but
then announced the desire to go into a closed personnel session to discuss the applicants and
asked the city attorney if this was legal. Although initially equivocal, the city attorney
ultimately advised the Council members that it was permissible pursuant to NRS 241.030(1),
provided they discuss only the character, alleged misconduct, professional competence or
physical or mental health of the applicants. Mayor Pete Sferrazza, himself an attorney, voiced
concern about the closed meeting violating the Open Meeting Law. A reporter for Reno
Newspapers objected to the closed session and requested a recess so that his employer's
attorney could appear and present arguments in opposition to it. Councilman David Howard
asserted that the Mayor was permitting a young reporter to run the City Council meeting and
abruptly left.
Acting on the city attorney's advice, Florence Lehners, Janice Pine, Gus Nunez and
Catherine Wishart voted to meet in a closed personnel session. Walter Wilson and Peter
Sferrazza opposed the motion. Six City Council members, Lehners, Wilson, Pine, Nunez,
Howard and Wishart, along with the city attorney then met in a closed session. Mayor
Sferrazza did not attend the twenty minute closed meeting.
The minutes of the closed meeting indicate that the Council members in attendance
discussed only the character and professional competence of the applicants. The Council
members then reconvened publicly, discussed the requirements of the city clerk's job,
nominated two candidates, and proceeded to vote. Don Cook was selected as the new city
clerk.
Thereafter, Reno Newspapers moved for an order compelling the Council to show cause
why it should not be held in contempt for violating the previously entered permanent
injunction.
the Council to show cause why it should not be held in contempt for violating the previously
entered permanent injunction. The district court issued the requested order to show cause. In
answer to the show cause order, the Council averred that the permanent injunction involved
only the selection of the city manager and, by its terms, had expired, and that the five Council
members who met in closed session had not violated the Open Meeting Law because they met
only to discuss matters permitted by NRS 241.030(1).
After a hearing, the district court found that the four Council members, Florence Lehners,
Gus Nunez, Janice Pine and Catherine Wishart, who voted to close the session were in
violation of the permanent injunction. Each were fined $300. Councilman David Howard,
who attended the closed meeting but who had not voted for it, was also found guilty of
contempt and fined $500 for willfully violating the injunction. The district court assessed
attorney's fees and costs against the Council.
LEGAL DISCUSSION
I. Effectiveness of Preliminary Injunction
The stipulation for entry of judgment entered into by the parties concerned the selection of
the city manager, but also stated that the Council would not violate NRS Chapter 241. NRS
Chapter 241, Nevada's Open Meeting Law, however, contains an exception that permits
closed meetings. Nonetheless, the judgment entered pursuant to the stipulation went beyond
the stipulation's language by stating that the Council is permanently enjoined from
conducting any closed meetings in the future for the purpose of selecting a public officer.
[Headnotes 1, 2]
The Council asserts first that the district court lost jurisdiction once the city manager was
selected. While the district court expressly reserved jurisdiction until completion of the city
manager's selection, the prohibition against selecting a public officer in private had no time
limitation and was effective until withdrawn. A district court may enforce an injunction by
subsequent contempt proceedings. See Conforte v. Hanna, 76 Nev. 239, 351 P.2d 612 (1960).
Therefore, the injunctive prohibition was effective and binding on the Council when, less that
a year hence, it considered the selection of another public officer, i.e., the city clerk.
[Headnote 3]
Since the district court had jurisdiction of the issue addressed in the motion and order to
show cause, we must next determine whether the district court erred in enjoining future
conduct that would be in violation of the Open Meeting Law.
in the motion and order to show cause, we must next determine whether the district court
erred in enjoining future conduct that would be in violation of the Open Meeting Law. The
answer to this question is given by the Supreme Court of Florida's interpretion of a similar
statute. In Board of Public Instruction of Broward Co. v. Doran, 224 So.2d 693 (Fla. 1969),
the court stated:
While it is well established that courts may not issue a blanket order enjoining any
violation of a statute upon a showing that the statute has been violated in some
particular respects (see Moore v. City Dry Cleaners & Laundry, 41 So.2d 865 (Fla.
1949)), nevertheless they do possess authority to restrain violations similar to those
already committed. See Interstate Commerce Commission v. Keeshin Motor Express,
134 F.2d 228 (C.C.A.Ill. 1943). This Court may enjoin violations of a statute where one
violation has been found if it appears that the future violations bear some resemblance
to the past violation or that danger of violations in the future is to be anticipated from
the course of conduct in the past. See National Labor Relations Board v. Express
Publishing Company, 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930 (1941).
Id. at 699, 700.
The district court had a clear indication that the City of Reno had violated Nevada's Open
Meeting Law. Coupled with the Council's stipulation to a judgment that would enjoin it from
violating the Open Meeting Law in the future selection of public officers, this provided
sufficient specificity and basis for entering the permanent injunction.
[Headnote 4]
The final determination concerning the preliminary injunction is whether the injunction
pursuant to stipulation was effective to the extent that it went beyond the language of the
stipulation by expanding the activity that the city was forbidden to conduct, i.e., the
prohibition against the private selection of any public officer without respect to any exception
contained in the Open Meeting Law.
[Headnote 5]
Public officers can only be enjoined from acts that are unlawful or in excess of the officer's
authority. State ex rel. Burger v. Myers, 495 P.2d 844, 846 (Ariz. 1972). Since the Open
Meeting Law permits public bodies to close meetings in some circumstances, the blanket
prohibition against ever closing a meeting involving the appointment of a public officer might
have prevented the Council from doing a lawful act.
vented the Council from doing a lawful act. When an injunction against a public agency for
failure to conduct an open meeting is too broad in scope, it may be modified on appeal and
enforced as modified. See Sacramento Newspaper Guild v. Sacramento Co. Bd. of Super., 69
Cal.Rptr. 480 (1968). Thus, to the extent that the injunction was overly broad, we restrict and
deny effect to its language in excess of that which prohibited the selection of a public officer
in any closed session in violation of Chapter 241.
II. Nevada's Open Meeting Law
[Headnote 6]
The pivotal question now is whether the closed meeting that gave rise to this appeal
violated Nevada's Open Meeting Law. We begin by observing that the legislature amended
and strengthened the Open Meeting Law in 1977, but that the amendment also specifically
sets forth an exception to the Open Meeting Law. Section 1 of NRS 241.030 provides that a
public body may hold a closed meeting to consider the character, alleged misconduct,
professional competence, or physical or mental health of a person. Had the statute stopped
here, there would be no question that the Council's actions were lawful. However, section 3
of NRS 241.030 enumerates certain things the Open Meeting Law does not permit, and, in
NRS 241.030(3)(e), the statute clearly provides that the Open Meeting Law does not permit
a closed meeting for the discussion of the appointment of any person to public office or as a
member of a public body.
[Headnote 7]
The Council argues that it did not violate the prohibition against closing the discussion of
the appointment of a public officer because the word appointment in the description of
prohibited activity is the critical word and that the appointment (final selection) was done in
public. If the statute merely referred to the appointment of a public officer, the Council's
position would be much stronger. It, however, does not. When the language of a statute is
plain and unambiguous, a court should give that language its ordinary meaning and not go
beyond it. Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979). We
conclude therefore that the clause discussion of appointment contained in NRS
241.030(3)(e) means all consideration, discussion, deliberation and selection done by a public
body in the appointment of a public officer.
In McKay v. Board of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986), we held that a
public body did not violate the Open Meeting Law when it went into closed session to discuss
the character, alleged misconduct, and professional competence of its city manager because
such private consideration was expressly authorized by NRS 241.030{1).
city manager because such private consideration was expressly authorized by NRS
241.030(1). We held, nonetheless, that the action of the public body in terminating the city
manager in a closed session violated the law and did not fall within the above cited exception.
102 Nev. at 651, 730 P.2d at 443. We did not consider, however, the additional statutory
language contained in NRS 241.030(3)(e) prohibiting the discussion of the appointment of
a person to public office in private because the issue was not before us. Therefore, the McKay
case is not dispositive of the situation here presented.
[Headnote 8]
Statutory provisions should, whenever possible, be read in harmony provided that doing so
does not violate the ascertained spirit and intent of the legislature. Ex Parte Iratacable, 55
Nev. 263, 283, 30 P.2d 284, 291 (1934); accord Acklin v. McCarthy, 96 Nev. 520, 523, 612
P.2d 219, 220 (1980) (entire act must be construed as a whole and in light of its purpose). In
reviewing the Open Meeting Law, we start with the legislature's pronouncement of its intent
that all public bodies must be open. McKay v. Board of Supervisors, supra. NRS 241.030(1)
permits a public body to meet in closed session to consider a person's character, alleged
misconduct, professional competence or physical or mental health. NRS 241.030(3)(e) limits
the exception contained in NRS 241.030(1) by prohibiting a closed meeting for the discussion
of the appointment of any person to public office. We believe that the section permitting
closed meetings in certain cases and the blanket prohibition against discussing the
appointment of a public officer in closed session can be read in harmony. Accordingly, we
construe the statute as permitting public bodies to meet in closed session to consider a
person's character, alleged misconduct, professional competence or health, except when the
matter involved is a discussion of the appointment of a public officer. In such situations, any
closure of a meeting violates the Open Meeting Law.
The Council argues that this is not sound policy because municipal governments should be
able to consider sensitive matters concerning applicants for a public office in private, but
make their final selection in public. While the Council's argument is not without merit, it is
the legislature who is charged with making that decision and it has set forth an unequivocal
prohibition against any closed meeting concerning the discussion of the appointment of a
public officer.
Based on the foregoing, we conclude that the Council violated Nevada's Open Meeting
Law, when it held a closed meeting for the purpose of discussing the character, alleged
misconduct, professional competence or physical or mental health of the applicants for
the position of city clerk, a public office.
professional competence or physical or mental health of the applicants for the position of city
clerk, a public office.
III. Contempt of Court
We must now determine the nature, either civil or criminal, of the district court's contempt
citation, and whether the evidence is sufficient to support its issuance.
Preliminarily, we note that the permanent injunction as entered could have been confusing
to members of the Council. It enjoined the Council members from selecting a public officer
in a closed session. By using the word select, the Council and its attorney could have
believed that the Council could hold a closed session to discuss those matters permitted by
NRS 241.030(1), but that the final selection must be made in a public meeting. Although
McKay involved a discussion of the potential termination of a public officer rather than his
appointment, we did make a similar distinction in that case. We have already noted that the
breadth of the injunction went beyond the stipulation to judgment and this too added some
degree of uncertainty to the acts actually prohibited. Finally, the Council argues that it
believed the injunction pertained only to the selection of the city manager and did not extend
to the future selection of other public officers. While we have already rejected this argument,
it does lend support to the Council's position that the Council was concerned only with the
language of the two sections of the Open Meeting Law and the then recently decided McKay
case, but not the permanent injunction.
The Council did not disregard the Nevada Open Meeting Law without giving it
consideration. The Council members asked the city attorney if they could discuss the
applications in private pursuant to NRS 241.030(1). The city attorney indicated that the
Council members could, provided that they discussed only the character, alleged misconduct,
professional competence and health of the individual applicants. The majority of the Council
voted accordingly and then met in closed session.
[Headnotes 9, 10]
The district court stated in its decision that while the contempt proceeding had some
aspects of civil contempt, the primary purpose was to punish those who violated the
injunction, and therefore was criminal in nature. We agree. Where a fine is imposed as
punishment for violation of an injunction, the proceeding is criminal. Ex parte Sweeney, 18
Nev. 74, 76 (1883). Therefore, our analysis must be whether there was proof beyond a
reasonable doubt to support the finding that the Council members were in criminal contempt
of court; we must keep in mind that criminal contempt of court concerns the violation of a
penal statute and must be strictly construed in favor of those accused of violating its
provisions.
that criminal contempt of court concerns the violation of a penal statute and must be strictly
construed in favor of those accused of violating its provisions. Maxwell v. Rives, 11 Nev.
213, 221 (1876).
NRS 199.340(4) states that a person is in criminal contempt if he or she commits willful
disobedience to the lawful process or mandate of a court. In Robey v. State, 96 Nev. 459,
611 P.2d 209 (1980), we considered the word willful when used in a criminal statute. In
that case, a justice of the peace was convicted of willfully omitting to pay over fines he
collected to the proper county official. The justice's defense was that he was never informed
of the proper procedure for paying over the money and that some of it was inadvertently
misplaced and then subsequently returned. We held that the judge's conviction must be
reversed because one instruction defining the word willfully stated that the word does not
require any intent to violate the law or to acquire any advantage. In holding that the act had to
be accompanied by some conscious awareness of a wrongful act, we stated: The word
willful' when used in criminal statutes with respect to proscribed conduct relates to an act or
omission which is done intentionally, deliberately or designedly, as distinguished from an act
or omission done accidentally, inadvertently, or innocently. Id. at 461 (citations omitted).
[Headnote 11]
The evidence in this case does not support a finding of criminal contempt of court. The
injunction was somewhat ambiguous as to what conduct was proscribed and whether the
injunction was effective indefinitely. The Council members considered two apparently
conflicting sections in the Nevada Open Meeting Law and asked their city attorney for his
opinion. The city attorney indicated that the Council could meet in closed session to discuss
the applications for the position of city clerk based upon his reading of Nevada law, and the
then recently issued McKay decision. Acting on his advice, the Council voted to meet in
closed session and then conducted that meeting. This conduct does not show any conscious
awareness of a wrongful act or the existence of a guilty mind. We therefore conclude that
there was no willful violation of the district court's preliminary injunction.
IV. Conclusion
We affirm the district court's finding that the conduct of five members of the Council
violated Nevada's Open Meeting Law and the preliminary injunction, but that there is
insufficient evidence to support the finding that the five Council members were in criminal
contempt of court. Council members Florence Lehners, Janice Pine, Gus Nunez, Catherine
Wishart and David Howard are exonerated from the finding that they were in contempt of
court and fines assessed against them are vacated.
Lehners, Janice Pine, Gus Nunez, Catherine Wishart and David Howard are exonerated from
the finding that they were in contempt of court and fines assessed against them are vacated.
Since Reno Newspapers is the prevailing party, and the Open Meeting Law (NRS 241.057)
expressly permits attorney fees and costs to a successful plaintiff, the attorneys fees and costs
assessed against the Council are affirmed.
Springer, J., concurs.
I agree with the majority opinion as far as it goes. However, I would also affirm the
contempt ruling against the appellant. This ruling gives authority and meaning to the
judgment in upholding the open meeting law in its entirety.
I respectfully dissent. I agree that the pivotal question is whether the closed meeting in
question violated Nevada's Open Meeting Law. The controlling language is found in Chapter
241 of Nevada Revised Statutes.
The majority, in its opinion, states: Section 1 of NRS 241.030 provides that a public body
may hold a closed meeting to consider the character, alleged misconduct, professional
competence, or physical or mental health of a person.'
1

The majority then continues:
However, section 3 of NRS 241.030 enumerates certain things the Open Meeting Law
does not permit, and, in NRS 241.030(3)(e), the statute clearly provides that the Open
Meeting Law does not permit a closed meeting for the discussion of the appointment
of any person to public office or as a member of a public body.
Thereafter, the majority opinion argues: NRS 241.030(3)(e) limits the exception
contained in NRS 241.030(1) by prohibiting a closed meeting for the discussion of the
appointment of any person to public office. The majority then concludes that because of this
perceived limitation, the City Council violated Nevada's Open Meeting Law.
I submit the conclusion of the majority completely ignores the following underlined
language in NRS 241.030(1): Nothing contained in this chapter prevents a public body
from holding a closed meeting to consider the character, alleged misconduct, professional
competence, or physical or mental health of a person."
__________

1
The majority quote omits the first eleven words, namely Nothing contained in this chapter prevents a
public body from holding and therein lies the difference between how my colleagues in the majority and I view
the statutory intent.
contained in this chapter prevents a public body from holding a closed meeting to consider
the character, alleged misconduct, professional competence, or physical or mental health of a
person. (Emphasis added.)
NRS 241.030(3)(e), which is the predicate of the majority opinion, is clearly included
within [n]othing contained in this chapter. Therefore, if there is a conflict between NRS
241.030(3)(e) and NRS 241.030(1), manifestly it was the intention of the legislature that NRS
241.030(1) should controlnot NRS 241.030(3)(e). If the underlined language had been
omitted in the statuteas it was in the majority quotationthen the construction of the two
sections utilized by the majority is not unreasonable. If the underlined language is respected,
however, I submit that the conclusion of the majority is untenable.
Perhaps more importantly, the majority view virtually suspends NRS 241.030(1) whenever
persons who are candidates for public office are involved in the council's discussions. The
council is thus precluded from discussing the character, alleged misconduct, professional
competence or health of such persons notwithstanding the complete lack of statutory support
for such a proposition. Rather than harmonizing the two statutes at issue, an easy task at
worst, and giving effect to both, the majority has simply declared NRS 241.030(1) a nullity
when directed at council discussions involving candidates for public office. I would never
attribute such ineptitude to the legislature. Given the high profile of open meeting law
legislation, it seems highly unlikely that the legislature would have overlooked the premise
established judicially by the majority.
Moreover, if there is an ambiguity between the two subsections, I suggest that the
ambiguity should be resolved in favor of the provisions of NRS 241.030(1) being deemed
controlling. If criminal liability can be imposed, a statute should be strictly construed. The
construction employed by the majority would subject those violating the provisions of NRS
241.030(3)(e) to criminal liability because Chapter 241 states that violation of the provisions
thereof is a misdemeanor. Thus, under the reasoning of the majority opinion, the attorney
general or district attorney is charged with filing a criminal complaint against members of the
City Council. I submit such an unreasonable interpretation militates against the conclusion of
the majority.
If the legislature had intended that NRS 241.030(3)(e) is to control, it would have
eliminated the underlined language in NRS 241.030(1) above. But for these fourteen
underlined words, I would agree with the majority.
If NRS 241.030(3)(e) is not controlling as reasoned above, I submit the actions of the City
Council fully complied with NRS 241.030(1). See McKay v. Bd. of Supervisors, 102 Nev.
644, 730 P.2d 43S {19S6).
730 P.2d 438 (1986). The record reflects that the Reno City Council, in filling the office of
city clerk, interviewed the applicants in open session. The controverted meeting was closed
for approximately twenty minutes with approval of its legal counsel while the council
members discussed only the character and competency of the applicants. The council then
immediately reconvened in open session, at which time two candidates were nominated with
a vote being taken revealing applicant Don Cook as the newly chosen city clerk. Under the
guidance set forth in McKay v. Bd. of Supervisors, supra, the Reno City Council conducted
the meeting in a proper manner. Moreover, the council did not discuss the appointment of any
individual in a closed session as prohibited by the statute. For the reasons stated above, I
respectfully disagree with the opinion of the majority.
____________
105 Nev. 897, 897 (1989) Ewell v. State
TERRY A. EWELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19804
JAMES A. LUCIOUS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19952
December 28, 1989 785 P.2d 1028
Consolidated appeals from judgments of conviction of two counts each of attempted
murder and one count each of illegal discharge of a firearm. Eighth Judicial District Court,
Clark County; Earle W. White, Jr., Judge.
Defendants were convicted in the district court of two counts each of attempted murder
and one count each of illegal discharge of firearm, and they appealed. The Supreme Court
held that: (1) jury charge on transferred intent did not have effect of changing theory of
prosecution, relieving prosecution of its duty to prove elements of attempted murder, or
depriving defendants of proper notice of charges they had to defend against; (2) evidence was
sufficient to sustain conviction of defendant who did not fire shots; and (3) conduct of
defendant who fired shots was not precipitated by outrageous conduct by undercover police
officers.
Affirmed.
Clark County, for Appellant Ewell.
Charles Waterman, Las Vegas, for Appellant Lucious.
105 Nev. 897, 898 (1989) Ewell v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney and James
1. Criminal Law; Homicide.
Jury charge on transferred intent, instructing jury that defendants were guilty of attempting to kill police officers disguised as gang
members if they fired at group of people immediately near officers, did not have effect of changing theory of prosecution, relieving
prosecution of its duty to prove all elements of attempted murder and shifting burden of proof, or depriving defendants of proper notice
of charges they had to defend against; instruction merely informed jury that prosecution did not have to prove that defendants intended
to kill specific person in group to convict defendants of attempting to kill officers as charged in information.
2. Homicide; Weapons.
Evidence that defendant drove car past group of people and that passenger fired shots toward people in group supported
defendant's conviction of two counts of attempted murder with deadly weapon and one count of illegal discharge of firearm,
notwithstanding defendant's testimony that he was unaware that passenger had gun and was surprised when passenger opened fire.
3. Criminal Law.
Defendant's conduct in shooting at group of people from car was not precipitated by outrageous conduct by undercover police
officers, who were dressed as members of rival gang as part of reverse-sting drug operation, notwithstanding defendant's contention
that rival gang members had shot at him prior to shooting and that he fired gun only when he thought he observed officer carrying
weapon; officers never enticed defendant into exchange of gunfire, but merely indicated they had drugs for sale.
4. Criminal Law.
Defendant's claim that he was deprived of effective assistance of counsel at his trial would be properly raised in post-conviction
proceeding, and would not be addressed on direct appeal.
OPINION
Per Curiam:
These are appeals from judgments of conviction, pursuant to a jury trial, of two counts
each of attempted murder with a deadly weapon and one count each of illegal discharge of a
firearm. The district court sentenced each appellant to serve a total of twenty years in the
Nevada State Prison.
1

In the early morning hours of July 7, 1988, the Las Vegas Metropolitan Police Department
was conducting a reverse sting" operation near a housing project in Las Vegas.
__________

1
Appellants were co-defendants in the proceedings in the district court, and they have raised some identical
issues on appeal. Accordingly, we have consolidated these appeals for purposes of disposition. See NRAP 3(b).
105 Nev. 897, 899 (1989) Ewell v. State
sting operation near a housing project in Las Vegas. Police officers, dressed as gang
members, were stopping traffic and offering to sell narcotics to the persons in the stopped
vehicles. During the course of the operation, appellants approached the area in an automobile.
The automobile slowed, and appellant Lucious fired at least two gunshots in the direction of
two of the disguised officers. A jury convicted appellants of two counts each of attempted
murder and one count each of illegal discharge of a firearm. These appeals followed.
[Headnote 1]
Appellants first contend that the district court erred by instructing the jury on transferred
intent. The challenged instruction reads as follows:
During an attack upon a group, a defendant's intent to kill need not be directed at any
one individual. It is enough if the intent to kill is directed at the group.
Specifically, appellants complain that, because the information charged them with
attempting to kill two specific undercover police officers, the quoted jury instruction changes
the theory of prosecution. Appellants further contend that the instruction relieved the
prosecution of its duty to prove all the elements of attempted murder and impermissibly
shifted the burden of proof. Appellants also argue that the instruction contains elements that
are not included in the indictment. Therefore, they contend that the instruction deprived them
of proper notice of the charges they had to defend against.
This contention is without merit. The information used to charge appellants was included
in the jury instructions. The jury instructions, taken as a whole, accurately and fairly state the
law in Nevada. Appellants were guilty of attempting to kill the two police officers if they
fired at the group of people immediately near the officers. The instruction merely informs the
jury that the state did not have to prove that appellants intended to kill a specific person in the
group. See State v. Hamilton, 557 P.2d 1095 (N.M. 1976); Murray v. State, 713 P.2d 202
(Wyo. 1986).
[Headnote 2]
Appellant Ewell contends that there was insufficient evidence to sustain the jury's verdict
of guilty. Our review of the record on appeal, however, reveals sufficient evidence to
establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Wilkins
v. State, 96 Nev. 367, 609 P.2d 309 (1980). Specifically, we note that Ewell admitted to
driving a car past a group of people and that Lucious, the passenger in that car, fired shots
toward the people in the group.
105 Nev. 897, 900 (1989) Ewell v. State
shots toward the people in the group. Ewell's testimony was that he was unaware that Lucious
had a gun and was surprised when Lucious opened fire. The jury is the sole judge of the
credibility of the witnesses. See Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975). Further,
the jury is entitled to draw reasonable inferences from the evidence. Hern v. State, 97 Nev.
529, 531, 635 P.2d 278, 279 (1981). Our review of the evidence convinces us that the jury
was justified in disbelieving Ewell's story and inferring that he was a voluntary participant in
the shooting. We will not disturb a jury's verdict where, as here, it is supported by substantial
evidence. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
[Headnote 3]
Appellant Lucious contends that prior to committing the instant offense, rival gang
members shot at him. He states that the prior incident put him in a fearful state of mind. He
also asserts that the police officers were dressed as members of the rival gang, and that he
fired the gun only when he thought he observed the officer carrying a weapon. Therefore,
Lucious argues that the police officers caused him to fire the shots, and that his actions should
be excused because of the outrageous government conduct in this case.
This contention is without merit. As respondent correctly notes, the police officers never
enticed appellants into an exchange of gunfire; the officers merely indicated that they had
drugs for sale. Under these circumstances, it is clear that Lucious was predisposed to commit
the charged offenses; thus, Lucious' actions were not precipitated by outrageous conduct by
the undercover police officers. See Sheriff v. Gleave, 104 Nev. 496, 761 P.2d 416 (1988); cf.
United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986).
[Headnote 4]
Finally, Lucious contends that he was deprived of effective assistance of counsel at his
trial. We note, however, that such claims are properly raised in a post-conviction proceeding.
See Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981). Therefore, we decline to address
the merits of this argument in this appeal.
Having concluded that appellants' contentions lack merit, we affirm the judgments in all
respects.
2

__________

2
Pursuant to NRAP 34(f), we have determined that oral argument is not warranted in this case.
____________
105 Nev. 901, 901 (1989) Honkanen v. State
BRANT RUDOLPH HONKANEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19259
December 29, 1989 784 P.2d 981
Appeal from a judgment of conviction of one count of child abuse, a gross misdemeanor.
Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
Defendant was convicted of child abuse following jury trial in the district court and he
appealed. The Supreme Court held that admission of evidence of an uncharged incident of
defendant's beating of his son was prejudicial error.
Reversed.
Mowbray and Springer, JJ., dissented.
Lawrence J. Semenza, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, Harold
Kuehn, Deputy, Douglas County, for Respondent.
1. Criminal Law.
It is impermissible to introduce into evidence another crime, wrong or act if none of the statutory exceptions to the inadmissibility
of such evidence are issues at trial. NRS 48.045, subd. 2.
2. Criminal Law.
In prosecution for child abuse in which defendant conceded that incident occurred and defended on ground that his conduct was
appropriate discipline of his son, intent, absence of mistake and motive were not at issue, and thus evidence of an uncharged beating of
the son by defendant was not admissible, and its admission constituted prejudicial error. NRS 48.045, subd. 2.
OPINION
Per Curiam:
Following a jury trial, the district court convicted appellant Brant Rudolph Honkanen of
one count of child abuse and sentenced him to serve a one year term in the county jail. The
conviction arose out of appellant's attempt to punish his thirteen-year-old son for stealing
another boy's backpack and lying about the incident to the school principal. Honkanen struck
his son on the buttocks twice with a shinei, a martial arts bamboo stick. The son was clothed
when struck with the shinei. Moments later, Honkanen pushed his son's arm and head up
against a wall, then kicked him in the back.
Honkanen pushed his son's arm and head up against a wall, then kicked him in the back.
At trial, but outside the jury's presence, the district attorney requested that a prior
disciplinary incident in which appellant disciplined his son be admitted into evidence. The
district court judge admitted the evidence of the prior disciplinary incident to show absence of
mistake and motive in the charged offense. The jury then heard evidence that appellant had
previously handcuffed his son to the steering wheel of a jeep and beat him fifteen times with
a belt and a shinei. The district attorney learned of the handcuffing incident on the eve of trial
and inexplicably never charged appellant with any crime arising from this prior incident.
Appellant maintains the district court improperly admitted the evidence of the handcuffing
incident at trial. Specifically, appellant argues absence of mistake and motive were not issues
at his trial. Therefore, appellant contends the handcuffing incident should not have been heard
by the jury because it was only relevant to show absence of mistake and motive.
[Headnotes 1, 2]
Appellant's contention has merit. As a general rule, [e]vidence 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. . . . NRS 48.045(2). To be relevant, the [evidence] may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. NRS 48.045(2). However, if none of
these statutory exceptions are issues at trial, it is impermissible to introduce the other crime,
wrong or act into evidence. See Longoria v. State, 99 Nev. 754, 670 P.2d 939 (1983); see
generally Michelson v. United States, 335 U.S. 469 (1948). Absence of mistake and motive
were not issues at appellant's trial. Furthermore, contrary to the district attorney's suggestion
on appeal, neither was appellant's intent. Appellant conceded that the charged and uncharged
incidents occurred. Appellant's defense at trial was that his conduct was appropriate discipline
and not as severe as the district attorney portrayed it.
We are therefore forced to conclude the evidence of the highly prejudicial handcuffing
incident was only relevant to show appellant's bad character and propensity to commit child
abuse. See Longoria, 99 Nev. at 756, 670 P.2d at 940. This is impermissible under NRS
48.045(2). Longoria, 99 Nev. at 756. See McMichael v. State, 98 Nev. 1, 638 P.2d 402
(1982); see also Michelson v. United States, 335 U.S. 469 (1948). Here, we are unable to
conclude that the jury did not either convict appellant of the uncharged handcuffing
incident under the pretext of the charged offense, or use the handcuffing incident to
conclude appellant "acted in conformity" with the prior disciplinary act when he
committed the charged act.
offense, or use the handcuffing incident to conclude appellant acted in conformity with the
prior disciplinary act when he committed the charged act. NRS 48.045(2). Because the law
forbids both of these uses of the prior act, we cannot allow appellant's conviction to stand.
Although this court does not condone handcuffing and beating a child as proper means for
disciplining a child, we cannot uphold appellant's conviction for the charged act. To allow the
conviction to stand would be to disregard our rules of evidence in favor of ad hoc justice.
Thus, we conclude the district court's admission into evidence of the previous disciplinary
incident was prejudicial error. Because this prior act was improperly used by the jury to
convict appellant, appellant's conviction must be reversed. We need not consider appellant's
other assignments of error.
Young, C. J., Steffen and Rose, JJ., concur.
Mowbray, J., dissenting, with whom Springer, J., agrees:
This case is centered on the conduct of a father who corrects his thirteen-year-old son by
handcuffing him to the steering wheel of a motor vehicle and beating him with an oriental
torture weapon called a shinei.
The latest beating which is the basis for this Child Abuse conviction was the result of the
boy taking a school chum's backpack and scattering its contents.
After the beating stopped, the father told the boy that more was to follow. The son then in
fear and frustration fled the house and sought safety in the Emergency Health Center in
Gardnerville where he telephoned his mother for help. The Authorities at the Center noticed
the boy and became concerned regarding his condition. They examined him. The instant
Child Abuse charge resulted against appellant who was found guilty after a trial by jury.
The district judge permitted the trial jury to receive evidence of a similar beating by the
father of his son when he handcuffed the boy to the steering wheel of a Jeep.
The father seeks reversal of the jury verdict on the grounds that the district judge
committed reversible error when he admitted the evidence of the prior beating. I do not agree.
In my opinion the evidence gave the jury an opportunity to evaluate the appellant's motive, .
. . intent, preparation [and] plan. . . . NRS 48.045(2).
The jury verdict should stand; the judgment of conviction should be affirmed.
____________
105 Nev. 904, 904 (1989) Almond v. State
STACEY L. ALMOND, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19811
December 29, 1989 785 P.2d 217
Appeal from convictions of one count each of driving under the influence of intoxicating
liquor causing the death of another person, failure to render aid at an accident scene, and
filing a false report. Fifth Judicial District Court, Mineral County; William P. Beko, Judge.
Defendant was convicted in the district court of driving under influence of intoxicating
liquor causing death of another person, failure to render aid at accident scene, and filing false
report, and he appealed. The Supreme Court held that: (1) blood samples were lawfully taken
and properly admitted at trial; (2) defendant was entitled to instruction regarding effect of
presumption of intoxication; and (3) testimony of accomplice was admissible.
Affirmed in part, reversed and remanded in part.
Rick Lawton and Associates, Fallon, for Appellant.
Brian McKay, Attorney General, Carson City; and Larry G. Bettis, District Attorney,
Mineral County, for Respondent.
1. Automobiles.
Police had probable cause to believe that defendant had caused injury or death to another while driving under influence of alcohol
at time blood samples were taken from defendant, given extent of injuries of passenger who fell off hood of truck and was run over,
defendant's obvious intoxication, and defendant's statement to officers that he had grabbed wheel to control truck while passenger was
on hood. NRS 484.3795; U.S.C.A.Const. Amend. 4.
2. Chemical Dependents.
Sheriff's deputy had justifiable basis for exercising his discretion in placing defendant in civil protective custody following
accident, given defendant's obvious intoxication. NRS 458.270.
3. Automobiles.
Defendant's failure to remain at accident scene and delays which occurred prior to defendant's arrival at sheriff's office, causing
undetermined amount of time to elapse between time of accident and defendant's confrontation with authorities, justified officers'
failure to obtain warrant prior to taking blood samples from defendant; under such circumstances, and given rapid and inevitable
destruction of evidence sought, officers could reasonably have believed they were confronted with emergency. U.S.C.A.Const. Amend.
4.
4. Automobiles.
Trial court was required to instruct jury, with respect to charge that defendant caused death of another person while driving under
influence of intoxicating liquor, that it could consider presumption of intoxication arising from blood alcohol
content of 0.10 percent or more, but was not required to adopt it, and that as element of crime charged,
intoxication had to be, on all evidence, proven beyond reasonable doubt.
of intoxicating liquor, that it could consider presumption of intoxication arising from blood alcohol content of 0.10 percent or more,
but was not required to adopt it, and that as element of crime charged, intoxication had to be, on all evidence, proven beyond
reasonable doubt. NRS 47.230, 484.381.
5. Criminal Law.
Sufficient independent evidence existed and was adduced at trial to corroborate accomplice's testimony that defendant had not
remained at accident scene and rendered aid to injured person, where physical evidence obtained by investigators established that
injured person had been loaded into truck and driven away from nearby medical facilities, and shoe prints matching those of defendant
and accomplice were found at spot where they stopped and discovered injured person was alive. NRS 175.291.
6. Criminal Law.
Prosecution's grant of transactional immunity to accomplice did not render accomplice's testimony inadmissible, absent any
indication that accomplice was required to testify other than truthfully in return for immunity or that prosecutor depended substantially
upon testimony in order to obtain conviction on charge of failing to render aid at accident scene.
OPINION
Per Curiam:
On October 7, 1988, a jury found appellant Stacey Lee Almond guilty of driving under the
influence of intoxicating liquor causing the death of another person, failure to render aid at an
accident scene, and filing a false report. Almond was subsequently sentenced to 20 years in
prison and fined $2,000.00 On appeal, Almond claims that: (1) the district court erred in
admitting evidence of his blood samples which were taken without his consent; (2) the
district court erred by failing to give a jury instruction required by NRS 47.230; and (3) the
district court erred by admitting testimony from an accomplice with regard to the charge of
failure to render aid at an accident scene.
FACTS
After spending the early afternoon of February 10, 1988, drinking beer, Almond, Tony
Porcelli, and Harold Blackwood decided to go for a drive in a pickup truck owned by
Almond's father. Almond testified that while he was driving south out of Hawthorne on
Route 359, Blackwood climbed out the passenger window in order to be a hood ornament.
Porcelli testified that he was driving when Blackwood first climbed out onto the hood, that he
was able to stop without incident, and that Almond then took over driving with Blackwood
on the hood after stating to Porcelli: Hop in. Nothing is going to happen. Both Almond and
Porcelli testified that while Almond was driving, Blackwood fell off and was run over by the
truck.
Almond pulled over, checked Blackwood's pulse and determined he was dead. Almond
and Porcelli then loaded Blackwood into the back of the truck and Almond proceeded west
into the hills up Alum Creek Road. After stopping the truck approximately 2.4 miles later,
Almond noticed that Blackwood was still breathing, and he and Porcelli decided to take
Blackwood to the hospital. Porcelli drove back down Alum Creek, stopped just before
reaching Route 359, and elected to walk back to Hawthorne through the desert. Almond
proceeded north on Route 359 and enlisted the help of Richard Paxton and Roxanne Ward at
the junction of Lucky Boy Road. Blackwood was transferred to the back of Paxton's truck and
delivered to Mount General Hospital in Hawthorne between 3:30 and 4:00 p.m. Blackwood's
condition worsened in the emergency room and he was evacuated by air to Washoe Medical
Center in Reno where he died two days later.
Mount General maintenance supervisor Donald Fisk drove Almond to the Mineral County
Sheriff's Office where Almond reported the accident. At the sheriff's office, Almond filled out
a written statement to the effect that Blackwood jumped out of the truck. Almond was then
interviewed by a Deputy Calhoun and a Sergeant Nixon. Almond told the officers he had
consumed seven or eight beers that afternoon. Almond also explained that Blackwood had
been driving, then crawled out the driver's window onto the hood, and fell off as Almond was
attempting to grab the wheel and control the truck. Almond further stated that he lifted
Blackwood into the back of the truck, started back towards Hawthorne, then stopped and
transferred Blackwood to another truck. After the interview, Deputy Calhoun placed Almond
in civil protective custody pursuant to NRS 458.270. Calhoun testified that this action was
taken to prevent Almond from leaving, since Almond was obviously intoxicated and Calhoun
did not feel Almond could care for his own safety. Almond was then taken to Mount General
Hospital where blood samples were obtained at 5:30, 6:58, and 7:18 p.m. without his consent.
Those samples registered respective blood-alcohol contents of 0.180, 0.157, and 0.145
percent. Later that evening, Porcelli gave a statement at the sheriff's office, and Almond was
advised that charges were being brought against him.
DISCUSSION
A. The Blood Samples
[Headnote 1]
Almond contends that the district court erred in admitting evidence of his blood samples
and argues that, when the samples were taken, probable cause did not exist to believe he
had caused injury or death to another while driving under the influence of alcohol.
were taken, probable cause did not exist to believe he had caused injury or death to another
while driving under the influence of alcohol. This contention lacks merit. Given Blackwood's
injuries, Almond's obvious intoxication, and Almond's statement to officers that he had
grabbed the wheel to control the truck while Blackwood was on the hood, we find that
probable cause did exist at the time the blood samples were taken to believe Almond had
violated NRS 484.3795.
1

[Headnotes 2, 3]
We also reject Almond's contention that his civil protective custody detention was
unlawful. The facts clearly indicate that Deputy Calhoun had a justifiable basis for exercising
his discretion in favor of detaining Almond pursuant to NRS 458.270. Finally, we hold that
the officers were justified in not obtaining a warrant prior to taking Almond's blood samples.
Almond's failure to remain at the accident scene, and the delays which occurred prior to
Almond's arrival at the sheriff's office, caused an undetermined amount of time to elapse
between the time of the accident and Almond's confrontation with authorities. Under such
circumstances, and given the rapid and inevitable destruction of the evidence sought, the
officers could reasonably have believed they were confronted with an emergency. See Galvan
v. State, 98 Nev. 550, 554, 655 P.2d 155, 157 (1982).
Thus, we hold that the blood samples were lawfully taken pursuant to NRS 484.383(8) and
properly admitted at trial. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966);
Galvan, 98 Nev. at 554, 655 P.2d at 157.
B. The Jury Instruction
[Headnote 4]
Almond contends that the district court erred by not giving an instruction offered by the
defense. Such instruction would have informed the jury that: (a) they may consider the
presumption of intoxication which arises from a blood alcohol content of 0.10 percent or
more, but are not required to adopt it; and {b) that as an element of the crime charged,
intoxication must be, on all the evidence, proven beyond a reasonable doubt.
__________

1
1. Any person who, while under the influence of intoxicating liquor or with 0.10 percent or more by
weight of alcohol in his blood, . . . to a degree which renders him incapable of safely driving or
exercising actual physical control of a vehicle, does any act or neglects any duty imposed by law while
driving or in actual physical control of any vehicle on or off the highways of this state, if the act or
neglect of duty proximately causes the death of, or substantial bodily harm to, any person other than
himself, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 20
years and must be further punished by a fine of not less than $2,000 nor more than $5,000. . . .
percent or more, but are not required to adopt it; and (b) that as an element of the crime
charged, intoxication must be, on all the evidence, proven beyond a reasonable doubt.
Almond contends that failure to give such an instruction violated NRS 47.230
2
and our
holding in Brakeen v. State, 104 Nev. 547, 763 P.2d 59 (1988). We agree.
NRS 47.230 clearly requires the instruction offered by the defense in this case.
Respondent's contention that Cotter v. State, 103 Nev. 303, 738 P.2d 506 (1987) provides an
exception to the requirements contained in NRS 47.230 when the statutory presumption of
intoxication is involved is erroneous. In Cotter, we stated that:
Whether a driver has been so influenced by the ingested substance will, with one
exception, always be a question of fact, to be considered in light of such variable
circumstances as the individual's resistance to the substance, the amount ingested and
the type and time of ingestion.
Cotter, 103 Nev. at 306, 738 P.2d at 508. In a footnote, we explained that the opinion was not
intended to have any effect on the presumption of intoxication set forth in NRS 484.381
which arises when persons have 0.10 percent or more by weight of alcohol in their blood.
Cotter, 103 Nev. at 306 n.2, 738 P.2d at 508 n.2. Our statements in Cotter neither expressly
nor impliedly excepted the above intoxication presumption from the requirements of NRS
47.230. Indeed, NRS 47.230(1) provides that statutory presumptions are governed by that
section. Thus, in the instant case, it was error not to give the instruction offered by the
defense.
__________

2
Presumption against accused in criminal actions.
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. When the presumed
fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the
question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on
the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact
beyond a reasonable doubt. . . .
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
establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury
that its existence must, on all the evidence, be proved beyond a reasonable doubt.
C. Porcelli's Testimony
Almond contends that because Porcelli was an accomplice, his testimony was inadmissible
under NRS 175.291 because it was not sufficiently corroborated by independent evidence.
Further, Almond contends that the prosecution's grant of transactional immunity to Porcelli
rendered his testimony inadmissible under Franklin v. State, 94 Nev. 220, 577 P.2d 860
(1978). Both contentions lack merit.
[Headnote 5]
Almond told police he had been trying to control the wheel when Blackwood fell off the
hood. Physical evidence obtained by investigators on February 10 and 11 established that an
injured Blackwood had been loaded into the truck and driven up Alum Creek Road
approximately 2.4 milesaway from nearby medical facilities. Shoeprints matching those of
Almond and Porcelli were found at the spot where the two stopped and discovered
Blackwood was alive. Hence, sufficient independent evidence existed and was adduced at
trial to corroborate Porcelli's testimony that Almond had not remained at the accident scene
and forthwith rendered aid to Blackwood.
[Headnote 6]
Finally, the record contains no indication that Porcelli was required to testify other than
truthfully in return for the State's grant of transactional immunity. The record also belies the
argument that the prosection depended substantially upon Porcelli's testimony in order to
obtain Almond's conviction on the charge of failure to render aid at an accident scene. Thus,
the prohibitions set forth in Franklin were not violated, and we reject Almond's final
argument.
D. Filing a False Report
Although Almond included his conviction of filing a false report in his notice of appeal, he
has presented no argument to support a reversal of that conviction. We note that the record
contains sufficient evidence to support the conviction and we therefore affirm it.
For the foregoing reasons, we affirm Almond's conviction of failure to render aid at an
accident scene and of filing a false report. We reverse Almond's conviction of driving under
the influence of intoxicating liquor causing the death of another person, remand the case to
the district court for a new trial on that charge, and order that the jury be instructed in
accordance with this opinion.
____________
105 Nev. 910, 910 (1989) Beck v. State
HAROLD L. BECK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19724
December 29, 1989 784 P.2d 983
Appeal from a judgment of conviction of three counts of sexual assault. Second Judicial
Teacher was convicted of three counts of sexual assault following jury trial in the district
court and he appealed. The Supreme Court, held that evidence of alleged misconduct with
another student 16 years previously, not involving a sexual act, was not admissible as it was
not relevant, was not proved by plain, clear and convincing evidence, prejudicial effect
outweighed any probative value, identity of perpetrator of instant offense was not at issue,
and the alleged prior act did not demonstrate a common scheme or plan.
Herbert J. Santos, Reno, for Appellant.
1. Criminal Law.
Admission of evidence of prior bad acts is within the district court's discretion, and the Supreme Court will respect the lower
court's determination where it is not manifestly wrong.
2. Criminal Law.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence. NRS 48.015.
3. Criminal Law.
In prosecution of teacher for alleged sexual assault on a student, evidence of misconduct with another student 16 years earlier, not
involving a sexual act, was not relevant. NRS 48.015, 48.045.
4. Criminal Law.
State failed to show by plain, clear and convincing evidence that defendant committed alleged prior offense, for purposes of
admissibility in current prosecution, where alleged victim's testimony was the only evidence of the uncharged incident, 16 years
previously, alleged victim had never previously told anyone about it, and defendant denied the prior misconduct. NRS 48.045.
5. Criminal Law.
In prosecution of teacher for sexual assault on student, probative value of evidence of alleged bad act with another student, not
involving a sexual act and allegedly occurring 16 years previously, was outweighed by its prejudicial effect.
105 Nev. 910, 911 (1989) Beck v. State
sexual act and allegedly occurring 16 years previously, was outweighed by its prejudicial effect. NRS 48.035, subd. 1.
6. Criminal Law.
In prosecution of teacher for sexual assault on student, evidence of alleged misconduct with another student, 16 years previously
and not involving a sexual act, was not admissible to show identity or common scheme or plan, as identity was never at issue and the
alleged prior act did not demonstrate a common scheme or plan. NRS 48.045, subd. 2.
OPINION
Per Curiam:
Appellant, an art teacher at Pine Middle School in Reno, met thirteen-year-old Mark while
supervising the detention hall in 1986. Following a jury trial, appellant was convicted of three
counts of sexually assaulting Mark. The district court sentenced appellant to serve concurrent
terms of life imprisonment with the possibility of parole in the Nevada State Prison.
At trial, the district court denied appellant's motion in limine to exclude the testimony of
Joe Espinoza, a previous drama student of appellant's. The district court ruled that the
evidence was admissible to show motive, intent, identity and common scheme or plan. NRS
48.045. Espinoza testified about an alleged incident of misconduct with appellant. This bad
act allegedly occurred in 1970 or 1971, during Espinoza's freshman year of high school.
On appeal, appellant contends that the district court erred by admitting Espinoza's
testimony of an alleged bad act that occurred approximately 16 years prior to the incident
with Mark. Specifically, appellant argues that the uncharged and unreported incident between
appellant and Espinoza did not prove anything, and was therefore irrelevant.
This contention has merit. In Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988) we
stated:
In some fairly recent cases, we have allowed greater latitude in evidence presented to
show aberrant sexual propensities. We have been careful, however, to require that such
evidence must be probative of something beyond mere character, such as intent,
motive, or plan. Subject to this requirement, evidence of alleged misconduct may be
acceptable if three conditions are met: (1) the incident is relevant to the crime charged;
(2) the incident is proven by clear and convincing evidence; and (3) the evidence is
more probative than prejudicial. (Citations omitted) Id. at 697, 765 P.2d at 1146.
105 Nev. 910, 912 (1989) Beck v. State
[Headnotes 1-3]
First, we note that admission of evidence of prior bad acts is within the district court's
sound discretion, and this court will respect the lower court's determination where it is not
manifestly wrong. Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). Relevant evidence
is evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more or less probable than it would be without the evidence.
NRS 48.015. Here, there is no clear connection between the alleged incident with Espinoza
and the misconduct with Mark. The alleged offense with Espinoza was clearly remote in time,
occurring approximately 16 years prior to the incident with Mark. Unlike the misconduct with
Mark, the alleged misconduct with Espinoza did not involve a sexual act. Therefore, we
conclude that the alleged misconduct with Espinoza was not relevant to the case in chief.
[Headnote 4]
Second, the State has failed to show, by plain, clear and convincing evidence that the
appellant committed the offense. Berner, 104 Nev. at 697, 765 P.2d at 1146 (1988).
Espinoza's testimony was the only evidence of the uncharged incident. There was no
corroboration of the alleged prior incident, because Espinoza never told anyone about it until
he saw a newspaper article about appellant's indictment. In addition, appellant completely
denied taking Espinoza to his house and committing any misconduct.
[Headnote 5]
Third, we conclude that any probative value of the evidence of the alleged bad act with
Espinoza is outweighed by its prejudicial effect. NRS 48.035(1). We have already concluded
that Espinoza's testimony regarding the alleged bad act was not relevant to the charged crime.
Moreover, our review of the record convinces us that the evidence was extremely prejudicial
because it implied that appellant possessed abnormal sexual desires for young boys.
Furthermore, the State relied on Espinoza's testimony in its closing argument, thereby
increasing the possibility of prejudice.
[Headnote 6]
Finally, we note that the identity of the perpetrator was never at issue in this case. See
Mayes v. State, 95 Nev. 140, 591 P.2d 250 (1979). Moreover, we conclude that appellant's
alleged bad act does not demonstrate a common scheme or plan. Therefore, the district court
erred by admitting the alleged bad act to prove identity or common plan or scheme. NRS
48.045(2). In light of the above discussion, we conclude that the district court abused its
discretion by admitting Espinoza's testimony.
105 Nev. 910, 913 (1989) Beck v. State
Accordingly, we reverse appellant's conviction and we remand this matter to the district
court for further proceedings consistent with the views expressed in this opinion.
1

____________
105 Nev. 913, 913 (1989) A.C. Shaw Construction v. Washoe County
A.C. SHAW CONSTRUCTION, INC., A.C. SHAW AND PAMELA SHAW, Appellants, v.
WASHOE COUNTY, SOUTH TRUCKEE MEADOWS GENERAL IMPROVEMENT
DISTRICT, Respondents.
No. 19621
December 29, 1989 784 P.2d 9
Appeal from a district court order granting summary judgement in a breach of contract
action. Second Judicial District Court, Washoe County; William N. Forman, Judge.
Construction company brought breach of contract action against county. The district court
granted county's motion for summary judgment, concluding that there was no implied
covenant of good faith and fair dealing in a public works construction contract. Construction
company appealed. The Supreme Court held that all contracts, including public works
construction contracts, contain an implied covenant of good faith and fair dealing.
Lawrence J. Semenza and J. William Ebert, Reno, for Appellants.
McAuliffe, White, Long and Guinan, Reno, for Respondents.
Public Contracts.
All contracts, including public works construction contracts, contain an implied covenant of good faith and fair dealing.
OPINION
Per Curiam:
Respondent Washoe County entered into a contract with appellant A.C. Shaw
Construction, Inc. to construct sewer pipes and manholes in the Sun Valley Housing area
north of Reno.
1
Appellants A.C. and Pamela Shaw are controlling shareholders and
officers of A.C. Shaw Construction, Inc.
__________

1
In light of our disposition on this issue, we need not consider appellant's other assignments of error.

1
Appellants also entered into a construction contract with respondent South Truckee General Improvement
District, which is not the subject of this appeal.
lants A.C. and Pamela Shaw are controlling shareholders and officers of A.C. Shaw
Construction, Inc. After Washoe County terminated the contract, appellants filed suit in
district court.
2
The district court granted the county's motion for summary judgment,
concluding as a matter of law that there is no implied covenant of good faith and fair dealing
in a public works construction contract. Thus, the district court specifically held that
appellants could not recover their alleged consequential damages and that any recovery was
limited to the damages specified in the contract provisions. This appeal followed.
Appellants contend that the district court erroneously granted summary judgment.
Specifically, appellants contend that all contracts contain an implied covenant of good faith
and fair dealing, and, therefore, the district court erred in determining that the public works
contract in question does not contain the implied covenant of good faith and fair dealing. We
agree. We are not persuaded that public works construction contract should be exempted
from that rule.
Initially we note that NRS 104.1203 specifically provides that: [e]very contract or duty
within this chapter imposes an obligation of good faith in its performance or enforcement.
Similarly, Section 205 of the Restatement (Second) of Contracts, provides that: Every
contract imposes upon each party a duty of good faith and fair dealing in its performance and
its enforcement.
Second, in Ainsworth v. Combined Insurance Company of America, 104 Nev. 587 n.1,
592, 763 P.2d 673, 676 (1988), cert. denied,
------
U.S.
------
(1989), we recently noted that:
[t]he covenant of good faith and fair dealing is implied into every commercial contract. . . .
(Emphasis added.) Moreover, in K Mart Corporation v. Ponsock, 103 Nev. 39, 48, 732 P.2d
1364, 1370 (1987), this court stated that [t]he bad faith discharge case finds its origins in the
so-called covenant of good faith and fair dealing implied in law in every contract. . . .
(Emphasis added.) See also U.S. Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070 (1975)
(imposing duty on insurers). Thus, pursuant to the plain language of these cases, we have
previously recognized that an implied covenant of good faith and fair dealing exists in all
contracts.
Third, we observe that our conclusion in this regard is consistent with holdings from other
jurisdictions which have addressed the question of whether a plaintiff may recover contract
damages for breach of the implied covenant of good faith and fair dealing in a commercial
contract. See, e.g., Cordonier v. Central Shopping Plaza Assoc.,
__________

2
Appellants originally brought suit against respondents, as well as other governmental, private, and
individual defendants. As the suit progressed, the private and individual defendants were dismissed upon
stipulation. Additionally, the parties stipulated to dismiss all but appellants' sixth cause of action, which, among
other things, sought damages based upon respondents' alleged breach of an implied covenant of good faith and
fair dealing.
the question of whether a plaintiff may recover contract damages for breach of the implied
covenant of good faith and fair dealing in a commercial contract. See, e.g., Cordonier v.
Central Shopping Plaza Assoc., 82 Cal.App.3d 991, 1000-02, 147 Cal.Rptr. 558, 563-65
(1978) (lessee and sublessee brought suit against landlord); Masonite Corp. v. Pacific Gas
and Electric Co., 65 Cal.App.3d 1, 9, 135 Cal.Rptr. 170, 175 (1976) (natural gas user brought
suit against supplier). The covenant has also been implied into public works construction
contracts. See Zurn Engineers v. State of California, Ex. Rel. Dept. of Water Resources, 69
Cal.App.3d 798, 833, 138 Cal.Rptr. 478, 500 (1977), cert. denied, 434 U.S. 985 (1977).
Fourth, in our view, sound public policy warrants recognition of the covenant of good faith
and fair dealing in public works construction contracts. To hold otherwise would suggest that
a governmental entity has a right to refrain from cooperation in a contract, or that a
governmental entity could act in bad faith, calculated to destroy the benefit of that contract to
the other contracting party.
Respondents' reliance on Aluevich v. Harrah's, 99 Nev. 215, 660 P.2d 986 (1983), cert
denied, 465 U.S. 1006 (1984) and Dalton Properties, Inc. v. Jones, 100 Nev. 422, 683 P.2d 30
(1984) is misplaced. Neither case stands for the proposition that no implied covenant of good
faith and fair dealing exists in a public works construction contract.
Aluevich involved a claim for tortious breach of an implied duty of good faith and fair
dealing in a commercial lease. 99 Nev. at 216, 660 P.2d at 986. In that case, we affirmed the
district court's dismissal of Aluevich's claim for tortious breach of an implied duty of good
faith and fair dealing involving a commercial lease agreement between two parties who
would not otherwise be bound by any special element of reliance or fiduciary duties. Here,
appellants' claim was for contract damages. The law would be incongruous if the covenant is
implied in every contract, and yet the only remedy for breach of that covenant is if tort
damages are alleged and there exists a special relationship between the tort victim and the
tortfeasor. See, e.g., K Mart, 103 Nev. 39, 732 P.2d 1364 (1987).
3
Because the present action
is for contract damages only, we conclude that appellants do not need to prove the existence
of a special relationship with respondents.
Dalton involved an action for a breach of a sub-contractor's agreement which was
bilaterally terminable without cause. 100 Nev. at 424, 683 P.2d at 31. This court held:
Where a contract provides that either party may terminate the agreement at will, the
party so terminated may not recover damages for those profits that he purportedly could
have gained over the maximum life of the contract.
__________

3
This case is not like K Mart which involved bad faith discharge of an employee by a large employer, giving
rise to tort liability.
Where a contract provides that either party may terminate the agreement at will, the
party so terminated may not recover damages for those profits that he purportedly could
have gained over the maximum life of the contract.
100 Nev. at 424, 683 P.2d at 31. (Emphasis added.) In the present case the contract did not
give either party the right to terminate at will. Unlike the contract in Dalton, Article 4.10(b)
of this contract only gave Washoe County the unilateral right to terminate for its
convenience. Whether these are significant differences in this case should first be
determined by the district court.
We therefore conclude that the district court erred in determining that the contract did not
contain an implied covenant of good faith and fair dealing. Further, the question of good faith
is a question of fact. Mitchell v. Baily & Selover, Inc., 96 Nev. 147, 605 P.2d 1138. Having
so concluded, it remains to be determined whether the implied covenant of good faith and fair
dealing is applicable when the provisions of the contract here in question are considered,
especially the provision that permits the county to terminate the contract at its convenience
and states specifically what damages will be for such termination. And if the implied
covenant is applicable, the district court should also determine whether there was a breach of
this covenant and the damages that flow therefrom.
Accordingly, we reverse the district court's summary judgment against appellants, and
remand this case to district court for further proceedings.
4

__________

4
Respondents contend that appellants A.C. and Pamela Shaw do not have standing to bring this appeal. Based
on our review of the record, we find that A.C. and Pamela Shaw clearly have standing to bring this appeal.
____________
INVESTITURE
OF
JUSTICE ROBERT E. ROSE
Tuesday, January 3, 1989
12:00 Noon
Old Assembly Chambers
Capitol Building
Carson City, Nevada
NEVADA STATE SUPREME COURT
Chief Justice Cliff Young
Justice Thomas L. Steffen
Justice Charles E. Springer
Justice John C. Mowbray
David Cooper
Jack Lehman, District Judge
____________
INDEX
OF
CEREMONY PARTICIPANTS
page
Invocation, Justice Steffen
- - - - - - - - - - - - - - - - - - - -
921
Welcoming Address, Chief Justice Young
- - - - - - - - -
921
Address, David Cooper
- - - - - - - - - - - - - - - - - - - - - -
922
Address, Jack Lehman, District Judge
- - - - - - - - - - - -
923
Administration of Oath, Chief Justice Young
- - - - - - -
925
Acceptance, Justice Rose
- - - - - - - - - - - - - - - - - - - - -
928
Closing Remarks, Chief Justice Young
- - - - - - - - - - -
932
INVESTITURE OF JUSTICE ROBERT E. ROSE
____________
Chief Justice Young:
I'd like to call on Justice Steffen for the invocation.
Justice Steffen:
Our Father, who art in heaven, hallowed be thy name. On this special occasion, we are
gathered here for the investiture of Justice Robert E. Rose. We express gratitude unto Thee
for his life, his example and his willingness to serve. We pray, Father in heaven, that Thou
will bless him with discernment, with guidance and all that is necessary in order to fulfill his
weighty responsibilities in the judicial branch of government and on the Nevada Supreme
Court. Father in heaven, on this occasion we pray for all of us who serve in the judicial
branch of government in this state, that we will serve consistently with honor and with the
utmost integrity; that we will always remember that we are servants and not masters; that we
will fulfill our responsibilities diligently and with singleness of purpose; that our judgments
will be impartial and fair; and consistent with the freedoms that we enjoy in this country and
the individual rights that are accorded our citizens by virtue of the fundamental laws of the
land. We're grateful unto Thee, Father in heaven, for all those who serve in government, not
only in the judicial branch, but in the executive and the legislative branches and the various
administrative agencies. We pray that together we may strive to preserve the great freedoms
that we enjoy in this beautiful and bounteous land. We again express gratitude for this
occasion; for the friends of Justice Rose who are here to share this great event in his life. We
pray that they will feel Thy spirit during these brief moments as we honor him in this
investiture ceremony; that this will be a highlight and beginninga new beginningin his
life and that he, together with his colleagues, will serve unitedly and in the interest of the
citizens of this great state. We're grateful, Father in heaven, for all of the blessings that we
enjoy in this free and glorious land. We pray always that we will cherish them and will live in
accordance with principles which we know to be right and true. And this we ask in the name
of the Lord, Jesus the Christ. Amen.
Please be seated. On behalf of the Court, I wish to welcome you to the investiture of
Justice-elect Robert E. Rose. This is a happy occasion. Many of his friends and relatives are
here to celebrate this with him.
105 Nev. 917, 922 (1989) Investiture Ceremony
celebrate this with him. I would like to introduce them, have them stand and be recognized.
Please withhold your applause until the end when we can applaud them all together. First,
Justice-elect Rose's family: his wife Jolene, his parents, Edgar and Loretta Rose, his brother
and sister-in-law Richard and Linda Rose, and their two children, Tiffany and Ryan, sister
Judy Simms and her son Darryl, Jolene Rose's niece, Tutie Hendricks and her daughter,
Katie, and nephew Allen Griffiths. I'd like to recognize some members of the judiciary who
are present: Judge Melvin T. Brunetti, U.S. Ninth Circuit Court of Appeals; Judge Peter
Breen, Second Judicial District Court; Judge David Gamble, Ninth Judicial District Court;
Judge Michael Griffin, First Judicial District; Judge Jack Lehman, Eighth Judicial District;
Judge Norman Robison, Ninth Judicial District; Judge Robert Schouweiler, Second Judicial
District; Judge Earle White, Eighth Judicial District; Judge Lew Carnahan, Reno Municipal
Court; Judge Andy Gray, Sparks Municipal Court; Judge Jay Dilworth, Reno Municipal
Court; Judge Larry Graham, Justice of the Peace, Wadsworth Township; Judge Mark
Handelsman, Reno Municipal Court; Judge Ed Johnson, Justice of the Peace, Dayton
Township; Judge John Ray, Retired Justice of the Peace, Carson City Township; Attorney
General Brian McKay; Secretary of State, Frankie Sue Del Papa; State Controller, Darrel
Daines; State Treasurer, Ken Santor. Acting Governor Bob Miller regrets that he is unable to
attend and extends his best wishes to Justice-elect Rose. Senators Bryan and Reid also regret
their inability to attend and also extend their best wishes to Justice-elect Rose. I'd like to
recognize some other prominent people in the State Bar: former Governor Bob List; former
Senator Spike Wilson. I'd like to recognize members of the Board of Governors: Larry Hicks,
Jay Sourwine, Janet Chubb, David Grundy, Steve Walther. Are there any members of the
Board of Governors who I have overlooked? Steve Morris. I'm sorry, Steve. I saw you out in
the hall, too. Let's give them all a hand for their . . .
(Applause.)
I'd like to call on several people to make some remarks on this happy occasion. The
first is David Cooper, long-time personal friend of Justice-elect Rose. Mr. Cooper.
Mr. Cooper:
Thank you. It's quite an auspicious occasion we're here for today and I had not, up
until a few minutes ago, known that I was going to be the lead-off speaker. So, that's even
more auspicious. But I want to tell you all how proud I am to be here and to share this
moment with Bob and his family.
Just a few years after Bob first came to Nevada in 1964, one of his first jobs as I
think most of you know, was clerk for the Nevada Supreme Court.
his first jobs as I think most of you know, was clerk for the Nevada Supreme Court. I had the
pleasure of meeting him just a couple of years after that, when he began to be involved in
Nevada politics. At that time, he was head of the Young Democrats in the state. Shortly after
that, he became chairman for the state Democratic Party. And since that time, we formed a
long friendship and a long political alliance. We've seen a lot of political battle together.
We've won a few, and we've lost a few. But we remain good friends. Of course, shortly after
Bob left as state chairman, he became a candidate in his own right. I became a consultant, a
coordinator, campaign chairmanwhatever the job requiredand continued to help out my
friend in his political quest.
Bob's public record, I know, is well known by all of you as District Attorney in
Washoe County, as Lieutenant Governor, and as Democratic nominee for Governor ten years
ago. But, you know, of all of the political candidates that I have been very fortunate to help in
the last fifteen years or so in this state, Bob possesses a unique mixture of some of the rarest
qualities that I have ever seen. He's got a devotion to public service. He has a deep knowledge
of the law. And he has a commitment to justice and compassion for the less fortunate in our
society. It is this unique combination that Bob now brings to public service once again to
serve here on the Nevada Supreme Court.
I know that many of us here today are familiar with the term amicus curiae. It
means, of course, friend of the court. I'm sure that during the next few years, Bob will earn
that title. And he will become a very good friend of the Court. But with his ability, with his
compassion, and with his sense of justice, I'm just as certain that he'll earn another titlethat
of amicus populia friend of the people of Nevada.
So, now, Bob, as you embark on another phase of an already distinguished career,
Bonny and I join with all of your friends here in wishing you and Jolene the very best in the
years ahead, for no one deserves it more. Best of luck, Bob!
Next I'd like to call upon another long-time friend, Judge Jack Lehman of the Eighth
Judicial District Court, Department Ten.
Judge Lehman:
Mr. Chief Justice, Justices, fellow judges, Governor List, Senator Wilson,
distinguished elected officials, ladies and gentlemen. I was very pleased to get a call last
Friday, kind of a hurry-up call from my secretary, saying that Bob Rose would like me to say
a few words in his behalf and she said that whoever called said to emphasize the few words.
said to emphasize the few words. He did not want it to go the hour and a half that my
investiture took down in Las Vegas. So I assured my secretary that I would keep it brief.
I first met Bob Rose in 1975. I got a call from a mutual friend, who told me that Bob
was moving down to Las Vegas and he was looking for a law firm to associate with. So at
that time I was a partner in a small personal injury firm called Cochrane, Lehman and Nelson.
That was Tom Cochrane and Roy Nelson and myself. And I gave Bob a call and said, Bob.
You know, I described the law firm, told him I was pleased that he was moving to Las Vegas,
and told him that I'd do my damnedest to convince my partners that he'd be an outstanding
contribution to our law firm. So he said, Well, that'll be fine. So, if you can get them to
agree, I guess that would be a pretty good association. So I went in to my two partners and
the first thing I pointed out to them was that our firm was really imbalanced as it was. Tom
Cochrane and Roy Nelson were well-known Republicans. And I was the only Democrat in
the firm. I felt it was time to even things out and so forth. So I went on to point out that Bob
Rose wasn't just any individual. Here was a Democrat that had managed to get himself
elected as District Attorney of Washoe Countyno small feat. Next I pointed out that he's a
former chairman of the state Democratic Party, a party that traditionally has shot itself in the
foot so many times in our great state, that I don't know what. And he had a distinguished
tenure in that very, very difficult office. Next he was elected against very tough primary and
general opposition to the post of Lieutenant Governor. And I said, you know, there's a
possibility that he may be elected the next governor of our state. Well, they listened to all of
that and they decided, well, what the heckwe'll take him in. So, we formed the law firm of
Cochrane, Lehman, Nelson and Rose in 1975. We went along very well. Starting about the
middle of 1977, we told Bob to get out there and campaign to the best of his abilities, which
he certainly did. And everything was great until election day, when the distinguished
Governor List managed to nose him out. But that was fine. We continued to practice law and
then in 1987 Governor Bryan saw a distinguished individual. He had a vacancy on the district
court bench in Department Six and Bob Rose, after going through the judicial selection
process and emerging from there successfully, was appointed a district court judge. All of the
reports on Bob were good thereafter. When you get a district court judge that is really liked
and you are told that he is doing a great job by deputy district attorneys, public defenders and
criminal defense lawyers, plaintiffs' lawyers, defense lawyers, you know he's doing a very
good job. And Bob indeed was. January of this year another vacancy occurred and
fortunately I was lucky enough to get the appointment.
fortunately I was lucky enough to get the appointment. The first thing I did was go to Bob
Rose. Before I got there, Tom Cochrane grabbed me by the arm and told me to please pass the
word that if anybody wanted a judicial appointment in Las Vegas, they had to become his
partner first. So, anyway, I did. Bob, as usual, was very, very helpful, told me what I should
and shouldn't do, and gave me a great deal of assistance. And I really appreciated that.
I've felt for years that we have been very lucky in the state of Nevada in having one of
the truly outstanding Supreme Courts in the entire United States. I want to tell everybody,
although I'm sure I don't have to tell the mass of population that elected him, that Bob Rose is
going to carry on in that great tradition. You have a gentleman here that has done criminal
law as district attorney and knows that end of the law very well. He did civil law both from
the defense side and the plaintiff side in general litigation. He's been an outstanding judge in
the Eighth Judicial District Court as I've already pointed out. He has an outstanding legal
mind. I want to say that I am very pleased to call him my friend, Bob Rose. At least I'll call
him that until the first time he helps reverse me! Bob, I know you're going to be a great asset
to this Court and to our state and I congratulate you.
We generally never make mistekes on the Supreme Court, but I think I've
overlooked some distinguished personages in the Audience. Senator Lawrence Jacobsen.
We're glad to have you here, Senator Jacobsen. I overlooked a member of the Board of
GovernorsJohn Lambrose. John. And I think Patricia Lynch, City Attorney of Reno. Nice
to have you people with us. I'd now like to have Justice-elect Rose and his wife come
forward.
Will you raise your right hand and repeat after me. I, repeat your name . . .
Justice Designate Rose:
I, Robert E. Rose . . .
Do solemnly swear . . .
Do solemnly swear . . .
That I will support, protect and defend . . .
That I will support, protect and defend . . .
The constitution and government of the United States . . .
The constitution and government of the United States . . .
And the constitution and government of the State of Nevada . . .
And the constitution and government of the State of Nevada . . .
Against all enemies . . .
Against all enemies . . .
Whether domestic or foreign . . .
Whether domestic or foreign . . .
And that I bear true faith, allegiance and loyalty to the same . . .
And that I bear true faith, allegiance and loyalty to the same . . .
Any ordinance . . .
Any ordinance . . .
Resolution, or law . . .
Resolution, or law . . .
Of any state notwithstanding . . .
Of any state notwithstanding . . .
And that I will well and faithfully . . .
And that I will well and faithfully . . .
Perform all the duties of the office . . .
Perform all the duties of the office . . .
Of Justice of the Supreme Court of Nevada . . .
Of Justice of the Supreme Court of Nevada . . .
On which I am about to enter . . .
On which I am about to enter . . .
So help me God.
So help me God.
Congratulations.
Justice Rose:
Thank you, Cliff.
Will you . . .
(Applause.)
Justice Rose:
Boy, is this a great day! Before I begin my few prepared remarks, I'd like first to
introduce the judicial family that I'm leaving and two of whom are coming with me in this
new endeavor in Carson City. They've come up here either to begin their residence or to say
farewell to me. I'd like to have the three of them stand up. Al Wiggs is my bailiffor was
until today. Virginia Chani, my secretary, who's very popular and an institution around the
Clark County Courthouse. Many people said that if they knew I was taking Virginia away
from the courthouse, they wouldn't have voted for me! And third Gary Sirota, my law clerk,
who is coming with me to be one of my law clerks on the Nevada Supreme Court. And I'd
also like to introduce Gary Foremaster, who is a clerk for Justice Gunderson, who will be
continuing with me. And Al, I'm sorry, everyone seems to be coming along with me except
you, but there's no slots for a bailiff.
It's really hard to believe that twenty-four years ago I was working across the street as
a law clerk for the Nevada Supreme Court. And as I said in my commercials, when I left that
Supreme Court twenty-four years ago as a law clerk, I had an abiding desire to come back as
a justice on the Nevada Supreme Court. And that day is today. I had no plans when I left the
court twenty-four years ago, in 1965, to get into politics, although I was politically interested
and I was inspired by John F. Kennedy. But, things have a funny way of turning out. And it
turned out that politics to me was like quicksand. Once I got into it, I got into it in a very real
way and spent the next ten years in total political involvement with party offices and elected
positions. It was a wonderful experience and, in fact, it was fourteen years ago in this very
room when I was sworn in as Lieutenant Governor of the State of Nevada.
In 1978 I ran for Governor and was involuntarily retired by my good friend, Bob List,
and returned to the practice of law, which, as it turned out, was a real blessing for me. I found
that I enjoyed the practice of law a great deal, and found that the satisfaction in the law and in
the practice was even greater than anything I had experienced in the political arena. And I
made up my mind that my first goal was really the best goal and that if I was going to do
anything else in public life, it would be as a judge and not in any other political capacity.
anything else in public life, it would be as a judge and not in any other political capacity.
In 1986, Dick Bryan was kind enough to appoint me to be a district court judge and
I've enjoyed that position immensely. In 1988, as the year began, I had no plans of running for
any office other than to file for re-election, with the hope that no one would file against me
and I would be unopposed in my re-election effort as a district court judge. And that was until
March when, unexpectedly, I learned that Justice Gunderson would not be seeking
re-election. And I decided that I would run for the Nevada Supreme Court and file
immediately.
I saw this as a great opportunity and a chance of a lifetime. But it also had a very real
risk for me. And that risk was the fact that I either had to run for the district court judgeship
or the Nevada Supreme Court judgeship. I could not do both. So, the potential of reward was
great, but the chance, the real risk, was also substantial. My wife, Jolene, was kind enough to
get out a piece of paper and write down advantages and disadvantages in the methodical,
administrative way that she handles so many things. There were a few major advantages on
the list: I'd realize a lifetime dream; I'd have a very wonderful and challenging job; and I think
we had two or three other advantages after that. On the long list of disadvantages, on the
other side, it ended with: if you lose, you are unemployed! But, in spite of that, we took the
short list and decided to run, and I want to thank you very much, Jolene, for sticking with me
and supporting me through the thick and thin of this last year. It's been trying, but you helped
me throughout this campaign. Thank you very much.
Considering the risks that I was embarking upon, I made the decision to run and went
to my dear friend, David Cooper, the morning I was to fly up here. I told David that I
intended to run for the Nevada Supreme Court. My decision was really sincere, but I have to
tell you at this time, it was not all that firm. And as the line in the songHome on the
Range stateswhere never is heard a discouraging wordif I had heard one discouraging
word that morning, in fact, even one moderately discouraging word that morning from David
Cooper or anyone else, I don't think I would have gotten on that plane that afternoon to fly to
Reno and then to file that next morning. But, David, I want to thank you because you not only
avoided uttering any discouraging comments, you were positively affirmative and very
supportive; in about an hour and a half you knocked out several press releases; and ran with
me to the plane and accompanied me on that trip. And I want to thank you for your support,
for being a good friend throughout the years, and for the kind remarks you made today.
I'd also like to thank Jack Lehman for being a friend for many, many years.
many years. He has been a fine lawyer, a good partner, a dedicated public servant and an
excellent district judge. And also thank you for those kind remarks.
It's impossible to thank everyone who's here and you always run the risk of
overlooking someone; but I'd like to thank first of all, all those who came from Las Vegas, all
my friends and supporters who did pay what seems to be excessive fares to come up to
Northern Nevada and be with me on this very important day in my life. Thank you for your
help during this year. And also thanks to all those many, many friends, old friends and new
friends, in Northern Nevada. It's great to see you here and it's really heartwarming.
And no ceremony like this would be complete if I didn't say thanks to Mom and Dad
who, all through my life, provided the love and support and insisted that I get the education
that they did not, and made sure I got it. I want to thank you very much.
And last of all, I'd like to thank my brother who was almost a one-man campaign
committee in Northern Nevada. He helped fund the campaign in large measure. If you look at
the campaign financial reports, the loans and campaign donations from Richard Rose really
kept us going in the early part of the campaign. And he also put most of the signs up in
Northern Nevada. I don't know who could have a better brother than me and I'd just like to
thank Rich Rose for everything you've done for me this year and in the past.
When I was sworn in two years ago as a District Judge, I told a very short story, that's
a true story, for the very first time publicly in Las Vegas. And I'd like to share it with those in
Northern Nevada and ask the people who heard it in Las Vegas two years ago, and
particularly the justices, to indulge me and bear with me in hearing this story one more
timeabout when I was District Attorney and personally prosecuting cases. Those of you in
Northern Nevada know that the District Attorney in Washoe County is really expected and
looked upon to try cases, to be a trial lawyer and personally advocate the state's position.
When I was Washoe County District Attorney, I liked to do this and I used to try to do it
about every six months. I had not tried a case for about six months and there was no case of
reasonable note coming up. So I looked around in our inventory of cases coming to trial and I
saw an attempted murder case. It was where one man shot another man in the back or in the
back of the leg, and left the victim permanently crippled. I thought this was a good case. It
was an unusual case, though, because both the victim and the defendant, the accused, were
older men and, in fact, the defendant justified that he would be seventy years old the week of
trial. And so, I took the case.
For those of you who might not be familiar with the criminal process, it is the
District Attorney who prosecutes the case.
process, it is the District Attorney who prosecutes the case. He asserts that the injury done to
the victim is a public wrong. And he is more or less aligned with the victim and trying to
convict the defendant of the alleged crime that has occurred.
I took this case to trial and, as the trial progressed, a great many of the prior incidents
between the two men were received in evidence and the character of the two men, the accused
and the victim, clearly emerged. And I might say that it was over the strenuous objection of
the District Attorney. It became real clear that the victim was not a very nice man; and
although the defendant, on that day in question, had precious little provocation, he had
sustained a lifetime of badgering and harassment at the hands of the victim.
The jury saw it that way, too, and they did not deliberate very long. As they came back
into the courtroom, the jurors were all looking at the defendant. It's a bad sign for a
prosecutor. And a few of them were smiling at the defendant. That's a worse sign. As the
District Attorney I was crestfallen when the verdict was read not guilty. I was also a bit
embarrassed. My ego was bruised. But as if to add insult to injury, the foreman stood up and
said Your Honor, may the jury do one more thing? And before the judge could even
respond, the jury stood up in unison and sang Happy Birthday to the defendant! No you'll
know why that story was never told publicly until two years ago. I told any deputy district
attorney that publicly uttered a word about this would be seeking immediate employment
elsewhere.
I tell the story, because it is humorous; and because no matter what title or what role
or what office you hold, we all are fallible and from time to time do not succeed or embarrass
ourselves. And also because things sometime are not as they first appear after more careful
examination. I think that's very important to keep in mind, particularly when you are about to
serve on a court of last resort, as the Nevada Supreme Court. A court from which there
normally is no appeal. There is no other place to go and the result is absolute and final.
I will be joining a very, very good Court. And I'm going to work very hard to keep the
Court a very, very good Court. I am enthusiastic about Justice Young's plans for the future
that have been announced over the past week. I think a comprehensive review of the court
system that will answer the general questions of how are we doing now? and what should
we be doing now that we might not be doing? and what should we do in the coming ten
years to address the caseload and the tremendous problems we have? I think this is a good
study and I think it's a very positive action. I also think that making the Court services
accessible to the public and getting the most out of the money spent are admirable goals. And
I certainly would like to see, having practiced in Las Vegas, the filing of documents
permitted in Las Vegas and also more court sessions in Las Vegas as Justice Young has
indicated he would like to see.
having practiced in Las Vegas, the filing of documents permitted in Las Vegas and also more
court sessions in Las Vegas as Justice Young has indicated he would like to see.
And, of all the other proposals that I think are admirable that the Court plans, I would
also like to see, in capital cases, affirmative steps taken to try to reduce those errors that we
see time and time again in the major cases, and also to expedite those appeals as best we can.
So I certainly join you, Justice Young, and the members of the Court, in the real goal and
desire in seeing these reforms brought about.
My promises today are really nothing more than the promises I made during the
campaign. They are more fundamental than spectacular. I intend to work hard, to review the
facts of each case as much as is possible, to analyze the applicable law, and to produce clear
opinions that state all relevant facts and legal reasoning. I want to be open and willing to
discuss the cases with the other justices and to hear their views and maybe opposing
positions. I know that compromise is often necessary and I certainly intend to do that where
necessary and where appropriate. But I also realize that there does come a time when
reasonable men can disagree and, in that disagreement, will come concurring opinions and
occasionally, dissenting opinions. That's just the nature of the work and how it is; and I'm
hopeful that as I go along, I will be able to take this in stride and handle it since it is part of
the job of being a justice on the Nevada Supreme Court. And always keep in mind that men
and women can disagree, but they don't have to be disagreeable in their disagreement.
In short, I intend to work hard, and to do justice in each case and to reach a result in a
reasonable period of time. That might not sound like a lot, but yet it is so very, very much, as
the justices who are sitting behind me and who I join know so well.
I want to thank the members of the Court for this swearing-in and the reception that
they are hosting that will follow. I look forward to working with each and every one of them.
I know them as honorable men and talented people each in their own way. And I look forward
to working with them in the years to come. It really is a pleasure and honor to join them on
Nevada's highest court. Thank you very much.
On behalf of the Court, I would like to extend our congratulations to our newest
colleague. I was gratified by his indication that he wants to work hard. He couldn't have
arrived at a better time. We can promise full-time employment. During the last year, our
caseload went up over twelve percent. We're very close to a thousand now, compared to the
forty cases that were filed annually when our Court took up residency across the street.
annually when our Court took up residency across the street. I did a little calculation last year
and found that, if all the documents filed in our Courttranscripts, multiple briefs, and so
forthwere put one paper on top of the other, it would be as high as the Ormsby House. And
that's increased by twelve percent since then. About three-quarters of a century ago,
Woodrow Wilson observed that insofar as the individual is concerned, our Constitution is as
good as the Courts, no better, no worse. This is the end of one era and the beginning of
another. I know our Court looks forward to working closely with Justice Rose toward the end
of achieving a better, ever-improving quality of justice in our state. Again, we are pleased to
have you join us. We bid you welcome. I have about four committee assignments I'd like to
talk to you about this afternoon! The Court will be in recess. Thank you very much for
attending.
(The ceremony was concluded.)
In Memoriam
______
Jon R. Collins
IN THE SUPREME COURT OF THE
STATE OF NEVADA
In the Matter of a Memorial to the Honorable
JON R. COLLINS.
ORDER
As an expression of the esteem and respect held by the Bench and Bar of the State of
Nevada for the late Honorable Jon R. Collins, who passed away in Las Vegas on March 12,
1987,
It Is Hereby Ordered that the following memorial be printed in the next published
volume of the Nevada Reports.
Cliff Young,
Chief Justice
Thomas L. Steffen,
Associate Justice
Charles E. Springer,
Associate Justice
John Code Mowbray,
Associate Justice
Robert E. Rose,
Associate Justice
Attest: Janette M. Bloom,
Clerk of the Supreme Court
MEMORIAL
Jon R. Collins was born in Ely on May 7, 1923, the son of Dorothy and Frey Collins.
A lifelong resident of Nevada, he graduated from White Pine High School and from the
University of Pennsylvania.
He served two years in the Pacific Theater during World War II, and witnessed the
Bikini atomic blast as an ensign aboard a support ship to Operation Crossroads. After the war,
he joined the staff of Senator Patrick McCarran and attended Georgetown University Law
School in Washington, D.C., where he received his law degree. It was in Washington that he
met and married his wife Rita.
After completing his education, Justice Collins returned to Ely and opened his law
practice. His interest in politics led him to run successfully for White Pine County District
Attorney, in which office he served from 1950 to 1954. Commencing in 1952, he served as
delegate to the National Democratic Convention in every convention when he was not
precluded from doing so by judicial constraints.
105 Nev. 935, 940 (1989) In Memoriam
he served as delegate to the National Democratic Convention in every convention when he
was not precluded from doing so by judicial constraints. He later headed the campaign to
obtain the nomination of Jimmy Carter on the presidential ticket, and spear-headed the Carter
campaign in Nevada.
From 1958 to 1966, he sat as a district judge in his home county, until April 18, 1966,
when he was appointed by Governor Grant Sawyer to fill the vacancy on the Nevada Supreme
Court created by the death of Justice Milton B. Badt.
Justice Collins served on the Supreme Court until 1971. He was Chief Justice in 1969
and during his tenure on the court, he authored 163 cases. After 12 years of judicial service,
Justice Collins retired from the Supreme Court and joined the law firm of Lionel Sawyer and
Collins, now one of the largest in the state. His law partner and friend former Governor Grant
Sawyer spoke of Jon Collins in the following words:
I should confess that I am entirely incapable of putting into words what should be said
about Jon Collins. Given the fact that he was a distinguished Nevadan, that he was an
outstanding jurist, a highly respected attorney, the more personal side of Jon is what I
would really like to talk about. He was so real; no artifice, no guile, no con. What you
saw was what you got with Jon. He was totally unaffected and unassuming, dead
honest, but probably the most important fact of Jon's character was his abiding concern
about other people. He had friends in all walks of life, and he spent a lot of his life
trying to help others. . . . He knew and was close to people in the highest government
circles and he was friend and counselor to the poor and the needy and the
disadvantaged. His girls were the basis of his life as he was theirs. He gloried in the
successes and achievements of others . . . he was totally selfless. Jon was one of the few
people that I've known who never in my presence made a mean, petty or unkind remark
about another person. That rare quality of Jon's was felt, if not understood, by people
throughout this State. I never went anywhere in the State of Nevada but that someone,
usually a number of people, did not ask about Jon Collins. He knew and was respected
by everyone, and loved by all those who knew him well. He leaves a void in our lives
and we will miss him.

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